                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: September 18, 2014                   518642
________________________________

In the Matter of the Claim of
   ASHLEY JACKSON,
                    Appellant.
                                            MEMORANDUM AND ORDER
COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:   August 4, 2014

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

                             __________


      Sussman & Watkins, Goshen (Michael Sussman of counsel), for
appellant.

      Eric T. Schneiderman, Attorney General, New York City
(Marjorie S. Leff of counsel), for respondent.

                             __________


      Appeal from a decision of the Unemployment Insurance Appeal
Board, filed December 6, 2013, which ruled that claimant was
disqualified from receiving unemployment insurance benefits
because her employment was terminated due to misconduct.

      Claimant was employed as a probationary math teacher for
three years. The employer chose not to grant claimant tenure,
but did offer to extend her probationary term for one year if she
executed an agreement requiring her to "waive[] any rights,
claims or causes of action" related to tenure or the extension of
her probationary period. Claimant was concerned that those
provisions would cause her to waive her rights to argue that the
denial of tenure and proffered extension were retaliation for her
pursuing a sexual harassment claim. Despite being aware that she
could lose her job if she did not sign the agreement, she refused
to do so. The employer then informed her that, in accordance
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with Education Law § 2573 (1), it was not certifying completion
of her probationary period, so her employment was terminated.
The Unemployment Insurance Appeal Board ruled that claimant's
refusal to sign the "agreement constituted insubordination that
rose to the level of misconduct" so as to disqualify her from
receiving benefits.

      We disagree. Refusing to comply with an employer's
reasonable directive to sign a document can constitute
insubordination and, thus, disqualifying misconduct (see Matter
of Lambert [Commissioner of Labor], 34 AD3d 948, 948 [2006];
Matter of Guagliardo [Commissioner of Labor], 27 AD3d 866, 867
[2006]; see also Matter of Vacchio [Astoria Rubbish Removal
Co.–Commissioner of Labor], 104 AD3d 989, 989 [2013], lv denied
21 NY3d 859 [2013]). This is not a situation, however, in which
claimant was asked, and refused, to sign a document that was
necessary to the operation of the employer's business (compare
Matter of Lambert [Commissioner of Labor], 34 AD3d at 948).
Under the Education Law, where a teacher has been on probationary
status for three years, the employer must either grant the
teacher tenure, terminate the employment or agree to an extension
of the probationary term (see Education Law § 2573 [1]; Matter of
Juul v Board of Educ. of Hempstead School Dist. No. 1, Hempstead,
76 AD2d 837, 838 [1980], affd 55 NY2d 648 [1981]; see also
Education Law §§ 2509 [1]; 3012 [1]; 3014 [1]). Here, the
employer chose not to grant claimant tenure and, instead, offered
her an extension of probation. As opposed to refusing to perform
a job duty, claimant merely declined to enter into a new contract
with the employer on its proffered terms (see Matter of Borlang
[B & M Sports–Commissioner of Labor], 254 AD2d 632, 632 [1998]).
Although claimant's refusal to sign the extension agreement could
possibly be classified as her voluntarily leaving employment
without good cause while the employer was offering continuing
work, which would be a basis for denying unemployment insurance
benefits (see Matter of Rubscha [Commissioner of Labor], 105 AD3d
1217, 1218 [2013]; Matter of Borlang [B & M Sports–Commissioner
of Labor], 254 AD2d at 632; Matter of Hargrove [Hudacs], 192 AD2d
948, 948-949 [1993]), the employer did not assert that claimant
quit. The employer's principal testified that claimant was
terminated by the employer. The Board also did not rely on the
ground of voluntarily leaving employment, but on misconduct as
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evidenced through insubordination, when denying benefits. The
Board was factually incorrect because, under the circumstances
and as reflected in the employer's termination letter, the
employer terminated claimant's employment based on the operation
of law (see Education Law § 2573 [1], [5]), not based on
insubordination. Refusing to renew a contract does not
constitute insubordination or misconduct in employment (compare
Matter of Borlang [B & M Sports–Commissioner of Labor], 254 AD2d
at 632; Matter of Hargrove [Hudacs], 192 AD2d at 948).

      Even if the employer would have been warranted in firing
claimant for not signing the extension agreement, her refusal to
sign would not constitute disqualifying misconduct if she had a
legitimate reason to refuse (see Matter of Waszkiewicz [Sulzer
Meco, Inc.–Commissioner of Labor], 257 AD2d 882, 883 [1999]).
Where an employer fired an employee who refused to sign a
conflict of interest and confidentiality agreement, after the
employee was advised by an attorney not to sign the agreement as
written, this Court found that the employee had not committed
disqualifying misconduct (see id.). Here, the Board tried to
distinguish that case because the record does not reflect whether
claimant consulted with anyone before refusing to sign or tried
to negotiate the terms of the agreement. Although claimant may
not have consulted with an attorney prior to that time, her
current attorney – who apparently also represents her in a
federal action against the employer related to sexual harassment
and retaliation – supports her contention that the agreement
would have waived important rights. This implies that he would
have advised her not to sign it had she consulted him earlier.
Despite not having received this advice from an attorney prior to
her refusal, claimant had a legitimate reason not to sign
(compare Matter of Vacchio [Astoria Rubbish Removal Co.
–Commissioner of Labor], 104 AD3d at 989; see also Matter of
Singleton [Ross], 82 AD2d 952, 953 [1981]). While the Board
attempts to distinguish the prior case by stating that perhaps
claimant here could have negotiated the terms of the agreement,
that case notes that an attorney had advised the claimant "not to
sign the agreement as written," and does not mention negotiation
(Matter of Waszkiewicz [Sulzer Meco, Inc.–Commissioner of Labor],
257 AD2d at 883). Because claimant did not engage in any act of
insubordination and, therefore, did not commit disqualifying
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misconduct, the Board's decision cannot stand.

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



      ORDERED that the decision is reversed, without costs, and
matter remitted to the Unemployment Insurance Appeal Board for
further proceedings not inconsistent with this Court's decision.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
