Utley v. Board of Review, Department of Labor

Justice WALLACE, JR.,

dissenting.

I respectfully dissent. I view the case substantially the same as the Board of Review and the Appellate Division. That is, an employee’s loss of transportation to and from work for a two-week period is not attributable to the employee’s work, but is entirely personal to him.

The majority clearly sets forth the applicable principles in part III of its opinion. Ante at 543-48, 946 A.2d at 1044-47. However, I cannot subscribe to the path the majority weaves to reach its conclusion that claimant resigned from the company for work-related rather than for personal reasons.

It is not disputed that claimant has an eyesight problem. Because of that problem, claimant is unable to drive to and from work. During the time that his shift at work was from 7:00 p.m. to 5:30 a.m., claimant used public transportation to travel to and from work. However, when his employer changed his shift to 3:30 p.m. to 12:00 a.m., public transportation was not available. Therefore, claimant arranged transportation with a coworker. It was only after the coworker had to leave work for two weeks to care for a sick relative that claimant could not solve his transportation problem. The employer denied claimant’s reasonable request to use his accrued vacation time during the period in which the coworker would be absent from work because he did not want to encourage other employees to request time off during the busy *553 season. Thereafter, claimant gave notice that he was leaving the job, explaining that his lack of transportation to work was the reason he decided to quit.

Although claimant had a good reason for quitting his job—he did not have transportation to work for a two-week period—that reason was not work-related, but was personal to him. The Court in Self v. Board of Review recognized that “the Legislature has designed a structure in which employees who leave work because of commuting problems are not entitled to unemployment compensation.” 91 N.J. 453, 460 , 453 A.2d 170 (1982). Similar to the claimants in Self claimant was not confronted with a physical inability to work, but rather with a transportation problem. Our courts have consistently held that under those circumstances, quitting work is considered voluntary and not attributable to the work. See Self supra, 91 N.J. 453 , 453 A.2d 170 ; Rolka v. Bd. of Review, 332 N.J.Super. 1 , 752 A.2d 790 (App.Div.2000); White v. Bd. of Review, 146 N.J.Super. 268 , 369 A.2d 937 (App.Div.1977); Morgan v. Bd. of Review, 77 N.J.Super. 209 , 185 A.2d 870 (App.Div.1962). Consequently, I conclude that claimant was not eligible to receive unemployment compensation.

Nevertheless, I acknowledge the concern advanced by Legal Services as Amicus that the policies behind the New Jersey Law Against Discrimination (LAD), N.J.S.A 10:5-1 to -49, and its federal counterpart, the Americans with Disabilities Act (ADA), 42 U.S.C.A. §§ 12101 to 12213, might be implicated because claimant is legally blind. Legal Services notes that “[t]he LAD provides that ‘it is an unlawful employment practice to deny to an otherwise qualified handicapped, blind or deaf person the opportunity to obtain or maintain employment,’ ” N.J.S.A 10:5-29.1, and therefore “employers [must] make reasonable accommodations, which allow disabled employees to remain employed.” Further, Legal Services observes that the public policies underlying the LAD and the ADA, as well as those underlying the New Jersey Unemployment Compensation Act, N.J.S.A. 43:21-1 to -24.30, function “not only to support the individual but also to address the resultant *554 societal harms” such as the health, morals, and welfare of the people of New Jersey. Therefore, Legal Services argues that because the employer failed to allow claimant, a blind person, to take a short leave of absence until his ride returned, “the remedial nature and strong public policies underlying [those acts] ... compel a finding that the employer’s refusal to allow [claimant] a temporary two week leave accommodation that he requested constitutes ‘good cause attributable to the work.’ ”

However, the fact that claimant is legally blind and therefore protected under the LAD and the ADA was not raised as an issue in this case. Claimant never informed his employer that he would be unable to work the new shift hours because of his handicap. Consequently, his request for leave did not implicate the requirement that his employer make an accommodation. See N.J.A.C. 13:13-2.5; see also Tynan v. Vicinage 13 of the Superior Court of N.J., 351 N.J.Super. 385, 401 , 798 A.2d 648 (App.Div.2002) (“While there are no magic words to seek an accommodation, the employee, however, ‘must make clear that ... assistance [is desired] for his or her disability.’”)(quoting Jones v. United Parcel Serv., 214 F.3d 402, 408 (3d Cir.2000)).

Claimant also never informed his employer that the reason he wanted vacation for the two weeks he did not have transportation was because of his handicap. Instead, he explained that the reason he needed vacation was because his driver was not available. Simply put, claimant’s conduct did not trigger any accommodation requirement.

Justices RIVERA-SOTO and HOENS join in this dissent.

For reversal and remandment—Chief Justice RABNER and Justices LONG, LaVECCHIA and ALBIN—4.

For affirmance—Justices WALLACE, RIVERA-SOTO and HOENS—3.