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In re Smith

State of New York Supreme Court, Appellate Division Third Judicial Department


December 17, 2009

IN THE MATTER OF THE CLAIM OF GLENN D. SMITH, APPELLANT.
ROCHESTER INSTITUTE OF TECHNOLOGY, RESPONDENT.
COMMISSIONER OF LABOR, RESPONDENT.

MEMORANDUM AND ORDER

Calendar Date: November 4, 2009

Before: Cardona, P.J., Mercure, Spain, Kane and Stein, JJ.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed September 24, 2008, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

Claimant, who was employed as a heating and air conditioning technician at a university, was terminated from his employment after he failed to follow his supervisor's request to meet with him on two consecutive days. The Unemployment Insurance Appeal Board denied his claim for benefits on the ground that he was terminated due to misconduct, prompting this appeal.

We affirm. "An employee's failure to comply with an employer's reasonable request may constitute insubordination rising to the level of disqualifying misconduct" (Matter of Guagliardo [Commissioner of Labor], 27 AD3d 866, 867 [2006] [citations omitted]; accord Matter of Box [Commissioner of Labor], 50 AD3d 1431, 1432 [2008]). Here, the employer's representatives testified that, despite having received prior written warnings that continued acts of insubordination could result in his termination, claimant failed to follow a directive from his supervisor to meet with him to discuss his work assignments on two consecutive days. To the extent that claimant denied that his supervisor requested the meetings, this presented a credibility issue for the Board to resolve (see Matter of Atson [Commissioner of Labor], 64 AD3d 1065, 1065-1066 [2009]). Inasmuch as the employer's request was reasonable and claimant did not demonstrate a compelling reason for refusing to comply, we discern no basis for disturbing the Board's determination (see Matter of Miner [Commissioner of Labor], 49 AD3d 1128, 1129 [2008]; Matter of Lambert [Commissioner of Labor], 34 AD3d 948, 948 [2006]).

Cardona, P.J., Mercure, Spain, Kane and Stein, JJ., concur.

ORDERED that the decision is affirmed, without costs.

20091217

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