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Thomas v. Butler

Court of Appeals of Georgia

February 11, 2015

THOMAS
v.
BUTLER et al

Unemployment compensation. DeKalb Superior Court. Before Judge Scott.

Judgment reversed.

Lorraine E. Quesada, Charles R. Bliss, David A. Webster, for appellant.

Samuel S. Olens, Attorney General, Kimberly B. Lewis, Assistant Attorney General, Fisher & Phillips, Anderson B. Scott, for appellees.

RAY, Judge. Andrews, P. J., and Barnes, P. J., concur.

OPINION

Page 105

Ray, Judge.

We granted Kameelah Thomas's application for discretionary review of the denial of her claim for unemployment benefits after she was discharged from her job as a cashier at a Dollar General store. After her discharge, Thomas appealed below and was heard by an administrative hearing officer, who determined she was disqualified from benefits under OCGA § 34-8-194 (2) (A). The Georgia Department of Labor's Board of Review (the " Board" ) adopted the hearing officer's findings and affirmed the decision; the Board's decision then was affirmed by the superior court. On appeal, Thomas contends that the superior court erred in its decision because (1) there was no evidence in the record showing that she was legally at fault in the [330 Ga.App. 676] incident that triggered her discharge and (2) because the superior court wrongly affirmed her disqualification based upon the " totality of the circumstances." For the reasons that follow, we reverse.

Under Georgia law, when a superior court reviews a decision by the Board, the findings of the Board as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law. OCGA § 34-8-223 (b). Thus, the factual determinations of the board must be affirmed if there is any evidence to support them. And the superior court is not authorized to weigh the evidence and substitute its factfindings for those of the administrative trier of fact.

( Citations and punctuation omitted.) Case v. Butler, 325 Ga.App. 123, 125 (1) (751 S.E.2d 883) (2013).

Thomas was working as a cashier at a Dollar General store on the evening of May 3, 2013. She was helping some customers, who did not appear to speak English, make their purchases. The customer who was attempting to pay apparently did not understand how to use the credit card pin pad, and Thomas was trying to help him. She told him repeatedly that he needed to pay. However, even though Thomas did not indicate that the transaction was complete, the customer's wife wheeled the shopping cart and merchandise out of the store despite Thomas's telling her not to remove the cart. Because the customer who was attempting to pay was still at the register, Thomas thought he would pay and did not immediately follow the wife into the parking lot. However, the customer who was attempting to pay then also left the store. Thomas, realizing that the credit card transaction was not complete, followed the customers into the parking lot in an attempt to retrieve the merchandise, but could not overtake them as their car had already pulled into oncoming traffic. Not wanting to leave the cash register unattended, she returned to the store and immediately reported what had happened. She specifically testified that she did not give the customers permission to leave.

The employer's representative, Legina Toussaint, a store manager for Dollar General, testified that this incident caused the register to come up about $34 short, although she could not recall the exact amount. This shortage was considered " mishandling company funds" under Dollar General's policy, which provided that an employee be automatically terminated if the shortage exceeded $24.99.

As an initial matter, we note that neither appellee has filed a brief in the instant case. As a result, we accept Thomas's statement of facts " as prima facie true and decide the case on the basis of this [330 Ga.App. 677] statement and the evidence cited and quoted in support thereof." (Punctuation and footnote omitted.) Daniel v. Allstate Ins. Co., 290 Ga.App. 898, 900 (1) (660 S.E.2d 765) (2008).

1. Thomas first contends that the trial court erred in upholding the Board's decision to disqualify her because there was no evidence in the record that ...


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