Matter of Rivers (Commissioner of Labor)

Matter of Rivers (Federation Empl. & Guidance Serv.\MCommissioner of Labor) 2007 NY Slip Op 07958 [44 AD3d 1191] October 25, 2007 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 12, 2007

In the Matter of the Claim of Rosalind Rivers, Appellant. Federation Employment and Guidance Service, Respondent; Commissioner of Labor, Respondent.

—[*1] Kimberly P. Hager, Sea Bright, New Jersey, for appellant.

Proskauer Rose, L.L.P., New York City (Jerold D. Jacobson of counsel), for Federation Employment and Guidance Service, respondent.

Andrew M. Cuomo, Attorney General, New York City (Dawn A. Foshee of counsel), for Commissioner of Labor, respondent.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed March 17, 2006, which, upon reconsideration, adhered to its prior decision ruling that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

Claimant received warnings from the employer concerning her harassment of employees and use of inappropriate language in the workplace. When she continued to engage in such behavior, she was discharged. Following extended proceedings, the Unemployment Insurance Appeal Board disqualified claimant from receiving unemployment insurance benefits because her employment was terminated due to misconduct, and it adhered to this decision upon reconsideration. Claimant appeals.

We affirm. Offensive behavior in the workplace, consisting of an employee's use of vulgar language and disrespectful conduct toward others, has been held to constitute disqualifying misconduct particularly where the employee has been previously warned to stop [*2]such behavior (see Matter of Gaylor [Commissioner of Labor], 41 AD3d 1057, 1058 [2007]; Matter of Hayes [Commissioner of Labor], 249 AD2d 665 [1998]). Here, the testimony of the employer's representatives establishes that claimant harassed other employees, made disparaging comments about them and used vulgar language in the workplace, in complete disregard of the employer's prior warnings. Claimant's contrary testimony presented a question of credibility for the Board to resolve (see Matter of Ackermann [New York City Dept. of Citywide Admin. Servs.—Commissioner of Labor], 31 AD3d 1040 [2006]). Therefore, substantial evidence supports the Board's decision. Furthermore, there is nothing in the record to substantiate claimant's assertion that she was denied a fair and impartial hearing (see Matter of Thomas [Commissioner of Labor], 12 AD3d 810, 811 [2004]).

Mercure, J.P., Crew III, Mugglin, Rose and Kane, JJ., concur. Ordered that the decision is affirmed, without costs.