Unemployment Benefits Won After Claimant Resigned For "Good Cause"

The case of Yolanda Cohen decided by the Appellate Division Third Department shows the importance of a fact-based defense by a Claimant showing "good cause" for a resignation due to workplace harassment.

We at Advocatz use terms such as "Just Cause" (or 'good cause') and "bad faith" in our defense of a Respondent brought to Education Law 3020-a arbitration. We want the Hearing Officer to look at the facts, or lack thereof, and the fairness and integrity of the process followed in support of those facts.

From Wikipedia:

"Good cause is a legal term denoting adequate or substantial grounds or reason to take a certain action, or to fail to take an action prescribed by law. What constitutes a good cause is usually determined on a case by case basis and is thus relative.

Often the court or other legal body determines whether a particular fact or facts amount to a good cause. For example, if a party to a case has failed to take legal action before a particular statute of limitations has expired, the court might decide that the said party preserves its rights nonetheless, since that party's serious illness is a good cause, or justification for having additional time to take the legal action."

 ( Henry Campbell Black; Joseph R. Nolan; Jacqueline M. Nolan-Haley (1991). "good cause". Black's Law Dictionary. West Pub. Co. p. 476).

Thus, a sustainable, valid defense in any forum results from a thorough, fact-based inquiry into the background of a case using the "good cause" justification.

Similarly, a valid defense should have a fact-based presentation of bad faith by the defendant(s).

From Wikipedia:

"Bad faith (Latin: mala fides) is double mindedness or double heartedness in duplicity, fraud, or deception. It may involve intentional deceit of others, or self-deception.

The expression "bad faith" is associated with "double heartedness", which is also translated as "double mindedness". A bad faith belief may be formed through self-deception, being double minded, or "of two minds", which is associated with faith, belief, attitude, and loyalty. In the 1913 Webster’s Dictionary, bad faith was equated with being double hearted, "of two hearts", or "a sustained form of deception which consists in entertaining or pretending to entertain one set of feelings, and acting as if influenced by another". The concept is similar to perfidy, or being "without faith", in which deception is achieved when one side in a conflict promises to act in good faith (e.g. by raising a flag of surrender) with the intention of breaking that promise once the enemy has exposed himself. After Jean-Paul Sartre's analysis of the concepts of self-deception and bad faith, bad faith has been examined in specialized fields as it pertains to self-deception as two semi-independently acting minds within one mind, with one deceiving the other.

Some examples of bad faith include: a company representative who negotiates with union workers while having no intent of compromising; a prosecutor who argues a legal position that he knows to be false; an insurer who uses language and reasoning which are deliberately misleading in order to deny a claim."

Betsy Combier

President and Founder, ADVOCATZ
betsy.combier@gmail.com
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

Appellate Division, Third Department

In the Matter of the Claim of YOLANDA COHEN

2017 NY Slip Op 05885

In the Matter of the Claim of YOLANDA COHEN, Respondent.

NEW YORK CITY DEPARTMENT OF CITYWIDE ADMINISTRATIVE SERVICES, Appellant.

COMMISSIONER OF LABOR, Respondent.

Appellate Division of the Supreme Court of New York, Third Department.

Decided July 27, 2017.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed February 11, 2015, which ruled that claimant was entitled to receive unemployment insurance benefits.

Zachary W. Carter, Corporation Counsel, New York City (Michael J. Pastor of counsel), for appellant.

Michelle I. Rosien, Philmont, for Yolanda Cohen, respondent.

Eric T. Schneiderman, Attorney General, New York City (Linda D. Joseph of counsel), for Commissioner of Labor, respondent.

Before: Peters, P.J., Garry, Egan Jr., Rose and Mulvey, JJ.

MEMORANDUM AND ORDER

EGAN, Jr., J.

