IN RE: the Claim of Richard MARQUEZ

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

IN RE: the Claim of Richard MARQUEZ, Appellant. New York City Department of Personnel, Respondent. Commissioner of Labor, Respondent.

Decided: July 29, 1999

Before:  CARDONA, P.J., MERCURE, YESAWICH JR., PETERS and SPAIN, JJ. Richard Marquez, New York City, appellant in person. Michael D. Hess, Corporation Counsel (George Gutwirth of counsel), New York City, for New York City Department of Personnel, respondent.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed April 9, 1998, which, upon reconsideration, adhered to its prior decision ruling, inter alia, that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

 Claimant was discharged from his employment as an administrative associate at a human services agency after he became argumentative over the telephone with the employer's Field Director, who criticized claimant's failure to answer the telephone with the employer's standard greeting.   In response, claimant threatened to sue the Field Director and “write him up”.   Claimant then hung up the telephone while the Field Director was still speaking.   Significantly, at the time of this incident, claimant was on disciplinary probation because of past difficulties with a different supervisor.

 In our view, substantial evidence supports the Unemployment Insurance Appeal Board's decision that claimant was disqualified from receiving benefits because his employment was terminated due to misconduct.   There can be no dispute that insubordinate behavior such as issuing threats to one's supervisor or engaging in conduct that is detrimental to the employer's interests, can be construed as disqualifying misconduct (see, Matter of Khan [Sweeney], 239 A.D.2d 651, 652, 657 N.Y.S.2d 218).   Notably, at the time of this conduct, the prior disciplinary stipulation placed claimant on notice that further insubordination would jeopardize his employment (see, e.g., Matter of Downey [Commissioner of Labor], 252 A.D.2d 708, 675 N.Y.S.2d 428).   Moreover, although claimant maintains that it was the Field Director who was rude to him, credibility issues presented by the conflicting testimony were within the province of the Board to resolve (see, Matter of Agis [Sweeney], 242 A.D.2d 819, 661 N.Y.S.2d 1024).   Claimant's remaining arguments have been examined and found to be unpersuasive.

ORDERED that the decision is affirmed, without costs.

MEMORANDUM DECISION.

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