Opinion
519772
05-21-2015
In the Matter of the Claim of Marc HECTOR, Appellant. Commissioner of Labor, Respondent.
Nicole Salk, South Brooklyn Legal Services, New York City, for appellant. Eric T. Schneiderman, Attorney General, New York City (Bessie Bazile of counsel), for respondent.
Nicole Salk, South Brooklyn Legal Services, New York City, for appellant.
Eric T. Schneiderman, Attorney General, New York City (Bessie Bazile of counsel), for respondent.
Before: McCARTHY, J.P., EGAN JR., LYNCH and CLARK, JJ.
Opinion 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 insurance 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 A.D.3d 1312, 1313, 989 N.Y.S.2d 708 [2014] ; see Matter of Cardenas [Metropolitan Cable Communications, Inc.-Commissioner of Labor], 118 A.D.3d 1234, 1234–1235, 987 N.Y.S.2d 715 [2014] ). Engaging in insubordinate behavior (see Matter of Shafer [Commissioner of Labor], 107 A.D.3d 1280, 1280, 967 N.Y.S.2d 521 [2013] ; Matter of Irons [TLC W., LLC—Commissioner of Labor], 79 A.D.3d 1511, 1511, 915 N.Y.S.2d 651 [2010] ) or using profane or disrespectful language toward a supervisor can constitute disqualifying misconduct (see Matter of Gigi [Commissioner of Labor], 37 A.D.3d 894, 894–895, 830 N.Y.S.2d 365 [2007] ; Matter of Rosario [Commissioner of Labor], 32 A.D.3d 1092, 1092, 821 N.Y.S.2d 667 [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 A.D.3d 1216, 1217, 987 N.Y.S.2d 524 [2014] ), it could reasonably conclude that claimant engaged in disqualifying misconduct (see Matter of Lewis [Xerox Corp.-Commissioner of Labor], 65 A.D.3d 773, 774, 884 N.Y.S.2d 501 [2009] ). Accordingly, we find no reason to disturb the Board's decisions.
ORDERED that the decisions are affirmed, without costs.