NEW YORK UNEMPLOYMENT INSURANCE - MISCONDUCT - SEXUAL HARASSMENT

In this case, the Board held that a finding of misconduct in a sexual harssment case required more than hearsay evidence:

"Mailed and Filed: JANUARY 27, 2012

IN THE MATTER OF: Appeal Board No. 553656

PRESENT: GEORGE FRIEDMAN, LEONARD D. POLLETTA MEMBERS

The Department of Labor issued the initial determination holding the claimant eligible to receive benefits, effective March 29, 2010. The employer requested a hearing and objected contending that the claimant should be disqualified from receiving benefits because the claimant lost employment through misconduct in connection with that employment and that wages paid to the claimant by such employer should not count in determining whether the claimant files a valid original claim in the future.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 August 19, 2010 (), the Administrative Law Judge granted the employer's application to reopen 010-18142,sustained, effective March 30, 2010 the employer's objection and overruled the initial determination.The claimant 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 full time as a child care worker in a residence for 13-to-18 year-old emotionally disturbed residents of a child welfare agency from January 23, 2006 until March 30, 2010. She reported directly to the program manager. She was aware of the training on the "Direct Care Worker as Role Model"which states in part, "It is our responsibility to demonstrate appropriate behavior for the residents. We all need to be mindful of our own behavior. We are all responsible for using appropriate language, refraining from cursing, following established rules, policies and procedures and following the dress code." She was made aware of the sexual harassment policy which addressed how to treat fellow employees. She received a final written warning on August 28, 2008 for a verbal altercation with a female co-worker. She was told that as an agency employee she was expected to "...treat all clients, visitors and agency employees in a professional manner at all times. Any further incidents involving verbal and / or physical altercations or threats of verbal or physical harm may result in further disciplinary action, including termination." She had not been warned for making inappropriate comments to the residents.In March 2010, the claimant was upset that two female co-workers were commenting on her personal life to a 16-year-old resident. She was upset with the female co-workers, not the resident, about gossiping about her life. She met with her supervisor on Wednesday,March 24, 2010 after a basketball game to report her concerns about her coworkers gossiping about her with this resident. Nothing was done about the situation. On Sunday,March 28, 2010, the supervisor was in his office doing a clothing inventory. He did not speak with the claimant about a resident's complaint.On March 29, the program manager told his own supervisor, a clinician, that he, the program manager had confronted the claimant after an emotionally disturbed, 16-year-old resident complained to him that the claimant had told him in the cafeteria, "That's [this is]why I hate faggots" in the context of the gossip about her marriage and pregnancy among the two female co-workers and this resident. The clinician then shared with the manager that he had heard that the claimant allegedly made another inappropriate comment. On March 30, 2010, the claimant was discharged for making inappropriate comments in front of vulnerable residents. The claimant did not make the remarks. The employer was unable to appear at the hearing scheduled for July 2, 2010 because the Human Resources Senior Vice President, the employer's hearing representative, had a sudden, severe asthma attack, and she could not appear. The employer applied to reopen by letter dated July 13, 2010.

OPINION: The credible evidence establishes that the employer did not appear at the hearing scheduled for July 2, 2010 in 010-18142 because the employer's vice president of human resources had a severe medical condition preventing her appearance.Accordingly, we conclude that the employer had good cause for its failure to appear and the application to reopen is granted.The credible evidence further establishes that the claimant was discharged because the employer believed that the claimant had made inappropriate comments to its vulnerable,adolescent residents. We are not persuaded by the program manager's contention that on March 28, 2010, the claimant allegedly "took a deep breath", admitted to the supervisor having said, "That's [this is] why I hate faggots" to the 16-year-old resident because she was having a bad day and then apologized to him. The program manager had qualified his testimony about his alleged conversation with the claimant with the phrase, "if I can recall". Significantly, there is no independent corroboration of the content of their alleged conversation on March 28, 2010. We also cannot credit his third-hand testimony about what the claimant allegedly stated in front of the other residents. We note that he could not remember what the clinician told him that the claimant had allegedly said to them and then said the specifics were not relayed to him. The complaining resident was not produced to testify, even by telephone. Therefore, we conclude that the program manager's testimony is not reliable or credible. Rather, we credit the claimant's consistent, sworn testimony that she had not made the alleged remarks over the program manager's hearsay testimony that she did so. Further, we are not persuaded by the vice president's testimony that one of the employees was upset about overhearing the claimant allegedly making inappropriate remarks to the other residents who told other staff members who then reported it to her. We conclude that the vice president produced nothing more than third-hand testimony and evidence to support the allegations against the claimant. Finally, we note that the complaining employee and the clinician were not produced. Given the serious nature of these allegations, we conclude that there is insufficient evidence to sustain the initial determination of misconduct. Accordingly, we conclude that the claimant lost her job under nondisqualifying conditions and is eligible for benefits.

DECISION: The decision of the Administrative Law Judge is modified as follows and, as so modified, is affirmed.The employer's application to reopen 010-18142 is granted.The employer's objection, that the claimant should be disqualified from receiving benefits because the claimant lost employment through misconduct in connection with that employment and that wages paid to the claimant by such employer should not count in determining whether the claimant files a valid original claim in the future, is overruled.The initial determination, holding the claimant eligible to receive benefits, effective March29, 2010, is sustained.The claimant is allowed benefits with respect to the issues decided herein.

GEORGE FRIEDMAN, MEMBER LEONARD D. POLLETTA, MEMBER"