Opinion
DOCKET NO. A-0156-10T4
08-01-2011
FLOYD R. PITT, Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR, and U.S. POSTAL SERVICE, Respondents.
Floyd R. Pitt, appellant pro se. Paula T. Dow, Attorney General, attorney for respondent Board of Review, Department of Labor and Workforce Development (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Lisa N. Lackay, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino and C.L. Miniman.
On appeal from the Board of Review, Department
of Labor and Workforce Development, Docket
No. 262,196.
Floyd R. Pitt, appellant pro se.
Paula T. Dow, Attorney General, attorney for
respondent Board of Review, Department of
Labor and Workforce Development (Lewis A.
Scheindlin, Assistant Attorney General, of
counsel; Lisa N. Lackay, Deputy Attorney
General, on the brief).
PER CURIAM
Floyd R. Pitt appeals from final agency action of the Board of Review, Department of Labor and Workforce Development, denying his application for unemployment benefits following the termination of his employment by the United States Postal Service. Because there was substantial credible evidence in the record to support the denial of benefits, and the Board's decision was not arbitrary, capricious, or unreasonable, we affirm.
Pitt was employed by the United States Postal Service as a mail handler from July 7, 1990, through October 31, 2009. Early in September 2009, he accepted a $15,000 incentive package to voluntarily terminate his employment. This incentive package was offered because the Postal Service had excess workforce. Pitt applied for unemployment benefits and was denied on the ground that he had left work voluntarily without good cause attributable to the work.
Pitt appealed the denial of benefits, and a hearing was conducted by the Appeal Tribunal on February 23, 2010. At that time, Pitt testified that he stopped working for the Postal Service:
Because we had an incentive for a package to leave the Post Office because [the] work load was getting . . . low. And they've been trying this for like three years. So I've been there for like seven years and there [sic] was offering a nice package to leave and I wanted it[.] I was waiting for a nice package to leave so I get a job you know closer to home. Because I was driving like two hours like an hour and [a] half to get to work and sometimes it took me three hours to get home with the
traffic. And you know dealing with my health condition . . . interfered with . . . my health and all that. You know . . . the work stress and I just wanted a closer job to home. You know just to start over. Cause I didn't wan[t] to get stuck at the Post Office and its going . . . under like they was [sic] telling me it [was] going to do and then I'm too old to find another career. So I figured I could take another career now.
He admitted that his employer told him that with the union contract he could not be laid off, although if he could be, the Postal Service would do that. Instead, they were switching employees around, although they did lay off a few clerks. Pitt emphatically denied that he could be laid off, although his shift could be changed. "They was [sic] offering me another shift which I really didn't want to go on which was the night shift. So I was scared of that."
Pitt also explained that he had moved from Newark to Trenton five years earlier and the commute had become difficult and expensive. He denied that the job was stressful, although management could be stressful. His doctor had never put him on any type of light duty, although his health was compromised.
Pitt admitted that, even if a package had not been offered to him, "I would have left any way [be]cause I was looking for a job down [in Trenton]," although he was thinking about waiting for a package. He again admitted that, had he not accepted the package, work was available for him and that his employer was not going to lay him off if he did not accept the package. After admitting that he was still able to perform the work, Pitt made a final statement that he knew he left work because of the incentive package but still felt that, with his military history and his need for a little money now, he should be entitled to unemployment benefits.
The Appeal Tribunal found that Pitt was last employed on October 31, 2009. The appeals examiner also found that Pitt had moved five years earlier, the commute was too great, he was denied a transfer to Trenton, he was having trouble with his health, and he had notified his employer about his medical condition. Further, the appeals examiner found that work was not aggravating his health condition and he was still able to perform his job duties. Additionally, there was no evidence that Pitt was going to be laid off imminently. Thus, the appeals examiner concluded that Pitt "voluntarily chose to accept the [severance] package and left the job for personal reasons. Continuing work was still available for the claimant had he not left the job." This led the examiner to conclude:
Substantial evidence provided during the hearing established that the claimant voluntarily left the job when he accepted a voluntary [severance] package. While that may be a valid reason for leaving the job, it is a personal reason and not connected to
the work itself. It is considered that 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) as of 10/25/09.
