SUSIE D. PATTERSON 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NOT FOR PUBLICATION WITHOUT THE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-2039-08T22039-08T2

SUSIE D. PATTERSON,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT OF

LABOR and LORD & TAYLOR,

Respondents.

_________________________________________________

 

Submitted September 23, 2009 - Decided

Before Judges Payne and Miniman.

On appeal from a Final Decision of the

Board of Review, Department of Labor,

Docket No. 198,838.

Susie D. Patterson, appellant pro se.

Anne Milgram, 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 Lord & Taylor has not filed a brief.

PER CURIAM

Claimant, Susie Patterson, appeals from a final determination of the Board of Review denying unemployment benefits on the ground that Patterson quit her employment voluntarily and without good cause attributable to that employment. We affirm.

The record reflects that Patterson applied for payment of unemployment benefits from July 27, 2008. Patterson's application was denied by a deputy claims examiner, and she appealed to the Appeal Tribunal. The record of the hearing before that Tribunal discloses that, after full-time employment by Lord & Taylor for approximately one and one-half years, Patterson turned sixty-two. She sought Social Security benefits. As a condition of receipt of those benefits, her income could not exceed a monetary cap that precluded full-time work. Prior to giving notice of her resignation, Patterson spoke to Human Resource Manager Julio Rios regarding her situation. Patterson claims Rios promised her part-time employment, but two weeks before she was scheduled to end her full-time employment, Rios stated that, because of the recession and the need to accommodate more senior employees, no part-time position was available for her. Rios denied giving a promise of employment and testified before the Appeals Tribunal that he promised only that he would try to give her such employment, but he was unable to do so. In any event, Paterson submitted a letter of resignation, dated July 18, 2008, to Lord & Taylor that stated:

With regret, this letter is to inform you that July 31, 2008 will be my last day as a full time employee here at Lord & Taylor, since I will be retiring. I would however, be thankful to continue as a part time employee with no more than 25 hours per week. I hope that I have proven myself to be a dedicated, faithful and trustworthy worker during my employment. I have truly enjoyed working with everyone and only hope that I may be able to continue as a part time employee. Again thank you for the opportunity to be part of the team here at Lord & Taylor.

It appears likely from the record that this resignation letter was sent on the same day that Patterson was informed by Rios of the unavailability of part-time work. It is noteworthy that the letter does not suggest a commitment by Lord & Taylor to future employment on a part-time basis. Moreover, at the Appeal Tribunal hearing, Patterson admitted that she would have resigned even if she had known in advance that no part-time work was available.

In his decision, the Appeals Tribunal examiner, determining that Patterson "resigned to retire," found her ineligible for benefits pursuant to N.J.S.A. 43:21-5(a) because she had left work voluntarily without good cause attributable to her work and pursuant to N.J.A.C. 12:17-9.1(e)(1), which provides that "[a]n individual's separation from employment shall be reviewed as a voluntary leaving work issue" when the separation is the result of voluntary retirement. Upon further appeal, the determination of the Appeal Tribunal was affirmed by the Board of Review.

On appeal to us from the final determination of the Board of Review, Patterson contends that she was assured by her supervisor and Rios that part-time employment would be available to her. She claims further that if she had known that she would not have been permitted to cut back her hours, she would not have resigned.

In this matter, Patterson bears the burden of proving entitlement to unemployment insurance benefits. Brady v. Bd. of Review, 152 N.J. 197, 218 (1997). N.J.S.A. 43:21-5(a) precludes payment of benefits to an individual who "has left work voluntarily without good cause attributable to such work." Demonstration of a personal cause for leaving is not sufficient. Brady, supra, 152 N.J. at 213.

On appeal, Patterson contests the factual findings of the Appeal Tribunal as adopted by the Board of Review and suggests that her version of the facts should have been accepted, rather than the version provided by Rios. However, we are bound by the factual determinations of the Appeal Tribunal, since those determinations are supported by the record. Id. at 210; Zielenski v. Bd. of Review, 85 N.J. Super. 46, 54 (App. Div. 1964).

Patterson also contends on appeal that if she had known that part-time work was unavailable to her, she would not have resigned. However, that testimony is contrary to her testimony before the Appeal Tribunal. Our review of the agency's decision is limited to the record before it. New Jersey Div. of Youth & Fam. Servs. v. M.M. 189 N.J. 261, 278 (2007). That record does not support Patterson's present position.

As a final matter, Patterson notes that her full-time position was filled by another person whom Patterson trained prior to her retirement. She argues: "I really don't understand how I can walk off a job that was already filled with a co-worker who the current manager requested that I train before my perceived last day." We are unsure of the import of this argument, which suggests a fault-based standard for denial of unemployment benefits that is absent from this case. Moreover, as the Board of Review notes: "An employer who accepts an unequivocal notice of resignation from an employee is entitled to rely on it, to the extent of preparing in one manner or another for the employee's absence, unless, of course, the employer chooses to return to the status quo by rehiring the employee, or accepting a retraction of the notice." Nicholas v. Bd. of Review, 171 N.J. Super. 36, 38 (App. Div. 1979). There is no evidence in the record either that Lord & Taylor offered to rehire Patterson on a full-time basis, or that Patterson retracted her resignation from her prior full-time employment.

 
The determination of the Board of Review is thus affirmed.

Patterson testified that she was informed by Rios of the lack of work on a Friday, two weeks before her retirement a date that corresponds to July 18, 2008.

(continued)

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A-2039-08T2

October 28, 2009