ALLATRICE L. WADE v. BOARD OF REVIEW and WAL-MART

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0323-08T20323-08T2

ALLATRICE L. WADE,

Appellant,

v.

BOARD OF REVIEW and

WAL-MART,

Respondents.

________________________________________________________________

 

Submitted December 7, 2009 - Decided

Before Judges Lisa, Baxter and Coburn.

On appeal from the Board of Review, Department of Labor and Workforce Development, Docket No. 168,044.

Allatrice L. Wade, appellant pro se.

Anne Milgram, Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ellen A. Reichart, Deputy Attorney General, on the brief).

Respondent Wal-Mart has not filed a brief.

PER CURIAM

Allatrice Wade appeals from a September 2, 2008 decision of the Board of Review (Board) that affirmed the Appeal Tribunal's conclusion that Wade was disqualified for unemployment compensation benefits because she left work voluntarily without good cause attributable to her employment. We reject Wade's claim that she left her job at Wal-Mart due to poor working conditions as such claim is unsupported by the record. We affirm.

I.

Wade's employment as a photo technician at Wal-Mart began on November 18, 2005. She returned to work on September 5, 2007 after an approved leave of absence; however, upon her return to work, she explained to a manager that she was experiencing childcare problems. The manager agreed to a brief extension of Wade's leave of absence to enable Wade to make childcare arrangements for her son; Wade returned to work five days later.

Upon her return to work, Wade was notified by her department manager that he had scheduled her to work from 7:00 a.m. to 4:00 p.m. Wade explained that she was unable to work that shift because it would prevent her from walking her youngest daughter to school. Before taking the leave of absence, Wade had also worked from 1:00 p.m. to 10:00 p.m.; however, she did not ask if that shift was available because she had no one available to care for her children during those hours. The manager rejected Wade's offer to work from 10:00 a.m. to 7:00 p.m., commenting that if Wade could not work the hours she had been assigned, she would have to resign. Wade resigned her position that day.

At the hearing before the Appeal Tribunal, Wade testified that "the only reason [she] left the job" was "because of lack of childcare." Nowhere in her testimony before the Appeal Tribunal did Wade voice any complaint about her working conditions at Wal-Mart.

In its decision, the Appeal Tribunal found that Wade left her employment because she was unable to resume working her usual shift due to a lack of childcare. The Appeal Tribunal also found that Wade's reason for leaving her job was personal and not attributable to her employment. Consequently, the Appeal Tribunal found Wade disqualified for unemployment compensation benefits because she left work voluntarily without good cause attributable to her employment. On September 2, 2008, the Board affirmed the decision of the Appeal Tribunal.

II.

The relevant portion of the New Jersey Unemployment Compensation Law provides that an individual shall be 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 . . . ." N.J.S.A. 43:21-5(a) (emphasis added). A portion of the Administrative Code, N.J.A.C. 12:17-9.1(e)(2), specifically provides that when an employee leaves work due to lack of childcare, such separation from employment shall be deemed a voluntary resignation that renders such person ineligible for unemployment compensation benefits.

We review Wade's contentions in accordance with our standard of review. The Board's determination that Wade was disqualified from receiving benefits must be affirmed unless it is "arbitrary, capricious or unreasonable" or is not supported by substantial credible evidence in the record as a whole. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). In determining whether an agency's decision is supported by substantial credible evidence, we are obliged to accord deference to the agency's fact-finding. Associated Util. Servs., Inc. v. Bd. of Review, 131 N.J. Super. 584, 588 (App. Div. 1974). Therefore, if the record contains sufficient credible competent evidence to support the agency's conclusions, we must uphold them. Clowes v. Terminix Int'l., Inc. 109 N.J. 575, 588 (1988).

The record amply supports the Board's conclusion that Wade left her employment at Wal-Mart for personal reasons unrelated to her employment. In particular, the record demonstrates that Wade left her employment because she had no one available to care for her children. In her appellate brief, for the first time, Wade maintains that she left work due to poor working conditions. She made no such claim before the Appeal Tribunal, and conceded during the hearing that her lack of childcare was the only reason she had left her position at Wal-Mart. The record contains substantial credible evidence supporting the determination of the Board that Wade is disqualified for unemployment compensation benefits pursuant to N.J.S.A. 43:21-5(a) and N.J.A.C. 12:17-9.1(e)(2) because her reasons for terminating her employment were personal and not attributable to her employment.

Affirmed.

(continued)

(continued)

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A-0323-08T2

December 15, 2009