RICHARD P. SUMALLO v. BOARD OF REVIEW DEPARTMENT OF LABOR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4081-10T2

RICHARD P. SUMALLO,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR and SMITHKLINE

BEECHAM CORP.,

Respondents.

___________________________________________

April 24, 2013

Submitted October 30, 2012 - Decided

Before Judges Alvarez and St. John.

On appeal from the Board of Review, Department of Labor, Docket No. 297,562.

Mashel Law, L.L.C., attorneys for appellant (Syrion A. Jack and Priya C. Vimalassery, of counsel and on the brief; Stephan T. Mashel, on the brief).

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

Respondent Smithkline Beecham Corp. has not filed a brief.

PER CURIAM
 

Appellant Richard Sumallo 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.

I.

Sumallo was employed by Smithkline Beecham Corp. from September 26, 1988, until July 20, 2010, when he resigned his position. Sumallo worked as a medical sales representative in the hospital division. He resigned when he was offered and accepted a separation package with incentives, which included two weeks of pay for every year he was employed by the company (forty-two weeks), lifetime medical insurance, out-placement services, and unused vacation time pay.

Sumallo argues that he resigned because he was in imminent danger of termination as a result of a new company policy. In February 2010, Deirdre Connelly, president of Smithkline's North American Pharmaceutical, informed employees of a change in the performance management process (PMP). Her email stated:

Field employees whose sales rankings are in the lowest 20% for two out of the last three quarters will have discussions with their managers about their low productivity. Employees will then need to develop a plan that, when executed, should put them back in the top 80%. Managers will evaluate the plans, provide feedback and coach the employee as the plans are implemented. If the employees' sales have not improved sufficiently, managers will issue a verbal warning, under the Performance Management policy and continue to actively coach these employees. Should these employees fail to improve their productivity sufficiently enough after the next quarter's results, they will receive a written warning and additional coaching. And if after the next quarters (more than a year of being in the lowest 20%) sales for these employees still have not improved sufficiently, they will be terminated.

Sumallo stated that he was in the lowest twenty percent, had a discussion with his manager, and developed a plan to improve his sales. Since he resigned from the company, his current sales figures were never analyzed, a verbal warning was not issued under the PMP, and the next two quarters' results were obviously not computed. Sumallo stated he did not know if his sales improved prior to his resignation because the results had not been determined as of the date of his acceptance of the separation package.

The Appeal Tribunal determined that Sumallo "voluntarily left his job and his termination was not imminent." The Board of Review affirmed that decision and this appeal ensued.

II.

Certain principles guide our review. 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)). 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 who resigns in the absence of objective factors or conditions within the work environment demonstrating imminent danger of termination leaves work without good cause attributable to the work. Brady, supra, 152 N.J. at 219; Fernandez v. Bd. of Review, 304 N.J. Super. 603, 605 (App. Div. 1997); Trupo v. Bd. of Review, 268 N.J. Super. 54, 61-62 (App. Div. 1993). The claimants in Brady, Fernandez and Trupo all chose to accept early retirement incentive packages fearing that they would otherwise be laid off. Those courts all defined "imminent" in such a way that neither the claimants involved nor Sumallo could demonstrate that "their layoffs were imminent." Brady, supra, 152 N.J. at 218.

In Brady, the Court found a 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. In Fernandez, we held that "an 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." Supra, 304 N.J. Super. at 607. In Trupo, 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 we found no evidence that her "expressed subjective fear was based on definitive objective facts." Supra, 268 N.J. Super. at 61.

A Department of Labor regulation 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. Sumallo did not receive a layoff notice or any other indication of when he would be laid off. Additionally, even if his prospective performance placed him in the bottom twenty percent, the PMP indicated a termination date far in excess of the sixty-day day threshold for imminent danger of termination.

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

Affirmed.