DAYSHONE HENDERSON v. BOARD OF REVIEW DEPARTMENT OF LABOR and THE CITY OF NEWARK

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2048-07T32048-07T3

DAYSHONE HENDERSON,

Appellant,

v.

BOARD OF REVIEW,

DEPARTMENT OF LABOR

and THE CITY OF NEWARK,

Respondents.

________________________

 

Submitted October 15, 2008 - Decided

Before Judges Parker and LeWinn.

On appeal from the Board of Review, Department of Labor, Docket No. 161,631.

Dayshone Henderson, appellant pro se.

Anne Milgram, Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Brady Montalbano Connaughton, Deputy Attorney General, on the brief).

Julien X. Neals, Corporation Counsel, Newark Department of Law, attorney for respondent City of Newark, joins in the brief of respondent Board of Review.

PER CURIAM

Dayshone Henderson appeals the December 10, 2007 final decision of the Board of Review (the Board), affirming the October 9, 2007 decision of the Appeal Tribunal (the Tribunal) finding her disqualified for unemployment benefits for having left her employment voluntarily without good cause attributable to the work, pursuant to N.J.S.A. 43:21-5(a).

According to appellant's testimony before the Tribunal, she was employed as a Senior Program Monitor with the City of Newark (the City) from April 4, 1997, until her departure on August 3, 2007. In the time period immediately prior to her departure, the City was offering buyouts to a number of employees in order to "minimize" an impending "forcible reduction." Also during this period, appellant claimed that she was experiencing a hostile work environment; she claimed that co-workers were harassing her because she had complained to the Mayor about problems in her department and had asked him to arrange a transfer for her.

Yolanda Haynes, a representative of appellant's employer, testified before the Tribunal that the buyout was a voluntary severance incentive program, which was "necessary to operate municipal departments at a level that taxpayers can afford." Appellant voluntarily accepted the buyout and resigned on August 3, 2007.

As found by the Tribunal examiner:

The claimant worked for the . . . employer, as a senior program monitor, from 4/4/97 through 8/3/07. The claimant accepted a buy out package from the employer. She was not told that she would be discharged. The employer did tell the claimant that the decision was hers to decide to accept the package. There was no reduction in force at the time of the buy out. The claimant received a severance with the buy out.

Based on those findings, the Tribunal concluded: "As she was not told that she was discharged such is held as voluntar[il]y leaving under the law. Therefore[,] the claimant is disqualified for benefits under N.J.S.A. 43:21-5(a) as of 7/29/07, as the claimant left work voluntarily . . . without good cause attributable to the work . . . ."

The Board "agree[d] with the decision reached" by the Tribunal "[o]n the basis of the record below . . . ." The Board found that appellant "was given a full and impartial hearing and a complete opportunity to offer any and all evidence, [and] there is no valid ground for a further hearing." The Board noted further that, "the claimant would not have left her employment if the buy out had not been offered or if she understood that she would be disqualified for unemployment benefits if she accepted the buy out."

On appeal, appellant presents the following argument for our consideration:

I . . . ACCEPTED AN INCENTIVE PACKAGE DUE TO MY HARSH AND HORRIFIC WORK CONDITION. I HAD GOOD CAUSE TO LEAVE THAT CRUEL WORK ENVIRONMENT. I WAS BEING RETALIATED AGAINST DUE TO SPEAKING WITH THE MAYOR ABOUT AN EXTERNAL TRANSFER FROM WITHIN MY DEPARTMENT. MY HEALTH, WELL-BEING, AND STATE OF MIND WERE IN DANGER. MY WORK CONDITIONS WERE VERY HARMFUL TO MY HEALTH. THE STRESS AND BACKLASH FROM THE JOB W[ERE] LITERALLY CAUSING EMOTIONAL DISTRESS.

Having reviewed this contention in light of the record and the applicable law, we affirm.

In her testimony before the Tribunal, appellant stated that, once it was known that she had spoken to the Mayor, she was subjected to harassment and unwarranted disciplinary action within her department. She stated: "[I]t was time for me to leave because I knew that they were going to fire me." When she asked her director what would happen if she remained, she was informed, "[W]ell[,] if you stay you may get more work, you['re] going to get more work . . . . you're going to be doing maybe three or more job[s]."

Appellant asserts that she took a medical leave "due to stress and harassment from the job[,]" and appends two "return to work" authorizations from Dr. Kumar Ramdas, dated May 4 and June 1, 2007. However, it does not appear that appellant presented this evidence before the Tribunal. In any event, the record clearly demonstrates that appellant left her employment on August 3, 2007, by accepting the proffered buyout incentive program.

We have recognized that "an employee's acceptance of a 'severance package' or 'early retirement incentive package' bars [her] from receiving unemployment benefits unless [the employee] shows [she] accepted the package because of a real, imminent, and substantial risk of losing [her] job." Fernandez v. Bd. of Review, 304 N.J. Super. 603, 607 (App. Div. 1997). In Brady v. Bd. of Review, 152 N.J. 197 (1997), the Supreme Court held that individuals who accept severance packages will be disqualified for unemployment benefits under N.J.S.A. 43:21-5(a), unless they "establish by 'definitive objective facts,' (1) a well-grounded fear of 'imminent layoff' and (2) that they 'would suffer a substantial loss by not accepting early retirement.'" Id. at 222.

Appellant has failed to satisfy these requirements. Therefore, she was properly found to be disqualified from benefits.

"The judicial capacity to review administrative agency decisions is limited." Id. at 210. We will not reverse an agency decision unless it is "'arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole.'" Barry v. Arrow Pontiac, Inc., 100 N.J. 57, 71 (1985) (quoting Gloucester Cty. Welfare Bd. v. N.J. Civ. Serv. Comm'n, 93 N.J. 384,391 (1982)). In determining whether an agency decision is supported by substantial credible evidence, we are obligated to accord deference to the administrative agency's factfinding. Doering v. Bd. of Review, 203 N.J. Super. 241, 245 (App. Div. 1985).

Pursuant to this standard of review, we conclude that the record in this case contains substantial credible evidence supporting the Board's determination that appellant voluntarily accepted a buyout and left her employment without good cause attributable to the work. Therefore, she is disqualified from receiving unemployment benefits.

Affirmed.

 

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A-2048-07T3

December 4, 2008