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Debari v. Board of Review


March 1, 2010


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

Per curiam.


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 April 29, 2009, the Board of Review (Board) affirmed the Appeal Tribunal's determination. He now appeals to this court.

The scope of our review of an agency decision is limited. Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). The administrative agency's determination carries a presumption of correctness and a claimant who challenges the agency's conclusion carries a substantial burden of persuasion. Gloucester County Welfare Bd. v. Civil Serv. Comm'n, 93 N.J. 384, 390-91 (1983). Also, we accord substantial deference to an agency's interpretation of the statute it is charged with enforcing. Board of Educ. v. Neptune Tp. Educ. Ass'n, 144 N.J. 16, 31 (1996).

The question of whether an employee should be denied unemployment compensation benefits is based on the circumstances of each individual case. See, e.g., Self v. Bd. of Review, 91 N.J. 453, 459-60. (1982) (reviewing whether a change in an employee's commute might qualify as "good cause" for leaving employment). In our review, "[w]e are obliged to defer to the Board when its factual findings are based on sufficient credible evidence in the record." Lourdes Med. Ctr. v. Bd. of Review, 197 N.J. 339, 367 (2009) (internal quotations and citations omitted). We overturn an agency determination only if it is found to be arbitrary, capricious, unreasonable, unsupported by substantial credible evidence in the record as a whole, or inconsistent with the enabling statute or legislative policy. Barry v. Arrow Pontiac, Inc., 100 N.J. 57, 71 (1985) (quoting Gloucester County Welfare Bd., supra, 93 N.J. at 391); Campbell, supra, 39 N.J. at 562.

The purpose of New Jersey's Unemployment Compensation Act (Act), N.J.S.A. 43:21-1 to -71, "is to provide some income for the worker earning nothing, because he is out of work through no fault or act of his own[.]" Yardville Supply Co. v. Bd. of Review, 114 N.J. 371, 375 (1989) (quotation omitted). "The basic policy of the [Act] is advanced... when benefits are denied in improper cases as when they are allowed in proper cases." Id. at 374.

The governing statute provides, in relevant part, that an applicant shall be disqualified for benefits...

(b) [f]or the week in which the [applicant] has been suspended or discharged for misconduct connected with the work[.]...

If the discharge was for gross misconduct connected with the work because of the commission of an act punishable as a crime of the... third... degree..., the individual shall be disqualified... and no benefit rights shall accrue.... [N.J.S.A. 43:21-5(b).]

Claimant argues subsection (b) is inapplicable because he has not been convicted of the third-degree offense; when his PTI period is completed, that charge will be dismissed leaving only a disorderly person's offense. The Township argues claimant was suspended after he was charged with the third-degree offense of making terroristic threats; disposition of the charge is not relevant to disqualification.

The question before us is whether claimant's conduct constitutes "gross misconduct connected with his work" to disqualify him from unemployment benefits.

"Misconduct within the meaning of N.J.S.A. 43:21-5(b)... must be an act of wanton or willful disregard of the employer's interest, a deliberate violation of the employer's rules, a disregard of standards of behavior which the employer has the right to expect of his employee, or negligence in such degree or recurrence as to manifest culpability, wrongful intent, or evil design, or show an intentional and substantial disregard of the employer's interest or of the employee's duties and obligations to the employer." [Parks v. Bd. of Review, 405 N.J. Super. 252, 254 (App. Div. 2009) (quotation and citation omitted).]

Our review discloses that the Board's determination denying claimant benefits based on a finding of gross misconduct is supported by substantial credible evidence in the record. The undisputed series of events leading to claimant's separation from employment showed that while at work, he threatened to shoot his co-workers. He was arrested and charged with making terroristic threats, a third-degree offense. "A person is guilty of [that] crime... if he threatens to kill another with the purpose to put him in imminent fear of death under circumstances reasonably causing the victim to believe the immediacy of the threat and the likelihood that it will be carried out." N.J.S.A. 2C:12-3(b).

The statements attributed to claimant fall squarely within the definition of "gross misconduct connected with work."

First, claimant made threats to shoot his co-workers and that he had a gun in his car. Second, the threatening statements were made at the place of employment directed toward his co-workers. Third, claimant's threats motivated Aponte to seek police assistance because he "believe[d] the immediacy of the threat and the likelihood that it w[ould] be carried out." Fourth, a BB gun was found in claimant's car. Fifth, after a police investigation, claimant was, in fact, charged with the third degree offense. Finally, as a result of his arrest and the issuance of criminal charges, claimant was suspended from employment. Suspension pending discharge is consistent with "discharge" as used in the statute. Connell v. Bd. of Review, 216 N.J. Super. 403, 408 (App. Div. 1987).

We reject claimant's argument that the requisites of the statute were not met because he was not convicted of a criminal offense and that, at the conclusion of the PTI probationary period, the charge was dismissed. The statute examines the basis for a claimant's separation from employment. If the cause was the "commission of an act "punishable as a crime of the... third... degree" it is "gross misconduct" as defined by the statute. A conviction is not required.

We conclude that the Board's determination to deny benefits is supported by substantial credible evidence in the record and in keeping with the applicable statutes and legislative policies. See Campbell, supra, 39 N.J. at 562. Accordingly, it will not be disturbed.



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