Trupo v. Board of Review

• Decision Date: 05 November 1993
• Citation: 632 A.2d 852,268 N.J.Super. 54
• Parties: Patricia S. TRUPO, Appellant, v. BOARD OF REVIEW and Liberty Mutual Insurance, Co., Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 54

268 N.J.Super. 54

632 A.2d 852

Patricia S. TRUPO, Appellant, v. BOARD OF REVIEW and Liberty Mutual Insurance, Co., Respondents.

Superior Court of New Jersey,

Appellate Division.

Submitted Oct. 5, 1993.

Decided Nov. 5, 1993.

Patricia S. Trupo, appellant, filed a pro se brief.

Fred DeVesa, Acting Atty. Gen., for respondent, Board of Review (John C. Turi, Deputy Attorney General, of counsel and on the brief).

Respondent, Liberty Mut. Ins. Co., did not file a brief.

Before Judges PRESSLER, DREIER and KLEINER.

The opinion of the Court was delivered by

KLEINER, J.S.C. (temporarily assigned).

Claimant, Patricia S. Trupo, appeals a decision of the Board of Review affirming an Appeal Tribunal decision which declared her disqualified from unemployment compensation benefits and concluded that Trupo's weekly unemployment compensation benefit rate would be reduced to zero. Both conclusions were predicated upon the Board of Review's interpretation of N.J.S.A. 43:21-5(a). We affirm, however, the issue raised by Trupo as to her disqualification requires discussion.

The Board of Review concluded that Trupo, having accepted an inducement for early retirement offered by her employer, Liberty Mutual Insurance Company, in its effort to substantially reduce its work force, had voluntarily left work without good cause attributable to such work, N.J.S.A. 43:21-5(a). As such, Trupo was disqualified from receiving unemployment compensation benefits.

Trupo worked as an office assistant for Liberty from February 22, 1982 until her retirement on February 28, 1992 at age sixty-one. In November 1991, Trupo, along with other employees, was offered an early retirement package by Liberty which included: (a) the addition of five years to the employee's age or work history, which would increase pension benefits; (b) company-paid medical benefits until age sixty-five, when an employee will qualify for Medicare; and (c) payment of $700 per month until age sixty-two, when an employee is entitled to social security benefits.

At her administrative hearing, Trupo admitted that she was not informed by Liberty that she definitely would be laid off if she did not accept the retirement package. Additionally, she knew that Liberty had not reached a decision as to which employees would be laid off or which employees would be transferred to other vacant positions within the company.

Trupo testified that she preferred to continue to work and had no particular present desire to retire. She expressed a fear that in the event of a job termination, she would become medically uninsured and as the head of her household, the prospect of not being medically insured was untenable. Additionally, she expressed a fear that if she elected to continue her employment, the probability of job termination was predictable, as she had the least seniority in her fourteen-employee department. As of the date of the early retirement offer, Trupo only had one year of work experience in her position as a clerical assistant. Trupo indicated that after considering her options, she believed she had no choice but to accept the early retirement proposal. She, therefore contends she should not be disqualified from receiving unemployment compensation benefits. This contention is novel and raises an issue of first impression.

Trupo's position is not without judicial precedent. In White v. Dir. of Division of Employment Sec., 382 Mass. 596, 416 N.E.2d 962 (1981), the Supreme Judicial Court of Massachusetts concluded that if a claimant reasonably believes that he will be terminated if he does not accept an early retirement plan, his leaving work will not be viewed as voluntary under the Massachusetts statute, G.L. c. 151A, § 25(e)(1).

In White, the claimant with only six years seniority elected to take an early retirement proposal after he heard a rumor of an impending layoff if the work force were not reduced by early retirement. In explaining his decision to accept an early retirement proposal, White testified, "I could see that I would be laid off." The Massachusetts court determined, Id. 416 N.E.2d at 964,

He knew that there would be layoffs based on seniority. He thought he would be the second person laid off, based on seniority, and that close to forty people would have to go. He took the incentive rather than accepting a layoff. If the claimant believed this layoff was imminent and if that belief was reasonable, a finding was required that the claimant did not leave his employment voluntarily.

The Massachusetts court therefore concluded it was required to remand the proceeding for an evidentiary hearing as to the reasonableness of the claimant's belief.

