MICHAEL C. CASTEEL v. BOARD OF REVIEW and UNITED STATES POSTAL SERVICE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1709-10T1

MICHAEL C. CASTEEL,

Appellant,

v.

BOARD OF REVIEW and

UNITED STATES POSTAL SERVICE,

Respondents.

________________________________________

March 16, 2012

Submitted March 7, 2012 - Decided

Before Judges J.N. Harris and Haas.

On appeal from the Board of Review,

Department of Labor, Docket No. 276,530.

Michael C. Casteel, appellant pro se.

Jeffrey S. Chiesa, Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ellen A. Reichart, Deputy Attorney General, on the brief).

Respondent United States Postal Service has not filed a brief.

PER CURIAM

Appellant, Michael Casteel, appeals from an order of the Board of Review affirming a decision of the Appeal Tribunal that he was disqualified for unemployment compensation benefits under N.J.S.A. 43:21-5(a) because he left work voluntarily without good cause attributable to the work. We affirm.

Casteel was employed by the United States Postal Service (USPS) from March 2004 to October 30, 2009, when he resigned his position as a postal clerk to accept an early resignation package.

In a notice dated July 24, 2009, USPS advised Casteel of a possible reassignment from his postal clerk position at the Swedesboro, New Jersey facility. The written notice he received stated that "action may result in your involuntary reassignment outside the craft in the same installation; outside the installation, in the same craft; or outside of the craft and outside of your present location."1

In September 2009, USPS sent Casteel a letter stating that the Swedesboro facility would be closing in either October or November 2010. He received a second letter stating that, when the facility closed, he would have to bid for "residual vacancies in the Clerk, Mail Handler Craft" within a 500 mile radius of Swedesboro. Casteel also read a newspaper account that indicated that his facility would be closing in March 2010, instead of later in the year.

In September 2009, USPS offered its employees a "financial incentive package" to leave their jobs voluntarily. As an incentive to resign or retire, the employees were offered $10,000, to be paid at the time they left employment, and an additional $5,000, to be paid in October 2010. The incentive package was only available until the end of October 2009.

Casteel accepted the early resignation package and resigned from USPS on October 30, 2009. He thereafter filed a claim for unemployment benefits effective January 31, 2010.

The Deputy Director disqualified Casteel from benefits, finding that he had left his work voluntarily without good cause attributable to the work. Casteel appealed and the Appeal Tribunal affirmed, finding that Casteel's decision to accept the incentive package and to resign his position "was made at a time when [he] was guaranteed five more months of employment at his work location." The Appeal Tribunal further found that Casteel's decision to accept the "lump sum pay out, while certainly a significant financial gain for [him], was personal in nature, unrelated to an imminent job elimination." Therefore, the Appeal Tribunal held that Casteel was disqualified for benefits because he had left work voluntarily without good cause attributable to such work.

Casteel appealed to the Board of Review, which affirmed on the basis of the record developed before the Appeal Tribunal. This appeal followed.

Before us, Casteel contends that his resignation was involuntary because the Swedesboro facility was going to close sometime within the next year. Therefore, he argues that he was compelled to leave when he did. We disagree.

Our review of an administrative agency decision is limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). "'[I]n reviewing the factual findings made in an unemployment compensation proceeding, the test is not whether [we] would come to the same conclusion if the original determination was [ours] to make, but rather whether the factfinder could reasonably so conclude upon the proofs.'" Ibid. (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985)). "If the Board's factual findings are supported by 'sufficient credible evidence, [we] are obligated to accept them.'" Ibid. (quoting Self v. Bd. of Review, 91 N.J. 453, 459 (1982)).

In addition, 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.

An employee is disqualified for benefits:

For 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 re-employed and works four weeks in employment . . . and has earned in employment at least six times the individual's weekly benefit rate.

[N.J.S.A. 43:21-5(a).]

An employee who has left work voluntarily has the burden of proving that he or she "did so with good cause attributable to [the] work." Brady, supra, 152 N.J. 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 Court held that "'[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.'" Id. at 216 (quoting Fernandez v. Bd. of Review, 304 N.J. Super. 603, 607 (App. Div. 1997)). In Brady, the Court found that the 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." Id. at 219.

Likewise, in Fernandez, supra, we found that a claimant who left his job because he had heard that his employer was in financial trouble and that there might be layoffs, was disqualified from benefits. We found that the claimant had not met his burden of proving that there was a real and substantial risk that he would lose his job. 304 N.J. Super. at 608. Similarly, in Trupo v. Bd. of Review, 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. 54, 61 (App. Div. 1993).

A Department of Labor regulation also provides that an individual will be disqualified from unemployment benefits if he 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.

Casteel's argument that he was effectively about to be terminated finds no support in the factual record. The Swedesboro facility was not going to close for at least another five months and, possibly, not until October 2010. Casteel was never threatened with the prospect of imminent termination. He made a personal decision to voluntarily leave work in order to secure a beneficial early resignation package.

In accord with the holdings in Brady, Fernandez and Trupo, the threat or possibility of a layoff is an insufficient basis to trigger the right to receive unemployment benefits. The Board of Review's decision that Casteel was ineligible for benefits was supported by substantial, credible evidence, and we find no reason to disturb it.

1 This notice was not part of the record before the Board of Review. Casteel has filed a motion to supplement the record to include this notice and the Board of Review has not objected to his request. We have, therefore, granted Casteel's motion to include the July 24, 2009 notice as part of the appellate record.

An amendment to N.J.S.A. 43:21-5(a), effective July 1, 2010, substituted "eight weeks" for "four weeks."

That same amendment substituted "ten times" for "six times."