IN RE: the Claim of MELINDA S. MEAD

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

IN RE: the Claim of MELINDA S. MEAD, Appellant.  COMMISSIONER OF LABOR, Respondent.


Decided: November 10, 2016

Before:  McCarthy, J.P., Lynch, Rose, Clark and Mulvey, JJ. Melinda S. Mead, Dunkirk, appellant pro se. Eric T. Schneiderman, Attorney General, New York City (Bessie Bazile of counsel), for respondent.


Calendar Date:  September 20, 2016

Appeal from a decision of the Unemployment Insurance Appeal Board, filed December 9, 2015, which ruled that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

Claimant worked as a packer for an ice cream manufacturing company for 11 years.  She was chronically absent from work and, between March 2015 and May 2015, received three warnings from her employer regarding this problem.  The final written warning, issued in May 2015 after claimant had exhausted her personal leave, advised her that further absenteeism would result in discipline, including possible termination.  On June 28, 2015, claimant was scheduled to work, but called in before the start of her shift and left a message that she would not be coming in because she was stranded.  She later explained that she was at her boyfriend's house an hour away and could not get to work because his car had broken down.  Claimant was terminated as a result.  Her application for unemployment insurance benefits was initially denied on the ground that her employment was terminated due to misconduct.  This determination was upheld by an Administrative Law Judge following a hearing and later by the Unemployment Insurance Appeal Board.  Claimant appeals.

We affirm.  Excessive absenteeism, which continues despite repeated warnings, has been held to constitute misconduct disqualifying a claimant from receiving unemployment insurance benefits (see Matter of Berkeley [Commissioner of Labor], 94 AD3d 1328, 1328–1329 [2012];  Matter of Seabrook [Commissioner of Labor], 45 AD3d 1165, 1165–1166 [2007] ).  Here, it is undisputed that claimant was continually absent from work even after she was warned that further absences would result in disciplinary action, including discharge.  Although claimant maintains that she did not realize that the last warning was her final one, this does not excuse her behavior under the circumstances presented.

McCarthy, J.P., Lynch, Rose, Clark and Mulvey, JJ., concur.

ORDERED that the decision is affirmed, without costs.


Robert D. Mayberger

Clerk of the Court

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