Opinion
07-28-2016
In the Matter of the Claim of Mark J. FRANKLIN, Appellant. Commissioner of Labor, Respondent.
Law Offices of Dorfman & Dorfman, Freeport (Jeffrey K. Weiner of counsel), for appellant. Eric T. Schneiderman, Attorney General, New York City (Marjorie S. Leff of counsel), for respondent.
Law Offices of Dorfman & Dorfman, Freeport (Jeffrey K. Weiner of counsel), for appellant.
Eric T. Schneiderman, Attorney General, New York City (Marjorie S. Leff of counsel), for respondent.
Before: McCARTHY, J.P., EGAN Jr., LYNCH, Clark and AARONS, JJ.
Appeal from a decision of the Unemployment Insurance Appeal Board, filed February 24, 2015, which ruled, among other things, that claimant was disqualified from receiving unemployment insurance benefits because he voluntarily left his employment without good cause.
Substantial evidence supports the decision of the Unemployment Insurance Appeal Board finding that claimant, employed as a Sony specialist with a marketing firm, voluntarily left his employment without good cause (see Labor Law § 593[1][a] ; Matter of LaRocca [New York City Dept. of Transp.-Roberts], 59 N.Y.2d 683, 685, 463 N.Y.S.2d 414, 450 N.E.2d 220 [1983] ). The record establishes that claimant had recently received a written warning regarding his absenteeism/tardiness that notified him that failure to immediately improve his performance/behavior “may result in further corrective action up to and including termination of [his] employment.” Shortly thereafter, claimant was accused by his market manager of not being at the store when scheduled to work and was notified that he was removed from the schedule until further notice and that human resources would be in contact with him. In response, claimant resigned believing that, because he was unable to prove that he was at work on the particular day in question, his discharge from employment was imminent/inevitable.
Under certain circumstances, “claimant[s] who voluntarily leave [ ] [their] position in the face of disciplinary charges may qualify for unemployment benefits if [their] actions [do] not amount to misconduct” (Matter of Jimenez [New York County Dist. Attorney's Off.—Commissioner of Labor], 20 A.D.3d 843, 843, 798 N.Y.S.2d 803 [2005] [internal quotation marks and citation omitted]; see Matter of Cohen [Town of Brookhaven—Commissioner of Labor], 91 A.D.3d 998, 998, 936 N.Y.S.2d 717 [2012], lv dismissed 19 N.Y.3d 831, 945 N.Y.S.2d 641, 968 N.E.2d 996 [2012] ). Here, claimant was not facing disciplinary charges when he quit and did not present a compelling reason to leave his employment (compare Matter of LaRocca [New York City Dept. of Transp.—Roberts], 59 N.Y.2d at 685, 463 N.Y.S.2d 414, 450 N.E.2d 220 ; Matter of Straw [Rocky Point Union Free School Dist.—Commissioner of Labor], 32 A.D.3d 1098, 1099, 821 N.Y.S.2d 302 [2006] ). According to his own testimony, claimant merely presumed that he would face disciplinary action because he had been recently warned and his manager referred the matter to human resources. Claimant admitted that he did not wait to be contacted by his manager nor did he discuss the matter with his manager, and he testified that he wanted a “clean break from the [employer].” However, in the absence of disciplinary charges, “resigning ... in anticipation of discharge does not constitute good cause for leaving one's employment” (Matter of Kanter [Commissioner of Labor], 138 A.D.3d 1283, 1283, 28 N.Y.S.3d 353 [2016] ; see Matter of Zerrillo [Commissioner of Labor], 91 A.D.3d 1011, 1012, 935 N.Y.S.2d 916 [2012] ; Matter of Seiglar [Commissioner of Labor], 51 A.D.3d 1118, 1118, 858 N.Y.S.2d 409 [2008] ). As the Board's decision that claimant voluntarily left his employment without good cause is supported by substantial evidence, it will not be disturbed.
Furthermore, because claimant indicated on his application for unemployment insurance benefits that his employment ended due to lack of work, the Board's finding that he made willful false statements and its assessment of a recoverable overpayment of benefits will not be disturbed (see Matter of Davis [Commissioner of Labor], 125 A.D.3d 1040, 1041, 3 N.Y.S.3d 179 [2015] ; Matter of Ferreira [Commissioner of Labor], 84 A.D.3d 1609, 1610–1611, 922 N.Y.S.2d 877 [2011] ). ORDERED that the decision is affirmed, without costs.