New York State Law Reporting Bureau
Matter of Messado v. Commissioner of Labor, ___A.D___3d (3d Dep't. August 4, 2010), stands for the proposition that confronting co-employees in any angry manner can be disqualifying misconduct for unemployment insurance purposes. As the court explained:
Threatening behavior toward a coworker has been held to constitute disqualifying misconduct (see Matter of Perkins [Commissioner of Labor], 16 AD3d 756, 756 ; Matter of Rothstein [Commissioner of Labor], 306 AD2d 789, 789 ). In the case at hand, two of the coworkers present at the restaurant testified that claimant approached them in an angry manner, told a male coworker that if he had anything to say about him to say it to his [*2]face and used vulgar language. They further stated that, before leaving the restaurant, claimant proceeded to challenge the male coworker to a fight. Both of these coworkers indicated that they were intimidated by claimant and feared for their safety. Their testimony was consistent with that of the supervisor to whom they reported the incident who further stated that claimant had engaged in similar confrontational behavior toward other employees for which he had been warned. Claimant himself admitted that he confronted the trio in the restaurant and used vulgar language, although he denied challenging the male coworker to a fight. To the extent that claimant's testimony was in conflict with the testimony of the other witnesses, this presented a credibility issue for the Board to resolve (see Matter of Rothstein [Commissioner of Labor], 306 AD2d at 790). In view of the foregoing, substantial evidence supports the Board's finding that claimant engaged in disqualifying misconduct.
Mitchell H. Rubinstein
Matter of Perkins (Commissioner of Labor)
2005 NY Slip Op 01600 [16 AD3d 756]
March 3, 2005
Appellate Division, Third Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, May 18, 2005
In the Matter of the Claim of Milford C. Perkins, Appellant. Commissioner of Labor, Respondent.
Appeal from a decision of the Unemployment Insurance Appeal Board, filed February 11, 2004, which disqualified claimant from receiving unemployment insurance benefits because his employment was terminated due to misconduct.
Claimant worked as a nursing assistant at a nursing home until he was terminated in September 2003. His discharge was precipitated by a verbal altercation he had with a registered nurse during which he made threatening comments. The Unemployment Insurance Appeal Board disqualified claimant from receiving unemployment insurance benefits on the ground that his employment was terminated due to misconduct. He now appeals.
We affirm. We note that threatening conduct toward a coworker has been held to constitute misconduct disqualifying one from receiving unemployment insurance benefits (see Matter of Livadas [Commissioner of Labor], 3 AD3d 656, 656 ; Matter of Mears [Commissioner of Labor], 308 AD2d 627, 627 ). Here, claimant admitted that he became involved in an argument with the nurse over the use of a copy machine. Although he maintained that the nurse threatened him by stating that she was going to get him, the nurse indicated that claimant threatened her by telling her to watch her back and car. Inasmuch as the conflicting account of the incident presented an issue of credibility for the Board to resolve (see Matter of Rothstein [Commissioner of Labor], 306 AD2d 789, 790 ; Matter of Shaw [Commissioner of Labor], 302 AD2d 655 ), we find no reason to disturb its decision.
Cardona, P.J., Crew III, Peters, Mugglin and Kane, JJ., concur. Ordered that the decision is affirmed, without costs.
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