Friday, May 25, 2012
Thursday, May 24, 2012
NEW YORK UNEMPLOYMENT INSURANCE - MISCONDUCT - SEXUAL HARASSMENT
But what if the claimant has received adequate training, etc.? What if the claimant has received a prior warning regarding behavior in the workplace?
The question remains - what alleged conduct rises to the level of misconduct? Can behavior, which would not be considered sexual harassment under federal and state law, still be penalized by the DOL?
The question remains - what alleged conduct rises to the level of misconduct? Can behavior, which would not be considered sexual harassment under federal and state law, still be penalized by the DOL?
Wednesday, May 23, 2012
NEW YORK UNEMPLOYMENT INSURANCE - MISCONDUCT - SEXUAL HARASSMENT
When a claimant is faced with such an allegation of misconduct, the Appeal Board may address the issue of policy and training given. For example in Mailed and Filed: JANUARY 30, 2012 IN THE MATTER OF: Appeal Board No. 555346:
"Our review of the record reveals that the case should be remanded to hold a hearing. A further hearing should be held to develop the record regarding whether the claimant knew or should have known that his actions were detrimental to the employer's interests. We have determined that there is good cause to consider the employer's sexual harassment policy as well as other relevant policies, procedures, guidelines, or practices, in effect at the time of claimant's employment and known to the claimant. The Administrative Law Judge shall confront the parties with the Summaries of Interview and properly enter those documents into the record.The employer should produce the sexual harassment policy and training in effect at the time of claimant's hire and evidence that claimant received the policy and/or training. Any other relevant policies or guidelines, as described in the preceding paragraph, should also be produced. The claimant, his witness(es), if any, and any firsthand witness(es) for the employer should be prepared to testify about what the claimant knew about such policy and/or training and should produce any documents the claimant received from the employer in this regard."
"Our review of the record reveals that the case should be remanded to hold a hearing. A further hearing should be held to develop the record regarding whether the claimant knew or should have known that his actions were detrimental to the employer's interests. We have determined that there is good cause to consider the employer's sexual harassment policy as well as other relevant policies, procedures, guidelines, or practices, in effect at the time of claimant's employment and known to the claimant. The Administrative Law Judge shall confront the parties with the Summaries of Interview and properly enter those documents into the record.The employer should produce the sexual harassment policy and training in effect at the time of claimant's hire and evidence that claimant received the policy and/or training. Any other relevant policies or guidelines, as described in the preceding paragraph, should also be produced. The claimant, his witness(es), if any, and any firsthand witness(es) for the employer should be prepared to testify about what the claimant knew about such policy and/or training and should produce any documents the claimant received from the employer in this regard."
Tuesday, May 22, 2012
NEW YORK UNEMPLOYMENT INSURANCE - MISCONDUCT - SEXUAL HARASSMENT
Yesterday's post of the recent Appellate Division highlights the current view that in order for a court to find a hostile work enviornment, under federal or state law, the conduct cannot be isolated or occurred over the course of many years and must be sufficiently severe or pervasive so as to create an actionable hostile work environment.
Monday, May 21, 2012
NEW YORK UNEMPLOYMENT INSURANCE - MISCONDUCT - SEXUAL HARASSMENT
CLAUBERG v. STATE, 512099 (3d Dept 5-3-2012)
2012 NY Slip Op 03487
ALFRED CLAUBERG, Appellant, v. STATE OF NEW YORK, Respondent.
No. 512099
Appellate Division of the Supreme Court of New York, Third Department.
Calendar Date: January 5, 2012 Decided and Entered: May 3, 2012
Appeal from a judgment of the Court of Claims (Collins, J.), entered June 18, 2010, upon a decision of the court in favor of defendant.
Cronin & Byczek, L.L.P., Lake Success (Rocco G. Avallone of counsel), for appellant.
Eric T. Schneiderman, Attorney General, Albany (Robert M. Goldfarb of
counsel), for respondent.
Before: PETERS, P.J., ROSE, LAHTINEN, KAVANAGH and GARRY, JJ.
ROSE, J.
MEMORANDUM AND ORDER
Claimant, a correction officer employed by the Department of Corrections and Community Supervision since 1997, commenced this action pursuant to Executive Law § 296 claiming that he was subjected to retaliation and a hostile work environment. After trial, the Court of Claims concluded that claimant failed to establish either claim and dismissed the action. Claimant appeals.
