A-750- 2149                                                                                                                      Index 1165.2

                                                                                                                                                    1170.8                    

     

           

 

 

NEW YORK STATE DEPARTMENT OF LABOR

UNEMPLOYMENT INSURANCE DIVISION

ADJUDICATION SERVICES OFFICE

 

February, 2013

 

INTERPRETATION SERVICE-BENEFIT CLAIMS

Misconduct

Safety & Security

Neglect of Duty

               

               

 

 

 

Failure To Follow Safety Procedure

 

The claimant, a transportation security officer, who in violation of employer safety procedures did not properly secure a weapon taken from a passenger, has committed an act of disqualifying misconduct.

                                                          

                                                            A.B.  564,048

 

 

The Department of Labor issued the initial determination disqualifying the claimant from receiving benefits effective October 12, 2011, on the basis that the claimant lost employment through misconduct in connection with that employment and holding that the wages paid to the claimant by prior to October 12, 2011, cannot be used toward the establishment of a claim for benefits. 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 February 14, 2012 (012-00846), 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 was employed for nearly nine years as a transportation security officer by the federal government, and was assigned to work at an airport. The claimant has been diagnosed with depression and has been taking Zoloft since 1998. As of early 2011, he was taking one 100-milligram pill each morning, having previously been prescribed a dosage in the amount of 50-milligrams.On Wednesday, May 4, 2011, the claimant received a notice that he was to be suspended for ten days as a result of a complaint that had been brought against him the year before. The claimant was not scheduled to work on Thursdays or Fridays, and next reported to work on Saturday, May 7, for his shift which ran from 12:00 P.M. to 8:30 P.M. His supervisor approached him to discuss a proposed leave restriction; at the time the claimant was working at the x-ray machine and the supervisor indicated she would speak with him later. At about 1:00 or 1:30, while on break, the claimant took a second Zoloft pill, as he was feeling agitated about the discussion he was to have with his supervisor. Following his return from his break, the claimant was stationed between the podium where passengers' tickets were checked and the conveyor belt where passengers would place their carry-on bags. A passenger approached him, and asked if she could take a stun gun onto the plane. The claimant, as well as other security officers nearby, told the passenger she could not carry the stun gun onto the plane, and the passenger handed the gun to the claimant. Pursuant to the employer's procedure, the claimant should have notified his supervisor of the weapon, after first securing it. Instead, the claimant tossed the stun gun into a trash can near the ticket podium. Following an investigation, which included the claimant's submission of documentation from his physician, which was subsequently reviewed by the employer's chief medical officer and a Board-certified psychiatrist, the claimant was discharged on October 11, 2011, for his action in simply throwing a weapon into a trash can. The claimant's physician had written, in the letter submitted to the employer, that "[i]t is well known that anxiety and depression can impair concentration". The psychiatrist who reviewed the medical document wrote, "[t]here was no indication of cognitive impairment, mental confusion, psychosis or clouded mental state . . . increased Zoloft would not cause [the claimant's] behavior".

 

OPINION: The credible evidence establishes that the claimant lost his employment after discarding a stun gun in a trash can, rather than secure it and report the matter to his supervisor. The claimant has contended that his judgment was affected in some manner by the fact that he took a second Zoloft pill, and he testified that he has no clear recollection of throwing the gun into the trash and cannot explain why he did so. However, the claimant's doctor did not support the claimant's contention that his act was the result of the extra Zoloft; and the psychiatrist who reviewed the documentation for the employer was definite that the second Zoloft would not have caused the claimant's behavior. The claimant was fully aware of the proper procedure to be followed in such situations, and the fact that he had taken a second Zoloft pill should not serve to excuse his actions. As the Board has previously held, airport security personnel may be held to a high degree of care due to the risks associated with their failure to provide such care (see Appeal Board Nos. 558090-A, and 464945). Instead of securing the stun gun, the claimant tossed it into a trash can which was readily accessible to the passengers, as well as to security personnel. His action rises to the level of misconduct and, accordingly, we conclude that he was separated from employment under disqualifying circumstances.

DECISION: The decision of the Administrative Law Judge is affirmed. The initial determination, disqualifying the claimant from receiving benefits effective October 12, 2011, on the basis that the claimant lost employment through misconduct in connection with that employment and holding that the wages paid to the claimant by prior to October 12, 2011, cannot be used toward the establishment of a claim for benefits, is sustained. The claimant is denied benefits with respect to the issues decided herein.

 

 

                                                                  COMMENTS

 

1.      In this case the claimant, a transportation security officer, took a stun gun from a passenger. However, instead of securing the weapon as per procedure, he placed it in a trash can where anyone could retrieve it and take it onto an airplane. The potential for harm caused by the claimant’s action was significant. (For a similar Appeal Board decision see Interpretation Index 1165.1.)

 

2.      The principle of “known potential for harm” can be applied to other situations where a claimant’s action, or non-action, could adversely affect the safety and/or security of individuals.