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In re the Claim of Hector

128 A.D.3d 1258 Court N.Y. App. Div. Decision date 2015-05-21 English

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In the Matter of the Claim of Marc Hector, Appellant. Commissioner of Labor, Respondent.
[8 NYS3d 737]

Appeals (1) from a decision of the Unemployment Insurance Appeal Board, filed December 17, 2013, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct, and (2) from a decision of said Board, filed April 25, 2014, which, upon reconsideration, adhered to its prior decision.

From June 2011 until his termination in April 2013, claimant worked at one of the employer’s restaurants preparing food and assisting customers. The Department of Labor issued an initial determination denying his claim for unemployment in

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surance benefits and, following a hearing, an Administrative Law Judge concluded that claimant had engaged in disqualifying misconduct and sustained the determination. The Unemployment Insurance Appeal Board affirmed and, upon reconsideration, adhered to its decision. Claimant now appeals from both decisions.

We affirm. The determination of “whether 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]; see Matter of Cardenas [Metropolitan Cable Communications, Inc. —Commissioner of Labor], 118 AD3d 1234 , 1234-1235 [2014]). Engaging in insubordinate behavior (see Matter of Shafer [Commissioner of Labor], 107 AD3d 1280 , 1280 [2013]; Matter of Irons [TLC W., LLC —Commissioner of Labor], 79 AD3d 1511 , 1511 [2010]) or using profane or disrespectful language toward a supervisor can constitute disqualifying misconduct (see Matter of Gigi [Commissioner of Labor], 37 AD3d 894 , 894-895 [2007]; Matter of Rosario [Commissioner of Labor], 32 AD3d 1092 , 1092 [2006]). Here, the consistent testimony of, among others, members of management established that claimant used profane language toward his supervisor and engaged in insubordinate behavior when he refused directives to assist customers in the restaurant and to leave the premises. As it was within the Board’s province to credit this testimony (see Matter of Andrews [A.C. Roman & Assoc. —Commissioner of Labor], 118 AD3d 1216 , 1217 [2014]), it could reasonably conclude that claimant engaged in disqualifying misconduct (see Matter of Lewis [Xerox Corp. —Commissioner of Labor], 65 AD3d 773 , 774 [2009]). Accordingly, we find no reason to disturb the Board’s decisions.

McCarthy, J.P., Egan Jr., Lynch and Clark, JJ., concur. Ordered that the decisions are affirmed, without costs.

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