IN RE: the Claim of ORLANDO B. SANTIAGO (2010)

MEMORANDUM AND ORDER

Calendar Date:  November 4, 2009

Appeal from a decision of the Unemployment Insurance Appeal Board, filed January 8, 2009, which ruled, among other things, that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

Claimant worked as a security guard at a museum beginning in September 2006.   Following several incidents during which fellow employees perceived claimant's behavior as hostile, claimant was given training and counseling, and was ultimately suspended.   Finally, claimant was warned in writing that any further hostile or intimidating behavior towards fellow employees would be grounds for termination.   Despite the warning, claimant threw a fake punch at a fellow employee and, as a result, his employment was terminated.   The Unemployment Insurance Appeal Board ultimately ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.   The Board also charged claimant with a recoverable overpayment of benefits and assessed a forfeiture penalty of benefit days, finding that he had made a willful false statement to obtain benefits.   Claimant appeals.

We affirm.   Contentious, violent or threatening behavior on the part of any employee toward a fellow employee in the workplace has been held to constitute disqualifying misconduct (see Matter of Mesagna [Commissioner of Labor], 59 AD3d 801, 801 [2009];  Matter of Reyna-Bautista [Commissioner of Labor], 45 AD3d 1102, 1102-1103 [2007] ).   Here, claimant readily admitted both that he had been warned about his behavior and that he threw the fake punch at his fellow employee.   As such, we find the Board's decision to disqualify claimant from receiving benefits to be supported by substantial evidence.   Additionally, claimant admitted that he indicated on his application for benefits that he had lost employment due to lack of work when, in reality, he had been terminated.   Thus, the Board's finding that he made a willful false statement was also supported by substantial evidence (see Matter of Downing [Buffalo Hearing & Speech Ctr.-Commissioner of Labor], 51 AD3d 1093, 1093-1094 [2008] ).

Mercure, J.P., Spain, Lahtinen, Stein and Garry, JJ., concur.

ORDERED that the decision is affirmed, without costs.

ENTER:

Michael J. Novack

Clerk of the Court