UNEMPLOYMENT INSURANCE - A DOCILE EMPLOYEE?

Mailed and Filed: AUGUST 22, 2017, IN THE MATTER OF: Appeal Board No. 596410:

"The claimant worked for a hospital for over 18 years, ending in the position of unit receptionist in the Emergency Room. She worked overnight, from 11:00 PM to 7:00 AM. On March 18, 2016, the claimant was suspended for five days based on an incident in which, according to the "Employee Warning - Disciplinary Notice," the claimant yelled at a coworker over the phone and subsequently stormed into the coworker's area with a pen in her hand which the claimant kept moving in and out of the coworker's face as the claimant yelled at her, all of which was observable by at least one patient. The Employee Warning - Disciplinary Notice stated, "Any repeat will result in progressive discipline up to termination."

On January 8, 2017, the phone at the Emergency Room desk rang after the end of the
claimant's shift. The head nurse for the incoming shift asked the claimant why the claimant was not answering the phone. The claimant answered that she had given report already. In the hospital context, the claimant's answer meant that she had reported all updates to the incoming unit receptionist and she was now off duty. The head nurse then said, "then where are my URs?" A UR is a unit receptionist. Irritated by what she perceived as the head nurse's angry tone, the claimant responded, "I don't know and I don't care." Based on this final incident, the employer discharged the claimant for disruptive behavior after a prior warning. Her last day of work was January 31, 2017.

OPINION: The credible evidence establishes that the claimant was discharged based on the claimant's response of "I don't know and I don't care" after the claimant was spoken to-after the end of her shift-in a manner she perceived as rude. While the claimant's response may not have been entirely appropriate, a worker is not required always to be docile (see Matter of Raven, 40 AD2d 128 [3rd Dept 1972]). Further, the final incident is not comparable to the incident over which the claimant was warned. On January 8, 2017, the claimant did not "storm" anywhere, invade anyone's personal space, or raise her voice, nor is there any allegation that the claimant's single inappropriate comment was overheard by any patient. These facts establish that the claimant's statement does not rise to the level of misconduct for purposes of the Unemployment Insurance Law. The cases cited by the employer on appeal do not compel a different result. The claimant's comment was only minimally detrimental to the employer's interests, and the warning that the employer relies upon is distinguishable from the final incident."