In support of his retaliation claim, claimant contends that the discipline he received after engaging in an on-duty physical confrontation with another correction officer was retaliatory because he had previously filed complaints against his supervisors alleging racism. Claimant argues that the Court of Claims erred by overlooking the fact that the other correction officer involved in the confrontation was not disciplined at all and that a different correction officer involved in a similar but unrelated incident received a lesser punishment. We are not persuaded.
To establish a claim for retaliation, claimant was required to prove that he engaged in protected activity, that his employer was aware that he engaged in such activity, that he suffered an adverse employment action based upon his activity and that there is a causal connection between theprotected activity and the adverse action (see Forrest v Jewish Guild for the Blind, 3 NY3d 295, 313 [2004]; Suriel v Dominican Republic Educ. & Mentoring Project, Inc., 85 AD3d 1464, 1466 [2011]). While the first three elements of a retaliation claim are not disputed here, the Court of Claims concluded that there was no evidence of a causal connection between the protected activity and the discipline imposed on claimant. In reaching that conclusion, the court credited the version of events reported by the witnesses to the
confrontation and determined that claimant was the aggressor. We afford deference to that credibility determination (see Kinge v State of New York, 79 AD3d 1473, 1480 [2010]; Shirvanion v State of New York, 64 AD3d 1113, 1114 [2009]). Also, the court's finding that claimant's confrontation was more serious than the unrelated incident is supported by the undisputed evidence that there were approximately 65 unconfined inmates in the immediate vicinity observing claimant's confrontation. The facility
superintendent testified that, given this circumstance, claimant's conduct could have had serious consequences. In contrast, the evidence reveals that the unrelated incident occurred away from the inmate population.
To support a retaliatory hostile work environment claim, the actions complained of must be sufficiently severe or pervasive to constitute actionable harassment and stem from a retaliatory animus (see Noviello v City of Boston, 398 F3d 76, 92-93 [1st Cir 2005]; Sclafani v PC Richard & Son, 668 F Supp 2d 423, 438-439 [ED NY 2009]).[fn1] All of the circumstances must be considered, including "`the frequency of the [retaliatory] conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance'" (Forrest v Jewish Guild for the Blind, 3 NY3d at 310-311, quoting Harris v Forklift Sys., Inc., 510 US 17, 23 [1993]). "[T]he conduct must both have altered the conditions of the victim's employment by being subjectively perceived as abusive by the [claimant], and have created an objectively hostile or abusive environment — one that a reasonable person would find to be so" (Forrest v Jewish Guild for the Blind, 3 NY3d at 311). Generally, "`[i]solated remarks or occasional episodes of harassment will not support a finding of a hostile or abusive work environment'" (Ferrer v New York State Div. of Human Rights, 82 AD3d 431 [2011], quoting Matter of Father Belle Community Ctr. v New York State Div. of Human Rights, 221 AD2d 44, 51 [1996], lv denied89 NY2d 809 [1997]).
Claimant argues that the initial instance of retaliatory conduct against him was a one hour change in his shift that occurred in 2002 when he worked at Sing Sing Correctional Facility in Westchester County. While claimant acknowledged that he had not filed any written complaints prior to the change in schedule, he claimed that he had made oral complaints about his supervisor and that the shift change was in retaliation for those complaints. The record evidence, however, does not support the claim of prior oral complaints, and the Court of Claims did not believe claimant's
testimony. We will defer to that credibility determination and, in the absence of any prior complaints, we agree that there can be no motive to retaliate (see Grovesteen v New York State Pub. Employees Fedn., AFL-CIO, 83 AD3d 1332, 1334 [2011], lv denied17 NY3d 707 [2011]; Singh v State of N.Y. Off. of Real Prop. Servs., 40 AD3d 1354, 1357 [2007]). Although claimant testified that he voluntarily transferred to Sullivan Correctional Facility in Sullivan County shortly after his shift had been changed because his Sing Sing Correctional Facility supervisor called him a "cry baby," the record supports the conclusion of the Court of Claims that the supervisor's conduct did not pervade claimant's work environment or rise to an actionable level (see Forrest v Jewish Guild for the Blind, 3 NY3d at 311).
