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Roe v. Commissioner of Labor

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


May 14, 2009

IN THE MATTER OF THE CLAIM OF KATHERINE M. ROE, APPELLANT.
v.
COMMISSIONER OF LABOR, RESPONDENT.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Calendar Date: April 8, 2009

Before: Peters, J.P., Spain, Kane, Malone Jr. and McCarthy, JJ.

MEMORANDUM AND ORDER

Appeal from a decision of the Unemployment Insurance Appeal Board, filed August 31, 2007, which ruled that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

Substantial evidence supports the Unemployment Insurance Appeal Board's finding that claimant, a coordinator for a temporary employment agency for nurses and home health aides, was discharged from her employment due to misconduct. An employee's unauthorized absence from work has been held to constitute misconduct that disqualifies the claimant from receiving unemployment insurance benefits (see Matter of Tahat [Commissioner of Labor], 58 AD3d 921 [2009]; Matter of Britter [Commissioner of Labor], 54 AD3d 461, 461 [2008]). The record establishes that the employer unequivocally denied claimant's request for two weeks of vacation and, instead, offered an accommodation of five business days of vacation time if she submitted a vacation request form. Claimant does not dispute that she failed to submit the requested form and, in any event, did not report to work for at least eight business days. To the extent that testimony by claimant and the employer differed on whether claimant was granted verbal permission to take two weeks of vacation at the time of her hiring, and whether vacation request forms were available, this presented a credibility issue for the Board to resolve (see Matter of Tahat [Commissioner of Labor, 58 AD3d at 921; Matter of Ramirez [Commissioner of Labor], 49 AD3d 953, 954 [2008]).

Peters, J.P., Spain, Kane, Malone Jr. and McCarthy, JJ., concur.

ORDERED that the decision is affirmed, without costs.

20090514

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