IN RE: the Claim of Robert CUMBERLAND (1998)

Appeal from a decision of the Unemployment Insurance Appeal Board, filed September 26, 1997, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

Claimant was discharged from his position as a train switch fabricator after he tested positive for the use of cocaine following a random drug test.   The Unemployment Insurance Appeal Board disqualified claimant from receiving unemployment insurance benefits on the basis that he was terminated for misconduct.   Notably, claimant does not contest the accuracy of the test results nor the procedures employed.   Under the circumstances, we find substantial evidence in the record to support the Board's determination that claimant's actions amounted to disqualifying misconduct given that “[a]n employee's use of cocaine represents a willful disregard of the standards of conduct an employer has the right to expect” (Matter of Bruno [Sweeney], 236 A.D.2d 730, 731, 653 N.Y.S.2d 728;  see, Matter of Gilbert [United States Custom Serv.-Sweeney], 232 A.D.2d 709, 647 N.Y.S.2d 1017).   Although claimant testified that he accidently smoked cocaine without being aware that he was doing so, this claim merely presented a credibility issue which the Board was entitled to resolve in the employer's favor (see, Matter of Jonassen [Sweeney], 233 A.D.2d 738, 650 N.Y.S.2d 1015).

ORDERED that the decision is affirmed, without costs.

MEMORANDUM DECISION.