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Setzer v. Commissioner of Labor

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


January 14, 2010

IN THE MATTER OF THE CLAIM OF DOUGLAS A. SETZER, APPELLANT.
v.
COMMISSIONER OF LABOR, RESPONDENT.

MEMORANDUM AND ORDER

Calendar Date: November 4, 2009

Before: Mercure, J.P., Lahtinen, Malone Jr., Kavanagh and Garry, JJ.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed April 15, 2009, which, among other things, ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

Claimant, a lineserver at a buffet-style restaurant for approximately nine months, was terminated from his position as a result of an incident where he became disrespectful and insubordinate towards the manager of the restaurant. The Unemployment Insurance Appeal Board denied his claim for unemployment insurance benefits on the ground that his employment was terminated due to misconduct. Claimant appeals.

We affirm. Insubordinate and/or disrespectful conduct toward a supervisor has been found to constitute misconduct disqualifying a claimant from receiving unemployment insurance benefits (see Matter of Houston [Namdor, Inc. -- Commissioner of Labor], 65 AD3d 773 [2009]; Matter of Segarra [Commissioner of Labor], 45 AD3d 1146, 1146 [2007]). Here, the manager who questioned claimant about his premature removal of the food items testified that claimant became obstinate, nearly touching him during their verbal exchange, and adamantly maintained that his actions were proper even though they were clearly against the employer's policy. Other witnesses who testified recounted prior instances in which claimant had engaged in similar insubordinate and disrespectful conduct for which he had received warnings. Claimant's contrary testimony concerning the reason for his termination presented a credibility issue for the Board to resolve (see Matter of Auguste [Commissioner of Labor], 61 AD3d 1242, 1243 [2009]; Matter of Segarra [Commissioner of Labor], 45 AD3d at 1147). Upon reviewing the record, we find that substantial evidence supports the Board's decision (see Matter of Coon [Commissioner of Labor], 43 AD3d 1225, 1226 [2007]).

Mercure, J.P., Lahtinen, Malone Jr., Kavanagh and Garry, JJ., concur.

ORDERED that the decision is affirmed, without costs.

20100114

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