In re the Claim of Kemp

Appellate Division of the Supreme Court of New York

In re the Claim of Kemp

25 A.D.3d 1054, 807 N.Y.S.2d 484

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 26, 2006

StatusPublished

Cited by2 cases

This text of 25 A.D.3d 1054 (In re the Claim of Kemp) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Claim of Kemp, 25 A.D.3d 1054, 807 N.Y.S.2d 484 (N.Y. Ct. App. 2006).

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Opinion

Appeal from a decision of the Unemployment Insurance Appeal Board, filed December 20, 2004, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

Substantial evidence supports the decision of the Unemployment Insurance Appeal Board ruling that claimant lost his job as a direct care counselor due to disqualifying misconduct. The record establishes that while on a 10-day suspension for letting an unauthorized driver operate the company vehicle, claimant called his supervisor to discuss a temporary change in his schedule. According to claimant’s supervisor, claimant began using profanities and wanted to “meet after work.” After this incident, claimant was fired from his employment. Inasmuch as the use of profanities and disrespectful or insubordinate behavior has been held to constitute disqualifying misconduct (see Matter of Pagan [Haig Press—Commissioner of Labor], 305 AD2d 845 [2003]; Matter of Walli [Commissioner of Labor], 275 AD2d 845, 846 [2000]), we find no reason to disturb the Board’s decision. To the extent that claimant presented differing testimony regarding the nature of the telephone conversation with his supervisor, this created a credibility issue for the Board to resolve (see Matter of Walli [Commissioner of Labor], supra at 846).

[1055]*1055Cardona, P.J., Crew III, Peters, Spain and Carpinello, JJ., concur. Ordered that the decision is affirmed, without costs.

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Appeal from a decision of the Unemployment Insurance Appeal Board, filed December 20, 2004, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

Substantial evidence supports the decision of the Unemployment Insurance Appeal Board ruling that claimant lost his job as a direct care counselor due to disqualifying misconduct. The record establishes that while on a 10-day suspension for letting an unauthorized driver operate the company vehicle, claimant called his supervisor to discuss a temporary change in his schedule. According to claimant’s supervisor, claimant began using profanities and wanted to “meet after work.” After this incident, claimant was fired from his employment. Inasmuch as the use of profanities and disrespectful or insubordinate behavior has been held to constitute disqualifying misconduct (see Matter of Pagan [Haig Press—Commissioner of Labor], 305 AD2d 845 [2003]; Matter of Walli [Commissioner of Labor], 275 AD2d 845, 846 [2000]), we find no reason to disturb the Board’s decision. To the extent that claimant presented differing testimony regarding the nature of the telephone conversation with his supervisor, this created a credibility issue for the Board to resolve (see Matter of Walli [Commissioner of Labor], supra at 846).

[1055]*1055Cardona, P.J., Crew III, Peters, Spain and Carpinello, JJ., concur. Ordered that the decision is affirmed, without costs.

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Bluebook (online)

25 A.D.3d 1054, 807 N.Y.S.2d 484, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-claim-of-kemp-nyappdiv-2006.

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