Thursday, March 15, 2012

NEW YORK UNEMPLOYMENT INSURANCE HEARINGS - CREDIBILITY ISSUES

Another Appeal Board case discussing credibility is set forth here - note the section in bold (emphasis supplied):

"IN THE MATTER OF: Appeal Board No. 551306

PRESENT: LEONARD D. POLLETTA, MICHAEL T. GREASON MEMBERS

The Department of Labor issued the initial determination disqualifying the claimant from receiving benefits effective August 10, 2006, 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 GATEWAY CARGO SVC CENT INC prior to August 10,2006, cannot be used toward the establishment of a claim for benefits. The claimant requested a hearing.The Administrative Law Judge held hearings 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 Commissioner of Labor. By decision filed March 26,2010 (), the Administrative Law Judge overruled the initial determination.The Commissioner of Labor appealed the Judge's decision to the Appeal Board. The Board considered the arguments contained in the written statement submitted on behalf of the Commissioner of Labor.Based on the record and testimony in this case, the Board makes the following

FINDINGS OF FACT: The claimant was employed for a cargo service as a warehouse agent at an airport for one and a half years until August 16, 2006. He was discharged for theft of a co worker's motorcycle and other items from the employer. The claimant was arrested on a charge of criminal possession of stolen property in the third-degree (a D felony), on August 12, 2006. He pled guilty to the charge on January 29, 2009.

OPINION: The credible evidence establishes that the claimant was discharged, on August 16, 2006, for stealing from a coworker and from the employer. While the Administrative Law Judge accepted the claimant's testimony that he had been separated from employment on September 5, 2006 because the Port Authority would not return his ID, the appeal Board is not bound thereby and is entitled to pass on issues of credibility. Matter of Di Donato, 176 AD2d 11 (1991). Credibility is judged by the internal consistency of the story and the believability of the story itself. (See AB 543360.) The claimant's story was not internally consistent. The claimant changed his testimony regarding how he lost his employment and when he was arrested and for what several times. The claimant initially testified that he was arrested and incarcerated August 16, 2006, and held for three days, and so couldn't go to work because the Port Authority took his identification badge from him and he couldn't work at the airport without his identification. He also testified he was held through September 5, 2006 on that arrest. Next, he testified that his mother and lawyer told him not to go near the employer between August 19 and September 5, 2006 because they might arrest him for stealing the co-worker's motorcycle and some office supplies because they were accusing him of doing so, even though he also asserted that he didn't know about that accusation until he received the initial determination from the Department of Labor. Lastly, the claimant testified that the Port Authority took his identification badge after he was arrested in October for having an illegal handgun that he hadn't known know was in the car. As the claimant's testimony is not internally consistent and is not believable, we may reject it.The documentary evidence establishes that the employer discharged the claimant because he stole a co worker's motorcycle and other items from the employer. The certificate of disposition for his plea of guilty to criminal possession of stolen property Ianthe third-degree indicates he was arrested pursuant to this charge on August 12, 2006.The claimant's application for benefits, made on August 21, 2006, indicates that he had been fired by the employer and his last day of work was August 16, 2006. Therefore, we may conclude that the claimant was discharged on August 16, 2006 for stealing from acoworker and from the employer. We consider this to be in connection with his employment because the claimant worked at an airport and, given national security concerns, it is inappropriate to have persons who commit felonies working at an airport and his behavior was, therefore, detrimental to the employer's best interests.Accordingly, we conclude that the claimant's actions of stealing from his coworker and from the employer rose to the level of misconduct under the Unemployment Insurance Law, and he was properly disqualified from receiving benefits, effective August 16, 2006.

DECISION: The decision of the Administrative Law Judge is reversed.The initial determination, disqualifying the claimant from receiving benefits effective August 10, 2006, 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 August 10, 2006, cannot be used toward the establishment of a claim for benefits,is modified to be effective August 16, 2006, and, as so modified, is sustained. The claimant is denied benefits with respect to the issues decided herein.

LEONARD D. POLLETTA, MEMBER MICHAEL T. GREASON, MEMBER"

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