STATE OF NEW YORK

UNEMPLOYMENT INSURANCE APPEAL BOARD

PO Box 15126 Albany NY 12212-5126

DECISION OF THE BOARD

Mailed and Filed: JUNE 20, 2011 IN THE MATTER OF: Appeal Board No. 554474 PRESENT: GEORGE FRIEDMAN, GERALDINE A. REILLY MEMBERS The Department of Labor issued the initial determination disqualifying the claimant from receiving benefits, effective September 11, 2009, on the basis that the claimant voluntarily separated from employment without good cause. The claimant requested a hearing. The Administrative Law Judge held a hearing at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances by the claimant and on behalf of the employer. By decision filed October 12, 2010 (), the Administrative Law Judge sustained the initial determination. The claimant appealed the Judge's decision to the Appeal Board. Based on the record and testimony in this case, the Board makes the following FINDINGS OF FACT: The claimant worked for the employer for approximately 21 months when she found it necessary to take a leave of absence for medical reasons. The employer granted the claimant FMLA leave, and subsequently extended the claimant's leave of absence after the Family and Medical Leave Act no longer applied. The employer required medical documentation, however, to substantiate the claimant's need for ongoing leave. The employer directed that the medical documentation be sent to the employer's headquarters in Maryland. The claimant understood that her physician was forwarding her medical documentation to the location that the employer designated. The employer did not receive the documentation it required. By letter dated March 8, 2010, the employer terminated the employment relationship based on the claimant's failure to provide the required documentation. OPINION: The credible evidence establishes that the employer discharged the claimant when the employer did not receive medical documentation that the employer required in

order to continue the claimant's medical leave. Because the employer discharged the claimant, the claimant did not quit. Nor can it be said that the claimant provoked her discharge by failing to comply with the employer's medical documentation requirement. The doctrine of provoked discharge applies only to those cases in which a claimant "voluntarily engages in conduct which transgresses a legitimate known obligation and leaves the employer no choice but to discharge him." (Matter of DeGrego, 39 N.Y.2d 180, 183). Here, the employer may have felt justified in discharging the claimant, but this choice was nevertheless discretionary. Accordingly, we conclude that the claimant did not quit her job, and the claimant is entitled to benefits. DECISION: The decision of the Administrative Law Judge is reversed. The initial determination, disqualifying the claimant from receiving benefits, effective September 11, 2009, on the basis that the claimant voluntarily separated from employment without good cause, is overruled. The claimant is allowed benefits with respect to the issues decided herein. GEORGE FRIEDMAN, MEMBER GERALDINE A. REILLY, MEMBER