Claimant's Brief and Appendix

8/12/2019 Claimant's Brief and Appendix

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NEW YORK SUPREME COURT

APPELLATE DIVISION THIRD DEPARTMENT- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

In the Matter of the Claim of

ROBERTA P. KATZ, Appeal Board No. 571766

Claimant - Appellant. A.L.J. Case No. 013-02322-against-

COMMISSIONER OF LABOR OF THE STATE

OF NEW YORK,

Respondent.- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Claimant- Appellant appeals from a decision of the Unemployment Insurance

Appeal Board, filed July 12, 2013, which upheld the denial of unemployment benefits to

the Claimant upon the ground that the claimant voluntarily separated from her employment

without good cause because the Claimant resigned her position without allowing her

Employer an opportunity to address the Claimants allegations that she had been the victim

of two acts of religious harassment.

The issue presented on this appeal is whether a claimant may be denied

unemployment benefits after being a victim of two acts of religious harassment when the

Employer defaults in appearing and does not present any evidence that challenges any of

the allegations made by the Claimant nor does the Employer introduce any evidence that

the Employer had in place a procedure by which it could address claims of religious

harassment.

The facts of this case are as follows: On December 3, 2012, the Claimant

commenced her employment as Director of Accounting for Fedcap Rehabilitation


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Services, Inc. (Employer) (A-8). Prior to accepting her employment with Employer,

Claimant advised the Employer that she was a Sabbath observer and that she would have to

leave work early on Fridays between October and March so as to be able to travel home in

time for the commencement of the Sabbath (A-9). Chief Financial Officer of Employer,

Michael Kurtz (Kurtz), upon hiring Claimant advised Claimant that the Employer had

accepted her request to leave work early on Fridays between October and March as a

condition of her employment. A second condition of employment was set by the

Employer. The Employer required as a condition of employment that the Claimant agree

in writing that Claimant would abide by the Employers Zero Tolerance Policy, Exhibit

1 (A-11) in evidence (A-10). The Claimant consented in writing to the following

condition:

I, Roberta Katz, have read or have the memo regarding Fedcaps Workplace

Violence Prevention Policy read to me. I understand that Fedcap has a zero-

tolerance policy regarding violence in the workplace. I further understand that if Iparticipate in any type of violence as outlined in the policy, I will be terminated

from my employment with Fedcap [emphasis added].

The memo defined workplace violence as follows:

Conduct that threatens, intimidates, or coerces another employee, a customer, or a

member of the public at any time, including off-duty periods will not be tolerated.

This prohibition includes all acts of harassment, including harassment that isbased on an individuals gender, race, religion, sexual orientation, or any

characteristic protected by Federal, State and/or local law.

When Claimant commenced work on Monday, December 3, 2012, Karen

Liebowitz (Liebowitz), Director of Accounting Services, was designated as the individual

responsible to train Claimant (A-13). On Tuesday, December 4, 2012, Liebowitz advised

Claimant that Claimant would be required to attend a meeting concerning Employers


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Health and Welfare program, on Friday, December 7, 2013, at 2:00 PM (A-14). At that

time, Claimant reminded Liebowitz that Claimant needed to leave no later than 2:45 PM

on that Friday to be able to reach home by the commencement of the Sabbath. Liebowitz

then advised Claimant that she would attempt to reschedule the meeting. A short time

thereafter, Liebowitz advised Claimant that Liebowitz had been unsuccessful in

rescheduling the meeting (A-15).

The meeting on Friday, December 7, 2013 began at 2:15 PM. During the meeting a

discussion took place concerning the need to generate a report concerning the Health and

Welfare program. At 2:40 PM, Liebowitz turned to Claimant and told her: I know you

have to leave early but this report has to be done today because we are closing on Tuesday

(A-16). Liebowitz made that statement despite Liebowitz knowing that Claimant had not

yet received any background information about the program; that Claimant had not been

given a working computer until two days before (A-17); that the software needed to

generate the report had been installed in Claimants computer only the day before; that

Claimant had not yet received a password by which Claimant could gain access to the

software with which she could prepare the report and that Claimant had not yet been

trained as to how to create the report (A-18). As a result, Claimant became upset that

