Unsatisfactory performance of assignments does not always equate to misconduct for the purposes of disqualifying an individual for unemployment insurance benefits

Unsatisfactory performance of assignments does not always equate to misconduct for the purposes of disqualifying an individual for unemployment insurance benefits
Matter of Marc (Commissioner of Labor), 2012 NY Slip Op 01726, Appellate Division, Third Department

Andre F. Marc was employed as a head teacher but was terminated for failure to complete overdue paperwork, despite prior warnings. An Unemployment Insurance Administrative Law Judge upheld the initial determination finding that Marc was disqualified from receiving unemployment insurance benefits because he had lost his employment through misconduct.

The Unemployment Insurance Appeal Board reversed that decision, concluding that Marc’s job performance, while unsatisfactory, did not rise to the level of misconduct that would disqualify him for unemployment insurance benefits.

Commenting the "Whether a claimant lost his or her employment through disqualifying misconduct presents a factual issue for the Board, and its resolution thereof will not be disturbed if supported by substantial evidence," the Appellate Division said that in Marc’s case the Board found that he:

1. Was only afforded a minimal period of time during the week to complete his paperwork;  

2. He did not fall significantly behind until he had to take on the additional paperwork responsibilities of a fellow employee who was on vacation; and

3. The Board noted that he still managed to complete a significant amount of the backlog prior to his termination.

Thus, said the court, while the proof of claimant's inefficiency may have justified his discharge, there is, nonetheless, substantial evidence supporting the Board's finding that claimant's poor work performance did not rise to the level of misconduct.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01726.htm

Employees served with disciplinary charges alleging time and attendance violations

Employees served with disciplinary charges alleging time and attendance violations

NYC Department of Sanitation v Alves, OATH Index #402/12
NYC Department of Corrections v Sharon Jackson-Crawford, OATH Index #2710/11

The Alves Case

OATH Administrative Law Judge Alessandra F. Zorgniotti recommended a 47 day suspension without pay as the penalty to be imposed after finding a NYC Sanitation Department worker guilty of being AWOL on 15 occasions in about a one-year period and being habitually late in violation of Department rules.

Although the tardiness was typically less than four minutes, Judge Zorgniotti noted that the Department’s rules did not allow any “grace period” with respect to lateness. While the employee contended that clock used to record the 6:00 a.m. start time was not accurate, the ALJ said that the employee “was on notice that her timeliness was being monitored and should have synchronized her time piece to that clock.”

As to the penalty recommended, Judge Zorgniotti said although the Department seeks to terminate the individual or, in the alternative ten days for each AWOL and three to five days for each lateness, despite the employee’s very poor record, “I find that the penalty of termination is excessive under the circumstances.” Also, said the ALJ, “a suspension of 140 days would be disproportionate to the misconduct and would also be shocking to one’s sense of fairness.”

Still, the Judge agreed that a stern penalty is warranted, hence her recommendation that the employee be suspended without pay for 47 days.

The ALJ also commented that “The Department has a right to a work force that it can rely on. There can be no doubt that if [the employee] continues to have time and leave issues, [the employee] will be terminated from her employment.”


The Jackson-Crawford case

In another “time and attendance” case, Department of Corrections v Jackson-Crawford, OATH Index #2710/11, OATH Administrative Law Judge John B. Spooner recommended the termination of employment of a correction officer who had spent 250 days on sick leave since September 2009.

The officer testified that the absences were due to a work-related injury. ALJ Spooner, however, found that the connection between the absences and a work-related injury was tenuous and that the number of absences violated department rules by a substantial margin. The ALJ also noted that the officer had a pattern of using excessive sick leave for a number of years, including 95 days in 2006, 199 days in 2007, and 171 sick days in 2008.

The NYS Sanitation Department decision is posted on the Internet at:

http://archive.citylaw.org/oath/12_Cases/12-402.pdf 

The NYC Department of Correction decision is posted on the Internet at:

http://archive.citylaw.org/oath/11_Cases/11-2710.pdf

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Appeal seeking removal of interim school superintendent from that position survives his or her appointment as the school district’s superintendent of schools

Appeal seeking removal of interim school superintendent from that position survives his or her appointment as the school district’s superintendent of schools

Application of Sally Stephenson seeking the removal of the Hamburg Central School District’s Interim Superintendent of Schools and President of its Board of Education, Decisions of the Commissioner of Education, Decision No. 16,330

In two separate applications, Sally Stephenson asked the Commissioner of Education to remove the Hamburg Central School District’s interim superintendent and the School District’s board president. Both appeals were consolidated for decision.

One of the issues concerned the interim superintendent’s assertions that Stephenson’s application for his removal must be denied as moot because he is no longer the interim superintendent. 

Although the Commissioner stated that he would “only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest,” he ruled that such was not the case here.

Noting that it was correct that the interim superintendent was no longer employed by the School Board as its interim superintendent, the Commissioner said that he had appointed to the position of superintendent of schools and thus is a school officer as defined in Education Law §306. Accordingly, said the Commissioner, Stephenson’s application would not be denied on this ground.

Ultimately the Commissioner dismissed both applications after finding that they had not been properly served and for other procedural reasons.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume51/d16330.html