Nor do the other actions complained of, when objectively viewed, rise to an actionable level. Although claimant relies on two verbal confrontations that he had with a Sullivan Correctional Facility supervisor in June 2003 and August 2004 that resulted in his counseling by the supervisor, we find ample support for the conclusion that claimant's conduct was inappropriate during each incident, and that the counseling he received was not motivated by retaliatory animus. The evidence also supports the finding that there was no retaliatory motive behind the change in claimant's 2005 performance evaluation or the recision of his temporary promotion to sergeant.
To be sure, claimant was subjected to "inexcusable" incidents of racist enmity while working (id. at 310). While at Sullivan Correctional Facility, his photograph was posted in the correction officers' lineup area with derogatory phrases and slurs written on it. Claimant was also subjected to the jibes from coworkers who disparaged his Irish heritage and referred to him as "Reverend Al," and was further exposed to racist media and jokes. He found this behavior to be abhorrent and reprehensible and, indeed, employers such as defendant are "well advised to adopt zero tolerance policies in the workplace" to combat it (id.). The record nevertheless demonstrates that defendant did not acquiesce in this conduct — which was isolated and occurred over the course of many years — and the record demonstrates that it was not sufficiently severe or pervasive so as to create an actionable hostile work environment (see id. at 311; Barnum v New York City Tr. Auth., 62 AD3d 736, 737-738 [2009]; compare Matter of New York State Dept. of
Correctional Servs. v New York State Div. of Human Rights, 53 AD3d 823, 825 [2008]; Matter of Anagnostakos v New York State Div. of Human Rights, 46 AD3d 992, 993 [2007]).
We have reviewed claimant's remaining contentions and find them to be without merit.
Peters, P.J., Lahtinen, Kavanagh and Garry, JJ., concur.
ORDERED that the judgment is affirmed, without costs.
[fn1] The standards for recovery under the Human Rights Law are the same as those under Title VII of the federal Civil Rights Act of 1964 (see Suriel v Dominican Republic Educ. & Mentoring Project, Inc., 85 AD3d at 1466 n 2).
2012 NY Slip Op 03487
ALFRED CLAUBERG, Appellant, v. STATE OF NEW YORK, Respondent.
No. 512099
Appellate Division of the Supreme Court of New York, Third Department.
Calendar Date: January 5, 2012 Decided and Entered: May 3, 2012
Appeal from a judgment of the Court of Claims (Collins, J.), entered June 18, 2010, upon a decision of the court in favor of defendant.
Cronin & Byczek, L.L.P., Lake Success (Rocco G. Avallone of counsel), for appellant.
Eric T. Schneiderman, Attorney General, Albany (Robert M. Goldfarb of
counsel), for respondent.
Before: PETERS, P.J., ROSE, LAHTINEN, KAVANAGH and GARRY, JJ.
ROSE, J.
MEMORANDUM AND ORDER
Claimant, a correction officer employed by the Department of Corrections and Community Supervision since 1997, commenced this action pursuant to Executive Law § 296 claiming that he was subjected to retaliation and a hostile work environment. After trial, the Court of Claims concluded that claimant failed to establish either claim and dismissed the action. Claimant appeals.
In support of his retaliation claim, claimant contends that the discipline he received after engaging in an on-duty physical confrontation with another correction officer was retaliatory because he had previously filed complaints against his supervisors alleging racism. Claimant argues that the Court of Claims erred by overlooking the fact that the other correction officer involved in the confrontation was not disciplined at all and that a different correction officer involved in a similar but unrelated incident received a lesser punishment. We are not persuaded.
To establish a claim for retaliation, claimant was required to prove that he engaged in protected activity, that his employer was aware that he engaged in such activity, that he suffered an adverse employment action based upon his activity and that there is a causal connection between theprotected activity and the adverse action (see Forrest v Jewish Guild for the Blind, 3 NY3d 295, 313 [2004]; Suriel v Dominican Republic Educ. & Mentoring Project, Inc., 85 AD3d 1464, 1466 [2011]). While the first three elements of a retaliation claim are not disputed here, the Court of Claims concluded that there was no evidence of a causal connection between the protected activity and the discipline imposed on claimant. In reaching that conclusion, the court credited the version of events reported by the witnesses to the
confrontation and determined that claimant was the aggressor. We afford deference to that credibility determination (see Kinge v State of New York, 79 AD3d 1473, 1480 [2010]; Shirvanion v State of New York, 64 AD3d 1113, 1114 [2009]). Also, the court's finding that claimant's confrontation was more serious than the unrelated incident is supported by the undisputed evidence that there were approximately 65 unconfined inmates in the immediate vicinity observing claimant's confrontation. The facility
superintendent testified that, given this circumstance, claimant's conduct could have had serious consequences. In contrast, the evidence reveals that the unrelated incident occurred away from the inmate population.
