June 9, 2011
DARLENE M. SARDULLO, APPELLANT,
BOARD OF REVIEW, DEPARTMENT OF LABOR AND SONY ELECTRONICS, INC., RESPONDENTS.
On appeal from the Board of Review, Department of Labor, Docket No. 240,413.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 12, 2011
Before Judges Koblitz and Hayden.
Darlene M. Sardullo appeals from a September 29, 2009 final agency decision of the Board of Review (Board), which affirmed the June 30, 2009 decision of the Appeal Tribunal finding that Sardullo was disqualified for unemployment compensation benefits pursuant to N.J.S.A. 43:21-5(a) because she left work voluntarily without good cause attributable to her employment. The Appeal Tribunal found that Sardullo voluntarily left her job after accepting an early retirement package without any evidence that her layoff was imminent. After reviewing the record in light of the contentions advanced on appeal, we affirm.
Sardullo began working as a data coordinator for Sony Electronics on May 13, 2002, when she was fifty-two years old. She intended to work until retiring at age sixty-five. In February or March 2009, she received a letter from her employer offering a retirement incentive package of one week's severance pay for every year of service and medical coverage for one year. This offer was available to all employees ages fifty-five or older, which included Sardullo, another person in her department and their manager. The employees had until the end of March 2009 to decide whether or not to accept the offer. Her manager told Sardullo that her job had been targeted for elimination. Sardullo accepted the package, leaving Sony on June 1, 2009, at age fifty-nine. At that time, she was earning approximately $41,000 annually.
Sony sent an undated notice to Sardullo stating, [A]s a result [of] the recent changes in your employment status you have the right to file for unemployment insurance benefits with your local unemployment office. Sony does not determine your eligibility for unemployment benefits and will not contest any claims. All information regarding these benefits should be directed to your local unemployment office.
On June 19, 2009, Sony sent another general notice indicating, [I]t has come to our attention that some of the unemployment compensation claims to REW*fn1 employees are being denied. The reason for this appears to be the determinations are being reviewed as voluntary. Sony Electronics announced to its employees that due to business condition[s] there would be reduction in staff. As part of this reduction Sony offered this early retirement package to certain eligible population. The program was voluntary however employees who were offered the package were encouraged to seriously considering [sic] taking it knowing that involuntary reductions would be taking place cross the organization. If you have already received notice that a claimant [sic] has been denied please follow the appeal process defined by your local state unemployment agency. Sony Electronics is not contesting REW unemployment claims however the unemployment determines whether a claim to be [sic] accepted and Sony does not dictate this outcome.*fn2
Sardullo claims that she left work because she would have been terminated had she stayed. She states that other Sony employees who made a similar choice were granted unemployment benefits. She does not specify the names of these individuals.
We review Sardullo's contentions in accordance with our standard of review. The Board's determination that Sardullo was disqualified from receiving benefits must be affirmed unless it is "arbitrary, capricious, or unreasonable" or is not supported by substantial credible evidence in the record as a whole. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). In determining whether an agency's decision is supported by substantial credible evidence, we are obliged to accord deference to the agency's fact finding. Associated Util. Servs., Inc. v. Bd. of Review, 131 N.J. Super. 584, 588 (App. Div. 1974).
We "may not vacate an agency's determination merely because of doubts as to its wisdom or because the record may support more than one result." In re Petition of Cnty. of Essex, 299 N.J. Super. 577, 591-92 (App. Div.), certif. denied, 151 N.J. 463 (1997), cert. denied, 522 U.S. 1111, 118 S. Ct. 1043, 140 L. Ed. 2d 108 (1998). "'In reviewing the factual findings made in an unemployment compensation proceeding, the test is not whether an appellate court would come to the same conclusion if the original determination was its to make, but rather whether the factfinder could reasonably so conclude upon the proofs.'"
Brady, supra, 152 N.J. at 210 (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985)). Therefore, if the record contains sufficient credible, competent evidence to support the agency's conclusions, then we must uphold them. Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988).
In its September 29, 2009 decision, the Appeal Tribunal held in part as follows:
The mere threat or possibility of layoff constitutes an insufficient basis to trigger the right to receive benefits. In the case herein, the claimant was given the choice to continue working or to accept the incentive to leave. The claimant accepted the employer's offer due to the uncertainty of the future. However, there is no evidence that there was a real or immediate threat to the claimant's employment and the claimant is considered to have left work voluntarily without good cause attributable to the work. Consequently, the claimant is disqualified for benefits . . . .
The burden of proof rests on Sardullo to establish her right to unemployment compensation. Brady, supra, 152 N.J. at 218.
At the time Sardullo's claim was denied, a section of the New Jersey Unemployment Compensation Law, N.J.S.A. 43:21-5(a), provided that a claimant is disqualified for 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 and works for four weeks in employment . . . and has earned in employment at least six times the individual's weekly benefit rate . . . . [Emphasis added.]*fn3
An employee who resigns in the absence of objective factors or conditions within the work environment demonstrating imminent danger of termination leaves work without good cause attributable to the work. Brady, supra, 152 N.J. at 219; Fernandez v. Bd. of Review, 304 N.J. Super. 603, 605 (App. Div. 1997); Trupo v. Bd. of Review, 268 N.J. Super. 54, 61-62 (App. Div. 1993). The claimants in Brady, Fernandez and Trupo all chose to accept early retirement incentive packages fearing that they would otherwise be laid off. Those courts all defined "imminent" in such a way that neither the claimants involved nor Sardullo could demonstrate that "their layoffs were imminent." Brady, supra, 152 N.J. at 218. In Brady, the Court found a layoff was not imminent where the employer generally notified its employees in December 1992 that it anticipated closing its plant by the end of 1993, because based on the timeline for closing and the claimants' seniority they "could have continued to work for several months." Brady, supra, 152 N.J. at 219. In Fernandez, supra, we held that "an employee's acceptance of a 'severance package' or 'early retirement incentive package' bars him from receiving unemployment benefits unless he shows he accepted the package because of a real, imminent, and substantial risk of losing his job." 304 N.J. Super. at 607. In Trupo, supra, we found that the claimant was disqualified from benefits where she left her employment knowing that her employer had not yet decided which employees to lay off, because her "subjective fear of losing her job was not based on any objective facts." 268 N.J. Super. at 61.
A Department of Labor regulation provides that an individual will be disqualified from unemployment benefits if she leaves employment after being notified by the employer of an "impending layoff or discharge unless the individual will be separated within 60 days." N.J.A.C. 12:17-9.5. Sardullo did not receive a layoff notice or any other indication of when she would be laid off.
Without specific demonstration that other similarly situated employees who took the severance package from Sony were found eligible for unemployment benefits, we can not evaluate the strength of her claim of disparate treatment. As the Board points out, if other similarly situated individuals were wrongly given unemployment benefits, the benefits may be recovered within four years of payment. N.J.S.A. 43:21-16(d); Bannan v. Bd. of Review, 299 N.J. Super. 671, 674 (App. Div. 1997).
The record supports the Board's conclusion that Sardullo left her employment at Sony "voluntarily without good cause attributable to such work," N.J.S.A. 43:21-5(a), and she is therefore disqualified from receiving unemployment compensation benefits.