Liebowitz had asked her to generate that report at 2:40 PM of that day knowing that

Claimant was scheduled to leave five minutes thereafter. Shortly thereafter, Liebowitz said

to Claimant: I will do it this time but you will have to do the report the next time. (A-19)

At 2:45 P.M. of that day, the time at which Claimant was scheduled to leave,

Liebowitz asked Claimant to turn on her computer in order to assign Claimant a password


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so that Claimant could gain access to the software with which Claimant could generate the

report (A-19). At 2:50 P.M. of that day, without having yet assigned Claimant a password,

Liebowitz told Claimant that Claimant could leave since the report could be done on

Monday (A-20).

Claimant maintains that Liebowitzs actions constituted two acts of religious

harassment. The first incident consisted of Liebowitz telling Claimant at 2:40 PM that the

report had to be done that day despite knowing that Claimant had not yet been given any

information about the Employers Health and Welfare program, had not received any

training in the use of the software by which Claimant could generate the report and without

having been assigned a password with which to open the software. The second incident

consisted of Liebowitz keeping the Claimant five minutes past the time at which the

Claimant was scheduled to leave in order to assign a password to Claimant. Both acts of

religious harassment occurred during Claimants first week and the first Friday of her

employment with Employer.

Since Claimant left work later than was scheduled, Claimant was forced to

telephone her husband and to ask him to meet her at the subway station so that Claimant

would not have to wait for a bus and possibly violate the Sabbath (A-20).

On Sunday, December 9, 2012, Claimant left a message on the cell phone of the

CFO, Kurtz, asking him to contact her immediately (A-21). When he did not respond,

Claimant send an e-mail to Kurtz in which she tendered her resignation due to the two

incidents of religious harassment to which Claimant had been subjected on the Friday

before (A-21). The e-mail was entered into evidence (A-22) as Claimants Exhibit 2 (A-


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23). Kurtz then called Claimant by telephone. He apologized to Claimant and advised

Claimant that he would notify Human Resources (A-24). During the conversation, Kurtz

did not ask Claimant to return to work in an effort to afford the Employer an opportunity to

address her concerns nor did he advise Claimant that such a procedure was available to her.

On Monday, December 10, 2012, Claimant received a telephone call from Dayneen

Caldwell (Caldwell), Vice President of Human Resources at the Employer (A-25).

Caldwell conducted a lengthy interview of Claimant to learn the full details as to what had

transpired. Caldwell then advised that Claimant that the Employer was in the process of

developing a training program by which the Employer could sensitize the employees to the

need of avoiding all forms of discrimination and harassment (A-24 and A-25). At no time

during the conversation, did Caldwell suggest that Claimant return to work so that the

Employer could address Claimants concerns nor did Caldwell advise Claimant that such a

procedure was available to her.

Claimant then applied for unemployment benefits. An examiner for the

Unemployment Insurance Department denied her application on the basis that the Claimant

voluntarily separated from employment without good cause. Administrative Law Judge

Benjamin Reyes (hereinafter ALJ Reyes) denied unemployment benefits to the Claimant

upon the ground that the claimant voluntarily separated from her employment without

good cause because the Claimant did not give her Employer an opportunity to address the

Claimants allegations that she had been the victim of two acts of religious harassment (A-

5). The Unemployment Insurance Appeal Board by decision dated July 12, 2013 upheld

that decision (A-3).


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The decision of the Unemployment Insurance Appeal Board should be reversed for

the following reasons:

THE UNEMPLOYMENT INSURANCE APPEAL BOARD FAILED TO CONSIDER

THAT BECAUSE THE EMPLOYER DEFAULTED IN APPEARING AT THEADMINISTRATIVE HEARING, THE EMPLOYER WAS ACKNOWLEDGING THE

TRUTH OF THE ALLEGATIONS MADE BY THE CLAIMANT.

