Friday, June 8, 2012

NEW YORK UNEMPLOYMENT INSURANCE - MISCONDUCT - SEXUAL HARASSMENT

Two Appellate Division cases should be noted. First:

"IN RE CZOSEK, 71 A.D.3d 1359 900 N.Y.S.2d 154[3d Dept 2010]

Appeal from a decision of the Unemployment Insurance Appeal
Board, filed June 10, 2009, which ruled that claimant was
disqualified from receiving unemployment insurance benefits
because his employment was terminated due to misconduct.

Paul V. Czosek, Sloan, appellant pro se.

Jaeckle, Fleischmann & Mugel, Buffalo
(Matthew C. Van Vessem of counsel), for Cheektowaga-Sloan Union Free School
District, respondent.

Andrew M. Cuomo, Attorney General, New York City
(Gary Leibowitz of counsel), for Commissioner of Labor, respondent.

Before: Cardona, P.J., Spain, Lahtinen, Kavanagh and
McCarthy, JJ., concur.

Claimant worked as a special education teacher for a school
district for over 20 years. In May 2006, the district
brought disciplinary charges against him pursuant to Education
Law § 3020-a and sought his termination. Thereafter, a
hearing was conducted before a Hearing Officer who sustained a
number of the charges, including that claimant inappropriately
shouted at the school principal in the presence of students and
staff, left students in his classroom unsupervised and engaged
in sexual harassment. The Hearing Officer concluded, based upon
the evidence presented, that claimant's termination was
warranted. Claimant was discharged as a result. The
Unemployment Insurance Appeal Board subsequently ruled that he
was disqualified from receiving unemployment insurance benefits
because his employment was terminated due to misconduct.
Claimant now appeals.

We affirm. Initially, we note that the factual findings of the
Hearing Officer are entitled to collateral estoppel effect
inasmuch as claimant was present at the Education Law
§ 3020-a hearing and had a full and fair opportunity to be heard
with respect to the charges of misconduct forming the basis for
his dismissal (see Matter of Davis [Commissioner of
Labor], 64 AD3d 1057, 1057-1058 [2009], lv denied
14 NY3d 703 [2010]; Matter of Goulbourne [Commissioner of
Labor], 18 AD3d 1087, 1087 [2005]). Accepting those
findings, "[a]n employee's actions that are contrary to
established policies and have a detrimental effect upon an
employer's interests have been found to constitute
disqualifying misconduct" (Matter of Cody [New York City
Dept. of Educ. — Commissioner of Labor],
37 AD3d 920, 920 [2007]; see Matter of Bohmann [Commissioner of
Labor], 29 AD3d 1250, 1251 [2006]). Substantial evidence
supports the Board's decision here given that the conduct
providing the basis for claimant's termination violated the
employer's policies and was clearly detrimental to its
interests. Therefore, we find no reason to disturb the Board's
decision.

Ordered that the decision is affirmed, without costs."

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