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Modugno v. Board of Review

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 29, 2008

KATHLEEN R. MANCINI MODUGNO, APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR AND XEROX CORPORATION, RESPONDENTS.

On appeal from the Board of Review, Department of Labor, Docket No. 145-016.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 21, 2008

Before Judges S.L. Reisner and Gilroy.

Claimant Kathleen Mancini-Modugno*fn1 appeals from a final decision of the Board of Review dated May 23, 2007, denying her claim for unemployment benefits. We affirm.

I.

Claimant was employed as a contract manager for Xerox Corporation. In 2006, Xerox offered certain of its employees the opportunity to participate in a voluntary reduction in force (VRIF) program pursuant to which they would retire in exchange for additional economic incentives. Claimant applied to participate and was accepted; accordingly her last day of work was December 29, 2006. She applied for unemployment benefits, which were initially granted. Xerox filed an appeal, and, following a hearing, an appeals examiner determined that claimant was not entitled to benefits.

The Appeal Tribunal found as a fact that

[Claimant] left the work voluntarily and accepted an incentive to leave the work. The claimant accepted the package because she did not know if [she] would be laid off in the future. She was not told that she would be laid off or transferred.

There was continuing work available with the listed employer.

The mere threat or possibility of layoff constitutes an insufficient basis to trigger the right to receive benefits.

In the case herein, the claimant was given a choice to continue working or to accept the incentive to leave. The claimant accepted the employer's offer due to the uncertainty of the future. However, there is no evidence that there was a real or immediate threat to the claimant's employment and the claimant is considered to have left work voluntarily without good cause attributable to such work. Consequently, the claimant is disqualified for benefits under N.J.S.A. 43:21-5(a) . . .

The Board of Review adopted the decision of the Appeals Tribunal.

II.

Our review of the agency's decision is limited. We will not disturb the agency's determination unless the decision is arbitrary, capricious, unreasonable or not supported by substantial credible evidence. Brady v. Board of Review, 152 N.J. 197, 210 (1997); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). Having reviewed the entire record, we find no such infirmity in the agency's decision here.

Unemployment compensation is generally not available to employees who voluntarily leave the workforce. See N.J.S.A. 43:21-5(a)(An employee is disqualified for benefits if the employee "has left work voluntarily without good cause attributable to such work."). As the Supreme Court held in Brady v. Board of Review, supra, with very narrow exceptions, unemployment compensation is not available to an employee who voluntarily accepts an employer's retirement incentive. An employee who participates in a voluntary reduction in force must show that her layoff was "imminent" or at least that the employer convinced the employee that the layoff was imminent. Id. at 218. The employee must also demonstrate that she would have suffered "significant economic harm" (such as loss of health benefits or a substantial cut in pay) if she did not take the retirement incentive when it was offered. Id. at 219-20. A "subjective fear" of an eventual layoff is insufficient. Id. at 219; see also In re N.J.A.C. 12:17-9.6, 395 N.J. Super. 394 (App. Div. 2007)(invalidating regulations inconsistent with Brady).

On this appeal, claimant admits that she accepted the voluntary separation package from Xerox, although, according to her brief "[n]o one told me that my job would be eliminated." Of course, after she left employment, her job was eliminated, since that was the purpose of a voluntary reduction in force -to reduce the workforce through voluntary separations rather than by laying off employees. She also contends that although she volunteered for the VRIF, it was ultimately the employer's choice as to which employees would be allowed to participate.

On this basis, she argues that "Xerox, in the end, made the decision . . . to terminate her." None of these contentions entitle her to unemployment compensation. See Brady v. Board of Review, supra, 152 N.J. at 219-21.

Claimant also contends that she was told that her compensation would be changed in 2007 to straight salary, eliminating commissions and bonus trips for "over achievement." However, she does not quantify this alleged reduction in compensation, and hence does not establish that it was "substantial." Brady, supra, 152 N.J. at 220. She further asserts that she did not like working with one of her co-workers, who was not motivated to work as hard as she did. Claimant also complains that her employer delayed in providing her with a desk for her home office. She therefore "decided it was time to leave Xerox."

Claimant did not raise any of these three contentions at the hearing before the Appeals Tribunal, and cannot raise them for the first time on appeal. However, even if we consider them, they are without merit. "A claimant has the 'responsibility to do whatever is necessary and reasonable in order to remain employed.'" Heulitt v. Board of Review, 300 N.J. Super. 407, 414 (App. Div. 1997)(citation omitted).

Affirmed.


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