NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION RE: VACATIONS - CASE NO. 8 & 9

Another recent Appeal Board case:

"STATE OF NEW YORK
UNEMPLOYMENT INSURANCE APPEAL BOARD
PO Box 15126
Albany NY 12212-5126

DECISION OF THE BOARD

Mailed and Filed: APRIL 19, 2011

IN THE MATTER OF: Appeal Board No. 551980
PRESENT: GERALDINE A. REILLY, LEONARD D. POLLETTA MEMBERS

The Department of Labor issued the initial determination disqualifying the claimant from receiving benefits effective January 8, 2010, 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 WOMAN'S INTEGRATED NETWORK prior to January 8, 2010, 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. There were no appearances. The claimant failed to appear, either personally or through a representative. By default decision filed March 29, 2010 (A.L.J. Case No.010-07756), the Administrative Law Judge sustained the initial determination. The claimant applied to reopen the decision of the Administrative Law Judge filed March 29, 2010. Upon due notice to all parties, a telephone conference hearing was held 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 April 28, 2010 (A.L.J. Case No.), the Administrative Law Judge granted the application to reopen and overruled the initial determination. The employer appealed the Judge's decision to the Appeal Board. Based on the record and testimony in this case, the Board makes the following

FINDINGS OF FACT:

The claimant worked for the employer, a managed healthcare company, from January 30, 2006 to January 7, 2010, last as a customer service supervisor. The chief operating officer was the claimant's direct supervisor. The employer's policy provides that excessive absenteeism and lateness may result in disciplinary action, up to, and including, termination. The employer's policy states that employees will request paid time off in advance and in writing to their supervisor, who will respond to the employee's request in writing in a reasonable time with an approval or disapproval.The claimant was aware of the employer's policies. In May 2009, in a performance improvement document, the claimant had been counseled regarding excessive absenteeism. The clamant had exhausted her allotted time off for 2009 prior to the end of the year. On December 11, 2009, the claimant was counseled by
her supervisor on items including attendance and punctuality. On December 30, 2009, the director of human resources, who was on vacation, called the office to speak to the claimant regarding some emails she had received from the claimant. The claimant told the director that she was thinking of taking January 4, 5, and 6 off. The director told the claimant that her supervisor, who was also on vacation, would
probably, or may, say it was fine, but strongly suggested that the claimant email her supervisor, as the director had been in contact with him by email. The next day, the claimant sent a letter to the director of human resources, copied to her supervisor, indicating that as per her conversation with the director, the claimant would be out of the office January 4 and would be returning January 7. On January 4, when the director and the claimant's supervisor were both back from vacation, the director of human resources told the claimant's supervisor that she had not approved time off for the claimant. The claimant did not report to work on January 4, 5, or
6. As a result, the claimant was discharged on January 7, 2010 for taking authorized
time off on January 4, 5, and 6. The claimant, although aware of a hearing scheduled to be held on March 29, 2010, failed to appear at the scheduled time. The claimant did not arrive on time for the hearingdue to transportation delays due to inclement weather and her unfamiliarity with the area.

OPINION:

The credible evidence establishes that the claimant failed to appear on time at
the hearing held on March 29, 2010 due to transportation delays caused by weather and her unfamiliarity with the area. The claimant has established good cause for her failure to appear. Accordingly, the claimant's application to reopen is granted.

The credible evidence further establishes that the claimant was discharged for taking unauthorized paid time off on January 4, 5, and 6 of 2010. The claimant knew that the employer's policy required her to make the request to her supervisor in writing and that the employer was required to provide a written approval or denial. However, at the time the claimant determined that she wanted to take time off from January 4 through January 6, her supervisor was on vacation. There is no evidence that the claimant made a request in writing or that there was any written approval or denial of time off. However, the parties agree that the claimant told the director of human resources that she was thinking of taking the days off. While this statement was not specifically a request to take the time off, it is apparent that the director of human resources understood from the claimant's statement that she was seeking approval for taking the time off. Moreover, when the director responded that she did not think it would be a problem, given that the director and the claimant's supervisor were both on vacation, the claimant could reasonably
believe that the director had thereby given her tacit approval. The claimant's actions in sending a confirming email to the director, copied to her supervisor, indicates that the claimant did, in fact, believe that she had obtained approval from the director. While the director, by her own admission, strongly suggested that the claimant contact her supervisor, the director did not tell the claimant that she was required to contact her supervisor for approval. Furthermore, while the claimant
was aware of the employer's policies and had been counseled and warned regarding
absenteeism, there is no evidence that the claimant had received warnings for taking
time off without obtaining her supervisor's written approval. In light of the director's tacit approval and the lack of prior warnings regarding obtaining approval, we conclude that the claimant's actions amounted only to poor judgment and do not rise to the level of misconduct. Her employment ended under non-disqualifying conditions.

DECISION:
The decision of the Administrative Law Judge is affirmed. The claimant's application to reopen 010-07756 is granted The initial determination, disqualifying the claimant from receiving benefits effective January 8, 2010, 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 January 8, 2010, 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.

GERALDINE A. REILLY, MEMBER
LEONARD D. POLLETTA, MEMBER"