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Lukaszewski v. Board of Review

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 18, 2008

ANTOINETTE LUKASZEWSKI, PETITIONER-APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR AND VERIZON,*FN1 RESPONDENTS-RESPONDENTS.

On appeal from the Board of Review, Department of Labor 16,403.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 26, 2008

Before Judges Fuentes, Grall and Chambers.

Petitioner, Antoinette Lukaszewski, appeals from the final decision of the Board of Review denying her application for unemployment compensation benefits. She was among a group of Verizon employees who accepted a voluntary separation benefits package.*fn2

Lukaszewski was a member of the Communication Workers of America ("CWA"). She worked for Verizon as a sales consultant for approximately four years. From July 1, 2002 through January 27, 2003, she was on disability leave; thereafter, she was placed on maternity leave for another year, and was expected to return to work on January 26, 2004.

Lukaszewski first learned of the voluntary separation package, Enhanced Income Security Plan ("EISP"), when she received the actual package from Verizon. According to Lukaszewski, when she read words such as "surplus" and "reduction in force" in the packet, she became anxious, fearing her job was in jeopardy.

Given her maternity leave status, she did not have access to the company's internal e-mail system; she thus did not receive Verizon's October 9, 2003 e-mail sent to all affected employees, explaining that there were no immediate plans for any layoffs. Because she had been on leave status for more than a year, she also feared that she would be in need of training, thus placing her at a greater risk for termination. Mindful of these considerations, she decided to accept Verizon's EISP incentive package.

Lukaszewski applied for unemployment benefits on November 30, 2003; she was initially found eligible for benefits, after her maternity leave was complete on January 26, 2004. On appeal, the Appeal Tribunal reversed, finding she had voluntarily left her employment without good cause attributable to such work; the Board of Review affirmed the decision of the Appeal Tribunal.

Petitioner now argues before us that she had a rational, objective basis to conclude that she was in imminent fear of losing her job. We disagree.

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."

In Brady v. Board of Review, the Supreme Court established that if employees volunteer to accept an early retirement incentive package, they are disqualified from receiving unemployment benefits under N.J.S.A. 43:21-5(a), unless they "establish by 'definite objective facts,' (1) a well-grounded fear of 'imminent layoff' and (2) that they 'would suffer a substantial [economic] loss by not accepting early retirement.'" 152 N.J. 197, 222 (1997). The claimant bears the burden of proof to establish he/she has the right to collect benefits. Id. at 218 (citing Zielenski v. Bd. of Review, 85 N.J. Super 46, 51 (1964)).

Furthermore, under N.J.A.C. 12:17-9.5:

If an individual leaves work after he or she is notified by the employer of an impending layoff or discharge, he or she shall be subject to disqualification for benefits unless the individual will be separated within 60 days. For purposes of this section, imminent layoff or discharge is one in which the individual will be separated within 60 days. [(Emphasis added).]

There is nothing in the record before us that indicates that Verizon actually or constructively provided petitioner with a rational basis to conclude that she would be terminated within sixty days of receiving the EISP. Stated differently, petitioner has not met her burden of showing that she is legally entitled to receive unemployment benefits. See Brady, supra, 152 N.J. at 218.

Affirmed.


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