No.

518718 To Be Submitted
Without Argument



NEW YORK SUPREME COURT

Appellate Division- Third Department

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In the Matter of
the Claim of

ROBERTA P. KATZ,
Claimant - Appellant.

-against-

COMMISSIONER OF LABOR OF THE STATE
OF NEW YORK,
Respondent.
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CLAIMANT - APPELLANT'S REPLY BRIEF
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ABRAHAM J . KATZ
Attorney for Claimant-Appellant
ROBERTA P. KATZ
Office & P.O. Address
1979 Marcus Avenue, Suite 210
Lake Success, New York 11042
Tel. No. (718) 747-0100

TABLE OF CONTENTS

Page


ARGUMENT
THE RESPONDENT FAILED TO REBUT CLAIMANTS ARGUMENT THAT THE
TERM GOOD CAUSE FOUND IN LABOR LAW 593 (1) DID NOT IMPOSE A
REQUIREMENT UPON THE CLAIMANT, A VICTIM OF RELIGIOUS
HARASSMENT, TO PROVIDE HER EMPLOYER A SECOND CHANCE AS A
CONDITION PRECEDENT TO THE CLAIMANT BEING AWARDED
UNEMPLOYMENT INSURANCE BENEFITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1

ARGUMENT
THE RESPONDENT FAILED TO REBUT CLAIMANTS ARGUMENT THAT
THE TERM GOOD CAUSE FOUND IN LABOR LAW 593 (1) DID NOT
IMPOSE A REQUIREMENT UPON THE CLAIMANT, A VICTIM OF
RELIGIOUS HARASSMENT, TO PROVIDE HER EMPLOYER A SECOND
CHANCE AS A CONDITION PRECEDENT TO THE CLAIMANT BEING
AWARDED UNEMPLOYMENT INSURANCE BENEFITS
Attorney General Eric Schneiderman, on behalf of the Respondent, Department of
Labor, in his brief opposing the Claimants appeal from the Unemployment Insurance
Appeal Board denial of her application for unemployment benefits, fails to address the
primary issues raised by the Claimant. Attorney General Schneiderman argues that the
Claimant voluntarily separated from her employment without good cause because after
being subjected to two acts of religious harassment by her trainer, each of which violated
New York City Human Rights Law Section 8-107 and the Employers Zero Tolerance
Policy (A-11 and A-12
1
), the Claimant resigned without affording her employer an
opportunity to address her concerns. That the Claimant did not afford her employer an
opportunity to address her concerns is not true. Shortly after the Claimant sent an e-mail
tendering her resignation (A-23), the Claimant engaged in a telephone conversation with
her supervisor, Chief Financial Officer Michael Kurtz (A-24). During that conversation,
Chief Financial Officer Kurtz apologized for the behavior of the Claimants trainer but did
not ask the Claimant to withdraw her resignation nor did he offer that the Employer had a
process by which it could remedy the egregious conduct to which she had been subjected.
The next day, the Claimant engaged in a telephone conversation with Dayneen Caldwell,

1
All references to Appendix pages are to the pages of the Appendix appended to Claimants brief)
2

Vice President of Human Resources at the Employer (A-25). She too apologized to the
Claimant. She too did not ask the Claimant to return to work and she too did not offer that
the Employer had a process by which it could address her concerns.
That the Unemployment Insurance Appeal Board and Attorney General
Schneiderman focus entirely on the reasons why the Claimant did not return to work as
opposed to concentrating on why the Claimant resigned is in error as well. Although
Administrative Law J udge Benjamin Reyes (ALJ Reyes) was required to make findings
of fact, he failed to do so. After reviewing ALJ Reyess decision, the court will confirm
that at no point did ALJ Reyes make a finding that the Claimant had been a victim of
religious harassment. He ignored the issue but made a point of mocking the Claimants
allegations by stating that the Claimant believed that she had been a victim of religious
harassment (A-6). He then minimized her alleged claim of being a victim of religious
harassment by declaring that it involved a few minutes. (A-6) Attorney General
Schneiderman in his brief also failed to acknowledge that the Claimant was a victim of
religious harassment. On those grounds alone this Court should overturn the decision of
the Unemployment Insurance Appeal Board. Because the Claimant put forth a prima
fasciae case of religious harassment, and no evidence to the contrary was submitted by the
Employer, the Court must find that the Claimant resigned because she was the victim of
two acts of religious harassment.
Once this Court finds that the Claimant was the victim of two acts of religious
harassment, the Court will then be faced with two other issues. Must a victim of religious
harassment return to her place of business to give her employer an opportunity to address
3

