In re the Claim of Williams

Appellate Division of the Supreme Court of the State of New York

Jun 24, 1999

Versions:262 A.D.2d 903

692 N.Y.S.2d 504

1999 N.Y. App. Div. LEXIS 7487

—Appeal from a decision of the Unemployment Insurance Appeal Board, filed April 9, 1998, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

Claimant was employed as a salesperson in the tire department at Sam’s Club until he was discharged for eating a handful of candy from an open bag he found in another area of the store and then putting the bag back where he found it. Claimant was terminated in accordance with the employer’s known zero tolerance policy with respect to theft. The Unemployment Insurance Appeal Board ruled that. claimant had lost his employment due to misconduct and we find that substantial evidence supports the Board’s determination. It is well settled that “[a]n employee’s apparent dishonesty or failure to comply with the employer’s established policies and procedures can constitute disqualifying misconduct” (Matter of Huggins [Samaritan Med. Ctr.—Commissioner of Labor, 257 AD2d 877, 878). To the extent that claimant’s version of the events surrounding his termination differed from that of the employer, this conflict presented a credibility issue for the Board to resolve (see, Matter of Rulka [Commissioner of Labor], 249 AD2d 876).

As a final matter, we conclude that the Administrative Law *904Judge’s refusal to receive into evidence claimant’s past performance evaluations and commendations constituted, at worst, harmless error (see generally, Matter of Valentin [American Museum of Natural History—Roberts], 103 AD2d 919), since both claimant and the employer’s witness were examined concerning these documents and it was undisputed that claimant had not previously been accused of any act of dishonesty. Claimant’s remaining contentions have been reviewed and found to be unpersuasive.

Yesawich Jr., J. P., Peters, Spain, Carpinello and Graffeo, JJ., concur. Ordered that the decision is affirmed, without costs.