UNEMPLOYMENT INSURANCE BENEFITS - MISCONDUCT

Here is a recent appeal to the Appellate Division, 3rd Department on the issue of misconduct - what I note is how there is no mention of what happened at the Administrative Law Hearing and how the Court held that credibility issues are for the Board to resolve, raising the question of how did and if the Administrative Law Judge ruled on credibility:

IN RE SMITH v. ROCHESTER INST. OF TECH., 507350 [3d Dept 12-17-2009], 2009 NY Slip Op 09364, Decided and Entered: December 17, 2009.

Appeal from a decision of the Unemployment Insurance Appeal Board,
filed September 24, 2008, which ruled that claimant was disqualified
from receiving unemployment insurance benefits because his
employment was terminated due to misconduct.

Glenn D. Smith, Penfield, appellant pro se.

The Wolford Law Firm, L.L.P., Rochester
(Elizabeth A. Wolford of counsel), for Rochester Institute of
Technology, respondent.

Before: Cardona, P.J., Mercure, Spain, Kane and Stein, JJ.

MEMORANDUM AND ORDER

Claimant, who was employed as a heating and air conditioning
technician at a university, was terminated from his employment after
he failed to follow his supervisor's request to meet with him on two
consecutive days. The Unemployment Insurance Appeal Board denied his
claim for benefits on the ground that he was terminated due to
misconduct, prompting this appeal.

We affirm. "An employee's failure to comply with an employer's
reasonable request may constitute insubordination rising to the
level of disqualifying misconduct" (Matter of Guagliardo
[Commissioner of Labor], 27 AD3d 866, 867 [2006] [citations
omitted]; accord Matter of Box [Commissioner of Labor],
50 AD3d 1431, 1432 [2008]). Here, the employer's representatives
testified that, despite having received prior written warnings
that continued acts of insubordination could result in his
termination, claimant failed to follow a directive from his
supervisor to meet with him to discuss his work assignments on two
consecutive days. To the extent that claimant denied that his
supervisor requested the meetings, this presented a credibility
issue for the Board to resolve (see
Page 2
Matter of Atson [Commissioner of Labor],
64 AD3d 1065, 1065-1066 [2009]). Inasmuch as the employer's request
was reasonable and claimant did not demonstrate a compelling reason
for refusing to comply, we discern no basis for disturbing the
Board's determination (see Matter of Miner [Commissioner of
Labor], 49 AD3d 1128, 1129 [2008]; Matter of Lambert
[Commissioner of Labor], 34 AD3d 948, 948 [2006]).

Cardona, P.J., Mercure, Spain, Kane and Stein, JJ., concur.