IN RE: the Claim of DeMarcus KEMP

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

IN RE: the Claim of DeMarcus KEMP, Appellant. Commissioner of Labor, Respondent.

Decided: January 26, 2006

Before:  CARDONA, P.J., CREW III, PETERS, SPAIN and CARPINELLO, JJ. DeMarcus Kemp, 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 December 20, 2004, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

Substantial evidence supports the decision of the Unemployment Insurance Appeal Board ruling that claimant lost his job as a direct care counselor due to disqualifying misconduct.   The record establishes that while on a 10-day suspension for letting an unauthorized driver operate the company vehicle, claimant called his supervisor to discuss a temporary change in his schedule.   According to claimant's supervisor, claimant began using profanities and wanted to “meet after work.”   After this incident, claimant was fired from his employment.   Inasmuch as the use of profanities and disrespectful or insubordinate behavior has been held to constitute disqualifying misconduct (see Matter of Pagan [Commissioner of Labor], 305 A.D.2d 845, 758 N.Y.S.2d 561 [2003];  Matter of Walli [Commissioner of Labor], 275 A.D.2d 845, 846, 713 N.Y.S.2d 232 [2000] ), we find no reason to disturb the Board's decision.   To the extent that claimant presented differing testimony regarding the nature of the telephone conversation with his supervisor, this created a credibility issue for the Board to resolve (see Matter of Walli [Commissioner of Labor], supra at 846, 713 N.Y.S.2d 232).

ORDERED that the decision is affirmed, without costs.

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