Claimant worked for the employer as a paralegal from 2007 to 2012, during which time various disciplinary charges were lodged against her. In February 2012, claimant and the employer entered into a stipulation of settlement resolving the most recent round of disciplinary infractions. Pursuant to the terms of that stipulation, claimant would waive her right to a Civil Service Law § 75 hearing and would resign effective March 15, 2012. In the interim, claimant would be allowed to collect her accrued annual leave and, going forward, would receive a "neutral reference" from the employer. Notably, the stipulation of settlement contained no admission of misconduct, and no finding of wrongdoing on the part of claimant was made.

Claimant subsequently filed an application for unemployment insurance benefits, and the Department of Labor issued initial determinations disqualifying claimant from receiving benefits upon the grounds that she voluntarily left her employment without good cause or, alternatively, lost her employment due to misconduct. Following a lengthy hearing, an Administrative Law Judge (hereinafter ALJ) overruled the initial determinations, finding that claimant had good cause to separate from her employment and had not otherwise committed disqualifying misconduct. In so concluding, the ALJ found that claimant had been subject to a hostile work environment. The Unemployment Insurance Appeal Board subsequently adopted the ALJ's findings and affirmed the ALJ's decision, prompting this appeal by the employer.

We affirm. As a general proposition, a claimant who voluntarily leaves his or her employment without good cause will not be entitled to receive unemployment insurance benefits (see e.g. Matter of Flint-Jones [Federal Reserve Bankof N.Y.— Commissioner of Labor], 144 AD3d 1288, 1288-1289 [2016]), and the same holds true for a claimant who engages in disqualifying misconduct (see e.g. Matter of Trunzo [Commissioner of Labor], 145 AD3d 1308, 1309 [2016]). That said, "[a] claimant who voluntarily leaves his or her position in the face of disciplinary charges may qualify for unemployment benefits if the actions did not amount to misconduct" (Matter of Jimenez [New York County Dist. Attorney's Off.—Commissioner of Labor], 20 AD3d 843, 843 [2005] [internal quotation marks and citation omitted]; accord Matter of Cohen [Town of Brookhaven—Commissioner of Labor], 91 AD3d 998, 998 [2012], lv dismissed 19 NY3d 831 [2012]; Matter of Straw [Rocky Point Union Free School Dist.—Commissioner of Labor], 32 AD3d 1098, 1099 [2006]). "Whether a claimant has engaged in disqualifying misconduct is a factual question for the Board to resolve and its determination will not be disturbed if supported by substantial evidence" (Matter of Oberman [New York City Dept. of Citywide Admin. Servs.—Commissioner of Labor], 143 AD3d 1022, 1023 [2016] [internal quotation marks and citations omitted]; see Matter of Trunzo [Commissioner of Labor], 145 AD3d at 1309).

Claimant and the employer's witnesses presented competing accounts of claimant's work history, her work product, her general demeanor and her interaction with others in her office. Without recounting the extensive testimony offered on these points, suffice it to say that the employer portrayed claimant as an insubordinate malcontent who failed to timely and appropriately complete assignments or respond to various emails or directives. Claimant, on the other hand, testified at length as to the "bullying" and harassment that she endured at the hands of her supervisors, recounted the manner in which she was verbally threatened by certain individuals in her office and disputed the employer's account of her overall work performance. This conflicting testimony presented factual and credibility issues for the Board to resolve (see Matter of Saunders [Life Adj. Ctr., Inc.—Commissioner of Labor], 106 AD3d 1317, 1317-1318 [2013]). As noted previously, the stipulation of settlement entered into between claimant and the employer contained no finding or admission of wrongdoing on the part of claimant. Further, upon crediting claimant's testimony as to the nature of her work environment and her reasons for resigning, the Board agreed with the ALJ's findings that claimant's actions did not rise to the level of disqualifying misconduct but, rather, were undertaken in direct response to her "hostile" and "untenable" work environment — an environment that, in turn, provided "a compelling reason for her to resign." As there is substantial evidence to support the Board's decision in this regard, it will not be disturbed — despite the presence of other evidence in the record that could support a contrary conclusion (see Matter of Barrier Window Sys., Inc. [Commissioner of Labor], 149 AD3d 1373, 1375 [2017]).

Peters, P.J., Garry, Rose and Mulvey, JJ., concur.

