Opinion
527597
04-25-2019
In the MATTER OF the Claim of Juan SALCEDO, Respondent. E.H. Mfg. Inc., Appellant. v. Commissioner of Labor, Respondent.
Grossman LLP, New York City (Judd B. Grossman of counsel), for appellant. Manhattan Legal Services, New York City (Julia P. Rosner of counsel), for Juan Salcedo, respondent.
Grossman LLP, New York City (Judd B. Grossman of counsel), for appellant.
Manhattan Legal Services, New York City (Julia P. Rosner of counsel), for Juan Salcedo, respondent.
Before: Garry, P.J., Devine, Aarons, Rumsey and Pritzker, JJ.
MEMORANDUM AND ORDERAppeal from a decision of the Unemployment Insurance Appeal Board, filed June 12, 2018, which ruled that claimant was entitled to receive unemployment insurance benefits.
During the course of his employment as a design assistant for a clothing manufacturer, claimant sent a text message to a coworker. The coworker forwarded this message to the attention of claimant's supervisor, complaining that it was harassment. On the following business day, the supervisor verbally reprimanded claimant for sending the message. Claimant disagreed with the discipline and was advised that he could come back to discuss the matter further if he wished. Later that day, claimant approached the supervisor and demanded to see the text message. Using a tone that the supervisor described as "angry," "hostile" and "aggressive," claimant disputed the supervisor's position that the message was work-related and told her how he believed she should have handled the matter. Another employee overheard the discussion and described claimant's voice as "disrespectful" and "increasing [in] volume." The employer's co-owner subsequently terminated claimant's employment, concluding that he had violated the employer's anti-harassment policy by sending the message and had been insubordinate to the supervisor.
Claimant applied for unemployment insurance benefits and was found to be ineligible on the ground that he lost his employment due to disqualifying misconduct. Following a hearing, an Administrative Law Judge overruled the initial determination, finding claimant to be eligible for unemployment insurance benefits. Without resolving the credibility of the competing accounts, the Administrative Law Judge found that, "[e]ven taking all of the employer's testimony as true, that ... claimant sent a harassing [text] message to a coworker and then approached his supervisor in an aggressive and rude manner," such behavior did not rise to the level of disqualifying misconduct. The Unemployment Insurance Appeal Board affirmed the decision. The employer appeals.
It is well established that "not every discharge for cause rises to the level of misconduct for unemployment insurance purposes" ( Matter of Reilly [Transitional Servs. for N.Y., Inc.-Commissioner of Labor], 76 A.D.3d 738, 739, 906 N.Y.S.2d 650 [2010] ; see Matter of Guynup [County of Clinton–Commissioner of Labor], 106 A.D.3d 1357, 1358, 968 N.Y.S.2d 608 [2013] ; Matter of Wright [City of Syracuse–Commissioner of Labor], 101 A.D.3d 1198, 1199, 955 N.Y.S.2d 282 [2012] ; Matter of Culver [Feinberg–Commissioner of Labor], 100 A.D.3d 1334, 1334, 955 N.Y.S.2d 668 [2012] ). "[W]hether a claimant's behavior has risen to the level of disqualifying misconduct is a factual question for the Board to resolve and its decision will not be disturbed if supported by substantial evidence" ( Matter of Irons [TLC W., LLC–Commissioner of Labor], 79 A.D.3d 1511, 1512, 915 N.Y.S.2d 651 [2010] ; accord Matter of Wright [City of Syracuse–Commissioner of Labor], 101 A.D.3d at 1199, 955 N.Y.S.2d 282 ).
Here, the Board made a factual determination that claimant's behavior was not "so egregious as to rise to the level of misconduct." Although the employer's witnesses testified that claimant sent a harassing message and spoke loudly and rudely to the supervisor, they also testified that he had not previously engaged in insubordinate behavior and had not received prior warnings (compare Matter of Sona [Commissioner of Labor], 13 A.D.3d 799, 800, 785 N.Y.S.2d 617 [2004] ; Matter of Francano [Commissioner of Labor], 12 A.D.3d 768, 768–769, 783 N.Y.S.2d 436 [2004] ). The Board further noted that claimant did not make abusive statements, refuse to follow the supervisor's directions or take other actions that had previously been held to constitute disqualifying misconduct (see e.g. Matter of Segarra [Commissioner of Labor], 45 A.D.3d 1146, 1146, 846 N.Y.S.2d 677 [2007] ; Matter of Montanye [Commissioner of Labor], 10 A.D.3d 830, 831, 782 N.Y.S.2d 137 [2004] ). As the Board's conclusion is supported by substantial evidence, we decline to disturb it (see Matter of Hasan [Apogee N.Y. Trucking LLC–Commissioner of Labor], 170 A.D.3d 1360, 95 N.Y.S.3d 646 [2019] ; Matter of Guynup [County of Clinton–Commissioner of Labor], 106 A.D.3d at 1358–1359, 968 N.Y.S.2d 608 ; Matter of Irons [TLC W., LLC–Commissioner of Labor], 79 A.D.3d at 1512, 915 N.Y.S.2d 651 ).
Garry, P.J., Devine, Aarons, Rumsey and Pritzker, JJ., concur.
ORDERED that the decision is affirmed, without costs.