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Keith v. Board of Review

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 25, 2008

PATRICIA J. KEITH, APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR AND THE MANOR GROUP, RESPONDENTS.

On appeal from a final decision of the Board of Review, Department of Labor and Workforce Development, Docket No. 141,267.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 7, 2008

Before Judges Stern and Collester.

Claimant, Patricia J. Keith, appeals from the final administrative determination of the Board of Review, mailed on April 17, 2007, affirming the decision of the Appeal Tribunal, determining that she "is ineligible for additional benefits during training as provided by N.J.S.A. 43:21-60 and N.J.A.C. 12:23-5.1." In so holding, the Board of Review affirmed the Deputy's determination that she was ineligible for unemployment benefits during training "on the ground that she was not permanently separated from employment due to a substantial reduction in work opportunities in the claimant's job classification at the former work-site." According to appellant, she: was hired as an assistant manager at the California Apartments on March 23, 2005.

The parent company of the California Apartments is The Manor Group. Plaintiff was a full-time employee, working Monday through Friday from 9 a.m. to 5 p.m. and on Saturday from 9 a.m. to 1 p.m. She was the only assistant manager of that worksite. A new manager with a lot of experience was hired, and the position of assistant manager was eliminated. Her last day on the job was July 13, 2006.

Plaintiff enrolled at Atlantic Cape Community College and became a student in the "Work Force" program. She applied for additional unemployment benefits during training.

We accept, for present purposes, the claimant's recitation of fact which was consistent with the Appeal Tribunal's determination that her job was eliminated on July 13, 2006, and that unemployment benefits in the amount of $10,478 were paid thereafter. The issue under review is whether or not she was entitled to "additional unemployment benefits," in light of N.J.S.A. 43:21-60(a), which provides that those benefits shall be provided any individual who: has received a notice of permanent termination of employment by the individual's employer or has been laid off and is unlikely to return to his previous employment because work opportunities in the individual's job classification are impaired by a substantial reduction of employment at the worksite[.]

This statutory provision is implemented by the Department of Labor and Workforce Development by N.J.A.C. 12:23-5.1(a)(2). The Appeal Tribunal, which was affirmed by the Board of Review, emphasized the need for a "substantial reduction in work opportunities" at the former work site, and found that "[i]n this case, the claimant's separation was due to an isolated termination rather than a substantial reduction in work opportunities in the claimant's job classification" and that she was therefore "ineligible for additional unemployment benefits during training . . . ."

Before us claimant argues that "the elimination of the position of assistant manager at the California Apartments constitutes a substantial reduction in employment and work opportunities in her job classification" at claimant's former work-site, making her eligible for additional benefits during training. She asserts that "the findings of the Appeal Tribunal were clearly unjust and resulted from an obvious overlooking or under evaluation of the evidence." She asserts that:

[s]he did not decide to leave the job for personal reasons, and she was not terminated for cause. She was permanently terminated from her employment because her position as assistant manager was eliminated from the California Apartments, her worksite. She was not offered any other position with the employer. The elimination of the position of the assistant manager at the California Apartments constitutes a substantial reduction of employment at the worksite because there were only two positions at the time; a manager and assistant manager.

We agree with plaintiff that "the elimination of the position of assistant manager means that it is unlikely that plaintiff can return to this position because the work opportunities in her job classification are impaired . . . ." But as claimant acknowledged before the Appeal Tribunal, her prior employer hired a manager "that they felt was capable of running the place," whereas she "had really no formal training and was just kind of trying to muddle through without much help and they hired someone with a lot of experience and felt that they didn't need [her] services." She added that "they have now two part time people working there" whereas she was "full time." Stated differently, there are now people who replaced her whereas she was "the only one who was [eliminated]." Under these facts, we cannot conclude that there was not substantial evidence in the record as a whole to sustain the determination of the Board of Review. See Brady v. Bd. of Review, 152 N.J. 197, 210 (1997); Mullarney v. Bd. of Review, 343 N.J. Super. 401, 406 (App. Div. 2001); Ford v. Bd. of Review, 287 N.J. Super. 281, 283 (App. Div. 1996); see also Bonilla v. Bd. of Review, 337 N.J. Super. 612 (App. Div. 2001) (affirming denial of additional benefits when claimant left job for health reasons); Bose v. Bd. of Review, 303 N.J. Super. 619 (App. Div. 1997) (which does not involve N.J.S.A. 43:21-60(a) or a reduction in force).

The final determination of the Board of Review is affirmed.

20080425

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