ORDERED that the decision is affirmed, without costs

see Matter of Kolmel:

Matter of Kolmel v City of New York

2011 NY Slip Op 07265 [88 AD3d 527]

October 18, 2011

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, December 7, 2011

In the Matter of William Kolmel, Appellant, v City of New York et al., Respondents.

—[*1]

Wolin & Wolin, Jericho (Alan E. Wolin of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Edward F. X. Hart of counsel), for respondents.

Order and judgment (one paper), Supreme Court, New York County (Carol R. Edmead, J.), entered June 10, 2010, which, insofar as appealed from as limited by the briefs, denied the petition seeking, inter alia, to annul the determination of respondent Department of Education (DOE) denying petitioner certification of completion of probation and terminating his employment as a probationary teacher, and denying his appeal of an unsatisfactory rating (U-rating) for the 2008-2009 school year, and dismissed the proceeding brought pursuant to CPLR article 78, unanimously reversed, on the law, without costs, the petition granted to the extent of annulling the U-rating and the matter remanded to DOE for proper completion of the final review and recommendation.

The record shows that following three years of probationary service as a high school social studies teacher, petitioner had received satisfactory reviews and year-end reports. However, petitioner was informed he would not be recommended for tenure that year and agreed to enter into an agreement extending his probation through the 2008-2009 school year. During this fourth year, petitioner received two satisfactory and two unsatisfactory classroom reports, two letters to the file for unbecoming conduct, and his principal gave him an unsatisfactory rating in each category on the year-end report (except voice and appearance, which were left blank) and an overall U-rating. As a result, it was recommended that petitioner be denied certification of completion of probation, which required termination of his service and precluded him from being hired by any other high school in the City.

"[A] . . . probationary employee may be discharged for any or no reason at all in the absence of a showing that his or her dismissal was in bad faith, for a constitutionally impermissible purpose or in violation of law" (Matter of Brown v City of New York, 280 AD2d 368, 370 [2001]; see Matter of Frasier v Board of Educ. of City School Dist. of City of N.Y., 71 NY2d 763, 765 [1988]). "Evidence in the record supporting the conclusion that performance was unsatisfactory establishes that the discharge was made in good faith" (Matter of Johnson v Katz, 68 NY2d 649, 650 [1986]); the same standard applies when a teacher challenges a "U" rating (see Batyreva v New York City Dept. of Educ., 50 AD3d 283 [2008]).

Here, the two negative classroom observations cited in the year-end report, which [*2]criticized petitioner's manner of asking questions, and the file letters, could rationally support a finding that petitioner had not developed into a proficient high school social studies teacher, following three years of suggestions and assistance (see e.g. Matter of Murnane v Department of Educ. of the City of N.Y., 82 AD3d 576 [2011]).

However, petitioner submitted evidence that the principal who made the determination to award the 2008-2009 U-rating did not observe petitioner's teaching during either of his final two years at the school. This was in violation of DOE's rules concerning teacher rankings, which require at least one observation by the principal and pre-observation meetings with probationary teachers in danger of U-ratings. Furthermore, the year-end report, on its face, was completed by the principal in an arbitrary manner, including unsatisfactory rankings in every category, even where unsupported by any evidence or contradicted by evidence in the report itself. Petitioner's assertion that the principal stated at the administrative hearing that she did not rely on the file letters in making her tenure recommendation is not disputed by respondents. Petitioner also submitted a statement by a current DOE employee who formerly worked at the high school, that the principal pressured assistant principals to give negative U-ratings without observing the teachers. These deficiencies in the review process leading to the recommendation to deny tenure and terminate petitioner's employment are not merely technical, but undermined the integrity and fairness of the process (see Matter of Blaize v Klein, 68 AD3d 759 [2009]; Matter of Lehman v Board of Educ. of City School Dist. of City of N.Y., 82 AD2d 832, 834 [1981]; compare Matter of Davids v City of New York, 72 AD3d 557, 558 [2010] [technical failure to follow rules not bad faith where delays were undertaken in attempt to allow petitioner to bring his performance up to standards]). Concur—Mazzarelli, J.P., Moskowitz, Acosta, Renwick and DeGrasse, JJ. [Prior Case History: 2010 NY Slip Op 31350(U).]

