MICHELLE C. POLICARI v. BOARD OF REVIEW, DEPARTMENT OF LABOR and U.S. AIRWAYS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3090-08T23090-08T2

MICHELLE C. POLICARI,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR and U.S. AIRWAYS,

Respondents.

_______________________________________

Telephonically Argued June 11, 2010 - Decided July 21, 2010

Before Judges Grall and Messano.

On appeal from a Final Decision of Board of Review, Department of Labor, 188,030.

Joel N. Kreizman argued the cause for appellant (Evans, Osborne and Kreizman, LLC, attorneys; Mr. Kreizman, of counsel and on the brief; Stephanie E. Ullman, on the brief).

Alan C. Stephens, Deputy Attorney General, argued the cause for respondent Board of Review, Department of Labor (Paula T. Dow, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Stephens, on the brief).

Respondent U.S. Airways has not filed a brief.

PER CURIAM

Michelle C. Policari appeals from the final decision of the Board of Review (the Board) that affirmed the Appeals Tribunal's (the Tribunal) determination that she was ineligible for unemployment benefits pursuant to N.J.S.A. 43:21-5(a), i.e., that she left work voluntarily without good cause attributable to her work. We have considered the arguments she has raised in light of the record and applicable legal standards. We affirm.

Policari was initially determined to be eligible for benefits. Her employer, respondent U.S. Airways (U.S. Air), appealed that determination, and the Tribunal conducted a hearing.

The salient testimony before the Tribunal revealed that Policari had worked for U.S. Air as a customer service agent at Newark Airport since 1983. She left work on June 30, 2005, having taken a severance package offered by her employer in February. She testified that she knew the company had filed for bankruptcy protection, had closed its base of operations in Pittsburgh, and had authorized some eight hundred employees to exercise their seniority rights to relocate to other bases of operation, including Newark. She was further advised that "furloughs [we]re right around the corner," so she accepted the company's "package." This included a lump sum payment of $15,000, an extension of her benefits, and lifetime travel privileges with the airline. Despite her years of service, Policari claimed she "had only two people underneath [her]" in terms of seniority. She accepted the "package" in February, though she acknowledged she could have rescinded her decision thereafter for forty-five days.

Maria Correa, an administrative assistant with U.S. Air, testified that Policari was never told that she "w[as] going to be laid off." People with ten or more years of service were offered severance packages and were free to take them if they so chose. According to Correa, had Policari not accepted the severance package, based upon her seniority, she would still be employed with U.S. Air in 2008. Correa noted the company "didn't have any lay-offs" in 2005 and "continued to hire." She further noted that when the severance package was offered, U.S. Air was "already out of bankruptcy."

The Tribunal concluded Policari was ineligible for benefits having left work voluntarily without good cause associated with the work. Upon Policari's appeal, the Board remanded the matter "for additional testimony." A second hearing was conducted.

Policari testified that her manager, "Mr. Perria," advised her to take the severance package in 2005. She reiterated her earlier testimony that given her seniority at the time and "bumping rights," she believed "it was very likely that [she] was going to be bumped out, moved to part time, or bumped out entirely losing [her] benefits . . . ." Policari acknowledged that she spoke to no one else and "went by [her manager's] word."

Correa testified that Policari's manager, Perria, was not authorized to make any statements on behalf of the company. She claimed that severance packages were circulated, and employees were told to "talk to their union . . . and even speak to an attorney about it . . . ." She reiterated that based upon Policari's seniority, had she stayed with U.S. Air, she would now be "five out of . . . twenty-six" in terms of seniority. Correa also explained that because Policari was over forty years of age, she could have "backed out" of the package during a time when U.S. Air had announced merger plans with another carrier, America West. Correa testified that no customer service agents from the Newark area were in fact "laid off."

Policari further testified on rebuttal that during the relevant time in 2005, no one could guarantee that U.S. Air would remain solvent. Her benefits had been reduced, her compensation was reduced by thirty percent, her shift assignments had been changed, and she cited public statements from upper management at the time that expressed a bleak outlook for the company. Her union representatives "had no idea" if she would be laid off.

The Tribunal issued its second decision on November 18, 2008. It determined that Policari had left work voluntarily without good cause attributable to the work, N.J.S.A. 43:21-5(a), and disqualified her from benefits. The Board issued its decision on January 15, 2009, affirming the Tribunal's decision, and this appeal followed.

