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In the Matter of Dickson

Appellate Division of the Supreme Court of New York, Third Department
Apr 29, 2004
6 A.D.3d 1022 (N.Y. App. Div. 2004)

Opinion

94840.

Decided and Entered: April 29, 2004.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed October 16, 2002, which ruled that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

Cheryl A. Dickson, Clayton, appellant pro se.

Bond, Schoeneck King, Syracuse (R. Daniel Bordoni of counsel), for Jefferson Rehabilitation Center, respondent.

Before: Cardona, P.J., Crew III, Carpinello, Mugglin and Lahtinen, JJ.


MEMORANDUM AND ORDER

Claimant worked as a resident manager for an agency that cares for physically and mentally disabled individuals. In June 2002, while the agency's residents were staying at a cottage on Lake Ontario, claimant consumed a beer while sitting around the campfire after she had finished her shift. She was subsequently terminated for violating the employer's policy against consuming alcoholic beverages on its premises. Following a hearing, her claim for unemployment insurance benefits was denied by the Administrative Law Judge on the ground that she lost her employment through misconduct. The Unemployment Insurance Appeal Board affirmed, and claimant appeals.

Based upon our review of the record, we do not find that substantial evidence supports the Board's decision. Although possessing or consuming alcohol while on duty or on an employer's premises has been found to constitute disqualifying misconduct (see Matter of Fishman [Commissioner of Labor], 268 A.D.2d 651; Matter of Lugo [Commissioner of Labor], 251 A.D.2d 742, appeal dismissed 92 N.Y.2d 939, lv denied 92 N.Y.2d 819; Matter of Shay [Hudacs], 192 A.D.2d 1043), there is a lack of evidence that claimant committed such impropriety in the case at hand It is undisputed that she was off duty when she consumed the beer. The employer predicated her termination on her violation of its policy against using or possessing alcohol while on its premises. A copy of that policy, however, is conspicuously missing from the record. In any event, there is an absence of competent proof that the incident occurred on property leased or owned by the employer as the cottage was apparently rented by the residents and funded by an account maintained on their behalf. In view of this, claimant should not have been found in violation of the employer's policy against drinking alcohol on its premises and the Board's decision disqualifying her from receiving benefits must be reversed.

Assuming that the one-page attachment to claimant's brief is a correct copy of a page from the employer's policy manual, we note that it prohibits "unapproved use of liquor or drugs on premises" (emphasis added), lending further credence to the conclusion that the record lacks substantial evidence that claimant lost her employment due to misconduct.

Cardona, P.J., Crew III, Carpinello, Mugglin and Lahtinen, JJ., concur.

ORDERED that the decision is reversed, without costs, and matter remitted to the Unemployment Insurance Appeal Board for further proceedings not inconsistent with this Court's decision.


Summaries of

In the Matter of Dickson

Appellate Division of the Supreme Court of New York, Third Department
Apr 29, 2004
6 A.D.3d 1022 (N.Y. App. Div. 2004)
Case details for

In the Matter of Dickson

Case Details

Full title:IN THE MATTER OF THE CLAIM OF CHERYL A. DICKSON, Appellant. JEFFERSON…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Apr 29, 2004

Citations

6 A.D.3d 1022 (N.Y. App. Div. 2004)
775 N.Y.S.2d 606