Friday, May 30, 2014
Matter of Gascon, ___A.d. 3d ___(3rd Dep't. May 29, 2014), is an interesting case. As we all know, if an employee resigns, he is not eligible for unemployment. But, what if he or she resigns because of sexual harassment. Such employees would be eligible for unemployment. As the court stated:
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 (see Matter of Petrov [Bragard Inc.Commissioner of Labor], 96 AD3d 1339, 1339 ; Matter of Garside [Commissioner of Labor];, 73 AD3d 1420, 1420 ). Based upon claimant's testimony concerning various and continuing incidents of sexual harassment by the owner and, in particular, a final incident that precipitated her departure from employment, we find that the record contains substantial [*2]evidence supporting the Board's determination (seeMatter of Grace [Astrocom Elecs., Inc.—Commissioner of Labor];, 69 AD3d 1156, 1157 ; Matter of Braband [RF Tech.—Sweeney];, 239 AD2d 627, 628 ). Although the owner denied engaging in the conduct alleged by claimant, and the employer provided statements of other employees indicating that they had no knowledge of the allegations of sexual harassment, this evidence presented a credibility determination for the Board to resolve . .