State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: January 28, 2016 521220 

________________________________

In the Matter of the Claim of 

SANDRA JEAN, 

Appellant.

MEMORANDUM AND ORDER

COMMISSIONER OF LABOR, 

Respondent.

________________________________

Calendar Date: December 8, 2015

Before: McCarthy, J.P., Egan Jr., Rose and Lynch, JJ.

__________

Sandra Jean, New York City, appellant pro se.

Eric T. Schneiderman, Attorney General, New York City

(Bessie Bazile of counsel), for respondent.

__________

Appeal from a decision of the Unemployment Insurance Appeal

Board, filed August 21, 2014, which ruled that claimant was

disqualified from receiving unemployment insurance benefits

because her employment was terminated due to misconduct.

Claimant was employed as a caseworker for a child welfare

agency and worked Monday through Friday; working during the

weekend was permitted if prior approval from a supervisor was

obtained. In order to conduct field visits to clients, claimant,

as well as other employees, could rent a car and requisition a

$15 gas card for that rental car by filling out various forms and

obtaining approval by a supervisor. Following an investigation,

it was discovered that gas cards issued to claimant were used on

two days that she was not working. The employer concluded that

claimant misused the gas cards and, because she did so more than

once, terminated her employment. The Unemployment Insurance

Appeal Board ruled that, notwithstanding the absence of a prior
-2- 521220 

warning, claimant should have known that her actions would result

in her discharge and denied her application for unemployment

insurance benefits upon the ground that her dishonesty

constituted disqualifying misconduct. This appeal ensued. 

We reverse. Although "[a]n employee's apparent dishonesty 

. . . can constitute disqualifying misconduct" (Matter of

Alexander [Commissioner of Labor], 3 AD3d 827, 827 [2004]

[internal quotation marks and citations omitted]), here,

substantial evidence does not support a finding that claimant

engaged in disqualifying misconduct. It is undisputed that the

employer had no policy with regard to the use of the issued gas

cards. Testimony from claimant and a colleague who also was

discharged following the investigation established that, once an

employee requisitioned a gas card, there was no procedure for

reporting the amount used on the card or for returning unused gas

cards to the employer. Claimant and this colleague also

testified that, when a balance remained on a gas card issued to

an employee, it was common to either keep the gas card to use in

connection with future field visits or give it to a colleague to

use for that purpose, particularly because gas cards were not

always available. Although the investigation reflected that gas

cards issued to claimant were used on two days on which she was

not working, the employer had no procedure or policy for

collecting receipts or monitoring when or by whom the card was

used. Finally, claimant testified that she used the gas cards in

connection with the rental cars to perform required field visits

and not for personal use. Under these circumstances, the Board's

finding that claimant misused the gas cards or engaged in any

dishonest behavior so as to rise to the level of disqualifying

misconduct is not supported by substantial evidence (see

e.g. Matter of Spierto [Commissioner of Labor], 78 AD3d 1365,

1365-1366 [2010]; Matter of Dunham [Commissioner of Labor], 68

AD3d 1328, 1329 [2009]; Matter of Ramsey [Ross], 63 AD2d 1061,

1062 [1978]. Furthermore, a review of the record fails to

support the Board's finding that there was a "significant shift"

or inconsistency in claimant's testimony with regard to her use

of the gas cards so as to find her testimony incredible. 

McCarthy, J.P., Egan Jr., Rose and Lynch, JJ., concur.
-3- 521220 

ORDERED that the decision is reversed, without costs, and

matter remitted to the Unemployment Insurance Appeal Board for

further proceedings not inconsistent with this Court's decision.

ENTER:

Robert D. Mayberger

Clerk of the Court