Our review of final agency action is quite limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997) (citation omitted). "[I]f in reviewing an agency decision an appellate court finds sufficient credible evidence in the record to support the agency's conclusions, that court must uphold those findings even if the court believes that it would have reached a different result." In re Taylor, 158 N.J. 644, 657 (1999) (citations omitted). Furthermore, the Board's "'interpretation of statutes and regulations within its implementing and enforcing responsibility is ordinarily entitled to our deference.'" Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J. Super. 52, 56 (App. Div. 2001) (quoting In re Appeal by Progressive Cas. Ins. Co., 307 N.J. Super. 93, 102 (App. Div. 1997)). Only if the Board's "action was arbitrary, capricious, or unreasonable" should it be disturbed. Brady, supra, 152 N.J. at 210.

N.J.S.A. 43:21-5(a) provides that "[a]n individual shall be disqualified for benefits . . . [f]or the week in which the individual has left work voluntarily without good cause attributable to such work . . . ." "In applying [N.J.S.A.] 43:21-5(a), a court must 'differentiate between (1) a voluntary quit with good cause attributable to the work and (2) a voluntary quit without good cause attributable to the work.'" Brady, supra, 152 N.J. at 213-14 (quoting Self v. Bd. of Review, 91 N.J. 453, 457 (1982)). The Court has stated:

The test of ordinary common sense and prudence must be utilized to determine whether an employee's decision to leave work constitutes good cause. Such cause must be compelled by real, substantial and reasonable circumstances not imaginary, trifling and whimsical ones. A claimant has the responsibility to do whatever is necessary and reasonable in order to remain employed.

[Brady, supra, 152 N.J. at 214 (quotations and citations omitted.]

The claimant bears the burden of proving good cause. Id. at 218.

Brady involved the appeal of the denial of unemployment benefits brought by a number of workers that had accepted an early retirement package from their employer, General Motors. Id. at 203-04. The Brady Court adopted the reasoning we applied in two of our earlier opinions, Trupo v. Bd. of Review, 268 N.J. Super. 54 (App. Div. 1993), and Fernandez v. Bd. of Review, 304 N.J. Super. 603 (1997). Brady, supra, 152 N.J. at 215-16.

[T]he Trupo court set forth two requirements that the claimants had to meet to collect unemployment benefits: (1) that claimants' "subjective fear [of imminent layoff] was based upon definitive objective facts . . . to buttress [the] belief that [their] job[s] would actually be eliminated in the impending work reduction," and (2) that claimants would suffer a substantial economic loss.

[Id. at 215 (quoting Trupo, supra, 268 N.J. Super. at 61).]

"'[A]n 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.'" Brady, supra, 152 N.J. at 216 (quoting Fernandez, supra, 304 N.J. Super. at 607). The Brady Court concluded that the claimants in that case had not demonstrated either the likelihood of imminent layoffs or substantial economic harm. Supra, 152 N.J. at 219-20.

So too in this case, the Board's determination that Policari's "subjective fear of layoff . . . was not 'based upon definitive objective facts[,]'" id. at 219 (quoting Trupo, supra, 268 N.J. Super. at 61), was amply supported by the record. Policari relied, in large part, upon the advice of her manager, someone apparently unauthorized to provide any information regarding the likelihood that she, in particular, would lose her job given the complicated bumping rights included in a negotiated union contract, and the fact that other workers throughout the entire U.S. Air workforce were being offered similar severance packages. Clearly, whether the choice made by those, perhaps more-senior workers, would impact Policari's continued employment is something Perria was not in a position to know.

Moreover, whether senior management encouraged acceptance of the severance package expressly or impliedly is not the determining factor. In Brady, supra, "management encourag[ed] workers to take advantage of the incentive retirement program[,]" and specifically debunked rumors that the plant at issue would remain open. 152 N.J. at 221-22. The Brady Court noted that the claimants "made a difficult decision, but nonetheless a personal one, to accept the early retirement package." Id. at 222.

We also attach no significance to the changes in Policari's work schedule, or the reductions in her benefits, that had gradually occurred over her last several years of employment with U.S. Air. Construed as prognostications of future financial problems at the company, they nevertheless fail to demonstrate an objectively reasonable belief of imminent discharge "specifically target[ed] [at] particular employees." Id. at 218.

Like the workers in Brady, Policari "did not do 'whatever [wa]s necessary and reasonable' in order to remain employed." Id. at 222 (quoting Heulitt v. Bd. of Review, 300 N.J. Super. 407, 414 (App. Div. 1997)). Applying the appropriate standard of review, we cannot conclude that the Board's decision was arbitrary, capricious or unreasonable . . . ." Brady, supra, 152 N.J. at 210.

Policari also claims that she was "denied . . . her due process rights" because the Tribunal's original decision was mailed out on the same day as the hearing, because Correa lacked personal knowledge regarding the company's policies, or because the Board relied on irrelevant information regarding her rescission rights. We view the argument to lack "sufficient merit to warrant" any further discussion in this opinion. See R. 2:11-3(e)(1)(E).

 
Affirmed.

During the first hearing, Correa's name appears in the transcript as "Korea."

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