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In re Claim of Pesant

State of New York Supreme Court, Appellate Division Third Judicial Department


June 18, 2009

IN THE MATTER OF THE CLAIM OF ALBERT F. PESANT, APPELLANT.
BRINKMANN INSTRUMENTS, INC., RESPONDENT.
COMMISSIONER OF LABOR, RESPONDENT.

MEMORANDUM AND ORDER

Calendar Date: May 13, 2009

Before: Spain, J.P., Lahtinen, Malone Jr., Stein and Garry, JJ.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed October 16, 2008, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

From November 2006 until February 2008, claimant worked for the employer as a technology specialist in its customer support department. In September 2007, after it was discovered that claimant had downloaded images containing nudity and violence to his assigned computer, he received a warning concerning his violation of the employer's Internet policy. He received a second warning regarding the same type of activity in January 2008. A subsequent investigation revealed that claimant had downloaded a number of sexually explicit images to his assigned computer. He was discharged as a result. The Unemployment Insurance Appeal Board ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct. Claimant appeals.

We affirm. An employee's knowing violation of an employer's reasonable rules and policies has been held to constitute disqualifying misconduct (see Matter of Graham [Commissioner of Labor], 305 AD2d 922, 922 [2003]), particularly where the employee has received repeated warnings (see Matter of Baker [Eastern Connection -- Commissioner of Labor], 10 AD3d 763, 764 [2004]; Matter of Limarzi [Sweeney], 244 AD2d 750, 751 [1997]). Here, the evidence established that claimant continued to violate the employer's Internet policy by downloading inappropriate materials even though he had been previously warned about the consequences of such behavior. Although claimant denied downloading the subject materials and postulated that it may have been done by a member of the cleaning staff, this presented a credibility issue for the Hearing Officer to resolve (see Matter of Barcene [Commissioner of Labor], 6 AD3d 855, 855 [2004]; Matter of Limarzi [Sweeney], 244 AD2d at 751).

Spain, J.P., Lahtinen, Malone Jr., Stein and Garry, JJ., concur.

ORDERED that the decision is affirmed, without costs.

20090618

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