James Eterno, a Leave Replacement Teacher, Files a Complaint Against the UFT With the Federal Department of Labor

James Eterno writes about why he has filed a complaint against the UFT:

Sunday, March 22, 2015

UFT SNUBS ATRS AGAIN IN CHAPTER ELECTIONS; COMPLAINT HAS BEEN FILED WITH FEDERAL DEPARTMENT OF LABOR

One of the agenda items at the UFT Executive Board meeting for Monday, March 23 is a resolution to adopt a guide and bylaws for Chapter Elections (see below).  Chapter Leader and Delegate elections are scheduled this spring for the United Federation of Teachers.

In putting out its election guide, the UFT has once again given the cold shoulder to Absent Teacher Reserves and Leave Replacement Teachers, a huge group that includes way over a thousand teachers who belong to no UFT Chapter.  As a Leave Replacement Teacher, I am one of these teachers without a permanent home. We are being disenfranchised in reality, if not on paper, as the new procedures will allow ATR's to vote and run for office in the school they are assigned to in the first week of May (see below).  This is patently absurd.  We might not even be in that school when it holds its Chapter Election in May or June.  

Last month I filed a complaint with the Federal Department of Labor that the UFT is violating federal labor law by not allowing us a reasonable opportunity to serve in the highest policy making body of the union: the Delegate Assembly.  As I told the Department of Labor:

The Landrum Griffin federal regulations say this concerning eligibility to be candidates for union office:  "Every member in good standing is eligible to be a candidate and to hold office subject to reasonable qualifications in the union's constitution and bylaws that area uniformly imposed."  Why should being an ATR cause us to lose any chance of being elected to the UFT's highest policy making body: The Delegate Assembly?  Teachers who are filling in as Leave Replacements or those covering vacancies provisionally also belong to no Chapter and cannot run for Chapter Leader or Delegate.  This is unconscionable.

The union's response is to say that we can run for office in the school we are assigned to in the first week of May.  It would be as if a person took a business trip to Hawaii for a week, a month or a few months and was told she/he could vote in Hawaii's election and could run for Governor of Hawaii.  

It is so dumb to think that we could serve when most of us will not be in the schools we are at the first week in May come September.  Even if we were to be elected, as soon as we are no longer in a school, the UFT would be happy to take the leadership position away from any ATR who happened to win a vote.

I informed the union's leadership in an email sent last fall to Staff Director Leroy Barr, with copies to the UFT President, the President of New York State United Teachers and the American Federation of Teachers that the process used in the last Chapter Elections in 2012 was entirely illegal.  I stated in part:

 

Absent Teacher Reserves (ATRs) have no representation at the UFT Delegate Assembly and we have no elected Chapter Leader.  The official UFT Calendar refers to the Delegate Assembly as the highest policy making body in the United Federation of Teachers.  Since both Chapter Leaders and Delegates make up the Delegate Assembly, ATRs should be able to vote for who will represent us. Federal labor regulations say the following concerning policymaking authority within a union: "In addition, any person who has executive or policymaking authority or responsibility must be elected even though he may not occupy a position identified as an officer position under the union's constitution and bylaws." UFT Delegates and Chapter Leaders clearly have a policymaking role and therefore the law requires that they are elected.

 

The Landrum Griffin Law says in SEC. 101 (a)(1) concerning equal rights: " Every member of alabor organization shall have equal rights and privileges within such organization to nominate candidates, to vote in elections or referendums of the labor organization..."  Many ATRs are being denied these basic union rights under the present UFT Chapter Election structure. 

Leroy Barr responded to my email by setting up a meeting with me that he scheduled for after the November Delegate Assembly, not in his office, but in the giant hall where the DA is held.  I had to go downstairs from the visitor's section on the 19th floor to the second floor auditorium to talk with Barr, Assistant Secretary Emil Pietromonaco and Lawyer Adam Ross. (Thanks to John Antush for being my witness.)