N.J.S.A. 43:21-5(a) provides in pertinent part that an individual shall be disqualified for unemployment benefits: "For the week in which the individual has left work voluntarily without good cause attributable to such work...." "Good cause" is not statutorily defined, but our courts have construed the statute 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, 469 A.2d 961 (App.Div.1983) (quoting Condo v. Bd. of Review, 158 N.J.Super. 172, 174, 385 A.2d 920 (App.Div.1978); Goebelbecker v. State, 53 N.J.Super. 53, 57, 146 A.2d 488 (App.Div.1958)); Associated Utility Serv. v. Bd. of Review, 131 N.J.Super. 584, 586, 331 A.2d 39 App.Div.1974); Zielenski v. Bd. of Review, 85 N.J.Super. 46, 52, 203 A.2d 635 (App.Div.1964); Morgan v. Bd. of Review, 77 N.J.Super. 209, 213, 185 A.2d 870 (App.Div.1962).

The phrase "good cause" was originally interpreted in Krauss v. A & M Karagheusian, 13 N.J. 447, 464, 100 A.2d 277 (1953) which concluded:

The Legislature contemplated that when an individual voluntarily leaves a job under the pressure of circumstances which may reasonably be viewed as having compelled him to do so, the termination of his employment is involuntary for the purposes of the act. In statutory contemplation he cannot then reasonably be judged as free to stay at the job.

Although the precedential importance of Krauss has been diminished by the statutory amendment in 1961 of N.J.S.A. 43:21-5(a), that interpretation of "good cause" has continuously been cited in each case decided since 1961. See Domenico v. Bd. of Review, supra, 192 N.J.Super. at 287, 469 A.2d 961 and the cases cited therein.

We held in Zielenski v. Bd. of Review, supra, 85 N.J.Super. at 52, 203 A.2d 635; "An employee's reason for leaving his employment must meet the test of ordinary common sense and prudence." "The decision to leave employment must be compelled by real, substantial and reasonable circumstances not imaginary, trifling and whimsical ones." Domenico, supra, 192 N.J.Super. at 288, 469 A.2d 961. ¹

In Domenico, we concluded that a music therapist at Ancora State Psychiatric Hospital who expressed fear of suffering physical harm by hospital patients had articulated a reasonable basis constituting good cause to voluntarily terminate employment. Id. at 287, 469 A.2d 961. Similarly, in Condo v. Bd. of Review, supra, 158 N.J.Super. at 174, 385 A.2d 920, we concluded that the claimant's reasonable belief that her personal safety was endangered within the work place due to the threat of physical violence by a co-employee constituted an abnormal work condition justifying the claimant's decision to leave her employment and did not disqualify the claimant from receiving unemployment compensation benefits.

Similarly, in Associated Utility Serv. v. Bd. of Review, supra, a clerk typist who left her employment due to her employer's harassment was entitled to unemployment compensation.

We held:

Mere dissatisfaction with working conditions which are not shown to be abnormal or do not affect health, does not constitute "good cause" for leaving work voluntarily. Intentional harassment of an employee, however, is an abnormal working condition and constitutes good cause for leaving work voluntarily.

[Id., 131 N.J.Super. at 587, 331 A.2d 39

(citation omitted).]

In Domenico, Condo and Associated Utility, we dealt with abnormal conditions within the work place and the subjective effect those conditions had upon the employees' decision to voluntarily discontinue work. In each instance, fear of personal safety in Domenico and Condo and fear of future harassment in Associated Utility were deemed appropriate justification for leaving a job.

We stress, however, in each of those cases objective facts in the record allowed a conclusion that the expressed fear of the claimant was reasonable. In both Domenico and Condo the claimant was able to demonstrate prior attacks at work, and in Associated Utility, the claimant was able to specifically testify as to prior incidents of co-employee telephone calls to her home. Our decisions in Domenico, Condo and Associated Utility may be compared to Zielenski v. Bd. of Review, supra, where an employee who was dissatisfied with his job due to the unsteadiness of the number of days available each week for work was denied unemployment benefits.

In those cases in which we have sustained the decision of the Board of Review, we have analyzed the specific facts and the particular reason for the claimant's decision to leave work in an effort to determine if the decision was attributable to work as is required by N.J.S.A. 43:21-5(a). Self v. Bd. of Review, 91 N.J. 453, 453 A.2d 170 (1982) (transportation difficulties compounded by a lack of public transportation); Morgan v. Bd. of Review, Div. of Employ. Sec., supra, 77 N.J.Super. at 214, 185 A.2d 870 (commuting difficulties from New York City to Fairlawn, New Jersey by subway and bus); Goebelbecker v. State, supra, 53 N.J.Super. at 57, 146 A.2d 488 (refusal to take a lower paying...