IN RE: the Claim of Uyla MILLS

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

IN RE: the Claim of Uyla MILLS, Appellant. Miteq, Inc., Respondent. Commissioner of Labor, Respondent.

Decided: April 24, 2008

Before:  CARDONA, P.J., SPAIN, ROSE, KANE and KAVANAGH, JJ. Darlene Rosch, Nassau/Suffolk Law Services, Islandia, for appellant. Jackson Lewis, L.L.P., Melville (Marc S. Wenger of counsel), for Miteq, Inc., respondent. Andrew M. Cuomo, Attorney General, New York City (Dawn A. Foshee of counsel), for Commissioner of Labor, respondent.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed December 29, 2006, which ruled that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

 Substantial evidence supports the Unemployment Insurance Appeal Board's decision ruling that claimant, a micro assembler, was discharged from her employment due to disqualifying misconduct-namely, being disruptive in the workplace and referring to her department head in derogatory terms.   The employer's representatives testified that claimant and her coworkers performed detailed and intricate assembly work which required a quiet work environment free from distractions;  any sudden movement or noise that might startle an employee could result in costly damage to the equipment or the work product.   Despite being warned on two prior occasions regarding her disruptive behavior, claimant's activities persisted, culminating in an incident wherein she was observed twirling and loudly chanting about the workplace, rebuking her coworkers, calling them evil and referring to her department head as a terrorist.   Under such circumstances, claimant's obstructionist behavior rose to the level of disqualifying misconduct (see Matter of Figueroa [Commissioner of Labor], 2 A.D.3d 952, 767 N.Y.S.2d 682 [2003];  Matter of Sarmiento [Newsday, Inc.-Commissioner of Labor], 287 A.D.2d 851, 852, 731 N.Y.S.2d 519 [2001];  Matter of Martin [Sweeney], 226 A.D.2d 800, 640 N.Y.S.2d 300 [1996] ).   To the extent that claimant denied the allegations, this presented a credibility issue for the Board to resolve (see Matter of Reyna-Bautista [Commissioner of Labor], 45 A.D.3d 1102, 1103, 846 N.Y.S.2d 416 [2007] ).

 As a final matter, we reject claimant's assertion that the Board's decision to remand this matter for an additional hearing violated in any respect the procedural safeguards set forth in the consent judgment in Municipal Labor Comm. v. Sitkin, 1983 WL 44294, 1983 U.S. Dist. LEXIS 15013 [S.D.N.Y., Aug. 1, 1983, 79 Civ. 5899].   Accordingly, the Board's decision is affirmed.

ORDERED that the decision is affirmed, without costs.

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