The Claimant in this case applied for unemployment benefits after resigning as a

result of being subjected to two incidents of religious harassment. After the Claimants

application was denied at the examiner level, the Claimant filed for an administrative

hearing. The Employer was advised to appear at the administrative hearing scheduled by

the New York State Unemployment Department. The Employer failed to appear. Despite

the failure of the Employer to appear neither the Unemployment Insurance Appeal Board

nor ALJ Reyes noted in their decisions that the Employer defaulted in appearing. The

inference that ALJ Reyes and the Unemployment Insurance Appeal Board should have

made by the Employers default was the Employer was acknowledging the truth of the

Claimants allegations. Nevertheless, in affirming the decision of ALJ Reyes, the

Unemployment Insurance Appeals Board accepted the findings of ALJ Reyes that none of

the allegations made by Claimant were true. ALJ Reyes refused to accept that the

Claimant had been the victim of two acts of religious harassment. ALJ Reyes refused to

accept that the Claimants offer of resignation was willingly accepted by the employer.

ALJ Reyes refused to accept that two representatives of the employer apologized to

Claimant and that neither offered to Claimant that the Employer had a procedure in place

by which the Employer could address the Claimants concerns. ALJ Reyes refused to

accept that the employers Vice President of Human Resources advised the Claimant that


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the Employer had failed to train its employees as to the importance of avoiding acts of

religious harassment. ALJ Reyes refused to accept the Claimants interpretation of the

Employers Zero Tolerance Policy which she read as providing that if the Claimant was a

victim of religious harassment, the Claimant was not required to give the Employer a

second chance just as she would not be afforded a second chance if she was guilty of

religious harassment. ALJ Reyes refused to accept that the Claimant had requested as a

condition of employment that she could leave work early on Fridays and that the Employer

had accepted that condition of employment and then breached that condition on the first

Friday of her employment. Put in other words, the Unemployment Insurance Appeals

Board upheld the decision by ALJ Reyes despite his decision being based on evidence that

was not in the record. Instead both the Unemployment Insurance Appeals Board and ALJ

Reyes based their decisions on evidence that they presumed the Employer would have

presented had the Employer appeared. That ALJ Reyes decision was based on evidence

that was not in the record can be clearly found in the words chosen by ALJ Reyes to

describe the two acts that prompted the Claimant to resign. ALJ Reyes wrote in his

decision:

the claimant resigned because shebelieved[emphasis added] her trainer harassed

her due to her religious beliefs when the trainer delayed her preapproveddeparture to leave earlyby a few minutes[emphasis added] on December 7, so

she could observe the Sabbath (A-6).

ALJ Reyes telegraphed his view of the Claimants allegations by emphasizing that

it was the Claimant and not ALJ Reyes who believed that she had been a victim of

religious harassment and by pointing out that the delay in the Claimant leaving was only by

a few minutes. That the Claimant was the victim of two acts of religious harassment was


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clearly supported by the evidence in the record. Both acts of religious harassment testified

to by the Claimant constituted religious harassment under the New York City Human

Rights Law Section 8-107, a law that specifically requires employers to accommodate an

employee who must leave work early in order to travel between his or her place of

employment and his or her home in order to observe her Sabbath. That section of the law

provides as follows:

8-107 Unlawful discriminatory practices.

3. Employment; religious observance. (a) It shall be an unlawful discriminatory

practice for an employer or an employee or agent thereof to impose upon a person

as a condition of obtaining or retaining employment any terms or conditions,compliance with which would require such person to violate, or forego a practice

of, his or her creed or religion, including but not limited to the observance of anyparticular day or days or any portion thereof as a Sabbath or holy day or the

observance of any religious custom or usage, and the employer shall make

reasonable accommodation to the religious needs of such person. Without in anyway limiting the foregoing,no person shall be required to remain at his or her

place of employment during any day or days or portion thereof that, as a

requirement of such persons religion he or she observes as a Sabbath or other

holy day, including a reasonable time prior and subsequent thereto for travel

between his or her place of employment and his or her home, (italics and bold

added)provided, however, that any such absence from work shall, wherever

practicable in the judgment of the employer, be made up by an equivalent amount

of time at some other mutually convenient time.

