In re the Claim of Pierre

Appellate Division of the Supreme Court of New York

In re the Claim of Pierre

141 A.D.3d 1069, 35 N.Y.S.3d 815

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

DecidedJuly 28, 2016

StatusPublished

This text of 141 A.D.3d 1069 (In re the Claim of Pierre) 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 Pierre, 141 A.D.3d 1069, 35 N.Y.S.3d 815 (N.Y. Ct. App. 2016).

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Opinion

Appeal from a decision of the Unemployment Insurance Appeal Board, filed July 9, 2015, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

The Unemployment Insurance Appeal Board determined, following a hearing, that claimant, a security officer, was discharged from his employment with a security company due to disqualifying misconduct. “Whether a claimant has engaged in disqualifying misconduct is a factual question for the Board to resolve and its determination will not be disturbed if supported by substantial evidence” (Matter of Chirico [City of Syracuse—Commissioner of Labor], 136 AD3d 1137, 1138 [2016] [internal quotation marks and citation omitted]). At the hearing, two supervisors testified that claimant, angry about a verbal directive given to him, threatened and yelled profanities at one of the supervisors, pointed his hand in her face, and lunged at her in a threatening manner. Claimant had to be restrained and police were called. “It is well settled that threats against a coworker can constitute misconduct disqualifying a claimant from receiving unemployment insurance benefits” (Matter of Coleman [SPA Hotels, LLC—Commissioner of Labor], 126 AD3d 1223, 1223 [2015] [citations omitted]), as can using profane language or being disrespectful or insubordinate to a supervisor (see Matter of Hector [Commissioner of Labor], 128 AD3d 1258, 1259 [2015]). While claimant offered a different account of the incident, it was within the province of the Board to credit the testimony of the employer’s witnesses (see id.). As substantial evidence supports the conclusion that claimant violated the employer’s known written policy against “threatening violence to [co]workers,” among other policies, and had [1070]*1070engaged in disqualifying misconduct, the Board’s decision will not be disturbed (see Matter of Smith [Commissioner of Labor], 138 AD3d 1341, 1342 [2016]; Matter of Coleman [SPA Hotels, LLC — Commissioner of Labor], 126 AD3d at 1223).

Peters, P.J., Garry, Rose, Devine and Mulvey, 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 July 9, 2015, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

The Unemployment Insurance Appeal Board determined, following a hearing, that claimant, a security officer, was discharged from his employment with a security company due to disqualifying misconduct. “Whether a claimant has engaged in disqualifying misconduct is a factual question for the Board to resolve and its determination will not be disturbed if supported by substantial evidence” (Matter of Chirico [City of Syracuse—Commissioner of Labor], 136 AD3d 1137, 1138 [2016] [internal quotation marks and citation omitted]). At the hearing, two supervisors testified that claimant, angry about a verbal directive given to him, threatened and yelled profanities at one of the supervisors, pointed his hand in her face, and lunged at her in a threatening manner. Claimant had to be restrained and police were called. “It is well settled that threats against a coworker can constitute misconduct disqualifying a claimant from receiving unemployment insurance benefits” (Matter of Coleman [SPA Hotels, LLC—Commissioner of Labor], 126 AD3d 1223, 1223 [2015] [citations omitted]), as can using profane language or being disrespectful or insubordinate to a supervisor (see Matter of Hector [Commissioner of Labor], 128 AD3d 1258, 1259 [2015]). While claimant offered a different account of the incident, it was within the province of the Board to credit the testimony of the employer’s witnesses (see id.). As substantial evidence supports the conclusion that claimant violated the employer’s known written policy against “threatening violence to [co]workers,” among other policies, and had [1070]*1070engaged in disqualifying misconduct, the Board’s decision will not be disturbed (see Matter of Smith [Commissioner of Labor], 138 AD3d 1341, 1342 [2016]; Matter of Coleman [SPA Hotels, LLC — Commissioner of Labor], 126 AD3d at 1223).

Peters, P.J., Garry, Rose, Devine and Mulvey, JJ., concur.

Ordered that the decision is affirmed, without costs.

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141 A.D.3d 1069, 35 N.Y.S.3d 815, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-claim-of-pierre-nyappdiv-2016.

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