In the matter of Department of Alcoholic Beverage Control Case Number 5236

Hearing Date: July 17, 2001

Decision Issued: July 18, 2001

On March 24, 2001, Grievant filed a grievance challenging the Agency’s claim that she owes it $100.10 because of a money shortage resulting from her sales of alcoholic beverages on October 6, 2000. The outcome of the Third Resolution Step was not satisfactory to the Grievant and she requested a hearing. On June 22, 2001, the Department of Employment Dispute Resolution assigned this appeal to the Hearing Officer. On July 17, 2001, a hearing was held at the Agency’s regional office.

Grievant

Agency Representative

Cashier

Waitress

Permanent Clerk

Internal Audit Manager

Assistant Manager

Regional Manager

Assistant Manager

Assistant Store Manager

Store Manager

Whether Grievant is obligated to pay a $100.10 money shortage.

The burden of proof is on the Grievant to show by a preponderance of the evidence that the relief she seeks should be granted. Grievance Procedure Manual ("GPM") § 5.8. A preponderance of the evidence is evidence which shows that what is sought to be proved is more probable than not. GPM § 9.

After reviewing the evidence presented and observing the demeanor of each witness, the Hearing Officer makes the following findings of fact:

The Virginia Department of Alcoholic Beverage Control employs Grievant as a Retail Specialist I. One of her responsibilities includes operating a cash register and selling alcoholic beverages to licensees who are typically restaurants, bars, or other re-sellers of alcohol.

On October 6, 2000, Grievant sold beverages to five licensees. Three of the licensees paid the exact amount due while two others paid more than the amount due and Grievant gave them change in the amount they overpaid. She entered each sale into the cash register. Net sales to these five licensees totaled $1,392.75.

Before completing her fifth sale, Grievant made a "drop" of $1,000. This means she removed $1,000 from her cash register and placed it in the store’s safe. When she counted the money, she did not use a calculator. She counted it by hand and then gave it to the Assistant Manager who also counted the money and determined the amount to be $1,000.

At the end of Grievant’s shift, she turned in $292.65 which was the remaining money in her cash register. Including the $1,000 drop with the $292.65 means Grievant turned in $1,292.65. Her sales for the day, however, were $1,392.75. Since her sales exceeded the amount of money she turned in, Grievant had a shortage of $100.10.

Shortly after turning in her money, Grievant was notified that she was short $100.10. She disputed this figure. The Assistant Store Manager began recounting the money collected from Grievant. He counted the funds two times. While the Assistant Store Manger was conducting his recount, the Store Manager came into the store. He was supposed to be on vacation. The Store Manager counted the money Grievant submitted and then counted all funds in the store in order to determine where a shortage may have occurred. Neither the Assistant Store Manager nor the Store Manager could find the source of the shortage. The Assistant Store Manger called two licensees who may have purchased alcohol after the $1,000 drop and asked them if they had accidentally paid less than the amount required. One licensee did not respond and the other denied underpaying. On the next business day, the Assistant Store Manager contacted the teller at the bank where the store made its deposits to see if more money had been deposited in the store’s account than shown on the store’s records. No discrepancy was found in the bank records.

Because of Grievant’s insistence that no shortage could have occurred, the Agency asked its internal auditors to conduct an audit. Following the audit, the auditors could not determine how the shortage could have occurred if Grievant had followed all of the Agency’s procedures.

It remains a mystery regarding the source of the shortage. Grievant contends she did not cause the shortage but she does not offer an explanation of why the shortage occurred. The Agency identified the shortage at the time Grievant closed out her drawer and began its investigation of the shortage immediately. The investigation was thorough because the Assistant Store Manager and the Store Manager closely reviewed Grievant’s funds as well as the entire store funds on the day of the shortage. In addition, the Agency’s internal audit staff subsequently audited the transaction and concluded the Agency’s policies and procedures were appropriate to manage funds from employees.