The New York City Human Rights Law clearly recognizes that individuals who

observe the Sabbath have a need to leave work in sufficient time to reach home before their

Sabbath begins. In the within case the Claimant testified that because her supervisor held

her back by five minutes she would not have reached her home that day before the Sabbath

but for the fact that her husband drove to the subway station to meet her and to drive her

home (A-20). By asking the Employer for permission to leave at 2:45 P.M. on that Friday,

the Claimant had allowed herself exactly the amount of time she needed to reach her home


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by public transportation before the Sabbath commenced. That is why those five minutes

meant so much to the Claimant. It is clear from ALJ Reyes statement in his decision that

he was mocking the Claimant for resigning over a five minute delay. It is unfortunate that

ALJ Reyes lacked the sensitivity or the training to recognize the importance of those five

minutes. Such ridicule of a religious practice by ALJ Reyes was unbefitting an employee

of the State of New York, a dishonor to his position as a judge and evidence of religious

bias.

It is clear that the City of New York enacted Section 8-107 of the Human Rights

Law so that employers would not harass employees who needed to leave work early to

reach their homes in time of the Sabbath. The law does not provide any basis for an

employer to argue that a five minute delay in allowing an employee to leave fails to

constitute a violation of the law. If an employer cannot make that argument, then certainly

the State of New York cannot argue that holding an employee back five minutes from

leaving for home before Sabbath does not constitute religious harassment.

It is particularly important to note that in the within case, the Employer knew that

keeping the claimant an additional five minutes would not serve any work purpose. The

only reason the Employer held the Claimant back was to harass her for her religious

practices. That is the primary reason why the five minute delay constituted religious

harassment.

It is further important for the Court to note that ALJ Reyes ignored the fact that the

Employer in this case had signaled its acknowledgement that the Claimant had been a

victim of religious harassment. Both the Claimants immediate supervisor, Kurtz, and the


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procedure by which the Employer could address incidents of religious harassment. The

Unemployment Insurance Appeals Board focused only on Claimants conduct and failed to

consider the Employers conduct. The Unemployment Insurance Appeals Board knew that

the incident occurred on the first Friday of Claimants employment and that Claimant was

too new to the job to be aware of the procedures that the Employer may have had in place

to address claims of religious harassment. The Employer knew that the incident occurred

during Claimants first week on the job and that the Claimant was not familiar with their

procedures for handling incidents involving religious harassment. Despite knowing that

the incident occurred during the first week of Claimants employment, the Employer made

no effort to offer the claimant any means by which the Employer could address Claimants

concerns.

Further evidence that both the Unemployment Insurance Appeals Board and ALJ

Reyes based their decisions on evidence that was not in the record can be identified in the

following statement made by ALJ Reyes in his decision:

The claimants reason for immediately quitting this job without first speaking to

anyone in authority was due to her concerns that the employer will not have

anyone to properly train her if the employer fires the trainer for the incident. Her

reason is baseless since she concedes not knowing what the employer would have

done about training her to do her job if the employer removed the trainer.

Accordingly, I find the claimant did not have good cause to leave continuing

employment without taking reasonable steps to preserve it.

In making his determination, ALJ Reyes based his decision solely on the testimony

of Claimant that Claimant did not return to work because she was concerned that she

would have to pursue the firing of her trainer which would leave her with no one to train

her. In focusing on that one response, ALJ Reyes ignored the true reason why Claimant


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resigned. That reason is found in the e-mail dated December 9, 2012 (Exhibit 2 In

Evidence, A-23) in which Claimant submitted her resignation; i.e. that the Claimant had

been the victim of two incidents of religious harassment. The only issue that should have

been determined by ALJ Reyes and the Unemployment Insurance Appeals Board was

whether the Claimant had in fact been the victim of two incidents of religious harassment.

Instead both the Unemployment Insurance Appeals Board and ALJ Reyes chose to ignore

that issue. Had they found that the Claimant had been the victim of two incidents of

religious harassment, they would have never focused on the response of the Claimant as to

why she did not return to her place of employment after being the victim of two acts of

religious harassment. Instead they would have understood that when Claimant stated that

she did not return to work because she was concerned that she would have to pursue the

firing of her trainer which would leave her with no one to train her, she was providing an

additional reason and a work-related reason as to why she did not return to work. That

reason was in addition to her having been a victim of two acts of religious harassment.

