MARGARET M. PROSINSKI v. BOARD OF REVIEW, DEPARTMENT OF LABOR et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5964-04T15964-04T1

MARGARET M. PROSINSKI,

Petitioner-Appellant,

v.

BOARD OF REVIEW,

DEPARTMENT OF LABOR and

CAMDEN COUNTY BOARD OF

CHOSEN FREEHOLDERS,

Respondents-Respondents.

_______________________________________________________________

 

Submitted February 1, 2006 - Decided February 17, 2006

Before Judges Wefing and Graves.

On appeal from a Final Decision of the Board

of Review, Department of Labor, Docket No.

72,480.

Margaret M. Prosinski, appellant pro se.

Zulima V. Farber, Attorney General, attorney for

respondent Board of Review (Patrick DeAlmeida,

Assistant Attorney General, of counsel; Andrea R.

Grundfest, Deputy Attorney General, on the brief).

M. Lou Garty, County Counsel, attorney for

respondent Camden County Board of Chosen

Freeholders (Catherine Binowski, Assistant

County Counsel, on the brief).

PER CURIAM

Claimant Margaret M. Prosinski appeals from a final agency decision of the Board of Review (the Board) which upheld a determination by the Appeal Tribunal that she was disqualified for unemployment benefits pursuant to N.J.S.A. 43:21-5(a), because she left work voluntarily on March 31, 2005, without good cause attributable to such work. We affirm.

Claimant was employed by the County of Camden (the County) from August 1978 until March 31, 2005. In December 2004, Camden County offered a voluntary separation plan to all employees that had fifteen years or more of service with the County. Employees who accepted the voluntary separation plan received a lump-sum payment equal to one-half of their base salary in 2004. Because she elected to accept the plan and terminate her employment with the County, claimant received a lump-sum payment in addition to other benefits.

In April 2005, claimant filed for unemployment benefits, but a Deputy to the Director of the Division of Unemployment Insurance found that she "voluntarily accepted an early retirement separation plan offered by the Camden County Board of Social Services. Continuing work was available, and your job would not have been in jeopardy had you refused the offer." Claimant appealed to the Appeal Tribunal.

Following a hearing on May 12, 2005, the Appeal Tribunal determined that claimant was disqualified for benefits because she left her job voluntarily without good cause attributable to the work. Quoting from Fernandez v. Board of Review, 304 N.J. Super. 603, 609 (App. Div. 1997), the Appeal Tribunal noted that "[t]he mere threat or possibility of a layoff constitutes an insufficient basis to trigger the right to receive benefits." In addition, the Appeal Tribunal found that claimant "was given a choice to continue working or to accept the incentive to leave," and she "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 by accepting the package had no impact on allowing other employees to continue to work."

Claimant now argues that she left her position with the County "because I was unsure of my status and future if I did not take the package. This therefore, is a situation where a voluntary quit constitutes good cause attributable to the work. Therefore, this claimant should not be disqualified." At the Appeal Tribunal hearing, however, claimant was asked whether she would still be working for the County if she had not accepted the incentive package, and she answered: "Yes. I planned on retiring maybe [at] the end of 2006." She also acknowledged that she was never given "any kind of documentation that would suggest that [her] employment would have been severed." And the employer's representative, Frank Gorman, confirmed that if she had not accepted the incentive plan, she would have continued her employment with the County at her same salary.

The scope of our review of an agency decision, of course, is limited. We accord the presumption of validity to the agency's decision, which will be sustained unless it is arbitrary, capricious, or unreasonable, or is not supported by substantial credible evidence in the record as a whole. See, e.g., R & R Mktg., L.L.C. v. Brown-Forman Corp., 158 N.J. 170, 175 (1999); In re Taylor, 158 N.J. 644, 657 (1999); Brady v. Bd. of Review, 152 N.J. 197, 210 (1997); see generally, Pressler, Current N.J. Court Rules, comment 7.2 on R. 2:10-2 (2006).

In this case, the record fully supports the finding by the Board that claimant left her employment because she willingly accepted the early separation plan. The burden of establishing entitlement to unemployment benefits under N.J.S.A. 43:21-5(a) is on the claimant, N.J.A.C. 12:17-9.1(c); Brady v. Board of Review, 152 N.J. at 218, and claimant has failed to demonstrate that she accepted the incentive plan because of a well-founded belief that she faced "a real, imminent, and substantial risk of losing [her] job." Fernandez v. Bd. of Review, supra, 304 N.J. Super. at 607; accord Brady v. Bd. of Review, supra, 152 N.J. at 215-16. On the contrary, the record clearly establishes that claimant was not threatened with the imminent loss of employment if she elected not to accept the separation plan offered by her employer. Accordingly, the Board correctly decided that she was ineligible for unemployment compensation benefits.

 
Affirmed.

(continued)

(continued)

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A-5964-04T1

February 17, 2006