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In the Matter of the Claim of

State of New York Supreme Court, Appellate Division Third Judicial Department


February 2, 2012

IN THE MATTER OF THE CLAIM OF BARBARA J. FORD, RESPONDENT. THE RECTOR CHURCHWARDENS &
VESTRYMEN OF TRINITY CHURCH, APPELLANT. COMMISSIONER OF LABOR, RESPONDENT.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed March 17, 2011, which ruled that claimant was eligible to receive unemployment insurance benefits.

MEMORANDUM AND ORDER

Calendar Date: December 12, 2011

Before: Peters, J.P., Rose, Malone Jr., Stein and Garry, JJ.

Claimant worked for the employer for approximately 20 years in various capacities, most recently as a facilities coordinator. In January 2009, the employer received anonymous faxes sent to several different departments that alleged inappropriate and discriminatory behavior on the part of the employer's controller, as well as improprieties by the chief executive officer and chief financial officer. The employer engaged an investigator and outside counsel to determine the origin of the faxes and it was discovered that they were sent by a woman in Alabama at the behest of her uncle, who was married to claimant's sister. Claimant denied involvement during several interviews with the employer's human resources department and, at the conclusion of the investigation, she was discharged for intent to disrupt business and lying about her involvement with sending the faxes. After claimant's application for unemployment insurance benefits was denied, a hearing was held after which an Administrative Law Judge determined that the employer had substantiated that claimant had arranged for the faxes to be sent and, therefore, was disqualified from receiving benefits by virtue of her conduct that was detrimental to her employer's interests. However, the Unemployment Insurance Appeal Board reversed, finding that there was "no substantial evidence" to support the employer's accusations. The employer now appeals.

Whether a claimant has engaged in disqualifying misconduct is a factual question for resolution by the Board and its decision will not be disturbed when supported by substantial evidence (see Matter of Johnson [Commissioner of Labor], 83 AD3d 1314, 1314 [2011]; Matter of Ponce [Commissioner of Labor], 75 AD3d 1041, 1041 [2010]). Likewise, credibility determinations are within the province of the Board to resolve (see Matter of Johnson [Commissioner of Labor], 83 AD3d at 1314; Matter of Green [Village of Hempstead-Commissioner of Labor], 80 AD3d 954, 955 [2011]). However, the Board's conclusion here that there is "no substantial evidence to support the employer's allegations of misconduct against the claimant" is unsupported by the record as a whole and, therefore, we must reverse (see Matter of Takser [New York Compensation Ins. Rating Bd.-Commissioner of Labor], 63 AD3d 1478, 1480 [2009], lv dismissed 13 NY3d 810 [2009]).

During the hearing, the co-director of the employer's human resources department testified that the investigation revealed that claimant's brother-in-law admitted to having requested that his niece send the faxes. Despite claimant's protestations that she did not know her sister or her sister's husband, the employer's telephone records showed that a call was made from claimant's desk telephone to the brother-in-law's telephone number in Alabama. In addition, the employer submitted documentary evidence that substantiated the familial relationship between claimant and the man who admittedly caused the faxes to be sent. To the extent that the Board found that the employer's evidence constituted only hearsay, we note that the Administrative Law Judge denied a request to call a representative from the investigator to testify.

Moreover, to the extent that the Board found that claimant testified consistently and credibly, that conclusion is belied by the record. Initially, claimant testified that she left Alabama at the age of 12 or 13 and, thereafter, did not know her estranged family and had no contact with them. However, upon further questioning, claimant testified that she had regular contact with her brother who had visited her in New York and had periodic contact with her mother, whose funeral she had attended in Alabama. Furthermore, when questioned about whether she had made a call from her desk to an Alabama telephone number in May 2007, claimant testified that sometimes she would return calls to her mother. However, the record demonstrates that claimant's mother died in 2006.

While this Court generally accords deference to the Board with regard to its factual determinations, it is not free to "disregard compelling evidence that claimant was guilty of employee misconduct," which it appears to have done here (Matter of Takser [New York Compensation Ins. Rating Bd.-Commissioner of Labor], 63 AD3d at 1480). Accordingly, we must reverse and remit for a new hearing before the Board.

Peters, J.P., Rose, Malone Jr., Stein and Garry, JJ., concur.

ORDERED that the decision is reversed, without costs, and matter remitted to the Unemployment Insurance Appeal Board for further proceedings not inconsistent with this Court's decision.

ENTER:

Robert D. Mayberger Clerk of the Court

20120202

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