Once the court accepts that the Claimant resigned because she was the victim of two acts

of religious harassment, it becomes obvious why the Claimant chose not to return to work.

Was it reasonable for both the Unemployment Insurance Appeals Board and ALJ Reyes to

have required a victim of two acts of religious harassment to return to an environment

which had shown itself to be hostile to her religious beliefs? It is hard to believe that in the

year 2013, there were still members of the judiciary who believed that a victim of religious

harassment in the workplace must go back to an environment that is hostile to her religious

beliefs and if she does not, she will be denied unemployment benefits.


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In addition, both the Unemployment Insurance Appeals Board and ALJ Reyes

failed to view the Claimants statement as to why she did not return to work through the

lens of a victim of religious harassment. Claimants reluctance to return to her place of

employment was that in doing so, she would need to pursue the termination of the person

designated to train her. In her mind, pursuing such an action would have generated

additional hostility towards her from both the Employer and the other employees because

she would be pursuing the termination of an individual who had the skills necessary to

train the Director of Accounting for a large non-profit agency. ALJ Reyes spoke about the

training of the Claimant as if she was being trained for some menial job. That was not the

case here. Only a Director of Accounting is capable of training a Director of Accounting.

How many Directors of Accounting did Fedcap have? One. Moreover, the Claimant was

concerned that the hostility against her would grow even greater if in the absence of her

trainer, Claimant struggled to learn the financial workings of a very large non-profit

agency. That potential hostility is the main reason that a victim of religious harassment is

not expected to return to the environment in which she suffered her harassment.

That ALJ Reyes focused on Claimants admission that she did not know if anyone

else at the Employer could train her is difficult to comprehend. The Court is reminded that

the two incidents of religious harassment occurred on the first Friday of the first week of

Claimants employment. Was it reasonable to have expected the Claimant to have learned

in that first week that others were available to train her? If there were others who could

train her, why did neither CFO Kurtz nor Vice President of Human Resources Caldwell

reassure the Claimant of that fact? In addition, the Unemployment Insurance Appeals


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Board and ALJ Reyes focused on the Claimants statement that she did know if anyone

else at the Employer could train her. The irony is that the answer to that question lay in the

purview of the Employer but the Employer failed to appear at the hearing. Instead of ALJ

Reyes scoffing at Claimant and using the term baseless to describe Claimants assertion

that she did not know if anyone else at the Employer could train her, ALJ Reyes and the

Unemployment Insurance Appeals Board should have focused their anger on the Employer

who failed to appear and who could have answered that question. Why did ALJ Reyes not

use such strong language to describe the Employers default? That both the

Unemployment Insurance Appeals Board and ALJ Reyes only focused on the reason

Claimant gave for refusing to return to work and ignoring the default by the Employer

confirmed that both the Unemployment Insurance Appeals Board and ALJ Reyes based

their decision on evidence that was not in the record. Instead they based their decision on

what they speculated the Employer would have testified to if the Employer had appeared.

The Unemployment Insurance Appeals Board further erred in upholding the

decision made by ALJ REYES despite ALJ REYES having failed to consider that

Claimant voluntarily separated from her employment because the Employer had breached

two conditions of the Claimants employment. Although it is true that New York Courts

have held that unemployment benefits may be denied an employee who resigns from her

employment under circumstances in which the employee does not afford the employer an

opportunity to address the employees concerns, that rule has not been applied in

circumstances in which the employer breaches conditions of employment. In the within

case, the Employer breached two conditions of the Claimants employment. First and


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foremost, the Claimant testified that prior to being hired, she had notified the Employer of

her need to leave work early on Fridays between October and March and that the Employer

had accepted her request as a condition of employment. Despite accepting that condition

of employment, the Employer breached that agreement on the first Friday of Claimants

employment. The second condition of employment which the Employer breached was one

which the Employer requested. The Employer required Claimant to accept in writing a

Zero Tolerance Policy. That document entitled: WORKPLACE VIOLENCE

PREVENTION POLICY was admitted into evidence as Exhibit 1 (A-11) in evidence

(A-10). It read as follows:

I, Roberta Katz, have read or have the memo regarding Fedcaps WorkplaceViolence Prevention Policy read to me. I understand that Fedcap has a zero-

tolerance policy regarding violence in the workplace. I further understand that if I

participate in any type of violence as outlined in the policy, I will be terminated

from my employment with Fedcap [emphasis added].

