IN RE: the Claim of Alan C. HAUNGS

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

IN RE: the Claim of Alan C. HAUNGS, Appellant. Commissioner of Labor, Respondent.

Decided: May 29, 2008

Before:  PETERS, J.P., CARPINELLO, ROSE, KANE and STEIN, JJ. Alan C. Haungs, Derby, for appellant. Andrew M. Cuomo, Attorney General, New York City (Gary Leibowitz of counsel), for respondent.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed May 10, 2007, which ruled that claimant was disqualified from receiving unemployment insurance benefits because he lost his employment due to misconduct.

Claimant worked for the employer as a junior cyclotron operator from December 10, 1998 until November 20, 2006, when he was fired after referring to his supervisor as a “stupid b* * *h” while talking with a coworker.   Approximately three weeks prior to this incident, claimant had been given a written warning regarding other insubordinate behavior toward his supervisor, including notice that further similar conduct could result in his termination.   The Unemployment Insurance Appeal Board disqualified claimant from receiving unemployment insurance benefits on the basis that he had been discharged due to misconduct.   Claimant now appeals.

 We affirm.   To be sure, “disrespectful conduct toward a supervisor, including the use of vulgar language, may constitute disqualifying misconduct” (Matter of Smith [Commissioner of Labor], 20 A.D.3d 789, 790, 797 N.Y.S.2d 925 [2005] ).   Here, noting that claimant conceded that he used the language in question to describe his supervisor, we find that substantial evidence supports the Board's decision (see id.).   Claimant's assertion that he was fired because he had raised certain safety concerns created a credibility issue for resolution by the Board (see Matter of Spencer [Commissioner of Labor], 22 A.D.3d 1010, 1010, 802 N.Y.S.2d 565 [2005] ).   To the extent not specifically addressed herein, claimant's remaining contentions have been examined and found to be unavailing.

ORDERED that the decision is affirmed, without costs.

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