PEDRO DIBLASI VS. BOARD OF REVIEW (BOARD OF REVIEW, DEPARTMENT OF LABOR)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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Although it is posted on the internet, this opinion is binding only on the
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3504-16T1
PEDRO DIBLASI,
Appellant,
v.
BOARD OF REVIEW,
DEPARTMENT OF LABOR, and
DAVIDSON HOTEL COMPANY, LLC,
Respondents.
________________________________
Submitted May 30, 2018 – Decided July 17, 2018
Before Judges Sumners and Natali.
On appeal from the Board of Review, Department
of Labor, Docket No. 105,948.
Pedro Diblasi, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney
for respondent Board of Review (Melissa Dutton
Schaffer, Assistant Attorney General, of
counsel; Shareef M. Omar, Deputy Attorney
General, on the brief).
Respondent Davidson Hotel Company, LLC, has
not filed a brief.
PER CURIAM
Pedro Diblasi appeals from a final agency decision of the
Board of Review concluding that he was disqualified for
unemployment benefits under N.J.S.A. 43:21-5(a) because he left
work voluntarily without good cause attributable to his work. We
affirm.
The facts are not in dispute. Employed by Davidson Hotel
Company, LLC, Diblasi's request for a one-month leave of absence
to attend to his terminally ill mother – who resided in another
country – was denied because he did not work long enough to qualify
for federal or state family leave.1 To avoid termination for job
abandonment and to conclude his employment on good standing for
possible re-employment, Diblasi submitted a resignation letter
stating that he was leaving his job in three weeks due to a family
emergency.
Upon his return from taking care of his mother, Diblasi
applied for unemployment benefits. The Appeal Tribunal denied his
request, ruling:
[Diblasi] sought a leave of absence, but was
denied due to the lack of sufficient time
working for the employer. The evidence
supports the conclusion [he] was aware he was
being denied leave, he elected to sever the
employer-employee relationship and that he
understood he would have to reapply for work
upon his return.
1
Diblasi worked for six-and-a-half months.
2 A-3504-16T1
[Diblasi] left work to care for a family
member. This was a personal reason and was
not attributable to the work. Therefore,
[Diblasi] is disqualified as of [March 20,
2016], under N.J.S.A. 43:21-5(a), as he left
work voluntarily without good cause
attributable to such work.
The Board agreed with the Appeal Tribunal's decision.
On appeal, Diblasi argues he is eligible for benefits because
his employer's denial of his family leave request constituted a
discharge under N.J.A.C. 12:17-10.2; thus, he neither abandoned
nor quit his job. He maintains the Board's determination is
arbitrary and capricious, which denies him due process and
fundamental fairness. We find no merit to these contentions.
The scope of our review of an administrative agency's final
determination is strictly limited. Brady v. Bd. of Review, 152
N.J. 197, 210 (1997). The agency's decision may not be disturbed
unless shown to be arbitrary, capricious or unreasonable. Ibid.Therefore, "[i]f the Board's factual findings are supported 'by
sufficient credible evidence, courts are obliged to accept them.'"
Ibid. (quoting Self v. Bd. of Review, 91 N.J. 453, 459 (1982)).
We see no reason to disturb the Board's decision. N.J.S.A.
43:21-5 provides that a person is ineligible for unemployment
benefits for resigning because it is not for good cause
attributable to work. Hence, our Supreme Court has explained that
an employee who voluntarily leaves employment for good, but
3 A-3504-16T1
personal reasons, is not deemed to have left work voluntarily for
good cause. Brady, 152 N.J. at 213. The record here clearly
shows that Diblasi did not qualify for family leave and decided
to leave his job in order to take care of his ailing mother. There
is nothing in the record to suggest that he was forced to leave
his job, or that his resignation letter was not a voluntary act.
While we appreciate the unfortunate circumstances confronting
Diblasi, the consequence is that under N.J.S.A. 43:21-5(a) he is
not entitled to unemployment benefits.
Diblasi's reliance upon N.J.A.C. 12:17-10.2 is misplaced.
The regulation provides that an employee may not be disqualified
from benefits if discharged from employment where there was good
cause for being absent from work. N.J.A.C. 12:17-10.2(a). Good
cause is defined as "any compelling personal circumstance,
including illness, which would normally prevent a reasonable
person under the same conditions from reporting to work."
N.J.A.C. 12:17-10.2(b). Yet, "[a]n unauthorized absence for five
or more work days may constitute job abandonment" and cause
disqualification for benefits. N.J.A.C. 12:17-10.2(c). Because
Diblasi was not terminated for not reporting to work – he gave
notice that he was resigning in order to take care of his mother
for a month – N.J.A.C. 12:17-10.2 does not apply.
4 A-3504-16T1
Accordingly, the Board's decision does not violate the state
or federal constitutions, is not contrary to express or implied
legislative policies, and is supported by substantial, credible
evidence in the record. See Brady, 152 N.J. at 210-11.
Affirmed.
5 A-3504-16T1