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In re Claim of Hallock

Supreme Court of New York, Third Department

June 20, 2013

In the Matter of the Claim of MARY B. HALLOCK, Appellant. and COMMISSIONER OF LABOR, Respondent.

Calendar Date: May 6, 2013

Mary Beth Hallock, Westdale, appellant pro se.

Before: Peters, P.J., Lahtinen, McCarthy and Egan Jr., JJ.

MEMORANDUM AND ORDER

Appeal from a decision of the Unemployment Insurance Appeal Board, filed October 15, 2012, which ruled that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

Claimant worked as a housekeeper at an adult care facility. In February 2012, she was discharged after using profanity in response to a request to join her supervisor, a coworker and facility visitor in the facility hallway. The Unemployment Insurance Appeal Board determined that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct. Claimant appeals.

We affirm. "The question of whether a claimant has engaged in disqualifying misconduct presents a factual issue for the Board to resolve and its decision will be upheld if supported by substantial evidence" (Matter of Williams [City of New York—Commissioner of Labor], 47 A.D.3d 994, 994 [2008] [citation omitted]; see Matter of Jackson [County of Nassau Civ. Serv. Commn.—Commissioner of Labor], 97 A.D.3d 889, 890 [2012]). Further, the use of profanity in the workplace has been found to constitute disqualifying misconduct (see Matter of Cheeseboro [Commissioner of Labor], 84 A.D.3d 1635, 1636 [2011]; Matter of Kearns [Commissioner of Labor], 65 A.D.3d 1416, 1417 [2009]). Here, claimant's supervisor testified that claimant used profanity in the presence of himself, a coworker, a facility visitor and facility residents — despite having been warned that such conduct would result in her termination. Although claimant denied using profanity and testified that her supervisor was not even in the building at the time, this conflicting testimony presented a credibility issue for the Board to resolve (see Matter of Colindres [Commissioner of Labor], 91 A.D.3d 991, 992 [2012]; Matter of Hoffman [Federated Retail Holdings— Commissioner of Labor], 68 A.D.3d 1404, 1405 [2009]). Accordingly, we find no reason to disturb the Board's decision.

Peters, P.J., Lahtinen, McCarthy and Egan Jr., JJ., concur.

ORDERED that the decision is affirmed, without costs.


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