holding "employees who leave work because of commuting problems are not entitled to unemployment compensation"
How later courts described this case
- holding "employees who leave work because of commuting problems are not entitled to unemployment compensation"
Written by the judges who cited it.
The opinion
NOT FOR PUBLICATION WITHOUT THE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-0722-21
OLUWABUNMI OJO,
Appellant,
v.
BOARD OF REVIEW,
DEPARTMENT OF
LABOR AND WORKFORCE
DEVELOPMENT, and UNITED
AMERICAN SECURITY, LLC,
Respondents.
___________________________
Submitted October 6, 2022 – Decided October 28, 2022
Before Judges Accurso and Firko.
On appeal from the Board of Review, Division of
Unemployment Insurance, Department of Labor and
Workforce Development, Docket No. 240011.
Oluwabunmi Ojo, appellant pro se.
Matthew J. Platkin, Attorney General, attorney for
respondent Board of Review (Donna Arons, Assistant
Attorney General, of counsel; Kendall J. Collins,
Deputy Attorney General, on the brief).
PER CURIAM
Oluwabunmi Ojo appeals from the final decision of the Board of Review
disqualifying him from receipt of unemployment compensation benefits
pursuant to N.J.S.A. 43:21-5(a) because he left his job without good cause
attributable to the work. We affirm.
Ojo worked as a security officer with United American Security, LLC
from January 2020 until December 2020 when he left the company. At the
hearing before the Appeal Tribunal in March 2021, he testified under oath he
left work because of transportation problems, which he claimed he explained
to his supervisor, but officially told the company he "couldn't continue to work
anymore because of COVID." When the appeals examiner asked why he told
the company he was leaving because of COVID, Ojo responded, "I just gave
him an excuse. I didn't want them to think too much of why I left." He
testified COVID "seemed like the easiest excuse to give to them."
Ojo testified he actually left because the job was forty-five minutes to an
hour away from his home, and he didn't have a car. He'd used his sister's car
to get to work, but when she moved he'd had to resort to Uber or Lyft. Ojo
explained to the appeals examiner he'd done the "calculations on a daily basis"
and to take an Uber to work "was $37.88 . . . just to go there, and to get back at
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night was at least $48, which totaled out to be more than what I was receiving
for the job on that day." He explained he'd tried to arrange working double
shifts so he'd only have to go three times a week, but his supervisor couldn't
accommodate him.
When the appeals examiner asked Ojo whether he would have stayed at
the job if he'd been able to maintain "regular transportation," he replied, "Yes,
. . . yeah, most definitely." When she asked if "anything specifically
happen[ed] on the job that caused [him] to leave," Ojo replied the company
"wasn't able to work with me with my hours."
Following the hearing, the appeals examiner issued a written opinion on
behalf of the Appeal Tribunal finding Ojo disqualified for benefits. She
explained that although Ojo's transportation problems were "a valid reason for
leaving his job, lack of transportation is a personal reason and not connected to
the work." Relying on well-established law, the examiner found "[a] claimant
who leaves work for a personal reason, no matter how compelling, is subject to
disqualification." See Self v. Bd. of Rev., 91 N.J. 453, 460 (1982) (holding
"employees who leave work because of commuting problems are not entitled
to unemployment compensation").
A-0722-21
3
Ojo appealed to the Board of Review, arguing that although he'd lost
"transportation by car," he was "still fully capable of going to work through
Uber and Lyft." He claimed, however, "there were numerous occasions where
[he] felt discrimination towards [him] from managers and staff . . . which was
the MAIN reason as to why [he] no longer was willing to take 45 [minutes to]
1 hour Uber and Lyft [rides] to work."
The Board of Review found Ojo had been afforded "a full and impartial
hearing" and "agree[d] with the decision reached" on "the basis of the record
below." It rejected as "self-serving" Ojo's post-hearing contention that he left
his job "due to adverse working conditions."
Ojo appeals, claiming his "undisputed testimony and written submission
. . . indicated that he was subject to [a] discriminatory and unhealthy work
environment, which later became unbearable." We cannot agree.
Our review of administrative agency decisions is limited. In re
Stallworth, 208 N.J. 182, 194 (2011). The agency's determination carries a
presumption of correctness, and the claimant bears a substantial burden of
persuasion. Gloucester Cnty. Welfare Bd. v. N.J. Civ. Serv. Comm'n, 93 N.J.
384, 390-91 (1983). "If the Board's factual findings are supported by
'sufficient credible evidence, [we] are obliged to accept them.'" Brady v. Bd.
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4
of Rev., 152 N.J. 197, 210 (1997) (quoting Self, 91 N.J. at 459). "Unless . . .
the agency's action was arbitrary, capricious, or unreasonable, the agency's
ruling should not be disturbed." Ibid.
Ojo misapprehends the evidence in the record. The record in this Board
of Review matter consists only of the sworn testimony before the Appeal
Tribunal. See J.K. v. N.J. State Parole Bd., 247 N.J. 120, 138 (2021)
(explaining how appellate courts understand the record "created before the
agency whose decision is on appeal"). Thus, the "undisputed testimony" is
Ojo's testimony that he left work because he'd lost access to his sister's car and
using Uber or Lyft to get to work cost more than he netted per shift. The
appeals examiner asked Ojo whether he would have continued in the job if he'd
been able to maintain regular transportation and whether anything specific had
happened to cause him to leave. Ojo assured her, under oath, that he "most
definitely" would have continued as a security officer at United American
Security if it weren't for his transportation problems, and the only thing
causing him to quit was his supervisor's inability to allow him to work fewer
shifts of longer hours to accommodate his not having a car.
Ojo's claim to the Board of Review and this court that the real reason he
left was the discrimination he felt from management and his co-workers is
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5
unsworn argument, not evidence. There is no evidence in this record
supporting Ojo's belated claim of discriminatory treatment. The undisputed
evidence in the record is that Ojo left work because of his transportation
problems. Because the law is well-settled that personal transportation
problems preventing an employee from getting to work are considered
voluntary, thus disqualifying the employee for unemployment benefits,
N.J.A.C. 12:17-9.1(e), we affirm.
Affirmed.
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