The memo defines workplace violence as follows:

Conduct that threatens, intimidates, or coerces another employee, a customer, or amember of the public at any time, including off-duty periods will not be tolerated.

This prohibition includes all acts of harassment, including harassment that is

based on an individuals gender, race, religion, sexual orientation, or anycharacteristic protected by Federal, State and/or local law.

Claimant understood the Zero-Tolerance Policy to mean that if she committed an

act of violence such as religious harassment, she would be immediately terminated from

Fedcap, no questions asked, no second chances. She also understood the policy to stand

for the rule that if she was a victim of religious harassment, she could immediately resign,

no questions asked, no second chances. Claimants understanding of the zero-tolerance

policy was not challenged by the Employer and was the correct interpretation. Employers


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and employees must be treated equally under the law. If an employee of Fedcap violated

Fedcap Zero Tolerance Policy and was fired without a hearing, the Unemployment

Department would find that because of the Zero Tolerance Policy the employee had

separated from his employment without just cause. The Unemployment Department must

make a similar finding if an employee resigns after being a victim of religious harassment.

Based on the Zero Tolerance Policy agreed to by the Employer and Claimant, Claimant

had every right to resign without affording the Employer an opportunity to address her

concerns.

The Court must keep in mind why the Employer set as a condition of employment

that the Claimant agrees in writing to its Zero Tolerance Policy. It is because in truth,

employers do not have an adequate remedy for resolving incidents involving religious

harassment. The purpose of promulgating a Zero Tolerance Policy is to instill a fear in the

employees that if they engage in religious harassment, they will be fired, no second

chances. Preventing an act of religious harassment is much easier than trying to remedy an

incident of religious harassment once it has taken place. Was it reasonable for both ALJ

Reyes and the Unemployment Insurance Appeals Board to expect Claimant to return to an

environment in which she had been subjected to religious harassment? Was it that difficult

for them to envision how fearful Claimant would feel every Friday out of concern that

someone would harass her for leaving early on Fridays? That is why ALJ Reyes and the

Unemployment Insurance Appeals Board should have agreed with Claimants

interpretation of the Zero Tolerance Policy. It is particularly disturbing that they did not

agree with Claimants interpretation since the Employer defaulted in appearing. Without


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the Employer contesting Claimants interpretation of the policy, ALJ Reyes and the

Unemployment Insurance Appeals Board had no evidence upon which to find that the

Claimants interpretation of that policy was incorrect.

This Court should note that New York courts have held that conditions of

employment are an important element in determining whether an employee is eligible for

unemployment benefits. Employees who accept conditions of employment cannot later

use those conditions as a basis to argue that they had good cause for leaving their

employment, Connors v. Commissioner of Labor, 9 A.D.3d 703 (Third Department, 2004),

Cinque v. Sweeney, 224 A.D.2d (Third Department, 1996). However, New York courts

have yet to deny unemployment benefits when it is the employer and not the employee

who breaches the conditions of employment. The New York State Department of Labor

cannot on the one hand argue that employees who breach conditions of employment are

ineligible to receive unemployment benefits while arguing that employees are ineligible for

benefits when employers breach conditions of employment. Employers and employers

who breach conditions of employment must be treated equally. Otherwise, the State of

New York would be violating the Equal Protection Clause of the United States

Constitution. As a result this court must find that when an employer accepts a condition of

employment requested by an employee and then the employer violates that condition that

the employee may resign without giving the employer an opportunity to address the

employees concerns.

The only case cited by ALJ Reyes in support of his decision was the case ofMatter

of Schell, 192 AD2d 1007 (3rd Dept., 1993), (A-5). The facts of that case are not similar


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to the facts of this case and should be disregarded. The Schellcase involved an individual

who was hired to work in a Japanese business environment despite her inability to speak or

understand the Japanese language. When she voluntarily separated from her employment

because of the language barrier but did not give her employer an opportunity to address her

concerns, she was denied unemployment benefits and the Appellate Division affirmed.

