State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: July 24, 2014 517541
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In the Matter of the Claim of
TANTINIA GUESS,
Appellant.
MEMORANDUM AND ORDER
COMMISSIONER OF LABOR,
Respondent.
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Calendar Date: June 9, 2014
Before: Lahtinen, J.P., McCarthy, Rose, Lynch and Clark, JJ.
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Nicole Salk, South Brooklyn Legal Services, New York City,
for appellant.
Eric T. Schneiderman, Attorney General, New York City
(Linda Joseph of counsel), for respondent.
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Appeal from a decision of the Unemployment Insurance Appeal
Board, filed December 6, 2013, which, upon reconsideration,
adhered to its prior decision ruling, among other things, that
claimant was disqualified from receiving unemployment insurance
benefits because her employment was terminated due to misconduct.
Claimant worked as a teller for a company that provides
check cashing and financial services. On August 29, 2011, she
gave a customer a money order, but the money for the transaction
appeared to have been misplaced or missing, leaving her with a
cash shortage of $700. When she notified the employer's chief
operating officer of the discrepancy, she was immediately
suspended while an effort was made to find the missing cash.
Claimant had received prior warnings regarding cash shortages and
was informed that, if the missing cash could not be located, she
would be terminated. A few days later when the chief operating
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officer advised her that the cash had not been found, claimant
accused him and his staff of setting her up for discharge.
Claimant's employment was terminated as a result. She applied
for and received unemployment insurance benefits in the amount of
$1,666.25. It was later determined, however, that she was
disqualified from receiving benefits because her employment was
terminated due to misconduct and she was charged with a
recoverable overpayment and forfeiture penalty based upon her
willful misrepresentations. The Unemployment Insurance Appeal
Board concurred and adhered to its decision upon reconsideration.
Claimant now appeals.
A claimant's failure to abide by an employer's reasonable
policies, despite repeated warnings, that has a detrimental
effect on the employer has been held to constitute disqualifying
misconduct (see Matter of Burt [Rapid Response Monitoring Servs.,
Inc.–Commissioner of Labor], 107 AD3d 1284, 1285 [2013]; Matter
of Steadman [Commissioner of Labor], 55 AD3d 1124, 1124 [2008]).
Here, the employer had a policy of requiring tellers to collect
payments before issuing money orders. Claimant basically
admitted that she did not collect money from the customer before
issuing the money order at issue, but maintained that it was an
inadvertent error. Given claimant's clear violation of the
employer's policy and history of past shortages for which she had
been warned, substantial evidence supports the Board's finding
that she engaged in disqualifying misconduct (see Matter of
Ruggiero [Commissioner of Labor], 45 AD3d 1161, 1162 [2007];
Matter of Hartman [Roslyn Sav. Bank–Commisioner of Labor], 257
AD2d 878, 878-879 [1999]). Furthermore, insofar as claimant
inaccurately represented when applying for benefits that she was
unemployed due to a lack of work, we find no reason to disturb
the Board's imposition of a recoverable overpayment or forfeiture
penalty based upon her willful misrepresentations (see Matter of
Dit [Commissioner of Labor], 98 AD3d 1183 [2012]; Matter of
Mondragon [Commissioner of Labor], 85 AD3d 1477, 1478 [2011]).
Lahtinen, J.P., McCarthy, Rose, Lynch and Clark, JJ.,
concur.
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ORDERED that the decision is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court