In re the Claim of Kiteta

4 A.D.3d 712, 771 N.Y.S.2d 917, 2004 N.Y. App. Div. LEXIS 2015

Opinion

Appeal from a decision of the Unemployment Insurance Appeal Board, filed September 27, 2002, which, upon reconsideration, adhered to its prior decision ruling that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

Substantial evidence supports the decision of the Unemployment Insurance Appeal Board ruling that claimant was discharged from her employment as a laboratory technician in the employer’s blood bank due to misconduct. On December 25, 2000, claimant reported to work late and a coworker reported that claimant appeared to be under the influence of something. Security guards were sent to the lab to assess the situation and reported that claimant was slurring her words, staggering and smelled of alcohol. Claimant refused her supervisor’s request to undergo an emergency room evaluation and eventually left the premises. It is well settled that absent a showing that an employee is suffering from alcoholism, reporting to work under the influence of alcohol may constitute disqualifying misconduct (see Matter of Inscho [Commissioner of Labor], 301 AD2d 1006 [2003]; Matter of Daly [Sweeney], 244 AD2d 614, 615 [1997]). Claimant’s denial that she was intoxicated raised a credibility issue for the Board to resolve (see Matter of Chilelli [M & R Tomato Distrib.—Commissioner of Labor], 306 AD2d 668, 669 [2003]; Matter of Daly [Sweeney], supra at 615).

Cardona, EJ., Crew III, Peters, Carpinello and Mugglin, JJ., concur. Ordered that the decision is affirmed, without costs.