I suggested we need a Functional Chapter for ATR's and they rejected the notion rather emphatically. Functional Chapters are for UFT members who are not part of the regular teaching staff but serve other functions in the school system.  That would certainly describe ATR's.  An example of teachers in this category would be teachers assigned to district offices and the new Peer Validators.  They are part of a Chapter called Teachers Assigned.

I also proposed a possible compromise where we could remain as part of our old Chapters, including keeping closed school Chapters alive, until we are permanently in a new school, retire, resign are terminated or die.  They said they would consider this and assured me they understand the issue and are working on it.  I sent a follow up email that was never answered.  

I waited for three months for a reply as I always hold out some tiny hope that our union's leaders will do the right thing but I should know better by now.  By February, I had waited long enough and filed the complaint with the Federal Department of Labor. 

The issue comes down to the question of whether or not the UFT has set up reasonable qualifications that are uniformly imposed.  I do not believe they are reasonable in any way shape or form.

A rule that says we can run but we really can't serve in office unless we are made permanent teachers in a school, which for many of us is highly unlikely due to salary considerations or status as a teacher who once was up on state law 3020A (disciplinary) charges but were not terminated, is so clearly a method to just look good on paper but disenfranchise ATRs in reality.

As a Leave Replacement Teacher, I am 100% certain that whether we prevail with the Department of Labor or not, ATRs have been abandoned by our union's leadership yet again. It follows the proliferation of ATRs after the horrific 2005 contract ended preferred placement when a school closed, the 2011 agreement where ATRs were forced to rotate weekly and the 2014 contract where ATRs were imbedded into the contract including a clause stating that we have resigned if we miss two bogus interviews that we may have not even known about. Our tenure means nothing.

Mulgrew, Barr, etc... don't care about us at all and are trying a slick little maneuver to say they are in compliance with federal labor law on ATR voting and serving in Chapter positions. It won't be easy for the ATR's to win this but we can say a prayer (that's for you believers) the Department of Labor will see the UFT ploy for what it is.

ELECTION GUIDE AND BY-LAWSChapter Election Procedures

Election of chapter leader, other chapter officers and delegates to the Delegate Assembly shall be conducted by secret ballot under the supervision of an election committee.

 

The Election Committee may be designated by the chapter leader with the approval of the chapter, or may be elected by the chapter.  Candidates for chapter leader and DA delegate may not serve on the Election Committee.  If the chapter conducts an election, there must be clear notice of the process posted or discussed at a union meeting.

The duties of the Election Committee shall be:

 

 1.  To choose the chair of the Election Committee.

 

 2. To prepare a Notice of Election. This notice shall contain:

 

 a. A list of the positions to be filled.  In addition to the chapter leader, the notice shall state how many delegates are to be elected: one per 60 teacher members or major fraction thereof. The school printout provides the number of DA delegates. The chapter may include other chapter positions exclusive to the school.

 

 b. A procedure for nominations.

 

 c. An election calendar.

 

 d. A procedure for appeal.

 

 3. Preparing the ballots and the ballot box and determining eligible voters on the basis of UFT-  established rules.

 

 4.   Conducting the actual election.

 

 5.   Counting the ballots.

 

 6.   Certifying the election to the UFT Membership Department on the appropriate form.

 

 7.  Keeping the ballots and the ballot box in a safe place for at least one month, in case of a challenge to the results.

 

A copy of the Notice of Election with the Election Calendar must be distributed to each chapter member through the school mailboxes, including those in annexes and school sites, and shall be posted on the UFT bulletin board at least three (3) school days prior to the date of nominations in each site and annex.

 

The Election Calendar must include the following information:

·       Date of Nominations  This date must be at least 3 school days after the distribution of the Notice of Election.

·       Date of Election

 

The actual elections must take place on one day. This date must be at least 5 school days following the distribution of the Notice of Election.

 

·       Time and place of voting

 

This schedule must be suited to the school so as to give all UFT members an opportunity to vote.  The schedule must make provision for all school sites and annexes.

