Matter of Pesant (Commissioner of Labor)

Matter of Pesant (Brinkmann Instruments, Inc.\MCommissioner of Labor) 2009 NY Slip Op 05058 [63 AD3d 1411] June 18, 2009 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 5, 2009

In the Matter of the Claim of Albert F. Pesant, Appellant. Brinkmann Instruments, Inc., Respondent; Commissioner of Labor, Respondent.

—[*1] Albert F. Pesant, New York City, appellant pro se.

Whiteman, Osterman & Hanna, LLP, Albany (Beth A. Bourassa of counsel), for Brinkmann Instruments, Inc., respondent.

Andrew M. Cuomo, Attorney General, New York City (Dawn A. Foshee of counsel), for Commissioner of Labor, respondent.

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.