IN RE: the Claim of Tomeka K. OLIVER

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

IN RE: the Claim of Tomeka K. OLIVER, Appellant. Commissioner of Labor, Respondent.

Decided: July 28, 2005

Before:  CARDONA, P.J., PETERS, SPAIN, MUGGLIN and ROSE, JJ. Tomeka K. Oliver, Mt. Vernon, appellant pro se. Eliot Spitzer, Attorney General, New York City (Mary Hughes of counsel), for respondent.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed January 5, 2005, which, inter alia, ruled that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

Claimant worked at a hospital as a part-time phlebotomist from February 2002 until August 2004.   After receiving several warnings concerning her excessive absenteeism, claimant failed to report to work on August 10, 11, 12 and 13, 2004.   Her supervisor subsequently advised her that she would be terminated if she did not report to work on August 20, 2004, and she failed to report on that date.   On August 23, 2004, claimant resigned in lieu of being discharged and applied for unemployment insurance benefits.   After extended proceedings, the Unemployment Insurance Appeal Board ruled that claimant was disqualified from receiving benefits because her employment was terminated due to misconduct.   Claimant now appeals.

 We affirm.   We note that “[a] claimant's continued absenteeism after numerous warnings may constitute disqualifying misconduct” (Matter of Garcia-Primer [Commissioner of Labor], 9 A.D.3d 730, 731, 779 N.Y.S.2d 838 [2004];  see Matter of Miller [Commissioner of Labor], 9 A.D.3d 567, 568, 779 N.Y.S.2d 284 [2004] ).   Here, claimant had a history of attendance problems dating back to November 2003 and was on notice that her failure to report to work on August 20, 2004 would result in the loss of her job.   Although she attributed her absences to her fear of a man who waited outside her apartment before she left for work, this testimony presented a credibility issue for the Board to resolve (see Matter of Miller [Commissioner of Labor], supra at 568, 779 N.Y.S.2d 284;  Matter of Head [Hartnett], 176 A.D.2d 1126, 575 N.Y.S.2d 422 [1991] ).

ORDERED that the decision is affirmed, without costs.

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