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.