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Serrano v. Board of Review

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


September 23, 2008

MARISOL SERRANO, APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR AND KAFIR ENTERPRISES (THE LEARNING PLACE), RESPONDENTS.

On appeal from the Board of Review, Department of Labor, Docket No. BR 161,664.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 17, 2008

Before Judges Fisher and C.L. Miniman.

Marisol Serrano, who was employed by The Learning Place as a teacher's assistant from October 2004 through May 2007, appeals a final agency decision that found her ineligible for "additional benefits during training" (ABT) following her discharge from employment. We conclude that the agency decision that Serrano was not entitled to ABT was neither arbitrary, capricious, nor unreasonable, and, accordingly, we affirm.

The board's decision was based upon the requirements of N.J.S.A. 43:21-60(a), which provides that ABT is available when the claimant has been terminated or 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." In previously considering the meaning and scope of this statute, as well as the implementing regulation, See N.J.A.C. 12:23- 5.1(a)(2), we held that

[N.J.S.A. 43:21-60(a)] is economically driven legislation that has the obvious purpose of enabling individuals who are economically displaced from their employment to be paid benefits while acquiring new skills to re-enter a more marketable area of the economy. It is thus clear to obtain [ABT], the claimant must be fired or laid off and be unlikely to return to that job because of a "substantial reduction of employment at the worksite."

[Bonilla v. Bd. of Review, 337 N.J. Super. 612, 615-16 (App. Div. 2001).]

Accordingly, in determining whether ABT is available, it is necessary to consider the reason for the claimant's departure from the workplace.

Here, it was found that Serrano was dismissed from her position for speaking too loudly to one of the students.

Because this termination was for cause and did not result from a reduction in the workforce at The Learning Place, the board determined that Serrano was not eligible for ABT.

After careful review of the record, we conclude that the board correctly interpreted N.J.S.A. 43:21-60(a). Serrano was the only employee terminated at that time and there is no evidence to suggest that her termination was part of a "substantial reduction of employment at the worksite." The findings upon which the board's decision rested are "supported by substantial credible evidence in the record as a whole."

Barry v. Arrow Pontiac, Inc., 100 N.J. 57, 71 (1985). As a result, we have no cause to second guess the decision under review and must conclude that the agency decision is neither arbitrary, capricious nor unreasonable.

Affirmed.

20080923

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