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Barnes v. Board of Review

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 28, 2009

MARILYN BARNES, APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR AND VERIZON NEW JERSEY, INC., RESPONDENTS.

On appeal from the Board of Review, Department of Labor, Docket No. 175,127. Marilyn Barnes, appellant pro se.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 16, 2009

Before Judges Lisa and Collester.

Appellant, Marilyn Barnes, appeals from the May 12, 2008 final decision of the Board of Review (Board), which affirmed the March 13, 2008 determination by the Appeal Tribunal that she was disqualified for benefits under N.J.S.A. 43:21-5(a) because she left work voluntary without good cause attributable to the work, and that she was liable for refunding benefits erroneously paid to her in the sum of $2144. We affirm.

Appellant was employed by Verizon New Jersey, Inc. (Verizon) since 1967. In 2007, she was a circuit layout assigner. She accepted an early retirement incentive package offered by Verizon and terminated her employment on November 16, 2007. She has since relocated to Florida.

Appellant had declined the same retirement package in 2006. When it was offered again in 2007, she accepted it. As a result, she received a lump sum severance payment of $66,000, a voluntary termination bonus of $10,000, an expense payment not to exceed $3750, $211,000 from her 401K plan, and $403,000 from Verizon's pension fund.

Appellant contended she accepted the package because "[t]here was a reduction in the work force. That's why I accepted this package this time around. And also because of the technology that is rendered I mean I was dealing with inescapable reality. My job was basically you know obsolete." However, appellant acknowledged that she received no layoff notice, nor did she receive any information indicating that Verizon would terminate her employment at any time. Further, the record establishes that appellant had very high seniority and, most significantly, her contract contained a no layoff clause. Appellant's supervisor explained it this way: "We don't lay people off.... They only offer [a] package to them[;] if they don't accept the package then there is nothing really that we can do to make them leave the payroll. They can still have a job. We have to find a job for them." Appellant acknowledged that if she had not accepted the package she would still be employed by Verizon.

Based upon these facts, the Appeals Examiner affirmed the decision of the Deputy Director finding appellant disqualified for benefits because she left the employment without good cause attributable to the work. The Appeals Examiner also affirmed the decision of the Division Director finding appellant liable for refund of the $2144 in benefits erroneously paid to her. In its final decision, the Board agreed with the decision reached by the Appeals Examiner and affirmed her determination in both respects. This appeal followed.

The scope of our review is very limited. We will not interfere with the Board's decision unless it is arbitrary, capricious or unreasonable, or it is not supported by substantial credible evidence in the record as a whole. Brady v. Bd. of Review, 152 N.J. 197, 210-11 (1997). We are satisfied that the Board's decision was evidentially supported, in compliance with the governing law, and reasonable. An employee who voluntarily accepts an early retirement package has not left the employment for good cause attributable to the work under N.J.S.A. 43:21-5(a) unless he or she can establish by clear and objective facts a well-grounded fear of imminent layoff and that substantial loss would be suffered by not accepting the package. Id. at 222. Appellant made no such showing here. She was properly disqualified from benefits. Further, there can be no question that she is liable for refunding the benefits erroneously paid to her. N.J.S.A. 43:21-16(d); Bannan v. Bd. of Review, 299 N.J. Super. 671, 674 (App. Div. 1997).

Affirmed.

20090728

© 1992-2009 VersusLaw Inc.



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