CHARLENE TECH v. BOARD OF REVIEW, DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-3229-16T3

CHARLENE TECH,

        Appellant,

v.

BOARD OF REVIEW, DEPARTMENT OF
LABOR AND WORKFORCE DEVELOPMENT,
and GANNETT SATELLITE INFORMATION
NETWORK, INC., t/a USA TODAY,

     Respondents.
___________________________________

              Submitted February 26, 2018 – Decided March 16, 2018

              Before Judges Sabatino and Rose.

              On appeal from the Board of Review, Department
              of Labor and Workforce Development, Docket No.
              107,454.

              Charlene Tech, appellant pro se.

              Gurbir S. Grewal, Attorney General, attorney
              for respondent Board of Review (Melissa Dutton
              Schaffer, Assistant Attorney General, of
              counsel; Aimee Blenner, Deputy Attorney
              General, on the brief).

              Respondent   Gannett  Satellite            Information
              Network has not filed a brief.

PER CURIAM
     Appellant Charlene Tech appeals the Board of Review's final

agency decision denying her unemployment benefits.     The Board's

analysis was based on the fact that appellant ceased working after

she accepted an early retirement package offered by her long-time

employer, the Cherry Hill Courier Post newspaper.1

     Appellant worked as a sales representative with the newspaper

for over thirty years.    In August 2015, the newspaper announced

that it was offering an early retirement program to encourage

departures as a cost-cutting measure.    The newspaper specified a

deadline of October 12, 2015 as the final day for employees to

accept the retirement package.   Ten days before that deadline, on

October 2, the newspaper's "Chief People Officer" sent appellant

an email reminding her of the October 12 acceptance deadline.

Although the email stated the retirement program was voluntary,

it also contained a gloomy note of caution that if "we don't

achieve our goals, we will need to re-evaluate where we stand and

we can't rule out implementing other actions in the future."

     Appellant discussed the October 2 email with her manager, and

asked him if her job was in jeopardy if she did not accept the

retirement package.   According to appellant, the manager could not

assure her that she would continue to be employed.   Appellant was


1
 The newspaper is owned by Gannett Satellite Information Network,
which elected to not participate in this matter.

                                 2                          A-3229-16T3
aware that two years earlier in 2013 the newspaper had laid off

ten other salespersons and had transferred their customer accounts

to another location rather than reassigning the accounts to the

remaining sales personnel in appellant's office.

      Soon after receiving the email and meeting with her manager,

appellant learned that the newspaper had reassigned her entire

sales territory and all of her sales accounts to a newly-hired

individual, allegedly making about half of appellant's salary.

The record contains no indication that appellant was assigned or

promised any new territory or customer accounts.

      Fearing imminent discharge, appellant accepted the retirement

package.     The record indicates that at least one person who had

not accepted the package was subsequently discharged.               A newspaper

article described the paper's previous cost-cutting campaign as

the   "biggest"   since   2011,    and    that    almost   400   layoffs       were

projected.

      At   the    telephonic      hearing,       appellant    explained         the

circumstances,    including    the   undisputed      fact    that    her     sales

territory had been taken away completely and her customers were

being handled by a new employee.             Appellant's employer did not

attend the hearing and offer competing evidence.

      Appellant filed a claim for unemployment benefits, which a

Deputy of the agency administratively denied.                The Deputy later

                                      3                                    A-3229-16T3
issued     a    second      disqualification    letter      deeming   appellant

disqualified for a limited period from November 15, 2015 to

November       12,   2016     because     appellant   had     obtained    salary

continuation during that interval.2

     The Appeal Tribunal denied appellant's claim, concluding

that, by accepting the retirement package, she had "left work

voluntarily without good cause attributable to the work" and was

thus ineligible for benefit under 
N.J.S.A. 43:21-5(a).                The Board

of Review upheld that finding.            This appeal ensued.

     We acknowledge that we owe considerable deference to the

Board in administering our state's unemployment compensation laws.

Brady v. Bd. of Review, 
152 N.J. 197, 210 (1997).                 Nevertheless,

we conclude that on the discrete facts in this particular case,

the agency misapplied the applicable legal standards and acted

arbitrarily in rejecting appellant's claim.

     Although an employee's acceptance of a retirement package is

often    voluntary       conduct   that   disqualifies      the   employee   from

receiving unemployment benefits, case law recognizes that where

the employee's fear of layoff is based on "definitive objective

facts," she may be eligible despite having accepted the retirement



2
  Appellant did not appeal that second determination. We presume
that the issues before us concern her unemployment after November
12, 2016.

                                          4                              A-3229-16T3
package.   Id. at 219 (quoting Trupo v. Bd. of Review, 
268 N.J.

Super. 54, 61 (App. Div. 1993)).          Such a claim may be eligible if

she   accepted    the   package   "because   of   a   real,   imminent,   and

substantial risk of losing [her] job." Fernandez v. Bd. of Review,


304 N.J. Super. 603, 607 (App. Div. 1997).

      The undisputed record here shows that appellant met this

burden of proof.        The elimination of her entire sales territory

and her replacement by a lower-paid employee, coupled with the

forecasts of further downsizing and the lack of encouragement of

appellant's supervisor, realistically left appellant with a strong

expectation that she likely would be laid off if she declined the

retirement package.        The facts here are unlike the generalized

circumstances in Brady where no such employee-specific measures

were shown and in Fernandez, where there was only a "general

letter" sent to all employees and no proof that the appellant's

specific job was at risk.         Brady, 
152 N.J. at 218-19; Fernandez,


304 N.J. Super. at 605-08.        Appellant's fear of imminently losing

her job was objectively reasonable and "not imaginary, trifling

and whimsical . . . ."       Brady, 
152 N.J. at 214 (quoting Domenico

v. Bd. of Review, 
192 N.J. Super. 284, 288 (App. Div. 1983)).

      Reversed.




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