June 2, 2008
DEBRA L. WHEELER, APPELLANT,
BOARD OF REVIEW, DEPARTMENT OF LABOR, AND HAMILTON PHYSICAL THERAPY SERVICES, RESPONDENTS.
On appeal from the Board of Review, Department of Labor, Docket No. 129,906. Debra L. Wheeler, appellant pro se.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: May 21, 2008
Before Judges Axelrad and Messano.
Debra Wheeler appeals from a final decision of the Board of Review (Board), which held her disqualified for unemployment benefits under N.J.S.A. 43:21-5(a) because she left work voluntarily without good cause attributable to the work.
Appellant was employed by Hamilton Physical Therapy Services as a receptionist from July 17, 2006 through September 22, 2006. When she was hired, a condition of her employment was that she work from 9:00 a.m. to 5:00 p.m., Monday through Friday. The employer allowed appellant to leave at 4:00 p.m. during the summer to accommodate her child care needs while her two children were at summer camp, but she was explicitly told that after Labor Day she would have to work until the originally agreed-upon hour of 5:00 p.m. As appellant testified, she was unable to find childcare, and continued to leave her job at 4:00 p.m. after Labor Day. After giving appellant an additional three weeks to find childcare so she could fulfill her commitment to work until 5:00 p.m., the employer replaced her.
Appellant filed her claim for unemployment benefits on September 17, 2006. In a determination mailed on October 12, 2006, a Deputy of the New Jersey Department of Labor, Division of Unemployment Insurance, disqualified appellant for unemployment benefits, finding she left her job voluntarily because she was dissatisfied with the hours she was required to work, which did not constitute good cause attributable to such work. Wheeler appealed, and the Appeal Tribunal found no disqualification under N.J.S.A. 43:21-5(a), but concluded appellant was disqualified for benefits for a six-week period under N.J.S.A. 43:21-5(b) for misconduct connected with the work.
Following her appeal to the Board, by decision of January 2, 2007, the Board modified the decision of the Appeal Tribunal, and found appellant's failure to work the required hours, which were a condition of hire, constituted a voluntary quit. The Board held appellant disqualified for benefits pursuant to N.J.S.A. 43:21-5(a), finding she left her job voluntarily without good cause attributable to the work. The Board further noted that the matter of appellant's potential liability for refund of any benefits received during the period of disqualification would be determined by the Director in accordance with N.J.S.A. 43:21-16(d). This appeal ensued.
On appeal, Wheeler explains she was unable to obtain alternate daycare for her children and argues she should not be penalized for putting her children's safety first. She further contends she did not make the choice to leave her employment but was asked to leave and queries how her being let go constitutes a "voluntary leave." Appellant also attaches a February 28, 2007 decision of the Appeal Tribunal affirming the determination of the Director holding her liable for refund for the $2,943 in benefits received to which she was not entitled based on the Board's determination that is the subject of this appeal. She argues it is unfair to require her to repay the money, particularly in view of the time delay in the Board's decision.
N.J.S.A. 43:21-5(a) of the New Jersey Unemployment Compensation Law provides, in pertinent part, that a claimant is disqualified from receiving benefits "[f]or the week in which the individual has left work voluntarily without good cause attributable to such work . . . ." The claimant bears the burden of showing she terminated her employment for good cause attributable to the work. Morgan v. Board of Review, 77 N.J. Super. 209, 213 (App. Div. 1962). Personal reasons for terminating employment, no matter how compelling, will not provide good cause for a voluntary quit. Id. at 214. An employee does not have to articulate words such as "I quit" in order for her to be considered to have "left work voluntarily." See Self v. Board of Review, 91 N.J. 453, 454, 459-60 (1982) (holding employees are disqualified from unemployment compensation as having "left work voluntarily without good cause attributable to such work" under N.J.S.A. 43:21-5(a) if their employment is terminated because personal transportation problems prevent them from getting to work).
Appellant's voluntary failure to work the hours specified at the time of hire constituted a voluntary termination of her employment. As the Board noted, although appellant's childcare situation was compelling, it was personal, and thus did not constitute good cause attributable to the work. Since appellant did not do what was necessary to remain employed in a position in which she always knew she was expected to work until 5:00 p.m. after Labor Day, and her undisputed reason for her separation from employment (childcare) was entirely unrelated to her work, the Board was bound by the law to find her unqualified for employment benefits.
Appellate courts have a limited role in reviewing the decisions of administrative agencies. Brady v. Board of Review, 152 N.J. 197, 210-11 (1997). We will not reverse an agency decision unless it is arbitrary, capricious or unreasonable, or it is not supported by substantial credible evidence in the record as a whole. Ibid. We are satisfied the agency appropriately applied the law to the facts of this case and discern no basis upon which to second-guess its determination of disqualification of benefits pursuant to N.J.S.A. 43:21-5(a).
On January 19, 2007, Wheeler appealed the Board's January 2, 2007 final determination finding her disqualified for unemployment benefits. Although in her brief she attaches the Appeal Tribunal's February 28, 2007 decision holding her liable for repayment of the benefits and she comments about the unfairness of it, that determination is not appropriately before us in this appeal. First of all, that determination was rendered subsequent to the filing of this appeal. Secondly, the Appeal Tribunal's decision is an intermediary, not a final, determination of a state administrative agency appealable of right pursuant to Rule 2:2-3(a)(2). Appellant was required to follow the same agency appeals procedure respecting her liability for refund that she did regarding the Appeal Tribunal's determination as to her underlying disqualification for benefits, namely, first exhaust her administrative remedies with the Board.
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