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| Appellate Division, Third Department |
The answer is - and I'm a legal researcher/writer, not an attorney - yes and no.
I have done unemployment hearings for suspended and/or terminated Department of Education employees and won unemployment benefits based upon the argument that the claimant's actions for which he/she was suspended does NOT rise to the level of disqualifying misconduct, and "not every mistake, exercise of poor judgment or discharge for cause will rise to the level of misconduct" (Matter of Morris [Lenox Hill Neighborhood House Inc.-Commissioner of Labor], 110 AD3d 1333, 1334 [2013]
That's how you win, especially if you know the level of fraud and deceit that the Department of Education puts into the 3020-a cases to get an employee terminated. You have to know, so that you can argue against an arbitrator's decision.
We have successfully overturned 47 Arbitrator decisions in Court pursuant to Article 75 or settlements in State and Federal Courts because we use the backstory behind the charges, and how the Plaintiff or Petitioner was damaged by the unlawful charging process.
It seems to me that the people who benefit from 3020-a Arbitration are the Attorneys who do these cases, allow ridiculous charges to become "crimes", and Arbitrators who receive $1400/hearing day.
Betsy Combier
betsy.combier@gmail.com
Editor, ADVOCATZ.com
Editor, ADVOCATZ blog
Editor, Parentadvocates.org
Editor, New York Court Corruption
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Editor, NYC Public Voice
Editor, National Public Voice
Editor, Inside 3020-a Teacher Trials
519281
[*1] JENNIFER JENSEN, Respondent.
and
VICTORY STATE BANK, Appellant. COMMISSIONER OF LABOR, Respondent.
Calendar Date: January 20, 2015
Before: Lahtinen, J.P., Garry, Egan Jr. and Devine, JJ.
Law Offices of Steven M. Sack, New York City (Steven Mitchell Sack of counsel), for appellant.
Young Woo Lee, The Legal Aid Society, New York City, for Jennifer Jenson, respondent.
MEMORANDUM AND ORDER
Appeal from a decision of the Unemployment Insurance Appeal Board, filed September 23, 2013, which ruled that claimant was eligible to receive unemployment insurance benefits.
Claimant, a customer service representative for a bank, opened a checking account for a coworker, the assistant branch manager, which claimant was authorized to use for buying and selling items on eBay. Although claimant maintained a savings account at the bank, which was limited to six transactions a month, the record establishes that claimant's checking account had recently been closed at the behest of the bank, which claimant felt was unwarranted. Claimant mistakenly wrote a rent check on the coworker's account and, when she realized the error, she stopped payment on the check. Claimant used the bank tellers when transacting business through the account, providing her own name and identifying information. When the branch manager noticed the stop payment that claimant had placed on the check, claimant was terminated for opening and using an account in someone else's name and for performing maintenance on an account with which she was associated, in violation of the employer's policy. The Unemployment Insurance Appeal Board, reversing a decision of the Administrative Law Judge, ruled that, although claimant exercised poor judgment, she did not engage in disqualifying misconduct for the purpose of unemployment insurance benefits. This appeal by the employer ensued.
"Whether a claimant's actions rise to the level of disqualifying misconduct is a factual [*2]issue for the Board to resolve" (Matter of Okano [Bruno, Gerbino & Soriano, LLP-Commissioner of Labor], 114 AD3d 1128, 1128 [2014] [citations omitted]), and "not every mistake, exercise of poor judgment or discharge for cause will rise to the level of misconduct" (Matter of Morris [Lenox Hill Neighborhood House Inc.-Commissioner of Labor], 110 AD3d 1333, 1334 [2013] [internal quotation marks and citations omitted]). Here, there is nothing in the record to refute claimant's testimony that she was authorized by the assistant branch manager to open and use the checking account. Although the employer viewed this as dishonest, the record establishes that claimant funded the account, was not secretive about using it and no complaints about the use of the account were lodged by the assistant branch manager. As for the violation of the employer's policy, the record does not substantiate that claimant was given a copy of the policy nor does the policy provide for an employee's discharge. Furthermore, claimant testified that she would not jeopardize her employment of 13 years if she believed placing a stop payment on the erroneously written check violated the employer's policy. Although the record could support a contrary conclusion, we find, under the circumstances herein, that substantial evidence supports the Board's decision and it will not be disturbed (see Matter of Kuryla [Finger Lakes Community Coll.-Commissioner of Labor], 45 AD3d 1129, 1130-1131 [2007]; Matter of Spencer [Bank of Smithtown-Commissioner of Labor], 244 AD2d 838, 838-839 [1997]).
