On appeal from the Board of Review, Department of Labor 16,403.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Grall and Chambers.
Petitioner Jennifer Hallaert appeals the denial of unemployment compensation benefits. She worked for Verizon as a frame attendant from August 4, 1997 to November 22, 2003. Throughout her tenure with Verizon she was a member of the International Brotherhood of Electrical Workers ("IBEW"). Hallaert was among the group of Verizon employees who accepted a voluntary separation benefits package.*fn2
After reviewing the particular facts surrounding Hallaert's claim for unemployment benefits, we reverse the Board's decision denying benefits, and remand this matter for further proceedings. We are satisfied that the Board failed to consider evidence showing that, notwithstanding petitioner's clear intentions to return to work, her supervisor advised her that there were no positions available for her. If this evidence is accepted by the Board, petitioner would be entitled to benefits.
Petitioner suffers from asthma. Sometime before September 5, 2003, she applied for and was granted a short-term disability leave because of her asthma. Her duties as a frame attendant required her to climb ladders and wire telephone lines. On September 5, 2003, the employer's doctor issued a letter declaring that petitioner was cleared to return to work, provided that she was kept from dust exposure and did not perform duties where she had to climb ladders. The doctor suggested assigning her to a desk job, where she could perform her duties in a dust-free environment and avoid any activities involving exercise and climbing. If such a position was not available, the doctor advised that she should continue on disability status.
According to petitioner, her direct supervisor, Thomas Sears, told her there were no suitable positions available to her. In her appellant appendix, petitioner included a copy of a letter signed by Sears, dated December 18, 2003, confirming that: "All avenues were looked into and we could not find [petitioner] a job." Confronted with this dilemma, petitioner believed that she had no choice but to accept Verizon's incentive package, Enhanced Income Security Package ("EISP").
The Board disputes this evidence. According to the Board, at the December 16, 2003 fact finding interview, claims examiner Terrence Moran attempted to contact petitioner's supervisor, Sears, without success. Moran ultimately spoke with another Verizon representative, Patricia Potter, who told him that there were suitable jobs available for petitioner. This conflict cannot be resolved on appeal.
N.J.S.A. 43:21-5(a) disqualifies an individual from the receipt of unemployment compensation benefits "[f]or the week in which the individual has left work voluntarily without good cause attributable to such work and for each week thereafter until the individual becomes reemployed."
The Supreme Court established in Brady v. Board of Review that if an employee volunteers to accept an early retirement incentive package she is disqualified from receiving unemployment benefits under N.J.S.A. 43:21-5(a), unless she "establish[es] by 'definite objective facts,' (1) a well-grounded fear of 'imminent layoff' and (2) that [she] 'would suffer a substantial [economic] loss by not accepting early retirement.'" 152 N.J. 197, 222 (1997).
A proper application of this standard to the facts developed here requires an evidentiary hearing. Unlike the other Verizon claimants, petitioner has presented sufficient evidence that shows that she was specifically told by Verizon that there was no suitable job available for her. If Verizon informed her, prior to her accepting the buyout, that it would be unable to find a suitable position for her, then this is a "definite objective fact" demonstrative of her fear of imminent lay off. See ibid. If she can also demonstrate a substantial economic loss, she is not disqualified from receiving benefits. See ibid.
In this light, we remand this matter to allow the Board to consider this additional ...