On appeal from the Board of Review, Department of Labor, Docket No. 127,636.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parker and R. B. Coleman.
Claimant Curtis R. Ward appeals from a Final Decision of the Board of Review (Board) rendered on December 22, 2006 denying his application for additional unemployment benefits during training, pursuant to N.J.S.A. 43:21-60(a) and N.J.A.C. 12:23-5.1(a). We affirm.
Claimant was employed full time as a security guard at the North Ward Center in Newark. He was discharged on February 3, 2006. He contends that he was terminated because "they decided that they no longer needed my position." He was granted unemployment benefits and subsequently applied for additional benefits for training (ABT). The application was denied on the grounds that the employer claimed that he was discharged "for poor work performance." The unemployment office conducted a fact-finding interview and likewise determined that claimant was terminated for poor work performance. In response, claimant presented a letter from the employer dated September 20, 2006, which recited that his termination "was agreeable in nature, and related to our changing needs of our personnel."
Claimant had previously filed a claim against his employer with the Equal Employment Opportunity Commission (EEOC) alleging discrimination on the basis of race and gender.*fn1 On May 12, 2006, the parties reached a settlement on that claim. As part of the settlement, claimant agreed to dismiss his claims and in return the North Ward Center would pay him $7,500. The employer also agreed to issue a neutral letter of reference, but made no other representations regarding guarantees of future employment or of unemployment benefits. We presume that the September 20, 2006 letter provided by claimant was tendered as the neutral letter discussed in the settlement agreement.
The Appeal Tribunal conducted a telephonic hearing on November 2, 2006. Mr. Ward was the only witness who participated in the hearing. He acknowledged that he was suspended from work for two weeks starting on February 4, 2006. Afterwards, he was terminated. He indicated he had heard two other people from his department had been let go, but he had no knowledge of the exact date or reason for their departure. After the Appeal Tribunal hearing, it was determined that claimant was not eligible for ABT because he was not permanently separated from his employment due to a substantial reduction of the workforce at the North Ward Center. N.J.S.A. 43:21-60(a) provides that ABT shall be provided to any individual who [h]as 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 . . . .
The tribunal concluded that "the claimant's separation was due to him being terminated. Therefore, he is disqualified for additional benefits during training (ABT) . . . ."
The claimant filed his appeal with the Board on November 29, 2006. The Board mailed its decision on December 22, 2006. It adopted the findings of fact made by the Appeal Tribunal and simply stated that claimant had "no valid ground for further hearing." Claimant then filed his Notice of Appeal with this court.
Our review of a final decision of an administrative agency is limited. In re Taylor, 158 N.J. 644, 656 (1999). The scope of review "is the same as that [for] an appeal in any non-jury case, i.e. 'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record' considering 'the proofs as a whole,' with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). The "appellate court may not 'engage in an independent assessment of the evidence as if it were the court of first instance.'" Taylor, supra, 158 N.J. at 656 (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). "The choice of accepting or rejecting testimony of witnesses rests with the administrative agency, and where such choice is reasonably made it is conclusive on appeal." In re the Application of the Howard Sav. Bank, 143 N.J. Super. 1, 9 (App. Div. 1976).
"It is well-settled that the claimant normally has the burden of establishing entitlement to unemployment compensation. This applies to ABT claims under N.J.S.A. 43:21-60 . . . ." Bonilla v. Bd. of Review, 337 N.J. Super. 612, 615 (App. Div. 2001) (citations omitted). The record established in this case does not support a conclusion that Mr. Ward was terminated as part of a "substantial reduction of employment" at the North Ward. N.J.S.A. 43:21-60(a).
At the telephonic hearing, claimant asserted that he had heard from other workers at the North Ward that some of his previous co-workers had been fired. This contention was unsupported by other credible evidence and constituted rank speculation and hearsay. Even if true, the departure of two other workers from the North Ward Center would not constitute a substantial reduction in the work force. The Appeal Tribunal and the Board denied claimant's request for additional unemployment benefits based on his failure to ...