Opinion
October 18, 2001.
Appeal from a decision of the Unemployment Insurance Appeal Board, filed May 19, 2000, which, upon reconsideration, adhered to its prior decision ruling that claimant was entitled to receive unemployment insurance benefits.
John T. Cullen, New York City, for appellant.
James W. Cooper, Warrensburg, for Marta Sarmiento, respondent.
Before: Cardona, P.J., Mercure, Crew III, Peters and Spain, JJ.
MEMORANDUM AND ORDER
Claimant was discharged from her employment in a packaging department after she allegedly uttered a racial epithet in Spanish to a fellow employee in violation of the employer's rules of employee conduct. Claimant's application for unemployment insurance benefits was initially denied on the ground that she had lost her employment due to misconduct. At the hearing that ensued before an Administrative Law Judge (hereinafter ALJ), testimony was given by both claimant and the employee who was the subject of claimant's alleged racist remark. Finding claimant's testimony to be the more credible and lacking any disinterested witnesses to the incident in question, the ALJ reversed the initial finding and ruled that there was insufficient evidence upon which to base a finding of disqualifying misconduct against claimant. This determination was affirmed by the Unemployment Insurance Appeal Board, a decision to which the Board adhered upon reconsideration. The employer appeals.
We affirm. Offensive conduct in the workplace, including the use of abusive language, can be found to constitute disqualifying misconduct (see, e.g., Matter of Hayes [Commissioner of Labor], 249 A.D.2d 665;Matter of Selzer [Sweeney], 241 A.D.2d 743). In the matter under review, however, the only direct evidence that claimant uttered a racial slur was given by the alleged victim thereof who had admittedly been at odds with claimant for some time. An issue of credibility, such as the one raised herein, is appropriately left for resolution in the discretion of the Board which is empowered to credit the evidence of one witness over that of another (see, Matter of Lionetti [Newsday Inc. — Commissioner of Labor], 261 A.D.2d 753, 754). As there is substantial evidence to support the Board's decision finding claimant entitled to receive unemployment insurance benefits, we decline to disturb it.
Cardona, P.J., Mercure, Crew III, Peters and Spain, JJ., concur.
ORDERED that the decision is affirmed, without costs.