IN RE: the Claim of Stacey N. MILES

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Supreme Court, Appellate Division, Third Department, New York.

IN RE: the Claim of Stacey N. MILES, Appellant. Commissioner of Labor, Respondent.

Decided: August 07, 2008

Before:  CARDONA, P.J., MERCURE, SPAIN, LAHTINEN AND KAVANAGH, JJ. Stacey N. Miles, Floral Park, appellant pro se. Andrew M. Cuomo, Attorney General, New York City (Mary Hughes of counsel), for respondent.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed September 25, 2007, which, among other things, ruled that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

Claimant worked as a higher education assistant for a college in New York City.   On November 2, 2006, she was reassigned from the affirmative action office to the student enrollment services counseling center.   The new position entailed duties similar to claimant's former position with the same salary, hours and payroll title.   Claimant, however, regarded the reassignment as a demotion in retaliation for complaints she had made against the college president and she refused it.   Her employment was terminated as a result.   The Unemployment Insurance Appeal Board later disqualified her from receiving unemployment insurance benefits on the ground that her employment was terminated due to misconduct.   Claimant appeals.

 A claimant's refusal to comply with the reasonable request of an employer may constitute disqualifying misconduct (see Matter of Lambert [Commissioner of Labor], 34 A.D.3d 948, 823 N.Y.S.2d 616 [2006];  Matter of Elbaz [Commissioner of Labor], 30 A.D.3d 954, 954-955, 817 N.Y.S.2d 450 [2006] ).   Here, the employer's request that claimant accept the reassignment was reasonable inasmuch as the duties of the new position were similar to those she had been performing and the terms were essentially the same.   Claimant declined the new position because she believed it was being done in retaliation for her prior complaints against the college president and she was concerned that she would receive negative evaluations resulting in her discharge.   The employer's human resources director testified that there was no retaliation and claimant's contrary testimony presented a credibility issue for the Board to resolve (see Matter of Barnes [Commissioner of Labor], 41 A.D.3d 1125, 1126, 839 N.Y.S.2d 821 [2007], lv. denied 9 N.Y.3d 814, 848 N.Y.S.2d 25, 878 N.E.2d 609 [2007] ).

ORDERED that the decision is affirmed, without costs.

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