Agency policy requires all employees operating cash registers to reimburse the agency for cash shortages arising from their sales. (Agency Exhibit 1). The policy applies to all Agency staff and is applied consistently. Grievant was not asked to do anything any other employee was not also asked to do. Indeed, it is not unusual for an employee to have a cash shortage.

Grievant contends that the shortage may have resulted when she cashed a $100 bill for another employee. On October 6, 2000, Grievant was in charge for a short period of time while the Assistant Store Manager was out of the store. A cashier received a $100 bill from a customer and did not have sufficient change in her cash drawer to make change. Grievant took the $100 bill and went to the store safe. She placed the $100 in the safe and removed $100 in lower denomination bills. Grievant gave the money to the cashier who gave the money to the customer. The customer then used a smaller bill to pay for his purchase. The Hearing Officer concludes that this exchange has no bearing on Grievant’s shortage. When Grievant placed $100 in the safe and removed $100 in smaller bills, she did not affect the total amount of money in the safe. In addition, the money was given directly to the customer so Grievant’s cash receipts from her sales could not have been affected. The Internal Auditors examined this issued and concluded:

(Agency Exhibit 2).

Grievant bears the burden of proof in this hearing. Grievant has not offered a plausible explanation for the shortage other than that the Agency must have made a mistake. The Agency contends the only plausible explanation for the shortage is a mistake by Grievant. It is equally likely that either Grievant’s or the Agency’s view is correct. Grievant’s burden of proof requires her to prove that it is more likely that she is correct. Grievant has failed to meet this burden. The relief she seeks must be denied.

For the reasons stated herein, the Grievant’s request for relief is denied.

As Sections 7.1 through 7.3 of the Grievance Procedure Manual set forth in more detail, this hearing decision is subject to administrative and judicial review. Once the administrative review phase has concluded, the hearing decision becomes final and is subject to judicial review.

Administrative Review – This decision is subject to four types of administrative review, depending upon the nature of the alleged defect of the decision:

1. A request to reconsider a decision or reopen a hearing is made to the hearing officer. This request must state the basis for such request; generally, newly discovered evidence or evidence of incorrect legal conclusions is the basis for such a request.
2. A challenge that the hearing decision is inconsistent with state or agency policy is made to the Director of the Department of Human Resources Management. This request must cite to a particular mandate in state or agency policy. The Director’s authority is limited to ordering the hearing officer to revise the decision to conform it to written policy.
3. A challenge that the hearing decision does not comply with grievance procedure is made to the Director of EDR. This request must state the specific requirement of the grievance procedure with which the decision is not in compliance. The Director’s authority is limited to ordering the hearing officer to revise the decision so that it complies with the grievance procedure.
4. In grievances arising out of the Department of Mental Health, Mental Retardation and Substance Abuse Services which challenge allegations of patient abuse, a challenge that a hearing decision is inconsistent with law may be made to the Director of EDR. The party challenging the hearing decision must cite to the specific error of law in the hearing decision. The Director’s authority is limited to ordering the hearing officer to revise the decision so that it is consistent with law.

A party may make more than one type of request for review. All requests for review must be made in writing, and received by the administrative reviewer, within 10 calendar days of the date of the original hearing decision. (Note: the 10-day period, in which the appeal must occur, begins with the date of issuance of the decision, not receipt of the decision. However, the date the decision is rendered does not count as one of the 10 days; the day following the issuance of the decision is the first of the 10 days). A copy of each appeal must be provided to the other party.

Section 7/2(d) of the Grievance Procedure Manual provides that a hearing officer’s original decision becomes a final hearing decision, with no further possibility of an administrative review, when:

1. The 10 calendar day period for filing requests for administrative review has expired and neither party has filed such a request; or,
2. All timely requests for administrative review have been decided and, if ordered by EDR or HRM, the hearing officer has issued a revised decision.

Within thirty days of a final decision, a party may appeal on the grounds that the determination is contradictory to law by filing a notice of appeal with the clerk of the circuit court in the jurisdiction in which the grievance arose. The agency shall request and receive prior approval of the Director before filing a notice of appeal.

Carl Wilson Schmidt, Esq., Hearing Officer