IN RE: the Claim of David W. FROATS (2005)

Appeal from a decision of the Unemployment Insurance Appeal Board, filed May 3, 2004, which ruled that claimant was entitled to receive unemployment insurance benefits.

Substantial evidence supports the decision of the Unemployment Insurance Appeal Board, reversing that of the Administrative Law Judge, that claimant was entitled to receive unemployment insurance benefits.   Claimant was employed as a noncertified mathematics teacher and was aware that he had until January 2004 to complete the credits, courses and examinations needed for certification.   The school district eliminated a teaching position in the mathematics department for the 2003-2004 school year.   The teacher who held that position was certified, resubmitted an application and effectively bumped claimant.   Although claimant was working toward his certification process in order to meet the January 2004 deadline, the employer notified claimant in August 2003 that his employment was being terminated and his position filled by the certified teacher.   We find no reason to disturb the Board's finding that claimant did not voluntarily leave his employment or provoke his discharge by not completing his certification process.   Here, claimant was terminated six months prior to the certification deadline.   Although the employer maintains that claimant was discharged because it was under the impression that claimant would be unable to complete his certification process, claimant testified that he had sufficient credits and courses to timely fulfill those requirements.   Inasmuch as there is no indication that claimant was negligent or disregarded the requirement for certification, the record fails to support a finding that he provoked his discharge (see Matter of De Grego [Levine], 39 N.Y.2d 180, 183, 383 N.Y.S.2d 250, 347 N.E.2d 611 [1976];  Matter of Hannah [New York City Bd. of Educ.-Hartnett], 144 A.D.2d 765, 534 N.Y.S.2d 752 [1988] ).   Accordingly, the Board's findings that claimant was laid off and replaced by a displaced certified teacher, and he did not voluntarily leave his employment or provoke his discharge, will not be disturbed despite the employer's contentions to the contrary (see Matter of Vaksman [Lenox Hill Radiology & Med. Assoc.-Commissioner of Labor], 304 A.D.2d 1027, 757 N.Y.S.2d 388 [2003];  compare Matter of Joseph [Commissioner of Labor], 264 A.D.2d 933, 695 N.Y.S.2d 206 [1999];  Matter of Ambrose [Board of Educ. of Malverne Union Free School Dist.-Hudacs], 191 A.D.2d 845, 595 N.Y.S.2d 126 [1993] ).

ORDERED that the decision is affirmed, without costs.