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:

http://www.nycourts.gov/reporter/3dseries/2013/2013_03734.htm

Benefits available to certain dependents of a volunteer firefighter who died in the line of duty

Benefits available to certain dependents of a volunteer firefighter who died in the line of duty

Dickinson v Cape Vincent Volunteer Fire Dept., 2013 NY Slip Op 03723, Appellate Division, Third Department

The Lt. Michael E. Neuner/Timothy Goff Memorial Death Benefit Program [see Volunteer Firefighters' Benefit Law §7(46)], provides, among other benefits available to dependents of volunteer firefighters killed in the line of duty, for payments “for the support of each parent or grandparent of the deceased if dependent upon the deceased at the time of the injury.” *

Marsha Dickinson, the mother of a volunteer firefighter who died in the line of duty,* applied for benefits for herself and the volunteer firefighter's younger brother, contending that they were "dependent upon the deceased at the time of his death."

The Workers' Compensation Board ultimately agreed, whereupon the employer and its workers' compensation carrier appealed the Board’s determination.

The Appellate Division, noting that "The issue of dependency is a factual one for the Board to resolve and, if supported by substantial evidence, its decision will not be disturbed", affirmed the Board’s decision.

Noting that the record indicated that the volunteer firefighter lived with his mother, his stepfather and his younger brother and that the parents worked very little due to their physical limitations, and his brother, a high school student, worked part time at a grocery store and that the volunteer firefighter “was the primary breadwinner for the family,” the Appellate Division concluded that “Given these facts, the Board properly found ‘that the loss of . . . decedent's financial contribution had an adverse or detrimental effect on the claimant’ and decedent's brother thereby warranting an award of benefits.”

* $532 per week is payable during such dependency is payable pursuant to §7(46), but in no case may the aggregate amount payable under §7(46) exceed $887 per week.

** The volunteer firefighter was shot and killed by a patient in the course of his work as a volunteer firefighter/emergency medical technician.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_03723.htm

Teacher terminated after being found guilty of subjecting a student to corporeal punishment

Teacher terminated after being found guilty of subjecting a student to corporeal punishment

2013 NY Slip Op 03769, Appellate Division, First Department

A New York City schoolteacher filed a petition seeking to vacate a post-hearing award finding her guilty of administering corporal punishment on a kindergarten student and of directing students who witnessed the incident not to discuss what they had observed, and imposing the penalty of termination of her employment. The court granted her petition in part, vacating the penalty imposed and remanding the matter to a different hearing officer for a determination of the penalty based on the administrative record, “but taking no account of any evidence of uncharged wrongdoing.”

The Appellate Division modified that award and reinstated the penalty imposed – termination

The Appellate Division explained that Supreme Court had found that there was adequate evidence in the record made at the disciplinary hearing to support the hearing officer’s determination that the teacher was guilty of administering corporal punishment on the kindergarten student and directing the students who witnessed the incident not to discuss what they had observed.

The apparent basis for the Supreme Court’s remanding the matter to a different arbitrator was the teacher’s representation that she was denied due process because the Hearing Officer's decision to terminate her employment was based upon evidence of wrongdoing that was not charged.

The Appellate Division said that the allegation that the Hearing Officer's decision to terminate her employment was based upon evidence of wrongdoing that was not charged is unavailing, since the Hearing Officer “expressly based the penalty upon the charged misconduct.”

Finding that the record showed that the teacher “showed a lack of remorse for her actions,” the Appellate Division concluded that “the penalty of termination does not shock one's sense of fairness, in light of petitioner's egregious misconduct of kicking a kindergarten student with special needs and then directing her other impressionable students not to discuss what they had observed.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_03769.htm