In re the Claim of Yott

Appeal from a decision of the Unemployment Insurance Appeal Board, filed November 17, 2006, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

Claimant worked as a custody officer for a company that contracts with the Department of Homeland Security to handle federal inmates and immigration detainees. He was subject to random drug testing and was discharged from his position after the results of a test he took came back positive for marihuana. The Unemployment Insurance Appeal Board ruled that he was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct. Claimant appeals.

We affirm. “An employee’s use of controlled substances which produces a positive result following a drug test has been held to constitute disqualifying misconduct” (Matter of Young [Commissioner of Labor], 28 AD3d 989, 989 [2006] [citations omitted]; see Matter of Langley [Commissioner of Labor], 12 AD3d 753 [2004]). Here, it is undisputed that the third drug test taken by claimant was positive for marihuana and that this was a ground for discharge under the employer’s clearly enunciated policy. Claimant’s exculpatory explanations for the inconclusive results of the first two tests and the positive result of the third test presented a credibility issue for the Board to resolve (see Matter of Cumberland [Commissioner of Labor], 249 AD2d 867 [1998]). Therefore, we decline to disturb its decision.

Peters, J.P., Spain, Carpinello, Mugglin and Rose, JJ., concur. Ordered that the decision is affirmed, without costs.