Appeal from a decision of the Unemployment Insurance Appeal Board, filed October 19, 2011, which ruled that claimant was entitled to receive unemployment insurance benefits.
Calendar Date: October 29, 2012
Before: Mercure, J.P., Lahtinen, Kavanagh, McCarthy and Egan Jr., JJ.
Claimant was employed by the City of Syracuse Department of Public Works. In February 2010, while performing Christmas tree pick-up duties, claimant obtained permission from his supervisor to collect two window frames and a screen door from a resident. Claimant's supervisor also permitted claimant to take the items to sell for scrap value at the end of his shift. Claimant's employment was thereafter terminated based upon this conduct. Claimant's application for unemployment insurance benefits was denied on the ground that he was terminated for misconduct. However, upon review, the Unemployment Insurance Appeals Board reversed. The employer now appeals.
The same conduct that leads to a claimant being discharged for cause may not necessarily rise to the level of misconduct for unemployment insurance purposes (see Matter of Irons [TLC W., LLC--Commissioner of Labor], 79 AD3d 1511, 1512 ; Matter of Spierto [Commissioner of Labor], 78 AD3d 1365, 1365 ; Matter of Dunham [Commissioner of Labor], 68 AD3d 1328, 1329 ). "[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 AD3d at 1512; see Matter of Pitts [Reeb Millwork Corp. of N.Y.--Commissioner of Labor], 309 AD2d 1121, 1121 ). While his actions were in violation of the employer's rules and policies, inasmuch as claimant asked for and received permission for his actions, substantial evidence supports the Board's conclusion that his actions did not constitute disqualifying misconduct.
Mercure, J.P., Lahtinen, Kavanagh, McCarthy and Egan Jr., JJ., concur.
ORDERED that the decision is affirmed, without costs.
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