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CLAIMANT’S BEHAVIOR, ALLEGED TO HAVE CONSTITUTED HARASSMENT AND INSUBORDINATION, DID NOT RISE TO THE LEVEL OF DISQUALIFYING MISCONDUCT, CLAIMANT WAS ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).

The Third Department determined claimant’s behavior did not rise to the level of misconduct which would disqualify him from receiving unemployment insurance benefits. Claimant had objected to the way he was treated by his supervisor after claimant had been accused by a coworker of sending a harassing text message:

During the course of his employment as a design assistant for a clothing manufacturer, claimant sent a text message to a coworker. The coworker forwarded this message to the attention of claimant’s supervisor, complaining that it was harassment. On the following business day, the supervisor verbally reprimanded claimant for sending the message. Claimant disagreed with the discipline and was advised that he could come back to discuss the matter further if he wished. Later that day, claimant approached the supervisor and demanded to see the text message. Using a tone that the supervisor described as “angry,” “hostile” and “aggressive,” claimant disputed the supervisor’s position that the message was work-related and told her how he believed she should have handled the matter. Another employee overheard the discussion and described claimant’s voice as “disrespectful” and “increasing [in] volume.” The employer’s co-owner subsequently terminated claimant’s employment, concluding that he had violated the employer’s anti-harassment policy by sending the message and had been insubordinate to the supervisor. …

Although the employer’s witnesses testified that claimant sent a harassing message and spoke loudly and rudely to the supervisor, they also testified that he had not previously engaged in insubordinate behavior and had not received prior warnings … . The Board further noted that claimant did not make abusive statements, refuse to follow the supervisor’s directions or take other actions that had previously been held to constitute disqualifying misconduct … . Matter of Salcedo (E.H. Mfg. Inc.–Commissioner of Labor), 2019 NY Slip Op 03125, Third Dept 4-25-19

 

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