Lahtinen, J.P., Garry, Egan Jr. and Devine, JJ., concur.
ORDERED that the decision is affirmed, without costs.
Brown v. Erie 2
Chautauqua-Cattaraugus Boardof Coop. Educ. Servs.
Opinion
520220
11-25-2015
In the Matter of the Claim of Parke R. BROWN, Respondent. Erie 2 Chautauqua–Cattaraugus Board of Cooperative Educational Services, Appellant. Commissioner of Labor, Respondent.
Harris Beach, PLLC, Buffalo (Tracie L. Lopardi of counsel), for appellant. Cynthia Feathers, Glens Falls, for Parke R. Brown, respondent. Eric T. Schneiderman, Attorney General, New York City (Steven Koton of counsel), for Commissioner of Labor, respondent. Jay Worona, New York State School Boards Association, Inc., Latham, for New York State School Boards Association, Inc., amicus curiae.
DEVINE, J.
Harris Beach, PLLC, Buffalo (Tracie L. Lopardi of
counsel), for appellant.
Cynthia Feathers, Glens Falls, for Parke R. Brown,
respondent.
Eric T. Schneiderman, Attorney General, New York
City (Steven Koton of counsel), for Commissioner of Labor, respondent.
Jay Worona, New York State School Boards
Association, Inc., Latham, for New York State School Boards Association, Inc.,
amicus curiae.
Opinion
DEVINE, J.
Appeal from a decision of the Unemployment
Insurance Appeal Board, filed February 20, 2014, which ruled that claimant was
eligible to receive unemployment insurance benefits.
Claimant is employed as a criminal justice teacher
for the employer. He was placed on administrative leave in March 2012 and,
shortly thereafter, the employer filed charges pursuant to Education Law § 3020–a with an eye toward his termination.
Following an evidentiary hearing at which claimant had a full and fair
opportunity to dispute the accusations, the Hearing Officer found him guilty of
a number of the charges. The Hearing Officer further found that termination was
not called for, however, and instead directed that claimant be suspended
without pay for the second half of the 2012–2013 school year.
Claimant applied for and obtained unemployment
insurance benefits during the suspension period, prompting an objection by the
employer. After further proceedings, an Administrative Law Judge correctly
acknowledged that the factual findings made by the Hearing Officer were
entitled to collateral estoppel effect (see Matter of Czosek [Cheektowaga–Sloan
Union Free School Dist.-Commissioner of Labor], 71 A.D.3d
1359, 1360, 900 N.Y.S.2d
154 2010; Matter of Tranberg [New York City Bd. of Educ. of City
School Dist. of City of N.Y.-Hudacs], 205 A.D.2d
812, 812, 615 N.Y.S.2d
290 1994 ). The Administrative Law Judge nevertheless concluded
that the conduct for which claimant was disciplined, while “serious,” did not
rise to the level of disqualifying misconduct that would preclude him from
receiving unemployment insurance benefits. The Unemployment Insurance Appeal
Board affirmed, and the employer appeals.
