Szablowski v. State Civil Service Commission

111 A.3d 256, 2015 Pa. Commw. LEXIS 99
CourtCommonwealth Court of Pennsylvania
DecidedMarch 11, 2015
StatusPublished
Cited by4 cases

This text of 111 A.3d 256 (Szablowski v. State Civil Service Commission) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Szablowski v. State Civil Service Commission, 111 A.3d 256, 2015 Pa. Commw. LEXIS 99 (Pa. Ct. App. 2015).

Opinion

OPINION BY

Judge LEAVITT.

Deanna M. Szablowski (Employee) petitions for review of an adjudication of the State Civil Service Commission that, following remand, sustained the decision of the Pennsylvania Liquor Control Board to terminate her employment. Employee argues, inter alia, that the Commission erred because the Board’s evidence did not prove that she violated a policy of the Board. We agree and, accordingly, reverse.

Background

Employee began her employment with the Liquor Control Board in 2005 and, in April 2008, was promoted to Liquor Store Clerk 2, ie., an assistant store manager. She began working at Store 0608 in August 2009, during which time the store manager and her immediate supervisor was Newton Mull. Mull and Employee supervised two other store clerks that handled cash register transactions: Dennis Wingle, who worked full-time, and Joseph Reedy, who worked part-time. In 2010, Employee informed Jerome Yeager, the District Manager, that she believed that Mull was stealing from the store by issuing refunds to his credit card. The Office of Auditor General investigated, and Mull was dismissed in January 2011.

In June 2011, Employee went on maternity leave for approximately two months. During her leave, the Liquor Control Board audited Store 0608. On September 21, 2011, the Board suspended Employee ■without a hearing. On November 15, 2011, the Board conducted a fact-finding session in which Employee participated. At its conclusion, Employee was discharged for “manipulating” store funds, records or merchandise in violation of Board policies. She was not charged with fraud or theft.

Employee appealed her suspension and discharge to the Commission. The Liquor Control Board identified the following reasons for her dismissal:

(1) Serious violation of procedure/manipulation of Commonwealth funds/records/merchandise in Store #0608 despite prior related instruction and training; in that during the period of September 30, 2009 through January 12, 2011, you performed approximately 102 fraudulent/questionable post-voids which resulted in a loss to the Commonwealth of approximately $2,217.89.
(2) Serious violation of procedure in Store # 0608 despite prior related instruction and training; in that during but not limited to the period of September 30, 2009 through January 12, 2011, you improperly completed approximately 51 post-void transactions without having part/all of the required supporting documentation.

Reproduced Record at 753a (R.R. —). These cited incidents all related to the period of time when Mull served as the manager of Store 0608 and supervised Employee. The Commission conducted a hearing on these two charges.

The Commission rejected the Liquor Control Board’s second charge relating to 51 post-void transactions on which some of the supporting documentation'was missing. Because several different persons and agencies had handled the records of Store 0608 in the course of the investigation of [258]*258Mull, the Commission concluded that Employee could not be held, liable for any missing documentation. In addition, the Board’s procedures required Employee to give this documentation to Mull, who was the person responsible for its preservation.

On the other hand, the Commission found that “29” (actually 301) of the 102 “questionable” post-void transactions violated the Liquor Control Board’s policy. Specifically, the Commission found that Employee’s written statements that a card had been “declined” were not corroborated by the cash register’s electronic journal. Commission Adjudication at 87. Because of this lack of electronic corroboration, the Board reasoned that Employee’s written reason for the post-void transaction was not true. Further, the Commission accepted the Board’s claim that 91 of Employee’s post-void transactions could be correlated to inventory shortages at the store. Employee petitioned for this Court’s review of the Commission’s adjudication.

In Szablowski v. State Civil Service Commission (Pennsylvania Liquor Board), 76 A.3d 590 (Pa.Cmwlth.2013) (Szablowski I), we vacated the Commission’s adjudication and remanded for more findings. The Board had argued that Employer’s written statement of “card declined” was synonymous with “bank declined.” However, it was not clear that the Commission had accepted this construction, which impeded our appellate review. Accordingly, we directed the Commission to “make specific factual findings about whether each of Employee’s written reasons for the 30 post-void transactions needed electronic corroboration.” Szablowski I, 76 A.3d at 601. We also ordered the Commission to “make specific findings of fact about whether the documentary evidence presented by the Liquor Control Board supports an inference that the missing inventory [at the store] can be correlated to a particular employee’s post-void transaction, to random shoplifting or to other forms of theft.” Id.

Upon receipt of this Court’s remand order, the Commission informed the parties that the record could not be reopened and requested them to submit briefs to address the remand issues. Both parties complied with the request.

In its brief, the Liquor Control Board argued that Employee’s written reasons for the 30 post-void transactions were false or inaccurate because there was no electronic corroboration. The Liquor Control Board offered no further explanation on why “card declined” was synonymous with “bank declined.” Because 26 of the post-void transactions dealt with some of the same product brands missing from inventory, the Board argued there was a correlation between the two.

In her brief, Employee countered that her uncontradicted testimony established that she used different wording in her written explanations of her post-void transactions. The different phraseology meant the same thing: the card, whether a gift card or credit card, was rejected on visual inspection. The Liquor Control Board had never instructed her that she was to use particular words to distinguish between a visual rejection of the tendered card from a rejection made post-swipe. [259]*259The Liquor Control Board’s policy was silent in this regard. Notably, the reason had to be written on the small space of a register tape. As to the missing inventory correlation, Employee argued that the Liquor Control Board’s evidence was speculative and lacked any meaningful evidentia-ry basis.

Hearing Evidence Relevant to Remand

In July 2011, Kelly Leonard', one of the Liquor Control Board’s auditors, reviewed the records at Store 0608. Between July 2009 and January 2011, while Mull was managing the store, his voided transactions totaled $22,827.15. By comparison, Wingle’s totaled $5,569.52; Reedy’s totaled $2,831.73;2 and Employee’s totaled $4,075.39. Leonard decided that Reedy’s voided transactions were too small to warrant an investigation. Leonard did investigate Wingle’s post-void transactions, but she did not find irregularities.3

On the other hand, Leonard concluded that 102 of the 132 sales voided by Employee over the 18-month period in question were potentially fraudulent.

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111 A.3d 256, 2015 Pa. Commw. LEXIS 99, Counsel Stack Legal Research, https://law.counselstack.com/opinion/szablowski-v-state-civil-service-commission-pacommwct-2015.