·

      An election calendar

Sample election calendar:  Thursday, May 7th:  Notice of election distributed; Thursday, May 14th: Nominations close at the end of the school day; Thursday, May 21st: voting.

 

Every school is entitled to elect a para-professional representative and the vote may take place at the same time as the chapter election. Only paraprofessionals may nominate, run and vote for paraprofessional representatives.

 

The UFT Constitution does not provide for co-chapter leaders. If a chapter chooses to have a co-chapter leader, it may only be on an informal basis. Only one name may be submitted as chapter leader of record.

 

Nominations

The chair of the Election Committee must verify that all nominees accept their nominations.

Provision will be made for members who are not on the school’s table of organization but eligible to participate in the chapter’s election to nominate and be nominated.

 

Conducting the Election

The ballot box must be secure and monitored at all times by the Election Committee.

 

Provision will be made for members who are out on official school business—e.g., a class trip or conference—or who are not on the school’s table of organization, but eligible to participate to cast ballots before the close of balloting.

Members must vote in person; no absentee ballots may be cast.

 

Voting must take place by secret ballot on the date announced in the Election Calendar.

 

In cases where positions are not contested (only one candidate has been nominated for a particular role), those candidates can be confirmed without a formal vote.

 

Time and Place for Counting Ballots

The count shall take place on the day of voting, and provision must be made to include the vote 
of all school sites and annexes with the school count.

 

A supervised ballot box must be provided at a specific location. A membership roster must be available, and is to be initialed by the voter at the time the ballot is cast. Each chapter leader will have a membership printout and a chapter certification form. The printouts should be checked immediately by the Election Committee for errors or omissions.

 

Members who were not on the school’s table of organization but were assigned to the school on the first Monday in May will be added to the roster.

 

An individual whose name is not on the printout, but who claims membership and can display evidence of UFT membership—such as a NYSUT membership card or check stub with proper dues code (“-U”)—should be allowed to vote.

 

The ballot, however, is subject to challenge and must be sequestered. 

 

Ballots shall be counted at the time and place announced in the Election Calendar. Candidates or their observers may be present at the count.  Election shall be determined by the highest number of votes.  Challenged ballots shall be set aside and, if their number could affect the outcome of the election.

 

The Election Committee shall place an announcement of the results on the UFT bulletin board immediately after the election.

 

All ballots and election materials shall be retained by the Election Committee for at least one month to allow for review of results.

 

As soon as results have been certified by the Election Committee, the Committee Chair must complete the Chapter Certification Data Form and send it to the UFT Membership Department, 52 Broadway, New York, NY 10004, 11th floor.

 

Procedures for appeals

Appeals of elections must be made in writing to the UFT borough representative, with written notice to the chapter within five (5) school days following the election. In the event that a challenge to the election is successful, the borough representative shall establish an expedited election procedure.

 Eligibility

Any full-time member may nominate, run for a position and vote in a school’s election if he or she is on the school’s permanent table of organization or assigned to the school on the first Monday in May of an election year.

     

Only teachers are eligible to nominate, run for and vote for school DA delegate, provided that they have signed the union card at least 60 days prior to the election. 

 

Secretaries, guidance counselors, paraprofessionals and other functional chapter members are represented in the Delegate Assembly through their functional chapters and may stand for election as delegate from their functional chapters. 

 

District 75 and District 79 members nominate and are nominated for chapter leader in their District 75 or 79 school.  District 75 or 79 members and others who are permanently housed in the school building may vote in that chapter leader election.

 

Agency fee payers may not nominate, run or vote in chapter elections.

 

Schools with Multiple Sites: To facilitate communications and service, schools with multiple sites often have liaisons at these sites. These liaisons are not chapter leaders nor are they DA delegates unless they specifically run for those positions in the school’s election.

 

Persons on split assignment shall vote in their payroll school. Like others, these members must vote in person; no absentee ballots may be cast.  F-status substitutes (those with regularly scheduled part-time assignments) may vote in their school election.