Summary
rejecting unemployment insurance claim because “[i]t was not claimant's alcoholism but his voluntary disregard of a legitimate condition of employment, the maintenance of an operator's license, which mandated his termination”
Summary of this case from State Farm Fire & Cas. Co. v. TullyOpinion
November 4, 1993
Appeal from the Unemployment Insurance Appeal Board.
We affirm. It is undisputed that claimant was hired as a driver/installer for a water conditioning service with the express understanding that he was to accumulate no further convictions on his operator's license. During the period of employment (but not during working hours), claimant was stopped by the police and arrested for driving while intoxicated. Claimant refused a breathalyzer test, resulting in an initial 15-day suspension and ultimate revocation of his operator's license. At the recommendation of its automobile insurance carrier, the employer terminated claimant's employment.
The doctrine of provoked discharge is limited to those circumstances where the employer had no choice but to discharge the employee and where the latter's acts were voluntary (see, Matter of James [Levine], 34 N.Y.2d 491, 498). In view of claimant's inability to fulfill his job duties without a license, the employer's determination to discharge him was clearly involuntary. Further, even accepting the contention that claimant is an alcoholic, we perceive no causal connection between claimant's disease and his discharge (cf., Matter of Francis [New York City Human Resources Admin. — Ross], 56 N.Y.2d 600). Although claimant's intoxication may have been involuntary (see, Matter of Wrzesinski [Roberts], 133 A.D.2d 884, 885), his operation of a motor vehicle and refusal of a breathalyzer test were voluntary acts. It was not claimant's alcoholism but his voluntary disregard of a legitimate condition of employment, the maintenance of an operator's license, which mandated his termination (see, Matter of Hannah [New York City Bd. of Educ. — Hartnett], 144 A.D.2d 765).
Weiss, P.J., Cardona, Mahoney and Casey, JJ., concur. Ordered that the decision is affirmed, without costs.