Friday, March 16, 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):

"Mailed and Filed: MARCH 02, 2012

IN THE MATTER OF: Appeal Board No. 555993

PRESENT: GEORGE FRIEDMAN, GERALDINE A. REILLY MEMBERS

The Department of Labor issued the initial determination disqualifying the claimant from receiving benefits effective April 29, 2010, 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 MURRAY HILL MEDICAL GROUP prior to April 29, 2010, cannot be used toward the establishment of a claim for benefits. The claimant requested a hearing.The Administrative Law Judge held telephone conference hearings at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances on behalf of the claimant, the employer, and the Commissioner of Labor. By decision filed December 7, 2010 (A.L.J. Case No. ), the Administrative Law Judge sustained the initial determination.The claimant appealed the Judge's decision to the Appeal Board. The Board considered the arguments contained in the written statement submitted on behalf of the claimant.Based on the record and testimony in this case, the Board makes the following

FINDINGS OF FACT: The claimant worked as a receptionist at a medical practice from August 17, 2009 through April 28, 2010. The employer occupied five floors of an office building, with the claimant working on the fourth floor. During the period of the claimant's employment, the employer found that the claimant's customer service skills were poor.Finally, the claimant's supervisor, the Chief Operating Officer, and the Director of Human Resources met and decided as a group that the claimant would be discharged. The claimant's supervisor then prepared a memorandum outlining the various concerns that supported this outcome, including unacceptable body language with patients, eating at her work station, use of her cell phone at work, and leaving the work station without permission from her supervisor. In terms of the sequence of these events, the last event was the claimant's leaving her work station.
The issue of leaving the work station involved the claimant being observed by the supervisor on the seventh floor of the employer's offices on two separate occasions on or about April 26, 2010 without the supervisor's knowledge or permission. The employer estimates that the claimant would have been away from her work station for ten to fifteen minutes each time. The employer had a rule requiring receptionists to get permission from the supervisor before leaving their work stations for more than a minimal amount of time. The supervisor had sent e-mails to the receptionists on March 16, 2010 and April 9,2010 to remind them of this rule. These e-mails were written with the claimant and another receptionist in mind.After the claimant's supervisor wrote the discharge memo, the Director of Human Resources edited it. The employer fired the claimant on April 28, 2010. During this conversation, the Director Human Resources suggested to the claimant that perhaps she shouldn't work in the customer service industry.

OPINION: The credible evidence establishes that the employer had multiple concerns regarding the claimant's job performance by the time the employer discharged her on April 28, 2010. At the hearings, the claimant's supervisor provided contradictory testimony with respect to the specific factors that she, the Chief Operating Officer, and the Director of Human Resources discussed before agreeing to discharge the claimant.At the hearing held on August 2, 2010, she testified that she did not remember whether the incident with the claimant leaving her work station was discussed at the meeting where the decision to discharge was made. She also did not remember discussing this issue with the Director of Human Resources without the Chief Operating Officer present.Rather, she remembered that, when she met with both the HR Director and the COO,they discussed the claimant's poor customer service and eating at her desk. The supervisor further testified that she believed the claimant would have been discharged even if the incident of leaving her work station had not occurred.At the hearing held August 27, 2010, the claimant's supervisor testified that the incident with the claimant leaving her work station was the event that precipitated the meeting to discuss whether to fire the claimant. She testified that she and the COO and HR Director discussed everything that subsequently went into the memo, including the claimant's leaving her work station. She further testified that the claimant would not have been fired for poor customer service alone, as the employer was coaching the claimant regarding her customer service skills.These conflicting stories from the same witness leave us unable to credit her testimony that the claimant's two unauthorized departures from her workstation comprised the final incident triggering her discharge. We note that the claimant testified that, at the time when she was fired, she was told that she was being fired for poor customer service and an unprofessional posture. Thus, the claimant's testimony is consistent with the supervisor's testimony from the first hearing. Although we recognize that there may be reason to question the credibility of each of the witnesses in this case-whether because of self-interest, limited knowledge or fading memory- the weight of the evidence supports the conclusion that the claimant was fired for poor customer service and not for leaving her work station. Accordingly, we conclude that the claimant was fired for poor job performance which does not constitute disqualifying misconduct for purposes of the Unemployment Insurance Law, and the claimant is allowed benefits.

DECISION: The decision of the Administrative Law Judge is reversed. The initial determination, disqualifying the claimant from receiving benefits effective April29, 2010, 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 April 29, 2010, cannot be used toward the establishment of a claim for benefits, is overruled.The claimant is allowed benefits with respect to the issues decided herein.

GEORGE FRIEDMAN, MEMBER GERALDINE A. REILLY, MEMBER"

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