MARY ROMANCIO 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NOT FOR PUBLICATION WITHOUT THE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-1880-12T4

MARY ROMANCIO,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR, and VERIZON SERVICES

CORP.,

Respondents.

_____________________________________

A

March 7, 2014

Before Judges Yannotti and St. John.

On appeal from the Board of Review, Department of Labor, Docket No. 377,493.

Michael P. Hrycak argued the cause for appellant.

Arupa Barua, Deputy Attorney General, argued the cause for respondent Board of Review, Department of Labor (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Barua, on the brief).

Kathleen Barnett Einhorn argued the cause for respondent Verizon Services Corporation (Genova Burns Giantomasi Webster, L.L.C., attorneys; Ms. Einhorn, of counsel; Charles J. Messina, on the brief).

PER CURIAM

Claimant Mary Romancio appeals from a final determination of the Board of Review, which found that she was not eligible for unemployment compensation benefits pursuant to N.J.S.A. 43:21-5(a), because she left her job voluntarily without good cause attributable to the work, and she was required to return the benefits paid to her. We affirm.

Romancio was employed by Verizon Services Corp. from June 1, 1978, until November 15, 2008, when she left her position as a data base analyst. Romancio accepted a voluntary severance package, called the Enhanced Income Security Plan (EISP). Under the EISP, Romancio received a lump-sum payment of $66,000, an expense allowance of $3,750, and a voluntary termination bonus of $10,000.

Romancio filed a claim for unemployment compensation benefits on November 23, 2008, and was paid benefits totaling $29,680, for the weeks ending November 29, 2008, through July 10, 2010. On March 6, 2012, the Director of the Division of Unemployment Insurance (Director) issued a notice to Romancio, informing her that she was not qualified for the benefits she had been paid. The notice stated that Romancio left her job voluntarily, and although her employer was in the process of downsizing, she would not have been affected since continuing work was available. Therefore, Romancio's reason for leaving her job did not constitute good cause attributable to the work. The notice was accompanied by a request for repayment of the benefits paid on the claim.

Romancio appealed from the Director's determination, and the Appeal Tribunal conducted a telephonic hearing in the matter on August 17, 2012. Romancio testified that she had worked in Verizon's Newark office, while her supervisor had worked in Philadelphia. Romancio said her job was "downsized." She testified that she accepted the EISP because she "was afraid that there was no job" for her at Verizon. However, Romancio, was unable to recall any specific notice or communication indicating that her job was in jeopardy.

Romancio's immediate supervisor, Deborah Esposito, testified that acceptance of the EISP was completely voluntary, and Romancio would have remained employed at Verizon if she did not accept the offer. Esposito said Romancio's job was not in jeopardy, and Romancio's position in Newark would not have been affected by the company's downsizing since continuing work was available.

Romancio further testified that she believed she had been declared a surplus employee. She said she was the only person in the Newark office to receive the EISP offer. She stated she spoke to "a lot of people" and believed she did not have any choice but to accept the offer. She testified that her "best bet was to take the package."

The Appeal Tribunal issued a decision on August 21, 2012. The Appeal Tribunal determined that Romancio left her job voluntarily, without good cause attributable to the work, and therefore was disqualified from receiving unemployment benefits. The Appeal Tribunal additionally determined that Romancio was liable to refund the $29,680 in benefits she had been paid on her claim.

Romancio filed a timely appeal to the Board of Review, which issued its final determination on October 11, 2012, affirming the Appeal Tribunal's decision. Romancio filed her notice of appeal on December 31, 2012.

Romancio argues that the Board erred by finding that she was disqualified from receiving unemployment compensation benefits pursuant to N.J.S.A. 43:21-5(a). Romancio maintains that she did not voluntarily resign from her position at Verizon. She asserts that Verizon sent her a "surplus incentive" package, which declared her a surplus employee. She contends that she accepted the EISP because she believed there would be no work for her at Verizon.

The scope of our review in an appeal from a final determination of an administrative agency is strictly limited. The agency's decision may not be disturbed unless shown to be arbitrary, capricious or unreasonable. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997) (citing In re Warren, 117 N.J. 295, 296 (1989)). We can only intervene "'in those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or with other State policy.'" Ibid. (quoting George Harms Constr. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994)).

Furthermore, "'[i]n reviewing the factual findings made in an unemployment compensation proceeding, the test is not whether an appellate court would come to the same conclusion if the original determination was its 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) (alteration in original)).

Here, the Board found that Romancio was disqualified from unemployment compensation benefits under N.J.S.A. 43:21-5(a), which provides that an individual may not receive benefits if the individual "left work voluntarily without good cause attributable to such work." Although the statute does not define the term "good cause," it has been construed 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)).

