Tawfiq Nasher v. Administrator, Unemployment Compensation Act et al. (2012)

MEMORANDUM OF DECISION RE MOTION FOR JUDGMENT

The court has reviewed the record certified to it by the Board of Review, the defendant's motion for judgment, the plaintiff's pleadings, the plaintiff's objection to the motion for judgment, and has considered all of the submissions and the arguments of the Assistant Attorney General, and the plaintiff Tawfiq Nasher.

The court has no authority to find facts in an unemployment compensation appeal hearing.   It is limited to reviewing the record certified to it by the Board of Review.   Credibility of witnesses is evaluated at the administrative level and not in this court hearing.   In order for the court to review the facts, a motion to correct the findings must have been filed.   That was not done in this case, although it is clear that notice was given concerning that procedure in the decision itself sent to the plaintiff.

The court understands the claim of the plaintiff, but is by law required to treat this as a record review not a new hearing.   The Board of Review determined that the claimant was ineligible to receive benefits because he was discharged for failure to account for 79 active parking cards.

As the Board of Review found:

The misconduct alleged as the reason for the claimant's discharge must be the real reason for the discharge.   When there is a delay between a discharge and the misconduct that allegedly caused the discharge, we may infer that the discharge was for some other reason.   An employer may effectively rebut a claim of pretextual discharge by establishing a legitimate reason for the termination.   See Nichter v. Rainforest Café, Inc., Board Case No. 1181–BR–06 (11/14/06).   When the claimant contends that the employer discharged him other for reasons other than the alleged misconduct, we examine the chronology of events, and when they occurred in relation to the discharge.  Id. (employer did not discharge the claimant in retaliation for her sexual harassment complaint filed eight to nine months earlier, but for unauthorized discounts discovered just prior to the discharge.)   The claimant bears the ultimate burden of persuading the trier of fact that the reasons articulated by the employer for its actions were not the true reasons.  Id., citing McDonnell Douglas v. Green, 411 U.S. 792, 802–803 (1973).

In the case before us, Juarez conducted an internal audit of the claimant's location on April 5, May 12, May 26, and May 28, 2010.   The employer discharged the claimant within a reasonable period of time after the audit on June 7, 2010.   DeLeon addressed his December 2009 memorandum to all of the employer's managers, not just the claimant.   On May 19, 2010, DeLeon reiterated the employer's procedures in a conference call with all of the employer's managers.   The claimant has not established any bias on the part of Juarez, who we find had no motivation to falsify the audit.   By establishing that there was legitimate reason for the discharge, i.e., the claimant's failure to account for 79 active parking cards, the employer has effectively rebutted the claimant's contention of pretextual discharge.   The claimant, on the other hand, has not met his burden of proving that the employer discharged him based on his union activity or some reason other than that which the employer alleged.

Board of Review Decision (May 12, 2011) at 4–5 (Rec. at 157–58).

The court does not retry the facts or hear evidence.   The court finds the decision of the Board of Review on the merits follows reasonably from the facts found, and the correct application of the law to those facts.   The decision is not arbitrary, capricious, or contrary to law.

The decision is affirmed, and the defendant's Motion for Judgment, Motion # 102.00 dated October 17, 2011 is granted.

The appeal is dismissed.

EDWARD R. KARAZIN, JR.

JUDGE TRIAL REFEREE

Karazin, Edward R., J.T.R.