The Schell case did not involve acts of religious harassment nor did it involve an employer

who defaulted in appearance and offered no evidence to challenge the claimants

allegations nor did it involve an employer who violated a New York City law.

THE DENIAL OF UNEMPLOYMENT BENEFITS BY THE UNEMPLOYMENTINSURANCE APPEAL BOARD TO CLAIMANT WAS A VIOLATION OFCLAIMANTS RIGHT TO FREE EXERCISE OF HER RELIGION AS GUARANTEED

UNDER THE FREE EXERCISE CLAUSE OF THE FIRST AMENDMENT OF THE

CONSTITUTION, AS APPLIED TO THE STATES THROUGH THE FOURTEENTHAMENDMENT.

The Unemployment Insurance Appeals Board further erred in upholding the

decision made by ALJ REYES by failing to consider that in denying unemployment

benefits to Claimant who did not afford her employer an opportunity to address her

concerns of being a victim of two acts of religious harassment, the New York State

Department of Labor violated the Claimants right to free exercise of her religion as

guaranteed under the free exercise clause of the First Amendment of the United States

Constitution, as applied to the States through the Fourteenth Amendment. The Supreme

Court of the United States inHobbie v. Unemployment Appeals Commission Of Florida, et

al., 480 U.S. 136 (1987), faced that issue. In finding for the claimant in that case, the

Supreme Court held as follows, at page 146:


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We conclude that Florida's refusal to award unemployment compensation benefits

to appellant violated the Free Exercise Clause of the First Amendment. Here, asin Sherbertand Thomas,the State may not force an employee "to choose between

following the precepts of her religion and forfeiting benefits, . . . and abandoning

one of the precepts of her religion in order to accept work." Sherbert,374 U. S., at

404.

The two acts of harassment that occurred in this case were undertaken by the

Employer to dissuade the Claimant from following her religious precepts; i.e. leaving work

on Fridays in sufficient time to reach home before the Sabbath. By denying

unemployment benefits to the Claimant because she resigned rather than work for an

employer who took steps to dissuade her from following her religious precepts, the State of

New York joined with the employer in attempting to dissuade the Claimant from following

her religious precepts. The State of New York was sending a message to the Claimant that

she should have changed her religious beliefs rather than resign her position. It is very

disappointing and surprising that the State of New York, twenty-five years after the

Hobbie decision, is still attempting to interfere with its citizens rights to free exercise of

their religious beliefs.

That the Unemployment Insurance Appeals Boardwould uphold the decision of an

administrative judgeALJ Reyes who concluded that the Claimant should not have resigned

her position without affording the employer an opportunity to address her concerns

demonstrated that ALJ Reyes and the Unemployment Insurance Appeals Boardwere

totally unfamiliar with the line of cases decided by the Supreme Court on the relationship

between the award of unemployment benefits and the Free Exercise Clause of the First

Amendment of the United States Constitution. In none of the cases decided by the

Supreme Court of the United States did the Supreme Court condition an award of


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unemployment benefits to an employee who was being forced to choose between her

religious beliefs and keeping her job on the employee affording her employer an

opportunity to address her concerns. To the extent that there may be a conflict between

New York Labor Law 593 and the United States Constitution, that portion of the Labor

Law that requires a victim of religious harassment to first afford her employer an

opportunity to address her concerns before being awarded unemployment insurance

benefits should be declared to be unconstitutional.

CONCLUSION

For all the reasons set forth herein, the Claimant respectfully requests that the Court

reverse the decision of the Unemployment Insurance Appeals Board dated July 12, 2013

and enter an order granting unemployment insurance benefits to the Claimant and such

other and further relief as the Court may deem just including the award of attorney fees

from the Commissioner of Labor of the State of New York.

Dated: Flushing, New York

March 12, 2014

Respectfully submitted,

ABRAHAM J. KATZ

Attorney for Claimant-Appellant

ROBERTA P. KATZ1979 Marcus Avenue, Suite 210

Lake Success, New York 11042

Tel. No. (718) 747-0100


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Documents

Claimant's Brief and Appendix