State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: September 25, 2014 518279 

________________________________

In the Matter of the Claim of

KAREN A. GIBBONS,

Respondent.

THE ANIMATION PROJECT, MEMORANDUM AND ORDER

Appellant.

COMMISSIONER OF LABOR,

Respondent.

________________________________

Calendar Date: August 4, 2014

Before: Peters, P.J., Lahtinen, McCarthy, Devine and Clark, JJ.

__________

Seyfarth Shaw, LLP, New York City (Richard M. Resnik of

counsel), for appellant.

Cynthia Feathers, Glens Falls, for Karen A. Gibbons,

respondent.

__________

Appeal from a decision of the Unemployment Insurance Appeal

Board, filed April 1, 2013, which ruled that claimant was

entitled to receive unemployment insurance benefits.

From September 2010 until December 2011, claimant worked as

an art therapist for an organization that provides therapeutic

and skills-based services to at-risk youth. She worked

approximately 40 hours per week and was paid an annual salary of

$40,000 with benefits. She was laid off and began collecting

unemployment insurance benefits. Shortly after her lay off, the

employer sent claimant an email inquiring about her interest in

working on an upcoming project, the details of which had not been

finalized. The employer indicated that the project would likely
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entail working with three groups, for roughly six to eight hours

per week. It would pay $50 per hour without benefits, which was

less than her customary $100 hourly rate, and would run for 12

weeks, ending on March 31, 2012. Claimant responded that she was

not interested in the project. Thereafter, the Department of

Labor issued an initial determination finding that claimant was

not entitled to receive benefits because she refused an offer of

suitable employment without good cause, and imposed a recoverable

overpayment and forfeiture penalty. Following a hearing, the

Administrative Law Judge sustained the determination. The

Unemployment Insurance Appeal Board, however, reversed this

decision and concluded that claimant was eligible to receive

benefits. This appeal by the employer ensued. 

Initially, it is for the Board to decide whether a claimant

has refused an offer of suitable employment for which he or she

is reasonably fitted by training and experience (see Labor Law §

593 [2]), and its decision in this regard will be upheld if

supported by substantial evidence (see Matter of McKeon

[Community Health & Home Care, Inc.–Commissioner of Labor], 306

AD2d 792, 792 [2003]; Matter of Gibbs [Commissioner of Labor],

273 AD2d 672, 672 [2000]). Here, evidence was presented that the

details of the project were not finally established at the time

the employer made its inquiry, and the time frame and required

hours were also not definitive (compare Matter of Turner

[Commissioner of Labor], 6 AD3d 915, 916 [2004]). In view of

this, substantial evidence supports the Board's finding that

claimant was not given a bona fide offer of suitable employment

which she refused. Moreover, even if we were to conclude that

she was given a bona fide offer of employment, the terms were

substantially less favorable than the terms of her employment

prior to her lay off and, consequently, she was not compelled to

accept it (see Matter of Knoblauch [Mark Custom Recording

–Sweeney], 239 AD2d 761, 763 [1997]). Accordingly, we find no

reason to disturb the Board's decision.

Peters, P.J., Lahtinen, McCarthy, Devine and Clark, JJ.,

concur.
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ORDERED that the decision is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court