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Debari v. Board of Review

March 1, 2010

JOE F. DEBARI, APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR AND TOWNSHIP OF MORRIS, RESPONDENTS.



On appeal from the Board of Review, Department of Labor, Docket No. 210,636.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 5, 2010

Before Judges Parrillo and Lihotz.

Claimant Joe F. DeBari, also known as Gusippe DeBari, appeals from a final decision of the Board of Review (Board) denying his claim for unemployment benefits. The Board affirmed the determination of an Appeal Tribunal, which concluded claimant was discharged for gross misconduct, pursuant to N.J.S.A. 43:21-5(b), after he threatened to shoot co-workers as they arrived for work. We affirm.

Claimant was employed by defendant Morris Township (the Township) as a water pollution control utility operator at the Township's water treatment plants from August 21, 1992 through October 21, 2008, when he was indefinitely suspended without pay pending the outcome of criminal charges. The underlying facts supporting the charged offenses of disorderly conduct and third-degree terroristic threats stemmed from claimant's October 20, 2008 verbal outburst to co-workers at the Butterworth Solution Treatment Plant. Claimant's co-worker Luis Aponte reported claimant made this statement to him:

I will wait by the door at 6:00 am and shoot the first person with buckshot, then drag the body into the file room and wait for the next guy. A few employees, I wouldn't shoot them in the chest, I'll shoot them in the knees and watch them suffer. I got a gun in my fucking car now. You guys are fucking lucky I got my meds. It doesn't matter anyway, because I'll get off.

The following morning, claimant was arrested at the Butterworth facility. At the time of arrest, an MP5 BB gun was seized from claimant's vehicle.

Upon receipt of the criminal complaints, the Township Administrator, Fred Rossi, suspended claimant without further investigation. Rossi testified that "if the charges were true that [claimant] would be a threat against other employees," he could not be allowed to remain in the workplace. Claimant filed a grievance through his union representative, which was denied.

Claimant initially pled not guilty to the two offenses. He later changed that plea when his request for admittance into the county's pre-trial intervention program (PTI) was granted. PTI is designed in part to provide certain offenders with early rehabilitation in an effort to deter future criminal conduct. N.J.S.A. 2C:43-12a(1). Disposition of the charges was deferred for eighteen months until claimant completed PTI. His acceptance into PTI was conditioned on the fulfillment of several enumerated conditions, which included the resignation of his employment with the Township. Upon conclusion of the eighteen-month PTI period and satisfaction of all conditions, the third-degree offense would be dismissed, and claimant's guilty plea would be only to the disorderly persons offense.

Claimant applied for unemployment on October 26, 2008. A Deputy Director for the Division of Unemployment Insurance concluded claimant was disqualified from receiving benefits because he engaged in gross misconduct in connection with his employment. N.J.S.A. 43:21-5. Claimant appealed the denial of his benefits request.

On January 13, 2009, an Appeal Tribunal held a telephonic hearing. Rossi testified on behalf of the Township, relating the circumstances of claimant's suspension. Claimant testified and denied making the statement contained in the criminal complaint, asserting he had not spoken to Aponte on October 20, 2008. Claimant acknowledged he was talking to his colleagues about obtaining gun permits and purchasing handguns. Aponte was present but not part of the group. Specifically, claimant stated his conversation was with Dan Ireton. Claimant asserts he told Ireton: "[A]nybody can come in here and shoot people at any time." Claimant insisted Aponte did not make the statement as recited in the criminal complaints, rather "the police took it upon themselves to blow it out this big."

Vincent Catano, who was present when claimant made statements to Ireton, was called as claimant's witness. Catano testified claimant "made some just [sic] generalized threats[,] which were a way that he commonly speaks. They weren't made in general [sic] to any one person, they were just, have to put it, Joe running his mouth." Then the statement attributed to claimant recorded in the complaint was read to Catano, who agreed the words were "generally" what claimant said, but he "did not agree with every word."

The Appeal Tribunal rejected claimant's testimony as not credible and relied on Catano's testimony that claimant made verbal threats to his co-workers resulting in criminal charges, which in turn caused the loss of his employment. The appeal examiner concluded claimant's actions constituted gross misconduct connected to his employment for which the statute imposed a disqualification of receipt of unemployment benefits. N.J.S.A. 43:21-5(b). Claimant again appealed. On ...


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