Initially, while the Board never expressly
addressed the employer's contention that claimant was barred from receiving
benefits because he was not “totally unemployed” during the period of
suspension, its decision can only be read as an implicit rejection of that
argument (Labor Law § 591 1; see Matter of Smith [Commissioner of
Labor], 8 A.D.3d 744, 745, 777 N.Y.S.2d 771 2004 ). “Total unemployment is defined as ‘the
total lack of any employment on any day’ ” (Matter of Smith [Commissioner of
Labor], 8 A.D.3d at 745, 777 N.Y.S.2d
771, quoting Labor Law § 522), and claimant was suspended without pay for the
period in question and was not subsequently compensated in any way for the time
he was idle. Substantial evidence therefore supports the decision of the Board
that claimant was totally unemployed during the period in question (cf. Matter
of De Maria [Catherwood], 31 A.D.2d 708, 708, 295 N.Y.S.2d 774 1968; Matter of
Tonra, 258 App.Div. 835, 835, 15 N.Y.S.2d 755 1939, affd. 283 N.Y. 676, 28 N.E.2d 402
1940 ).
As for the question of whether claimant committed
disqualifying misconduct, we note that such “is a factual issue for the Board
to resolve, and not every mistake, exercise of poor judgment or discharge for
cause will rise to the level of misconduct” (Matter of Jensen [Victory State
Bank–Commissioner of Labor], 126 A.D.3d 1207, 1207–1208, 5 N.Y.S.3d 606 2015
[internal quotation marks and citations omitted] ). That being said, claimant
here was found to have committed numerous instances of improper, immoral and
insubordinate behavior, as well as conduct unbecoming a teacher. He was
specifically found to have made inappropriate, demeaning and sarcastic comments
to students, to have sent unprofessional emails to staff and parents, and to
have violated the employer's policies and procedures governing the treatment of
students, parents and fellow employees. A notable example of his cavalier
treatment of students was an incident wherein he improperly confiscated a
student's cell phone and impersonated that student in order to learn what
another student thought of his teaching abilities. Claimant further disregarded
the employer's policy regarding the use of multimedia tools in the classroom,
despite having previously discussed that policy with administrators, and elected
to show a violent movie to his students without obtaining parental consent to
do so.
An employee's actions that are contrary to
established policies and that have a detrimental effect upon the employer's
interests have been found to constitute disqualifying misconduct (see Matter of
Campon [Commissioner of Labor], 122 A.D.3d 1228, 1228, 995 N.Y.S.2d 865 2014;
Matter of Cody [New York City Dept. of Educ.-Commissioner of Labor], 37 A.D.3d 920, 920, 829 N.Y.S.2d 729 2007 ). This includes insubordinate conduct (see
Matter of Benbow [Commissioner of Labor], 32 A.D.3d
1094, 1095, 820 N.Y.S.2d
869 2006 ) and unprofessional behavior that is detrimental to
the interests of the employer (see Matter of Katz [Commissioner of Labor], 54 A.D.3d
1093, 1093, 865 N.Y.S.2d
696 2008; Matter of Moore [Commissioner of Labor], 49 A.D.3d
1124, 1124, 854 N.Y.S.2d
252 2008 ). The Hearing Officer found that claimant repeatedly
engaged in that type of behavior and, under the circumstances presented by this
case, the decision of the Board that his behavior reflected nothing more than
“poor judgment ... is erroneous and is not supported by substantial evidence” (
Matter of Restifo [Roberts], 88 A.D.2d
1045, 1046,452 N.Y.S.2d 690 1982; see Matter of McIntee
[National Ambulance & Oxygen Serv.-Ross], 64 A.D.2d
1003, 1003–1004, 408 N.Y.S.2d
841 1978 ).
Inasmuch as the facts of this case leave no
question that claimant committed disqualifying misconduct, we need not reach
the employer's contention regarding the propriety of ever awarding unemployment
insurance benefits to a worker who has been suspended without pay following
disciplinary proceedings brought pursuant to Education Law § 3020–a.
ORDERED that the decision is reversed, without
costs, and matter remitted to the Unemployment Insurance Appeal Board for
further proceedings not inconsistent with this Court's decision.
LAHTINEN, J.P., McCARTHY and LYNCH, JJ., concur.
