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Pecikonis v. Board of Review

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 16, 2008

DAMIAN M. PECIKONIS, APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR, AND SHOWBOAT HOTEL & CASINO, INC., RESPONDENTS.

On appeal from a Final Decision of the Board of Review, Department of Labor and Workforce Development.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 24, 2008

Before Judges Parrillo and Messano.

Claimant, Damian M. Pecikonis, appeals from a final decision of the Board of Review, which affirmed the Appeal Tribunal's decision holding him disqualified for additional benefits during training under the Workforce Development Partnership (WDP) program on the ground that he was not permanently separated from employment due to a substantial reduction in work opportunities in his job classification at his former worksite under N.J.S.A. 43:21-60(a) and N.J.A.C. 12:23-5.1(a)(2). We affirm.

Claimant was hired by Showboat Hotel and Casino, Inc. as a food and beverage shift manager in October 2006 and was discharged on the last day of his six-month probation on April 19, 2007. Thereafter, he timely enrolled in a qualifying job training program. N.J.S.A. 43:21-61. Because he alleged that he was terminated due to downsizing of his department, claimant applied for extended unemployment benefits under the WDP program, which allows eligible individuals to receive up to twenty-six weeks of additional benefits in an amount equal to their weekly benefit rates for regular unemployment benefits while they take part in approved training programs. N.J.S.A. 43:21-57, -61. To be eligible, the individual must have received a notice of a 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. [N.J.S.A. 43:21-60(a); N.J.A.C. 12:23-5.1(a)(2).]

Although claimant alleged his position was eliminated due to corporate downsizing, he was unable to identify any other individuals who were discharged at the same time, or cite an instance of the employer reducing job opportunities at the worksite. Other than claimant's discharge, there is no record evidence of any other reduction in employment at the company at the time of claimant's separation, much less a substantial one. Based on claimant's isolated termination, the Appeal Tribunal affirmed the Deputy Director's denial of extended benefits, finding:

The claimant was last employed as a Food and Beverage Shift Manager for the above-named employer from October 2006 until April 19, 2007, when he was discharged at the end of his probation. There was no other reduction in employment at the company at the time of the claimant's separation.

A claim for unemployment benefits was filed as of 4/15/07, establishing a weekly benefit rate of $424.00 and a maximum benefit amount of $11,024.00. Benefits were paid therefrom.

After reviewing the record, the Board affirmed the Tribunal's decision, which claimant now challenges on appeal.

Our scope of review of an agency decision is limited. Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). In challenging the agency's conclusion, claimant carries a substantial burden of persuasion, and the determination by the administrative agency carries a presumption of correctness. Gloucester County Welfare Bd. v. State Civil Serv. Comm'n, 93 N.J. 384, 390 (1983). We also accord substantial deference to the agency's interpretation of the statute it is charged with enforcing. Bd. of Educ. of Neptune v. Neptune Twp. Educ. Ass'n., 144 N.J. 16, 31 (1996). We will overturn an agency determination only if it is found to be arbitrary, capricious, unreasonable, unsupported by substantial credible evidence in the record as a whole, or inconsistent with the enabling statute or legislative policy. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); New Jersey Guild of Hearing Aid Dispensers v. Long, 75 N.J. 544, 562-63 (1978).

Applying these principles, we are in accord with the Board's decision denying claimant additional benefits, which is supported by substantial credible evidence in the record as a whole. Henry, supra, 81 N.J. at 579-80. We discern no basis to disturb the Board's determination.

Affirmed.

20081016

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