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Wednesday, June 05, 2013

Misconduct conduct that results in the termination of employment may not necessarily constitute “disqualifying misconduct” for unemployment insurance benefit purposes

Misconduct conduct that results in the termination of employment may not necessarily constitute “disqualifying misconduct” for unemployment insurance benefit purposes
2013 NY Slip Op 03734, Appellate Division, Third Department

A Lieutenant with the Sheriff's Department was served with disciplinary charges pursuant to Civil Service Law §75 alleging misconduct, incompetence and insubordination.

One of misconduct charge resulted from an incident in which the Lieutenant was served with an order of protection obtained on ex parte* by his estranged wife. When two superior officers served the order of protection, which required that the Lieutenant surrender all firearms, he became upset, orally protested the surrender of his firearms and used profanity toward his superior officers. The Lieutenant eventually complied with the terms of the order of protection.

Found guilty of the disciplinary charged, the Lieutenant was terminated from his position. He challenged his termination but the Appellate Division sustained the penalty imposed [see 90 AD3d 1390).

At the time of his termination the Lieutenant applied for unemployment insurance benefits. Initially disqualified from receiving benefits on the ground that he lost his employment through misconduct, a Department of Labor Administrative Law Judge concluded otherwise after a hearing and awarded him unemployment insurance benefits.
Finding that the Lieutenant’s termination did not result from disqualifying misconduct, the Unemployment Insurance Appeal Board sustained the Administrative Law Judge’s ruling.

The Lieutenant’s former employer appealed the Board’s decision but the Appellate Division sustained the Board’s decision.

The court explained that as the Lieutenant “had a full and fair opportunity to litigate the issue of misconduct at the Civil Service Law §75 hearing,” the Board was correct in applying the Doctrine of Collateral Estoppel to the factual findings of the Hearing Officer. However, said the court, it was incumbent on the Board to draw its own conclusion as to whether such factual findings amounted to misconduct disqualifying the Lieutenant from receiving unemployment insurance benefits.

Significantly, said the Appellate Division, "[t]he same conduct that leads to a claimant being discharged for cause may not necessarily rise to the level of misconduct for unemployment insurance purposes," citing Matter of Wright [City of Syracuse—Commissioner of Labor], 101 AD3d 1198 and its decision will be sustained if supported by substantial evidence.

In this instance the Board found that although the Lieutenant had used vulgar and intemperate language toward his superior officers, it concluded that, given the context of his conduct, it was not so egregious as to disqualify him from receiving benefits. The Board relied on evidence of claimant's marital problems and his lack of knowledge of the order of protection prior to being served with it. Furthermore, the superior officers testified that they were not directly threatened by Lieutenant and that the Lieutenant fully complied with the terms of the order of protection by timely surrendering his firearms.

The Appellate Division dismissed the employer’s appeal, holding that “… substantial evidence supports the Board's finding that [the Lieutenant] did not engage in disqualifying misconduct, despite the existence of substantial evidence supporting the contrary conclusion.”.

* An ex parte proceeding is one in which only one side is present and the other side absent or unrepresented:  

The decision is posted on the Internet at:


Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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