In re the Claim of Labbate — 138 A.D.3d 1306

Majority

p. 1306

In the Matter of the Claim of Michelle A. Labbate, Respondent. Robert Green Auto & Truck, Inc., Appellant; Commissioner of Labor, Respondent.

[30 NYS3d 741]

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 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

p. 1307

[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 .—Commis sioner 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.

Cases cited

In re the Claim of Gascon 117 AD3d 1372 N.Y. App. Div. 2014-05-29 at 1372 p. 1306
In re the Claim of Waheed 110 AD3d 1428 N.Y. App. Div. 2013-10-31 at 1429 p. 1307
In re the Claim of Petrov 96 AD3d 1339 N.Y. App. Div. 2012-06-28 at 1339-1340 p. 1307