IN RE: the Claim of Nancy ROSARIO

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Supreme Court, Appellate Division, Third Department, New York.

IN RE: the Claim of Nancy ROSARIO, Appellant. Commissioner of Labor, Respondent.

Decided: September 21, 2006

Before:  CARDONA, P.J., MERCURE, CREW III, PETERS and SPAIN, JJ. Nancy Rosario, New York City, appellant pro se. Eliot Spitzer, Attorney General, New York City (Bessie Bazile of counsel), for respondent.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed June 1, 2005, 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 worked as a travel agent for the employer for nearly six years.   During a conversation with another travel agent, after she assumed that she had been put on hold, she called the agent a vulgar name.   The agent heard the remark, reported the incident to claimant's supervisor and indicated that she would not do further business with the employer.   Claimant was terminated as a result and applied for unemployment insurance benefits.   The Unemployment Insurance Appeal Board disqualified her from receiving benefits on the ground that she lost her employment due to misconduct and adhered to this decision upon reconsideration.   Claimant appeals.

We affirm.   An employee's use of profane language at the workplace has been found to constitute disqualifying misconduct (see Matter of Cirlincione [Commissioner of Labor], 4 A.D.3d 717, 718, 771 N.Y.S.2d 915 [2004];  Matter of Roker [Commissioner of Labor], 306 A.D.2d 737, 737, 760 N.Y.S.2d 904 [2003] ).   Here, claimant's supervisor testified that the other travel agent complained that claimant had called her a vulgar name and, while claimant denied it, this presented a credibility issue for the Board to resolve (see Matter of Cirlincione [Commissioner of Labor], supra at 718, 771 N.Y.S.2d 915).   Therefore, we decline to disturb the Board's decision.

ORDERED that the decision is affirmed, without costs.

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