State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: April 14, 2016 521736
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In the Matter of the Claim of
MICHELLE A. LABBATE,
Respondent.
ROBERT GREEN AUTO & TRUCK, MEMORANDUM AND ORDER
INC.,
Appellant.
COMMISSIONER OF LABOR,
Respondent.
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Calendar Date: February 23, 2016
Before: Peters, P.J., McCarthy, Egan Jr. and Devine, JJ.
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Ricciani & Jose, LLP, Monticello (Jacqueline Ricciani of
counsel), for appellant.
Legal Services of the Hudson Valley, Newburgh (Kassandra D.
Friedman of counsel), for Michelle A. Labbate, respondent.
__________
Appeal from a decision of the Unemployment Insurance Appeal
Board, filed November 28, 2014, which ruled that claimant was
entitled to receive unemployment insurance benefits.
In July 2013, claimant, a sales consultant for the
employer's automobile dealership, reported to her employer that a
coworker, an automobile mechanic, had allegedly made a lewd
gesture to her and, later that day, exposed himself to her.
Following an investigation, the employer found the allegations to
be unfounded and instructed claimant to stay away from the
coworker or go to the service center where he worked, although
she was offered a transfer to a nearby building. Dissatisfied
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with the employer's response, claimant ended her employment that
same day, and she subsequently applied for unemployment insurance
benefits. The employer objected, and the Unemployment Insurance
Appeal Board ultimately determined that claimant had good cause
to leave her employment and was entitled to receive unemployment
insurance benefits. The employer now appeals.
We affirm. "Whether a claimant has left employment for
good cause so as to qualify for unemployment insurance benefits
is a factual issue to be resolved by the Board and its
determination will be upheld if supported by substantial
evidence" (Matter of Gascon [Electron Coil, Inc.—Commissioner of
Labor], 117 AD3d 1372, 1372 [2014] [citations omitted]; see
Matter of Waheed [Commissioner of Labor], 110 AD3d 1428, 1429
[2013]). The Board was free to, and did, credit claimant's
testimony that she did not feel safe or comfortable with
continuing her employment after the egregious behavior of her
coworker. The record evidence also reflects that claimant had
previously reported harassment by another male coworker, who was
reprimanded by the employer. In view of this pattern of sexual
harassment and the employer's inadequate offer to transfer
claimant to a nearby building – where she would still be forced
to interact with the service center – substantial evidence
supports the Board's determination that claimant left her
employment for good cause (see Matter of Gascon [Electron Coil,
Inc.—Commissioner of Labor], 117 AD3d at 1372; Matter of Petrov
[Bragard Inc.—Commissioner of Labor], 96 AD3d 1339, 1339-1340
[2012]).
Peters, P.J., McCarthy, Egan Jr. and Devine, JJ., concur.
ORDERED that the decision is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court