MEKIBA DUNLAP 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NOT FOR PUBLICATION WITHOUT THE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-1716-10T1

MEKIBA DUNLAP,

Appellant,

v.

BOARD OF REVIEW AND

UNITED STATES POSTAL SERVICE,

Respondents.

_______________________________

February 29, 2012

Submitted December 20, 2011 - Decided

Before Judges Messano and Kennedy.

On appeal from the Board of Review,

Docket No. 272,058.

Mekiba Dunlap, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent Board of Review (Melissa H. Raksa, Assistant Attorney General, of counsel; Alan C. Stephens, Deputy Attorney General, on the brief).

PER CURIAM

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

Dunlap was employed by the United States Postal Service (USPS) from March 2005 to October 31, 2009, when she resigned her position as a mail processing clerk to accept an early resignation package.

In September 2009, USPS offered "early out resignation/retirement packages" to all of its employees. USPS advised its employees that the program was voluntary but that employees who were offered the package should seriously consider taking it because involuntary reductions in force could take place at some point in the future. As an incentive to resign or retire, employees were offered $10,000.

Dunlap accepted the $10,000 early resignation alternative because "[she] wanted to do a change of career" and she enrolled in a nursing program after leaving USPS. She explained before the Appeal Tribunal that there was a "possibility" that she could lose her job in the future but no one told her that she would definitely lose her job if she did not take the early resignation package. She added, "I wanted to change career, but I thought the opportunity couldn't come at a better time when they offered the package." Accordingly, she resigned as of October 31, 2009. She thereafter filed a claim for unemployment benefits effective January 3, 2010.

The Deputy Director disqualified her for benefits, finding "[Dunlap] left work voluntarily on 10/31/09. [Dunlap] participated in a voluntary leaving program offered by [USPS]. There is no evidence of a reduction in force at [USPS]." He concluded that her reason for leaving did not constitute "good cause attributable to the work" and disqualified her for benefits.

Dunlap appealed and the Appeal Tribunal affirmed, finding that:

the claimant accepted an "early out resignation/retirement" package offered by her employer. There is no evidence that the claimant's job was in jeopardy. She has not shown good cause for leaving available work. Therefore . . . the claimant left work voluntarily without good cause attributable to such work and is therefore disqualified for benefits under N.J.S.A. 43:21-5(a)[.]

Dunlap thereafter appealed to the Board of Review, which affirmed, and this appeal followed.

Before us, Dunlap contends that her leave was due to an "evident dismissal" and that her leave was "compelled by said company." 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 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)). We also give due regard to the agency's credibility findings. Logan v. Bd. of Review, 299 N.J. Super. 346, 348 (App. Div. 1997). "Unless . . . the agency's action was arbitrary, capricious, or unreasonable, the agency's ruling should not 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 weeks1 in unemployment . . . .

[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 (citing Zielenski v. Bd. of Review, 85 N.J. Super. 46, 52 (App. Div. 1964)). "While the statute does not define 'good cause,' our courts have construed the statute to mean 'cause sufficient to justify an employee's voluntarily leaving the ranks of the employed and joining the ranks of the unemployed.'" Domenico v. Bd. of Review, 192 N.J. Super. 284, 287 (App. Div. 1983) (quoting Condo v. Bd. of Review, 158 N.J. Super. 172, 174 (App. Div. 1978)). N.J.A.C. 12:17-9.1(b) defines "good cause attributable to such work" as "a reason related directly to an individual's employment, which was so compelling as to give the individual no choice but to leave the employment."

An employee who leaves work for personal reasons is not deemed to have left work voluntarily with good cause. Brady, supra, 152 N.J. at 213; Self, supra, 91 N.J. at 457; Rider Coll. v. Bd. of Review, 167 N.J. Super. 42, 47-48 (App. Div. 1979). "Mere dissatisfaction with working conditions which are not shown to be abnormal or do not affect health, does not constitute cause for leaving work voluntarily." Domenico, supra, 192 N.J. Super. at 288 (quoting Medwick v. Bd. of Review, 69 N.J. Super. 338, 345 (App. Div. 1961)). "'The decision to leave unemployment must be compelled by real, substantial and reasonable circumstances . . . attributable to the work.'" Fernandez v. Bd. of Review, 304 N.J. Super. 603, 606 (App. Div. 1997) (quoting Domenico, supra, 192 N.J. Super. at 288); see also In re N.J.A.C. 12:17-9.6 State Dept. of Labor, 395 N.J. Super. 394, 399-400 (App. Div. 2007). "[I]t is the employee's responsibility to do what is necessary and reasonable in order to remain employed." Domenico, supra, 192 N.J. Super. at 288 (citing Condo, supra, 158 N.J. Super. at 175).

In the context of early retirement, an employee will not be found to have left for good cause attributable to the work unless the employee's "'subjective fear [of imminent layoff] was based upon definitive objective facts . . . to buttress [the] belief that [her] job[] would actually be eliminated in the impending work reduction,' and (2) that [the] claimant[] would suffer substantial economic loss." Brady, supra, 152 N.J. at 215 (quoting Trupo v. Bd. of Review, 268 N.J. Super. 54, 61 (App. Div. 1993)); see also Fernandez, supra, 304 N.J. Super. at 607. "[I]mminent layoff or discharge is one in which the individual will be separated within 60 days." N.J.A.C. 12:17-9.5.

Dunlap's argument that she was effectively terminated finds no support in the factual record. She was never threatened with the prospect of imminent termination. Instead, she made a personal decision to voluntarily leave work to secure a beneficial early resignation package. The threat or possibility of a layoff is an insufficient basis to trigger the right to receive benefits. The Board's decision that Dunlap was ineligible for unemployment benefits was supported by substantial, credible evidence, and we find no reason to disturb it.

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