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Hetherington v. Board of Review

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 27, 2008

NANCY D. HETHERINGTON, APPELLANT,
v.
BOARD OF REVIEW AND BAYER HEALTHCARE LLC, RESPONDENTS.

On appeal from the Board of Review, Department Labor, Docket No. 161,692.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 8, 2008

Before Judges Stern and A.A. Rodríguez.

Nancy Hetherington appeals from the final administrative determination of the Board of Review, mailed November 26, 2007, which affirmed the Appeal Tribunal's determination that she was disqualified for benefits under N.J.S.A. 43:21-5(a) because she "left work voluntarily without good cause attributable to the work."

Claimant was a global marketing manager for Bayer Aspirin. After a business meeting, the claimant was asked to undergo a psychiatric evaluation to determine if she was "fit for duty." Even though she passed the evaluation, claimant approached the Human Resources Department and asked for consideration of a severance package. The Appeal Tribunal, affirmed by the Board of Review on the record made, determined that the employer had the right to request the evaluation, that claimant initiated the separation when she requested that the employer offer her a separation package in lieu of her resignation, and that since her employment was "not in jeopardy," her acceptance of the package was a "voluntary" quit.

Claimant contends that at the meeting giving rise to the request for the evaluation, she was bullied on that occasion and previously by the German males in attendance, and that her job was in "a hostile and discriminatory work environment." Claimant asserts that she "was subjected to a discriminatory practice as she was compelled to submit to a psychiatric evaluation . . . even though she had been frequently antagonized and bullied by male colleagues who were not" similarly treated, and that since she "left her job . . . because the conditions were severe . . . and discriminatory," her departure was not voluntary. However, claimant admitted before the Appeal Tribunal that, while she felt that she was "being forced literally out of the company," she did not resign and she "went in to see HR" about two days after the evaluation and asked about a "package deal . . . to bring this situation to an end." She admitted that she did not resign because she thought her manager was "going to get rid of" her and resigned because of the psychiatric evaluation.

As long as she raised the issue of severance and no one asked her to leave or to resign after the evaluation resulted in the conclusion she was "fit for duty," we must affirm the determination. Claimant asked Bayer to "consider what level of package they would give [her] for this relationship to end," and she may have stayed in the absence of getting the package. See, e.g., Brady v. Board of Review, 152 N.J. 197, 221-22 (1997) (noting scope of review and finding claimants were not entitled to unemployment benefits when they voluntarily elected to take a retirement package).

Affirmed.

20081027

© 1992-2008 VersusLaw Inc.



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