Appeal from a decision of the Unemployment Insurance Appeal Board, filed November 21, 2011, which ruled that claimant was entitled to receive unemployment insurance benefits.
Calendar Date: October 29, 2012
Before: Mercure, J.P., Lahtinen, Malone Jr., McCarthy and Egan Jr., JJ.
From 2003 until 2010, claimant worked as a purchasing agent for a public benefit corporation that operates a convention center. During his tenure, he engaged in insubordinate conduct on more than one occasion and received disciplinary sanctions. In October 2009, claimant was issued a final warning and five-day suspension following an incident in which he failed to follow his supervisor's directive. Under the terms of the final warning, claimant was required to consult with the Employee Assistance Program coordinator, follow her directive and complete an anger management program or else face termination. The anger management program was a training course that claimant was to take on his computer at work. In connection therewith, claimant received an email from a psychologist attaching what was referred to as "module I" and requesting claimant to purchase "module II." Claimant apparently did not recognize the name of the individual sending the email or associate it with the anger management program and, assuming that it was junk mail, replied, "What is this, get lost." He was discharged from his position as a result. Claimant applied for unemployment insurance benefits and, following a hearing, an Administrative Law Judge determined that he was disqualified from receiving them because his employment was terminated due to misconduct. The Unemployment Insurance Appeal Board, however, reversed this decision and found that claimant was entitled to receive benefits. This appeal by the employer ensued.
Initially, whether a claimant has engaged in disqualifying misconduct is a factual issue for the Board to resolve and its decision will not be disturbed if supported by substantial evidence (see Matter of Samuels [Rubin--Commissioner of Labor], 95 AD3d 1566, 1566 ; Matter of Marc [League Treatment Ctr. & Joan Fenichel Therapeutic Nursery--Commissioner of Labor], 93 AD3d 991, 991 ). Significantly, "not every mistake, exercise of poor judgment or discharge for cause will rise to the level of misconduct" (Matter of Bush [St. Luke's Cornwall Hosp.-- Commissioner of Labor], 60 AD3d 1179, 1180 ; see Matter of Irons [TLC W., LLC--Commissioner of Labor], 79 AD3d 1511, 1512 ). Rather, "'[m]isconduct is a willful and wanton disregard of the employer's interest'" (Matter of Pfohl [Hunter's Hope Found., Inc.--Commissioner of Labor], 9 AD3d 729, 730 , quoting Matter of Wrzesinski [Roberts], 133 AD2d 884, 885 ; see Matter of McKoy [LB&B Assoc., Inc.--Commissioner of Labor], 27 AD3d 922, 923 ). Here, although claimant had engaged in prior insubordinate conduct, his crude reply to the email was premised on his belief that it was junk mail as he testified that he had no idea that it was from a psychologist and related to the anger management program that he was required to take. As it was within the province of the Board to credit this testimony (see Matter of Bush [St. Luke's Cornwall Hosp.--Commissioner of Labor], 60 AD3d at 1180), it could reasonably conclude that claimant did not engage in further insubordinate conduct by refusing to complete the program and thereby display a wanton disregard for the employer's interest. Accordingly, we find no reason to disturb the Board's decision.
Mercure, J.P., Lahtinen, Malone Jr., McCarthy and Egan Jr., JJ., concur.
ORDERED that the decision is affirmed, without costs.
Robert D. Mayberger Clerk of the Court
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