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KELLY FOUNDATION MUST PAY BENEFITS TO WORKER WHO WAS FIRED, COURT RULES

A former employee of the foundation run by former Buffalo Bills quarterback Jim Kelly is due unemployment benefits even if Kelly's organization fired her for what it felt was employee misconduct, a state appeals court has ruled.

The Hunter's Hope Foundation, begun by Kelly to support awareness of a fatal nervous system disease afflicting his son, tried to block unemployment payments to Kathleen Pfohl, who worked as the foundation's event manager.

Foundation administrators accused her of "inappropriate dress, use of vulgar language and rudeness to staff and volunteers." They also said she used vulgar language and mocked staff during Kelly's induction ceremony at the Pro Football Hall of Fame in Canton, Ohio.

Pfohl's initial application for unemployment benefits in 2002 was denied, a decision upheld by an administrative law judge on appeal. That was reversed by the state Unemployment Insurance Appeal Board. Thursday, the Appellate Division of State Supreme Court in Albany sided with Pfohl.

"Based on our review of the record, substantial evidence supports the board's finding that (Pfohl's) behavior could be attributed to oversight and bad judgment, but did not rise to the level of disqualifying misconduct," the court ruled in the 5-0 decision. "Viewed in totality under the circumstances presented, (Pfohl's) conduct did not evince a wanton disregard of the employer's interest."

The foundation referred comments to its attorney, Charles S. DeAngelo, who did not return calls seeking comment.

Andrew P. Fleming, attorney for Pfohl, would say only that a separate legal action is also pending against Kelly's foundation over his client's firing. Fleming said Pfohl would not comment.

The court decision said that Pfohl was warned by a foundation official in July 2002 that her job was in jeopardy and that she was told why.

A month later, Pfohl, on her own time and at her own expense, went to the Pro Football Hall of Fame for the ceremony in which Kelly was inducted. When she returned to work, she was fired because, according to court papers, "she mocked staff and used vulgar language while seated in a crowded stadium during the induction ceremony and ignored staff and volunteers at a party following the ceremony."

But the court, citing other cases, noted that misconduct is defined as "a willful and wanton disregard of the employer's interest." The court said the evidence to support misconduct as a reason for her firing, and therefore denial of unemployment benefits, was not shown.

The Hunter's Hope Foundation was established in 1997 by Kelly and his wife, Jill, after their infant son, Hunter, now 7, was diagnosed with Krabbe leukodystrophy, a disease of the nervous system.

e-mail: tprecious@buffnews.com

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