NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - VULGAR LANGUAGE - CASE NO. 5

Other Appeal Board cases were in accord:

"STATE OF NEW YORK UNEMPLOYMENT INSURANCE APPEAL BOARD
PO Box 15126
Albany NY 12212-5126
DECISION OF THE BOARD
Mailed and Filed: MAY 21, 2010
IN THE MATTER OF: Appeal Board No. 548703/UNEMPLOYMENT-SVC 1 DR
PRESENT: LEONARD D. POLLETTA, TANYA R. DANIEL MEMBERS

The Department of Labor issued the initial determination disqualifying the claimant from receiving benefits effective July 1, 2009, on the basis that the claimant lost employment through misconduct in connection with that employment and holding that the wages paid to the claimant by prior to July 1, 2009, cannot be used toward the establishment of a claim for benefits. The claimant requested a hearing.The Administrative Law Judge held a hearing at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances by the claimant and on behalf of the employer. By decision filed October 6, 2009 (A.L.J.Case No.), the Administrative Law Judge sustained the initial determination.The claimant appealed the Judge's decision to the Appeal Board. The Board considered the arguments contained in the written statement submitted by the claimant. Based on the record and testimony in this case, the Board makes the following FINDINGS OF FACT:

The claimant worked as an assistant store manager for the employer, a drug store, for about seven and a half years. The employer's policy prohibited rude conduct toward others. The employer had warned the claimant on December 1, 2008, for using vulgar language on the sales floor. On June 23, 2009, as the claimant was entering the store to begin her shift, the employer's human resources manager was exiting the store and saw the claimant use what she believed to be an obscene gesture; she could not see if this was directed toward anyone in particular and did not stop to confront or question the claimant. The employer discharged the claimant on June 30, 2009, for violation of its policy on rude conduct toward others.

OPINION: The credible evidence establishes that the employer discharged the claimant on June 30, 2009, because it believed she had directed an obscene gesture toward others on June 23, 2009, in violation of its policy. The claimant credibly and consistently denied that she had made the alleged obscene gesture. We find that she was in a better position to know the nature, purpose and intent of her actions on that date than the human resources manager, who only observed the claimant fleetingly and in passing and did not stop to question the claimant or to clarify what she thought she had observed. Moreover, even accepting the human resources manager's testimony that she saw the claimant flash what she believed to be an obscene gesture, we also find it significant that she was unable to testify that it was directed toward any particular person, but rather testified that it seemed to her that there were three employees in the vicinity, and that she assumed it must have been toward one of the three. This vague and speculative testimony is indicative of this witness's overall inability to testify as to the nature, purpose and intent of what she believed she had observed. Under these circumstances, we conclude that there is insufficient evidence that the claimant's conduct on June 23, 2009, rose to the level of misconduct for unemployment insurance purposes, though the employer was free to discharge her for any lawful reason. Accordingly, the claimant's employment did not end under disqualifying circumstances.

DECISION: The decision of the Administrative Law Judge is reversed. The initial determination, disqualifying the claimant from receiving benefits effective July 1, 2009, on the basis that the claimant lost employment through misconduct in connection with that employment and holding that the wages paid to the claimant by prior to July 1, 2009, cannot be used toward the establishment of a claim for benefits, is overruled.The claimant is allowed benefits with respect to the issues decided herein.

LEONARD D. POLLETTA, MEMBER

TANYA R. DANIEL, MEMBER"