Pitt filed a timely appeal from this decision, and on July 7, 2010, the Board of Review concluded that Pitt "was given a full and impartial hearing and a complete opportunity to offer any and all evidence." Because there was no valid ground for any further hearing and the Board agreed with the appeals examiner's decision, it was affirmed. This appeal followed.
On appeal, Pitt contends that he "was forced to leave work because of low work volume and lack of a better option offered by the [United States Postal Service]." He argues that the facts support his contention that he did not leave work voluntarily without good cause attributable to the work and that, therefore, he is entitled to collect unemployment benefits.
Pitt also sets forth facts in his brief that are not contained in the transcript of the hearing. Because the record on appeal is limited to the evidence developed before the administrative agency, Rule 2:5-4(a), New Jersey Division of Youth & Family Services v. M.M., 189 N.J. 261, 278 (2007), we may not consider those alleged facts.
The judicial role in reviewing decisions of administrative agencies is limited. George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994). "Our function is to determine whether the administrative action was arbitrary, capricious or unreasonable." Burris v. Police Dep't., W. Orange, 338 N.J. Super. 4 93, 4 96 (App. Div. 2001); see also Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). The precise issue is whether the findings of the agency could have been reached on the credible evidence in the record, "considering the proofs as a whole." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (internal quotation marks omitted). The burden of demonstrating that the agency's action was arbitrary, capricious, or unreasonable rests upon the person challenging the administrative action. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002); Barone v. Dep't of Human Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987).
N.J.S.A. 43:21-5(a) of the New Jersey Unemployment Compensation Law provides that a claimant is disqualified for benefits
[f]or 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 reemployed and works eight weeks in employment . . . and has earned at least ten times the individual's weekly benefit rate, as determined in each case.
An employee who leaves work voluntarily has the burden of proving that the employee did so with good cause attributable to the work. Morgan v. Bd. of Review, 7 7 N.J. Super. 2 09, 213 (App. Div. 1962). The statute requires that good cause be attributable to the work and not the personal reasons of the employee. Stauhs v. Bd. of Review, 93 N.J. Super. 451, 4 57 (App. Div. 1967). The statutory scheme envisions that unemployment compensation benefits are available only to those individuals who have become unemployed through no fault of their own. Medwick v. Bd. of Review, 69 N.J. Super. 338, 340 (App. Div. 1961).
Personal reasons which have been found as not constituting good cause attributable to work include the unavailability of transportation to and from work, Self v. Board of Review, 91 N.J. 453, 457 (1982), and a voluntary quit because work duties are detrimental to an existing physical condition or state of health not caused by the work, Stauhs, supra, 93 N.J. Super, at 457-58. Specifically, "[a]n employee's problem of commuting to and from his work may be considered a good personal reason for leaving his employment, but it is not ordinarily to be considered a cause that is connected with or attributable to the work." Morgan, supra, 77 N.J. Super. at 214.
Additionally, our Supreme Court has held that acceptance of a severance package bars receipt of unemployment benefits unless the claimant can establish a "real, imminent, and substantial risk of losing his job." Brady v. Bd. of Review, 152 N.J. 197, 216 (1997) (internal quotation marks omitted). Subjective fear of a layoff is insufficient to trigger receipt of unemployment benefits. Id. at 219.
It is readily apparent from Pitt's own testimony that he cannot establish a "real, imminent, and substantial risk of losing his job." Id. at 216 (internal quotation marks omitted). He admitted that his employment could not be terminated. He admitted that he moved to Trenton voluntarily and, thus, his difficult commute was of his own making. He admitted that he accepted the severance package because he wanted to begin another career before he was much older. These are simply not causes attributable to the work, although they make imminent sense from a personal point of view. As a result, Pitt has not met his burden to demonstrate that the denial of unemployment benefits was arbitrary, capricious, or unreasonable. McGowan, supra, 347 N.J. Super, at 563.
Affirmed.
I hereby certify that the foregoing
is a true copy of the original on
file in my office.
CLERK OF THE APPELLATE DIVISION