IN RE: the Claim of Francis X. OTTO Jr.

Reset A A Font size: Print

Supreme Court, Appellate Division, Third Department, New York.

IN RE: the Claim of Francis X. OTTO Jr., Appellant. Olympia Sports Inc., Respondent. Commissioner Of Labor, Respondent.

Decided: January 31, 2002

Before:  CARDONA, P.J., MERCURE, CREW III, PETERS and SPAIN, JJ. Francis X. Otto Jr., Orlando, Florida, appellant pro se. Boies, Schiller & Flexner L.L.P. (George F. Carpinello of counsel), Albany, for Olympia Sports Inc., respondent.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed June 15, 1998, which denied claimant's application for reconsideration of a prior decision ruling that claimant was disqualified from receiving unemployment insurance benefits because he voluntarily left his employment without good cause.

Claimant was employed as a management trainee at the employer's sporting goods store.   He became incensed when advised by his supervisor that information had been received alleging, inter alia, that he was conducting an inappropriate relationship with another employee.   On his last day of work, claimant arrived at the store several hours late accompanied by his mother who demanded copies of the documents in claimant's personnel file and informed claimant's supervisor that he would not be returning to his work.   Claimant refused to speak with his supervisor who offered to discuss the matter.   The Unemployment Insurance Appeal Board ruled that claimant voluntarily left his employment without good cause.   The Board denied claimant's subsequent application to reopen the decision prompting this appeal.

 We affirm.   Whether to grant an application to reopen lies within the discretion of the Board and we find no abuse of discretion here (see, Matter of McPhail [Commissioner of Labor], 277 A.D.2d 559, 715 N.Y.S.2d 520).   In any event, substantial evidence supports the Board's ruling that claimant lost his employment under disqualifying circumstances.   Animosity caused by the critical remarks of a supervisor can be found not to constitute good cause for leaving a job when continuing work is available (see, Matter of Grippi [Commissioner of Labor], 257 A.D.2d 883, 884, 684 N.Y.S.2d 666;  Matter of Viruet [McKenzie, McGhee & Harper-Sweeney], 245 A.D.2d 707, 708, 666 N.Y.S.2d 310).   To the extent that claimant asserts that he did not quit but was fired from his employment, this presents an issue of credibility for resolution by the Board (see, Matter of Odock [Commissioner of Labor], 254 A.D.2d 551, 552, 678 N.Y.S.2d 799;  Matter of Toth [Sweeney], 244 A.D.2d 752, 753, 664 N.Y.S.2d 489).   Claimant's remaining contentions have been reviewed and found to be without merit.

ORDERED that the decision is affirmed, without costs.

Copied to clipboard