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In the Matter of the Claim of

State of New York Supreme Court, Appellate Division Third Judicial Department


January 5, 2012

IN THE MATTER OF THE CLAIM OF RONALD I. COHEN, RESPONDENT. TOWN OF BROOKHAVEN,
APPELLANT. COMMISSIONER OF LABOR, RESPONDENT.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed March 26, 2010, which, among other things, ruled that claimant was entitled to receive unemployment insurance benefits.

MEMORANDUM AND ORDER

Calendar Date: November 2, 2011

Before: Peters, J.P., Rose, Malone Jr., Stein and Garry, JJ.

Claimant was employed by the Town of Brookhaven (hereinafter the employer) as a sanctuary coordinator, working with families of runaways, for approximately 14 years. In January 2008, he was involved in a heated verbal altercation with a female co-worker that resulted in the co-worker filing a complaint against him. Following this incident, the employer had claimant undergo a psychological evaluation and contemplated bringing disciplinary charges against him under Civil Service Law § 75. Because claimant was close to retirement age, his union representative sought to negotiate an arrangement under which claimant would resign in lieu of having any such charges filed, and various agreements to this effect were proposed by the employer. Ultimately, however, claimant resigned without signing any of the agreements. He applied for unemployment insurance benefits and, following a hearing, an Administrative Law Judge determined that he was disqualified from receiving them because he voluntarily left his employment without good cause. The Unemployment Insurance Appeal Board, however, reversed this decision and found that claimant was entitled to receive benefits provided that he did not engage in disqualifying misconduct. The Board then remitted the case for a further hearing on the misconduct issue. The employer appeals.

We affirm. "A claimant 'who voluntarily leaves his or her position in the face of disciplinary charges may qualify for unemployment benefits if the actions did not amount to misconduct'" (Matter of Jimenez [New York County Dist. Attorney's Off.--Commissioner of Labor], 20 AD3d 843, 843 [2005], quoting Matter of DeBenedetto [Town of Brookhaven--Sweeney], 244 AD2d 740, 740 [1997]; see Matter of LaRocca [New York City Dept. of Transp.--Roberts], 59 NY2d 683, 685 [1983]; Matter of Straw [Rocky Point Union Free School Dist.--Commissioner of Labor], 32 AD3d 1098, 1099 [2006]). Here, it is clear from the record that the employer was preparing to file Civil Service Law § 75 disciplinary charges against claimant unless some type of negotiated resolution was agreed upon or claimant resigned. Indeed, the employer's representative never indicated that the employer decided not to pursue the charges. Notably, claimant stated that he felt he had no option but to leave his employment since disciplinary charges were imminent, he did not believe he could prevail at a hearing and he could lose his medical benefits. The fact that such charges were never actually filed before claimant resigned does not, under the circumstances presented, establish that he voluntarily left his employment without good cause. Therefore, we find no reason to disturb the Board's decision.

Peters, J.P., Rose, Malone Jr., Stein and Garry, JJ., concur.

ORDERED that the decision is affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20120105

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