June 18, 2008
KENNETH JAEGER, PETITIONER-APPELLANT,
BOARD OF REVIEW, DEPARTMENT OF LABOR AND VERIZON,*FN1 RESPONDENTS-RESPONDENTS.
On appeal from the Board of Review, Department of Labor 16,403.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 26, 2008
Before Judges Fuentes, Grall and Chambers.
Petitioner Kenneth Jaeger appeals the denial of his application for unemployment compensation benefits. He worked for Verizon as an outside technician for thirty-three years. He was out on disability when he received Verizon's Enhanced Income Security Plan ("EISP"), an incentive package for voluntary separation from the company. After reviewing the materials, he decided to accept the package.*fn2 Because he was out on disability, he did not receive an e-mail sent by Verizon describing in detail the benefits of the EISP, but emphasizing that no layoffs were contemplated.
According to Jaeger, he was the most senior person in his position. Despite this seniority advantage, he believed he would be affected by any layoff plan, because he was "continually harassed by management." By way of example, Jaeger testified that he was "being followed eight hours everyday in a van on every single job [he] was working on and [he received] threats that he would lose his job, if he was not more productive."*fn3
According to Jaeger, when he came into work on March 9, 2003, his supervisor gave him a note and told him that he should contact his union representative, because they were going to have a meeting concerning certain specific jobs he had performed. He did not attend this meeting. The next day, he consulted with his doctor for the first time. Jaeger indicated that he could produce medical documentation from his doctor and social worker advising him not to return to the stressful work environment; he did not have that documentation with him at the hearing before the Appeal Tribunal.
Due to these alleged job-related health problems, he made a decision in August 2003 to retire, after exhausting all of his disability and vacation time. Thus, he planned to retire, even if the EISP had not been offered.
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 he would be terminated within sixty days of receiving the EISP. Stated differently, petitioner has not met his burden of showing that he is legally entitled to receive unemployment benefits. See Brady, supra, 152 N.J. at 222. As the record clearly establishes, Jaeger's decision to retire was completely independent from any action taken by Verizon.