State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: December 10, 2015 520753
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In the Matter of the Claim of
KEITH R. THOMPSON,
Appellant.
ST. PAUL'S EPISCOPAL CHURCH, MEMORANDUM AND ORDER
Respondent.
COMMISSIONER OF LABOR,
Respondent.
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Calendar Date: October 27, 2015
Before: McCarthy, J.P., Egan Jr., Lynch and Clark, JJ.
__________
Keith R. Thompson, Rochester, appellant pro se.
Jill K. Schultz, Rochester, for St. Paul's Episcopal
Church, respondent.
Eric T. Schneiderman, Attorney General, New York City
(Ingrid Rousseau of counsel), for Commissioner of Labor,
respondent.
__________
Appeal from a decision of the Unemployment Insurance Appeal
Board, filed June 16, 2014, which ruled, among other things, that
claimant was disqualified from receiving unemployment insurance
benefits because his employment was terminated due to misconduct.
Claimant was employed as the maintenance supervisor for the
employer from 2005 until September 2013, when he was terminated
for misconduct due to his repeated refusal to cooperate with the
employer's investigation of a complaint regarding claimant's
subordinate. Claimant thereafter obtained unemployment insurance
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benefits based upon his representation that he had lost his job
due to lack of work. The Unemployment Insurance Appeal Board
determined that claimant had engaged in disqualifying misconduct
and made willful misrepresentations in that regard, disqualifying
him from benefits, charged him with recoverable overpayment of
$678 and imposed a fine of $101.70. Claimant appeals.
We affirm. "[W]hether a claimant has engaged in
disqualifying misconduct is a factual issue for the Board to
decide and its decision will be upheld if supported by
substantial evidence" (Matter of Manieson [Commissioner of
Labor], 119 AD3d 1312, 1313 [2014]). Further, "[a] claimant's
failure to comply with an employer's reasonable requests or
actions which are detrimental to an employer's interest may
constitute disqualifying misconduct" (Matter of Spencer
[Commissioner of Labor], 22 AD3d 1010, 1010 [2005], lv denied 7
NY3d 701 [2006]; see Matter of Ortiz [New York Eye & Ear
Infirmary-Commissioner of Labor], 97 AD3d 885, 886 [2012]). The
record establishes that after a daycare employee who worked in
the employer's building complained to claimant about an offensive
remark allegedly made by claimant's subordinate, claimant warned
his subordinate; however, when the employer thereafter
investigated the incident, claimant admittedly refused to provide
any information, even after the employer promised that the
complainant's identity would be kept confidential. The testimony
established that the employer had reasonable grounds to
investigate the incident and to believe that claimant had
relevant information, and supported the Board's finding that he
was obligated to cooperate. Therefore, we find that substantial
evidence supports the Board's decision that claimant's actions
were detrimental to the employer's interests and constituted
disqualifying misconduct (see Matter of Ortiz [New York Eye & Ear
Infirmary-Commissioner of Labor], 97 AD3d at 886; Matter of
Spencer [Commissioner of Labor], 22 AD3d at 1010).
Further, issues of credibility are exclusively the province
of the Board (see Matter of Andrews [A.C. Roman & Assoc.-
Commissioner of Labor], 118 AD3d 1216, 1217 [2014]). The Board
credited the testimony of the employer's witness that claimant
was advised when he was terminated that it was due to his failure
as a supervisor to cooperate with the employer's investigation of
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his subordinate and claimant thereafter inaccurately represented
that he left his employment due to lack of work. Consequently,
we find no reason to disturb the Board's finding that he made a
willful misrepresentation to obtain benefits or its imposition of
recoverable overpayments and a penalty (see Labor Law §§ 594 [4];
597 [4]; Matter of Stelmach [Commissioner of Labor], 106 AD3d
1353, 1354 [2013]). Claimant's remaining claims have been
considered and are either unpreserved or lack merit.
McCarthy, J.P., Egan Jr., Lynch and Clark, JJ., concur.
ORDERED that the decision is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court