IN RE: the Claim of Errol L. WILLIAMS

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Supreme Court, Appellate Division, Third Department, New York.

IN RE: the Claim of Errol L. WILLIAMS, Appellant. Commissioner of Labor, Respondent.

Decided: June 24, 1999

Before:  YESAWICH JR., J.P., PETERS, SPAIN, CARPINELLO and GRAFFEO, JJ. Michael D. Hampden, Westchester/Putnam Legal Services, White Plains, for appellant. Eliot Spitzer, Attorney-General (Linda D. Joseph of counsel), New York City, for respondent.

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 A.D.2d 877, 878, 684 N.Y.S.2d 73, 74).   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 A.D.2d 876, 672 N.Y.S.2d 450).

 As a final matter, we conclude that the Administrative Law Judge'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 A.D.2d 919, 478 N.Y.S.2d 160), 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.

ORDERED that the decision is affirmed, without costs.


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