Opinion
527978
09-19-2019
In the Matter of the Claim of Maria K. EVENS, Appellant. v. COMMISSIONER OF LABOR, Respondent.
Flink Maswick Law PLLC, Lake Placid (James L. Maswick of counsel), for appellant. Letitia James, Attorney General, New York City (Gary Leibowitz of counsel), for respondent.
Flink Maswick Law PLLC, Lake Placid (James L. Maswick of counsel), for appellant.
Letitia James, Attorney General, New York City (Gary Leibowitz of counsel), for respondent.
Before: Garry, P.J., Egan Jr., Lynch, Rumsey and Pritzker, JJ.
MEMORANDUM AND ORDER Appeal from a decision of the Unemployment Insurance Appeal Board, filed May 3, 2018, which ruled that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.
From 2008 to October 2016, claimant, a direct support professional, worked for the employer, a not-for-profit organization that provides support and services to individuals with developmental disabilities. On December 9, 2016, claimant's employment was terminated after she twice refused to sign a counseling memorandum prepared by her manager. Claimant's subsequent application for unemployment insurance benefits was denied by the Department of Labor, which found that claimant was disqualified from receiving benefits because her employment was terminated due to misconduct. Following a hearing, an Administrative Law Judge upheld that determination, which was adopted and affirmed by the Unemployment Insurance Appeal Board. Claimant appeals.
We affirm. "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 Jianli Li [Commissioner of Labor], 170 A.D.3d 1418, 1418, 96 N.Y.S.3d 697 [2019] [internal quotation marks and citation omitted]; see Matter of Salcedo [E.H. Mfg. Inc.-Commissioner of Labor], 171 A.D.3d 1437, 1438, 99 N.Y.S.3d 118 [2019] ). "Refusing to comply with an employer's reasonable directive to sign a document can constitute insubordination and, thus, disqualifying misconduct" ( Matter of Jackson [Commissioner of Labor], 120 A.D.3d 1503, 1503, 992 N.Y.S.2d 382 [2014] [citations omitted]; see Matter of Lambert [Commissioner of Labor], 34 A.D.3d 948, 948, 823 N.Y.S.2d 616 [2006] ). Here, the testimony reflects that claimant was told at two separate meetings that she was required to sign the counseling memorandum to acknowledge its receipt and that she could indicate on the memorandum that she disagreed with its contents. Claimant was also informed at the meetings that her refusal to sign the counseling memorandum could result in further disciplinary action, including discharge. Moreover, the statement appearing at the bottom of the counseling memorandum allowing claimant to indicate her disagreement with its contents belies her contention that she was not given an opportunity to contest the substance of the memorandum (see
Matter of Lambert [Commissioner of Labor], 34 A.D.3d at 948, 823 N.Y.S.2d 616 ; Matter of Fischer [Roberts], 138 A.D.2d 912, 912–913, 526 N.Y.S.2d 657 [1988] ). Claimant's differing narrative of what transpired at the meetings in question presented a credibility issue for the Board to resolve (see Matter of Morar [JSB Props., LLC–Commissioner of Labor], 86 A.D.3d 887, 888, 927 N.Y.S.2d 478 [2011] ; Matter of Rey–Calderon [Commissioner of Labor], 60 A.D.3d 1124, 1125, 874 N.Y.S.2d 332 [2009] ; Matter of Haungs [Commissioner of Labor], 51 A.D.3d 1352, 1352, 860 N.Y.S.2d 638 [2008] ). Given the foregoing, we find that the record contains substantial evidence to support the Board's decision that claimant's refusal to sign the counseling memorandum constituted disqualifying misconduct, and, therefore, we find no reason to disturb it (see Matter of Rey–Calderon [Commissioner of Labor], 60 A.D.3d at 1124, 874 N.Y.S.2d 332 ; Matter of Lambert [Commissioner of Labor], 34 A.D.3d at 948, 823 N.Y.S.2d 616 ; Matter of Fischer [Roberts], 138 A.D.2d at 912–913, 526 N.Y.S.2d 657 ). Claimant's remaining contentions have been considered and found to be without merit.
Garry, P.J., Egan Jr., Lynch, Rumsey and Pritzker, JJ., concur.
ORDERED that the decision is affirmed, without costs.