

              In the Matter of YOLANDA E. DONOVAN, Respondent. BAY 

           ORTHOPEDIC & REHABILITATION SUPPLY COMPANY, Appellant. and 

                       COMMISSIONER OF LABOR, Respondent. 

 

                                     513077 

 

              SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD 

                                   DEPARTMENT 

 

          96 A.D.3d 1312; 947 N.Y.S.2d 670; 2012 N.Y. App. Div. LEXIS 

            5153; 2012 NY Slip Op 5216; Unemployment Ins. Rep. (CCH) 

                                    P12,637 

 

 

                             June 28, 2012, Decided 

                             June 28, 2012, Entered 

 

NOTICE: 

 

   THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF 

THE FINAL PUBLISHED VERSION.    THIS OPINION IS UNCORRECTED AND SUBJECT TO 

REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS. 

 

COUNSEL: Kirschenbaum & Kirschenbaum, P.C., Garden City (Rachel L. Weinrib of 

counsel), for appellant. 

 

McNamee, Lochner, Titus & Williams, P.C., Albany (Francis J. Smith of counsel), 

for Yolanda E. Donovan, respondent. 

 

JUDGES: Before: Peters, P.J., Lahtinen, Kavanagh, McCarthy and Garry, JJ. 

Peters, P.J., Lahtinen, Kavanagh, McCarthy and Garry, JJ., concur. 

 

OPINION 

 

 

 MEMORANDUM AND ORDER 

 

   Appeal from a decision of the Unemployment Insurance Appeal Board, filed 

January 28, 2011, which, upon reconsideration, ruled that claimant was eligible 

to receive unemployment insurance benefits. 

 

   Claimant worked as a medical biller for a company that makes orthotics and 

prosthetics. She was chronically absent from work due to issues related to her 

pending divorce, childcare problems and personal illness. On June 29, 2009, she 

received an unfavorable performance review largely as a result of her excessive 

absenteeism and was placed on probation for six months. In an effort to 

accommodate claimant, the employer reduced her hours and modified her job 

duties. Claimant, however, was absent from work on July 1, 2 and 13, 2009, at 

which point her employment was terminated. The Department of Labor initially 

disqualified her from receiving unemployment insurance benefits on the ground 

that she was discharged for misconduct. Following a hearing, however, an 

Administrative Law Judge determined that claimant's absences following her 

performance review were for good cause and did not amount to disqualifying 

misconduct. Accordingly, the Administrative Law Judge ruled that claimant was 

eligible to receive benefits. The Unemployment Insurance Appeal Board initially 

reversed this  decision but, upon reconsideration, affirmed it. This appeal by 

the employer ensued. 

 

   Not every discharge for cause rises to the level of misconduct disqualifying 

a claimant from receiving unemployment insurance benefits (see Matter of Dunham 

[Commissioner of Labor], 68 AD3d 1328, 1329, 890 N.Y.S.2d 207 [2009]; Matter of 

Passarelli [Yonkers Roscoe Co.--Sweeney], 226 A.D.2d 862, 640 N.Y.S.2d 668 

[1996]). While an employee's continued absenteeism, despite warnings, may be 

detrimental to an employer's interests or contrary to a reasonable work rule, 

termination of employment attributable to symptoms of a diagnosed medical 

condition will not constitute disqualifying misconduct (see Matter of 

Buyukcekmece [Abigail Kirsch at Tappan-Commissioner of Labor], 82 A.D.3d 1400, 

1400, 918 N.Y.S.2d 272 [2011]). The Board's resolution of this factual issue 

will be upheld if supported by substantial evidence (see id.). 

 

   Here, claimant's excessive absences provided the employer with a legitimate 

reason for terminating her employment. Under the circumstances presented, 

however, the Board could reasonably conclude that claimant's behavior did not 

rise to the level of disqualifying misconduct. Claimant testified that she 

suffered from panic attacks causing her absences on July 1, 2 and 13, 2009 and 

provided the employer with a doctor's note confirming this diagnosis (compare 

Matter of Amunah [Commissioner of Labor], 60 AD3d 1216, 1217, 876 N.Y.S.2d 172 

[2009], lv denied 13 N.Y.3d 706, 915 N.E.2d 1181, 887 N.Y.S.2d 3 [2009]). 

Moreover, claimant testified that she always called in to inform the employer of 

her absences in accordance with the employer's policy. In view of the foregoing, 

substantial evidence supports the Board's finding that claimant did not engage 

in disqualifying misconduct, and we decline to disturb its decision. 

 

   Peters, P.J., Lahtinen, Kavanagh, McCarthy and Garry, JJ., concur. 

 

   ORDERED that the decision is affirmed, without costs.
In the Matter of Yolanda E. Donovan