The test for determining whether an employee's decision to leave work constitutes "good cause" is one of "'ordinary common sense and prudence.'" Brady, supra, 152 N.J. at 214 (quoting Zielenski v. Bd. of Review, 85 N.J. Super. 46, 52 (App. Div. 1964)). The employee's decision to quit "'must be compelled by real, substantial and reasonable circumstances not imaginary, trifling and whimsical ones.'" Ibid. (quoting Domenico, supra, 192 N.J. Super. at 288). "A claimant has the 'responsibility to do whatever is necessary and reasonable in order to remain employed.'" Ibid. (quoting Heulitt v. Bd. of Review, 300 N.J. Super. 407, 414 (App. Div. 1997)).

An employee may establish "good cause" for leaving a job and accepting a retirement package if the claimant demonstrates a subjective fear of imminent layoff based on definitive objective facts, and that he or she would suffer a substantial economic loss. Id. at 215-221. See also Fernandez v. Bd. of Review, 304 N.J. Super. 603, 607 (App. Div. 1997) (holding that a claimant who accepts early retirement package may not collect unemployment benefits unless the claimant shows he accepted the package "because of a real, imminent, and substantial risk" that he will lose his job); Trupo v. Bd. of Review, 268 N.J. Super. 54, 61-62 (App. Div. 1993) (finding that the claimant's "expressed subjective fear" that she would lose her job was not based on "definitive objective facts" and there was no evidence indicating that the claimant's job would actually be eliminated in an impending work reduction).

Here, Romancio claims that she had a well-founded fear that she would lose her job. She says she was the only Newark employee to receive the EISP offer. Romancio asserts that she was the only employee in Newark who reported to Esposito. She says the letter offering her the EISP was "accompanied by many pages of additional information," which she did not keep. She also asserts that the language of the offer indicated that it might be rescinded if other, more senior employees accepted the EISP.

However, the Appeal Tribunal and Board properly determined that Romanico's subjective fear that she would lose her position was not based on definitive, objective facts. As the Appeal Tribunal noted, Esposito testified that Romancio would not have been terminated if she did not accept the EISP, and the company had continuing work for her. Moreover, no one told Romancio that her employment was going to be terminated, and she was never threatened with the loss of employment at any time before she accepted the EISP. Thus, the record supports the Appeal Tribunal's and the Board's determination that Romancio was disqualified from benefits pursuant to N.J.S.A. 43:21-5(a).

Romancio additionally argues that she should not be required to refund the benefits paid to her for the weeks ending November 29, 2008, through July 10, 2010. We disagree.

N.J.S.A. 43:21-16(d) generally requires that persons who have received unemployment compensation benefits to which they were not entitled must repay those benefits in full, unless the Director directs otherwise by regulation. Waiver of refunds are governed by N.J.A.C. 12:17-14.2.

N.J.A.C. 12:17-14.2(a) provides that the Director may waive recovery of benefits if the claimant is deceased, or the claimant is disabled and no longer able to work. N.J.A.C. 12:17-14.2(a)(1) and (2). The Director may also waive recovery when the refund "would be patently contrary to principles of equity." N.J.A.C. 12:17-14.2(a)(3).

Waiver of a refund is not permitted, however, if the claimant misrepresented or failed to disclose a material fact in obtaining benefits. N.J.A.C. 12:17-14.2(b). In addition, in determining whether a refund would be contrary to equitable principles, the Director must consider whether "a reasonable repayment schedule would result in economic hardship to the claimant." N.J.A.C. 12:17-14.2(d).

Romancio is obviously not deceased, and she has not claimed that she is disabled and no longer able to work. Moreover, Romancio did not seek a waiver on the ground that a reasonable repayment schedule would result in economic hardship. Thus, based on the record before us, we cannot conclude that the Board erred by finding that Romancio is required to refund the benefits she was paid.

Romancio argues, however, that the Division should be equitably estopped from seeking the return of the benefits. She contends that, prior to the hearing before the Appeal Tribunal, she did not have proper notice of the basis for her disqualification.

Romancio also claims that she was not provided with adequate information so that she could properly prepare for the hearing, and states that the hearing should have been postponed. She asserts that she was not advised that she could seek a waiver of the refund on the basis of financial hardship.

These arguments are without sufficient merit to warrant extended comment. R. 2:11-3(e)(1)(E). The Directors' notice of March 6, 2012, set forth the basis for Romancio's disqualification, and the notice was accompanied by a request for repayment of the benefits previously paid. Therefore, prior to the hearing, Romancio had notice of the grounds for the disqualification and the reason for the repayment request.

Furthermore, at the hearing, Romancio never claimed that she had not been provided with adequate information, nor did she seek an adjournment of the hearing. In addition, the Director's request for repayment stated that a waiver could be sought, pursuant to N.J.A.C. 12:17-14.2. The request noted that a waiver could be granted "if the overpayment, as determined by the Director, would be patently contrary to principles of equity."

Affirmed.