her concerns even when the conduct of the employer violated the New York City Human
Rights Law and the employers own Zero Tolerance policy? The second issue is whether
the two conversations that the Claimant engaged in with representatives of the Employer
were sufficient to constitute an opportunity for the Employer to address the Claimants
concern?
In response to the first issue, this court must hold that the definition of good
cause advocated by the Unemployment Insurance Appeal Board and Attorney General
Schneiderman is too broad. Both the Unemployment Insurance Appeal Board and
Attorney General Schneiderman need to acknowledge there are circumstances in which the
conduct of the employer towards an employee is so egregious that an employee is not
required to afford the employer an opportunity to address the employees concerns as a
condition precedent to the employee being awarded unemployment benefits. The facts of
this case present such egregious conduct.
It may be easier to understand the question through the eyes of a victim of religious
harassment if the issue is rephrased as follows: must an employee always give her
employer a second chance no matter what conduct the employer perpetrates against the
employee? The answer should be no. This Court must find that certain types of conduct,
if perpetrated by an employer against an employee, relieves the employee of the
requirement that the employee give her employer a second chance. Religious harassment
in the form experienced by the Claimant is an example of the type of conduct that if
perpetrated by an employer against an employee, relieves the employee of any obligation
to provide her employer a second chance. The Claimant takes that position for two
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reasons. First, the Employer in this case violated New York City Human Rights Law
Section 8-107. Second, the Employer violated its own Zero Tolerance Policy. 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, was enacted
because the citizens of New York City wanted to institute a zero tolerance policy against
religious harassment. More importantly, the Employer in this case recognized the
importance of following a zero tolerance policy. That is why the Employer required, as a
condition of employment, that the Claimant sign a statement acknowledging that if
Claimant participated in acts of harassment, including harassment that is based on an
individuals gender, race, religion, sexual orientation, or any characteristic protected by
Federal, State and/or local law harassment (A-12), she would be terminated, without
being given a second chance. That the Employer accepted the Claimants resignation and
made no offer to address the Claimants concerns is the best evidence that the Employer
understood that its Zero Tolerance Policy was reciprocal and that the Claimant was fully
justified in not giving the Employer a second chance.
It is therefore difficult to accept that the chief guardian of the laws of the State of
New York, Attorney General Eric Schneiderman, would hold the position that an
employee who has been a victim of religious harassment must give his employer a second
chance. Essentially Attorney General Schneiderman is arguing that it is more important to
safeguard the maximum of $400.00 a week that the State of New York awards in
unemployment benefits than it is to protect employees from being subjected to religious
5

