KENNETH JAEGER, Petitioner- v. BOARD OF REVIEW, DEPARTMENT OF

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4233-05T34233-05T3

KENNETH JAEGER,

Petitioner-Appellant,

v.

BOARD OF REVIEW, DEPARTMENT OF

LABOR AND VERIZON,

Respondents-Respondents.

__________________________________

 

Argued February 26, 2008 - Decided

Before Judges Fuentes, Grall and Chambers.

On appeal from the Board of Review, Department

of Labor 16,403.

Todd A. Wallman argued the cause for appellant

(Lucas & McGoughran, L.L.C., attorneys;

Mr. Wallman, on the brief).

Francis J. Vernoia argued the cause for respondent

Verizon (Genova, Burns & Vernoia, attorneys;

Mr. Vernoia, of counsel; Mr. Vernoia and Kathleen

Barnett Einhorn, on the brief).

Anne Milgram, Attorney General, attorney for

respondent Board of Review (John C. Turi,

Deputy Attorney General, on the statement in

lieu of brief).

PER CURIAM

Petitioner Kenneth Jaeger appeals the denial of his application for unemployment compensation benefits. He worked for Verizon as an outside technician for thirty-three years. He was out on disability when he received Verizon's Enhanced Income Security Plan ("EISP"), an incentive package for voluntary separation from the company. After reviewing the materials, he decided to accept the package. Because he was out on disability, he did not receive an e-mail sent by Verizon describing in detail the benefits of the EISP, but emphasizing that no layoffs were contemplated.

According to Jaeger, he was the most senior person in his position. Despite this seniority advantage, he believed he would be affected by any layoff plan, because he was "continually harassed by management." By way of example, Jaeger testified that he was "being followed eight hours everyday in a van on every single job [he] was working on and [he received] threats that he would lose his job, if he was not more productive."

According to Jaeger, when he came into work on March 9, 2003, his supervisor gave him a note and told him that he should contact his union representative, because they were going to have a meeting concerning certain specific jobs he had performed. He did not attend this meeting. The next day, he consulted with his doctor for the first time. Jaeger indicated that he could produce medical documentation from his doctor and social worker advising him not to return to the stressful work environment; he did not have that documentation with him at the hearing before the Appeal Tribunal.

Due to these alleged job-related health problems, he made a decision in August 2003 to retire, after exhausting all of his disability and vacation time. Thus, he planned to retire, even if the EISP had not been offered.

N.J.S.A. 43:21-5(a) disqualifies an individual from the receipt of unemployment compensation 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."

In Brady v. Board of Review, the Supreme Court established that if employees volunteer to accept an early retirement incentive package, they are disqualified from receiving unemployment benefits under N.J.S.A. 43:21-5(a), unless they "establish by 'definite objective facts,' (1) a well-grounded fear of 'imminent layoff' and (2) that they 'would suffer a substantial [economic] loss by not accepting early retirement.'" 152 N.J. 197, 222 (1997). The claimant bears the burden of proof to establish he/she has the right to collect benefits. Id. at 218 (citing Zielenski v. Bd. of Review, 85 N.J. Super 46, 51 (1964)).

Furthermore, under N.J.A.C. 12:17-9.5:

If an individual leaves work after he or she is notified by the employer of an impending layoff or discharge, he or she shall be subject to disqualification for benefits unless the individual will be separated within 60 days. For purposes of this section, imminent layoff or discharge is one in which the individual will be separated within 60 days.

[(Emphasis added).]

There is nothing in the record before us that indicates that Verizon actually or constructively provided petitioner with a rational basis to conclude that he would be terminated within sixty days of receiving the EISP. Stated differently, petitioner has not met his burden of showing that he is legally entitled to receive unemployment benefits. See Brady, supra, 152 N.J. at 222. As the record clearly establishes, Jaeger's decision to retire was completely independent from any action taken by Verizon.

Affirmed.

 

Respondents Verizon New Jersey Inc., Verizon Services Group, Verizon New York Inc., Empire City Subway Co. LTD, Verizon Services Corp., BA Investments Development Inc., Chesapeake Directory Sales Co., Codetel Int'l Comm Inc., Global Solutions Inc., Verizon Connected Solns Inc., Verizon Directory Svcs. Inc., Verizon Ntwk Integration Corp. and Verizon Corporate Svcs. Corp. are collectively referred to as "Verizon" for purposes of this opinion.

For a complete recitation of the relevant historical events that lead to this appeal, see our opinion concerning twenty companion cases decided, back-to-back, under Docket Numbers A-3701-05T3; 3721-05T3; 3724-05T3; 3728-05T3; 3835-05T3; 3841-05T3; 3842-05T3; 3950-05T3; 3951-05T3; 3953-05T3; 3980-05T3; 4004-05T3; 4091-05T3; 4183-05T3; 4185-05T3; 4187-05T3; 4189-05T3; 4292-05T3; 4462-05T3; and 4701-05T3.

Despite this testimony, Jaeger does not refer to or even mention any incidents of harassment or of the panic and stress attacks caused by such alleged misconduct in his appellate brief.

(continued)

(continued)

5

A-4233-05T3

 

June 18, 2008