To support a retaliatory hostile work environment claim, the actions complained of must be sufficiently severe or pervasive to constitute actionable harassment and stem from a retaliatory animus (see Noviello v City of Boston, 398 F3d 76, 92-93 [1st Cir 2005]; Sclafani v PC Richard & Son, 668 F Supp 2d 423, 438-439 [ED NY 2009]).[fn1] All of the circumstances must be considered, including "`the frequency of the [retaliatory] conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance'" (Forrest v Jewish Guild for the Blind, 3 NY3d at 310-311, quoting Harris v Forklift Sys., Inc., 510 US 17, 23 [1993]). "[T]he conduct must both have altered the conditions of the victim's employment by being subjectively perceived as abusive by the [claimant], and have created an objectively hostile or abusive environment — one that a reasonable person would find to be so" (Forrest v Jewish Guild for the Blind, 3 NY3d at 311). Generally, "`[i]solated remarks or occasional episodes of harassment will not support a finding of a hostile or abusive work environment'" (Ferrer v New York State Div. of Human Rights, 82 AD3d 431 [2011], quoting Matter of Father Belle Community Ctr. v New York State Div. of Human Rights, 221 AD2d 44, 51 [1996], lv denied89 NY2d 809 [1997]).
Claimant argues that the initial instance of retaliatory conduct against him was a one hour change in his shift that occurred in 2002 when he worked at Sing Sing Correctional Facility in Westchester County. While claimant acknowledged that he had not filed any written complaints prior to the change in schedule, he claimed that he had made oral complaints about his supervisor and that the shift change was in retaliation for those complaints. The record evidence, however, does not support the claim of prior oral complaints, and the Court of Claims did not believe claimant's
testimony. We will defer to that credibility determination and, in the absence of any prior complaints, we agree that there can be no motive to retaliate (see Grovesteen v New York State Pub. Employees Fedn., AFL-CIO, 83 AD3d 1332, 1334 [2011], lv denied17 NY3d 707 [2011]; Singh v State of N.Y. Off. of Real Prop. Servs., 40 AD3d 1354, 1357 [2007]). Although claimant testified that he voluntarily transferred to Sullivan Correctional Facility in Sullivan County shortly after his shift had been changed because his Sing Sing Correctional Facility supervisor called him a "cry baby," the record supports the conclusion of the Court of Claims that the supervisor's conduct did not pervade claimant's work environment or rise to an actionable level (see Forrest v Jewish Guild for the Blind, 3 NY3d at 311).
Nor do the other actions complained of, when objectively viewed, rise to an actionable level. Although claimant relies on two verbal confrontations that he had with a Sullivan Correctional Facility supervisor in June 2003 and August 2004 that resulted in his counseling by the supervisor, we find ample support for the conclusion that claimant's conduct was inappropriate during each incident, and that the counseling he received was not motivated by retaliatory animus. The evidence also supports the finding that there was no retaliatory motive behind the change in claimant's 2005 performance evaluation or the recision of his temporary promotion to sergeant.
To be sure, claimant was subjected to "inexcusable" incidents of racist enmity while working (id. at 310). While at Sullivan Correctional Facility, his photograph was posted in the correction officers' lineup area with derogatory phrases and slurs written on it. Claimant was also subjected to the jibes from coworkers who disparaged his Irish heritage and referred to him as "Reverend Al," and was further exposed to racist media and jokes. He found this behavior to be abhorrent and reprehensible and, indeed, employers such as defendant are "well advised to adopt zero tolerance policies in the workplace" to combat it (id.). The record nevertheless demonstrates that defendant did not acquiesce in this conduct — which was isolated and occurred over the course of many years — and the record demonstrates that it was not sufficiently severe or pervasive so as to create an actionable hostile work environment (see id. at 311; Barnum v New York City Tr. Auth., 62 AD3d 736, 737-738 [2009]; compare Matter of New York State Dept. of
Correctional Servs. v New York State Div. of Human Rights, 53 AD3d 823, 825 [2008]; Matter of Anagnostakos v New York State Div. of Human Rights, 46 AD3d 992, 993 [2007]).