harassment by their employers. That appears to have been the gist of the argument put
forth by Attorney General Schneiderman when his office writes in its brief that since the
state administers [the unemployment insurance] program for the benefit of its citizens, it
has a significant interest in assuring that the individuals who are ineligible or disqualified
do not drain the systems resources at the expense of other citizens (Brief For Respondent
Commissioner Of Labor, page 8). Attorney General Eric Schneiderman holds the position
that granting unemployment benefits to victims of religious harassment who do not give
their employers a second chance is a circumstance that leads to draining the unemployment
benefit system at the expense of other citizens. In other words, Attorney General Eric
Schneiderman puts dollars ahead of human rights.
Concerning the second issue, whether the two conversations that the Claimant
engaged in with representatives of the Employer were sufficient to constitute an
opportunity for the Employer to address the Claimants concern, the court should find that
they were sufficient. How many conversations with the employer must an employee have
before concluding that the employer cannot address her concerns? That the
Unemployment Insurance Appeal Board and Attorney General Schneiderman are
advocating that the Claimant should have confronted her trainer on the next Monday
morning and sought her trainers dismissal places an unreasonable demand on a victim of
religious harassment.
It is further worth noting that Attorney General Schneiderman fails to address the
Claimants argument that the Employers behavior in this case violated New York City
Human Rights Law Section 8-107 nor does Attorney General Schneiderman respond to the
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argument that the Employers behavior violated the Employers own Zero Tolerance
Policy. Attorney General Schneiderman further does not address that the Claimant set as a
condition of her employment that she be allowed to leave work early on Fridays during the
winter months; that the condition was accepted by the Employer and that the condition was
breached on the first Friday of the Claimants employment. Lastly, Attorney General
Schneiderman fails to refute the Claimants argument that the New York State Labor
Departments definition of good cause found in New York Labor Law Section 593 (1) is
unconstitutional because it does not provide equal protection to employers and employees.
In the opinion of Attorney General Schneiderman, good cause is defined to mean that if
an employee violates a zero tolerance policy, he may be terminated without being given a
second chance but an employer who violates a zero tolerance policy must always be given
a second chance.
The Court should further find that none of the cases cited by Attorney General
Schneiderman involved facts that matched the circumstances of this case. The Court can
easily distinguish the case of Matter of Schwartz (New York City Department of Citywide
Administrative Services-Commissioner of Labor), 62 A.D.3d 1231 (3rd Dept. 2009) cited
by Attorney General Schneiderman in which the Court upheld the denial of unemployment
benefits to an employee who complained of being subjected to anti-Semitic remarks.
Attorney General Schneiderman knows full well that although anti-Semitic remarks are
reprehensible, they are protected as part of our First Amendment right to free speech. It is
only when anti-Semitic remarks are linked to criminal activity that the remarks become an
element of a hate crime. Not so religious harassment that interferes with the ability of a
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Sabbath observer to leave work in time to reach her home before the Sabbath. That
conduct is barred by New York City Human Rights Law Section 8-107.
Attorney General Schneiderman further ignores that the Employer chose not to
participate in the administrative hearing nor did the Employer participate at any other stage
of these proceedings. It is significant that the Employer did not contest any of the factual
statements made by the Claimant nor did the Employer submit any evidence that the
Employer had a process in place by which it could to address violations of New York City
Human Rights Law Section 8-107. Their failure to contest the award of unemployment
benefits to the Claimant was the best evidence that the Claimant had afforded the
Employer an opportunity to address her concerns but that the Employer agreed with the
Claimant that the Claimants best course of conduct was to resign. In their decision and in
his brief, the Unemployment Appeals Board and Attorney General Schneiderman are
speculating that if Claimant had returned to work, the Employer could have addressed the
Claimants concerns. Where in the record does the court find proof that the Employer had
in place a process by which it could address the Claimants concerns? This Court should
not be denying unemployment benefits based on factual speculation. What the Court will
find when it reviews the record is that the Employer had in place a Zero Tolerance Policy
which provided that an employee who participated in religious harassment would be
terminated, no second chances. The Court should interpret the conduct of both the
Claimant and the Employer as representing an understanding by both that the Zero
Tolerance Policy also stood for the rule that the Claimant who was a victim of religious
harassment could resign without having to give the Employer a second chance.
8

It is further significant that the office of Attorney General Schneiderman misstates
the facts that constituted the acts of religious harassment. On page 2 of his brief, Attorney
General Schneiderman states that On Friday, December 7, 2012, claimants job trainer
scheduled her to attend a meeting from 2:00 to 3:00 P.M. In truth, Claimant testified to
the following as summarized in her Statement of Facts:
On Tuesday, December 4, 2012, Liebowitz advised Claimant that Claimant
would be required to attend a meeting concerning Employers 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 significance of Attorney General Schneidermans misstatement lies in the
Attorney General Schneiderman concealing that the Claimants trainer knew three days
before the meeting that Claimant needed to leave work at 2:45 PM on Friday, December 7,
2012. The trainer had three days in which to help Claimant obtain a password to the
software which would generate the report that the Employer apparently needed that Friday;
three days to teach the Claimant how to use the software and three days to teach the
Claimant how to generate the report. Instead, the trainer waited until 2:45 PM of that
Friday to begin the first step in the process; i.e. obtaining a password that would open the
software. That the trainer failed to take the first step in the process of teaching the
Claimant how to generate the report in question until Friday at 2:45 P.M, the time at which
the Claimant was scheduled to leave, but still complained to the Claimant that the Claimant
would not be able to prepare the report that day, played a significant role in why the
Claimant viewed the trainers conduct as constituting religious harassment.
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CONCLUSION
For the reasons set forth herein and in the Claimants brief, this court should
overrule the decision of the Unemployment Insurance Appeal Board denying the Claimant
unemployment benefits and provide such other and further relief as the Court deems just
and appropriate.
Dated: Lake Success, New York
J uly 18, 2014

Respectfully submitted,


ABRAHAM J . KATZ
Attorney for Claimant-Appellant
ROBERTA P. KATZ
1979 Marcus Avenue, Suite 210
Lake Success, New York 11042
Tel. No. (718) 747-0100