Matter of Puello (Commr. of Labor)

140 A.D.3d 1514, 34 N.Y.S.3d 271

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 23, 2016
• Docket: 522041
• Status: Published

Opinion

Appeal from a decision of the Unemployment Insurance Appeal Board, filed July 14, 2015, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

Claimant, a retail associate since 2006, was late to work on six occasions in less than one month and received a written warning on December 29, 2014 advising him that further such conduct may result in disciplinary action including termination. After claimant was tardy reporting to work on several occasions in January 2015, including on January 14, 2015, his employment was terminated on January 15, 2015 for continued lateness. His application for unemployment insurance benefits was denied on the ground that he was terminated for misconduct which, following a hearing, was upheld by the Administrative Law Judge and affirmed by the Unemployment Insurance Appeal Board. Claimant appeals.

We affirm. “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]). Continued tardiness and failure to comply with an employer’s established policy regarding tardiness despite warnings has been held to constitute disqualifying misconduct (see Matter of Khan [Commissioner of Labor], 75 AD3d 971, 971 [2010]; Matter of Hilton [Commissioner of Labor], 67 AD3d 1220, 1220 [2009]; Matter of Kazaka [Commissioner of Labor], 46 AD3d 1071, 1072 [2007]; Matter of Valenta [Commissioner of Labor], 38 AD3d 1070, 1071 [2007]). Claimant testified that he received the written warning regarding his excessive tardiness on December 29, 2014 and was aware of the employer’s written policy regarding tardiness. Claimant admitted that he was late to work on January 14, 2015, explaining that he had fallen asleep on the commuter train and missed his stop, but offered no testimony or proof that his tardiness was attributable to a medical condition (compare Matter of Suchocki [St. Joseph’s R.C. Church — Com missioner of Labor], 132 AD3d 1222, 1223 [2015]). Given the foregoing, we find that substantial evidence supports the Board’s finding that claimant’s tardiness was not justified and that he was discharged from his employment for misconduct (see id.; Matter of Khan [Commissioner of Labor], 75 AD3d at 971).

Lahtinen, J.P., Garry, Lynch, Clark and Aarons, JJ., concur.

Ordered that the decision is affirmed, without costs.