We have reviewed claimant's remaining contentions and find them to be without merit.
Peters, P.J., Lahtinen, Kavanagh and Garry, JJ., concur.
ORDERED that the judgment is affirmed, without costs.
[fn1] The standards for recovery under the Human Rights Law are the same as those under Title VII of the federal Civil Rights Act of 1964 (see Suriel v Dominican Republic Educ. & Mentoring Project, Inc., 85 AD3d at 1466 n 2).
Friday, May 18, 2012
NEW YORK UNEMPLOYMENT INSURANCE - FALSE JOB APPLICATION
In this 1973 Appeal Board case, the DOL, in its comments, sets forth its opinion as to hwat constitutes "puffing" and what constitutes "misconduct":
"A-750-1759
Index 1150A-5
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office
June 18, 1973
Interpretation Service -Benefit Claims
VOLUNTARY LEAVING
Provoked discharge
Appeal Board Decision 181,391
FALSIFICATION OF EMPLOYMENT APPLICATION
Termination for falsely claiming on an employment application to have experience operating a machine used on the job may be a disqualifying provoked discharge.
Referee decision: The initial determination of the local office holding claimant eligible to receive benefits effective October 30, 1972, without any disqualifying conditions, is sustained.
Appealed by: Employer.
Findings of fact: The claimant was employed by a large cleaning contractor as a porter for about three months to October 23, 1972. His terminal salary was $3.72 an hour. The claimant executed and signed a written application of employment dated July 19, 1972, in which he stated that he had two years experience in operating a floor waxing (buffing) machine. He also stated that he had experience in mopping large areas. The employer hired the claimant and put him to work at several locations where machines were not used. On October t 23, 1972, the employer sent the claimant to a location where he was asked by the supervisor whether he could operate a floor buffing machine. When claimant replied that he was able to operate the machine, the supervisor put him to work. Claimant attempted to operate the machine but he was unable to do so, although the supervisor attempted to instruct him in its use. The claimant was discharged by the employer for being unable to operate the waxing Machine and because of the false statement he made in his employment application.
Opinion: The employer in hiring claimant relied on the statements which claimant had made in his employment application. The credible evidence establishes that claimant was unable to operate the floor waxing machine and had misrepresented his work experience in his employment application. Under these circumstances, we conclude that claimant provoked his discharge, which is tantamount to a voluntary leaving of his employment without good cause.
Decision: The initial determination of the local office is overruled.
The employer's objection is sustained. Claimant is disqualified from receiving benefits effective October 24, 1972 because he voluntarily left his employment without good cause by provoking his discharge.
The decision of the referee is reversed. (May 17, 1973).
COMMENTS
Statements or concealments regarding circumstances prejudicial to the employer's interest must be distinguished from mere "puffing" of experience or qualifications. The former may lead to a disqualification, the latter need-not. Thus:
1. In A.B. 67,034, reported at A-750-1496 an electrician, who was unable to get work because of his age, exaggerated from 3 months to 3 years the length of time he worked for a previous employer. The Appeal Board overruled a disqualification.
2. In A.B. 58,928 (not reported) a class B machinist, anxious to be hired as a class A machinist in a steel plant, added 6 months to the period he worked for his penultimate employer in order to conceal his last job from which he had been discharged as not qualified. The Board sustained a disqualification for misconduct.
One important difference between the two cases described above is that the machinist, unlike the electrician, had previously been discharged because he was not qualified to perform the work in question, and attempted to conceal the fact, an act which was prejudicial to the employer's interests and went beyond mere "puffing." Claimant's actions in the instant case also went beyond mere "puffing," in that he falsely claimed to have a skill which was required in the job for which he was hired."
"A-750-1759
Index 1150A-5
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office
June 18, 1973
Interpretation Service -Benefit Claims
VOLUNTARY LEAVING
Provoked discharge
Appeal Board Decision 181,391
FALSIFICATION OF EMPLOYMENT APPLICATION
Termination for falsely claiming on an employment application to have experience operating a machine used on the job may be a disqualifying provoked discharge.
Referee decision: The initial determination of the local office holding claimant eligible to receive benefits effective October 30, 1972, without any disqualifying conditions, is sustained.
