IN RE: the Claim of Venessa COLON (2020)

MEMORANDUM AND ORDER

Claimant resigned from her employment in January 2018, citing, among other things, a hostile work environment.  Although the Department of Labor initially ruled that claimant was eligible to receive unemployment insurance benefits, the employer contested that determination and requested a hearing, at the conclusion of which an Administrative Law Judge (hereinafter ALJ) ruled that claimant voluntarily left her employment without good cause.  In so doing, the ALJ expressly credited the testimony offered by the employer, concluding, among other things, that claimant's allegations of harassment were unsubstantiated and that the employer did not engage in retaliatory conduct by issuing claimant a warning in response to client complaints regarding deficiencies in claimant's work performance.  The Unemployment Insurance Appeal Board affirmed the ALJ's decision, prompting this appeal.

We affirm.  “Whether a claimant has voluntarily left employment for good cause is a factual determination to be made by the Board, and its decision will not be disturbed if supported by substantial evidence” (Matter of Rohde [Goshen Chamber of Commerce, Inc.-Commissioner of Labor], 175 A.D.3d 1715, 1716, 108 N.Y.S.3d 215 [2019] [internal quotation marks and citations omitted];  accord Matter of Baxter [Commissioner of Labor], 162 A.D.3d 1451, 1452, 79 N.Y.S.3d 393 [2018]).  Notably, “issues of witness credibility, the evaluation of evidence and the inferences to be drawn therefrom are within the exclusive province of the Board” (Matter of Malone [Commissioner of Labor], 117 A.D.3d 1306, 1306, 985 N.Y.S.2d 772 [2014] [internal quotation marks, brackets and citation omitted];  accord Matter of Campise [Commissioner of Labor], 150 A.D.3d 1523, 1524, 54 N.Y.S.3d 761 [2017], lv dismissed 30 N.Y.3d 1008, 66 N.Y.S.3d 228, 88 N.E.3d 389 [2017], cert denied ––– U.S. ––––, 139 S.Ct. 639, 202 L.Ed.2d 493 [2018]).

Although claimant asserted that she had been constructively discharged due to, among other things, the employer's retaliatory response to claimant's allegations of sexual harassment and the employer's failure to pay claimant certain commissions purportedly due and owing, the Board did not find her credible.  Quitting in anticipation of discharge (see Matter of Hull [Commissioner of Labor], 77 A.D.3d 1012, 1013, 908 N.Y.S.2d 281 [2010];  Matter of Santiago [Commissioner of Labor], 308 A.D.2d 674, 674, 764 N.Y.S.2d 659 [2003]) does not constitute good cause for leaving one's employment, and the Board was free to reject claimant's assertion that her work environment had become so intolerable as to justify her resignation (see Matter of Sheldon [Commissioner of Labor], 153 A.D.3d 1480, 1481 [2017];  Matter of Araman [Commissioner of Labor], 150 A.D.3d 1526, 1528 [2017];  Matter of Weeden [SC Choice Mgt. Corp./SC of Upstate NY–Commissioner of Labor], 121 A.D.3d 1138, 1139, 993 N.Y.S.2d 583 [2014];  Matter of Malone [Commissioner of Labor], 117 A.D.3d 1306, 1306–1307, 985 N.Y.S.2d 772 [2014]).  Dissatisfaction with one's working conditions (see Matter of Schwartz [Commissioner of Labor], 164 A.D.3d 1582, 1583, 81 N.Y.S.3d 917 [2018]) or wages (see Matter of Campise [Commissioner of Labor], 150 A.D.3d at 1524, 54 N.Y.S.3d 761) and an inability to get along with a difficult supervisor or coworker (see Matter of Xavier [Commissioner of Labor], 172 A.D.3d 1812, 1813, 101 N.Y.S.3d 749 [2019];  Matter of Dunlop [Commissioner of Labor], 62 A.D.3d 1186, 1186, 881 N.Y.S.2d 505 [2009]) also do not qualify as good cause for resigning.  To the extent that claimant argues that she received medical advice not to return to work, claimant's treating physician – at claimant's request – cleared claimant to return to work before she elected to resign, and the letter from claimant's therapist advising that claimant should not return to her former employment postdated claimant's resignation (cf. Matter of Gilyard [Commissioner of Labor], 170 A.D.3d 1419, 1420, 96 N.Y.S.3d 696 [2019]).  Finally, “[a]lthough fearing for one's safety may constitute reasonable cause for resigning, the record in this matter does not support claimant's contention that her physical well-being would have been jeopardized” by her continued employment (Matter of Gardiner [Commissioner of Labor], 272 A.D.2d 709, 709, 96 N.Y.S.3d 696 [2000]).  In short, the Board elected to credit the testimony of the employer's witnesses and, as the Board's decision is supported by substantial evidence, it will not be disturbed.  Claimant's remaining arguments, to the extent not specifically addressed, have been examined and found to be lacking in merit.

ORDERED that the decision is affirmed, without costs.

Reynolds Fitzgerald, J.

Egan Jr., J.P., Lynch, Devine and Aarons, JJ., concur.