Appealed by: Employer.
Findings of fact: The claimant was employed by a large cleaning contractor as a porter for about three months to October 23, 1972. His terminal salary was $3.72 an hour. The claimant executed and signed a written application of employment dated July 19, 1972, in which he stated that he had two years experience in operating a floor waxing (buffing) machine. He also stated that he had experience in mopping large areas. The employer hired the claimant and put him to work at several locations where machines were not used. On October t 23, 1972, the employer sent the claimant to a location where he was asked by the supervisor whether he could operate a floor buffing machine. When claimant replied that he was able to operate the machine, the supervisor put him to work. Claimant attempted to operate the machine but he was unable to do so, although the supervisor attempted to instruct him in its use. The claimant was discharged by the employer for being unable to operate the waxing Machine and because of the false statement he made in his employment application.
Opinion: The employer in hiring claimant relied on the statements which claimant had made in his employment application. The credible evidence establishes that claimant was unable to operate the floor waxing machine and had misrepresented his work experience in his employment application. Under these circumstances, we conclude that claimant provoked his discharge, which is tantamount to a voluntary leaving of his employment without good cause.
Decision: The initial determination of the local office is overruled.
The employer's objection is sustained. Claimant is disqualified from receiving benefits effective October 24, 1972 because he voluntarily left his employment without good cause by provoking his discharge.
The decision of the referee is reversed. (May 17, 1973).
COMMENTS
Statements or concealments regarding circumstances prejudicial to the employer's interest must be distinguished from mere "puffing" of experience or qualifications. The former may lead to a disqualification, the latter need-not. Thus:
1. In A.B. 67,034, reported at A-750-1496 an electrician, who was unable to get work because of his age, exaggerated from 3 months to 3 years the length of time he worked for a previous employer. The Appeal Board overruled a disqualification.
2. In A.B. 58,928 (not reported) a class B machinist, anxious to be hired as a class A machinist in a steel plant, added 6 months to the period he worked for his penultimate employer in order to conceal his last job from which he had been discharged as not qualified. The Board sustained a disqualification for misconduct.
One important difference between the two cases described above is that the machinist, unlike the electrician, had previously been discharged because he was not qualified to perform the work in question, and attempted to conceal the fact, an act which was prejudicial to the employer's interests and went beyond mere "puffing." Claimant's actions in the instant case also went beyond mere "puffing," in that he falsely claimed to have a skill which was required in the job for which he was hired."
Thursday, May 17, 2012
NEW YORK UNEMPLOYMENT INSURANCE - FALSE JOB APPLICATION
A recent Appeal Board decision on the issue is (Mailed and Filed: APRIL 19, 2012) IN THE MATTER OF: Appeal Board No. 561470:
"OPINION:....The credible evidence further establishes that the claimant was discharged because the employer believed the claimant had falsified his job application by failing to disclose his July 28, 2010 arrest and the charges arising therefrom. However, the evidence fails to establish that the claimant's answers on his job application were false. The first question posed to the claimant was whether he had ever been convicted of a criminal offense or violation. The claimant was not convicted of a crime or violation, given that no conviction or guilty plea was ever adjudicated. Notably, the case was adjourned in October and the charge was ultimately dismissed. The second question at issue was whether there were any pending criminal charges. It is undisputed that the only charge against the claimant when he appeared in criminal court in October was disorderly conduct, a violation not a crime. Therefore, the evidence does not establish that a criminal charge was pending. Accordingly, the claimant's answers on his job application were not false and his actions were not misconduct."
"OPINION:....The credible evidence further establishes that the claimant was discharged because the employer believed the claimant had falsified his job application by failing to disclose his July 28, 2010 arrest and the charges arising therefrom. However, the evidence fails to establish that the claimant's answers on his job application were false. The first question posed to the claimant was whether he had ever been convicted of a criminal offense or violation. The claimant was not convicted of a crime or violation, given that no conviction or guilty plea was ever adjudicated. Notably, the case was adjourned in October and the charge was ultimately dismissed. The second question at issue was whether there were any pending criminal charges. It is undisputed that the only charge against the claimant when he appeared in criminal court in October was disorderly conduct, a violation not a crime. Therefore, the evidence does not establish that a criminal charge was pending. Accordingly, the claimant's answers on his job application were not false and his actions were not misconduct."
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