S.S. #: ***********

Employer's Name, Address & Reg. No.

E.R. #: *******

Board Case No.: 1234-BR-14

Referee Case No.: 1188-BB-14

Date mailed to interested

parties: October 17, 2014

DECISION OF THE BOARD OF REVIEW

I. CASE HISTORY AND JURISDICTION

By a decision issued on June 20, 2014, the administrator ruled the claimant ineligible for unemployment benefits effective June 8, 2014. On June 23, 2014, the claimant appealed the administrator's decision to the Middletown office of the appeals division. The appeals division scheduled a hearing of the appeal for August 13, 2014, in which the claimant and employer participated. By a decision issued on August 21, 2014, Associate Appeals Referee Jill M. Sizensky affirmed the administrator's ruling.

The claimant filed a timely appeal to the board of review on September 2, 2014. Acting under authority contained in General Statutes § 31-249, we have reviewed the record in this appeal, including the recording of the referee's hearing.

II. ISSUE

In support of this appeal from the referee's decision, the claimant contends that one of the employer's witnesses was not truthful regarding the events leading to the claimant's separation from employment. The issue before the board is whether the claimant was discharged for wilful misconduct in the course of the employment pursuant to General Statutes § 31-236(a)(2)(B).

III. PROVISIONS OF LAW

Section 31-236(a)(2)(B) of the General Statutes provides that an individual shall be ineligible for benefits if it is found that the individual was discharged or suspended for wilful misconduct in the course of the employment, defined as deliberate misconduct in wilful disregard of the employer's interests or as a single knowing violation of an employer's reasonable and uniformly enforced rule or policy, when reasonably applied, unless the violation is due to an employee's incompetence. The ineligibility for benefits will be in effect until such individual has earned at least ten times his or her weekly benefit rate.

Section 31-236-26b of the Regulations of Connecticut State Agencies provides that a "knowing violation of a reasonable and uniformly enforced rule or policy of the employer, when reasonably applied" occurs when: (1) the employee knew or should have known the rule; (2) the employee's conduct violated the rule; (3) the employee was aware he or she engaged in such conduct, and (4) the rule is reasonable in light of the employer's business interests; (5) there is a clear relationship between the rule, the conduct regulated and the employer's business interest; (6) the rule is uniformly enforced in that the employer treats similarly situated employees subject to the rule in a similar manner when the rule is violated; and (7) the rule is reasonably applied in that the action taken by the employer is appropriate in light of the violation of the rule and the employer's interest and there were no compelling circumstances preventing the employee from adhering to the rule. Last, the violation of the rule must not be the result of the employee's incompetence.

IV. FINDINGS OF FACT AND CONCLUSION OF LAW

In the case before us, the claimant worked for the employer as a server from December 18, 2012, until the employer discharged her on June 9, 2014, for arguing with a customer about a gratuity. It is undisputed that the claimant circled the "tip guide" on a customer's bill when presenting the check, that the customer complained to the employer's bartender that she had no money for a tip because she was paying for dinner with a $50 coupon, and that the claimant joined the conversation with the bartender, which caused the customer to become upset and leave the restaurant.

The referee credited the testimony of the employer's witnesses and the employer's written statements over the claimant's denial that she argued with a customer regarding the customer's decision not to tip the claimant. Unless there is evidence in the record that undermines a referee's credibility determination, we are generally reluctant to disturb that determination. See Basile v. The Stanley Works, Inc., Board Case No. 272-BR-88 (8/12/88). At the administrator's hearing, the claimant stated that she never said "anything [to the customer] about a gratuity," that she was not upset about the lack of gratuity because the customer previously informed her that she had a $50 coupon for dinner, and that she understood that questioning a customer about a gratuity could lead to her discharge. However, at the referee's hearing, the claimant admitted that she told the customer that the customer should understand as a fellow server that the claimant needed to "tip out" her support staff, that she was upset while speaking to the customer, that the customer did not mention the $50 coupon until the claimant presented the bill, and that the employer did not advise her that arguing with a customer was prohibited.

A prior inconsistent statement, where the inconsistency is substantial and relates to a material issue, is a critical factor which must be considered in assessing the credibility of a witness. See Keels v. The Perkin-Elmer Corporation, Board Case No. 514-BR-89 (6/23/89). The employer's general manager, Spencer Harries, also credibly testified that the claimant admitted, immediately after the confrontation, that she argued with the customer. Therefore, we find that the referee properly elevated the employer's first-hand and hearsay evidence over the claimant's inconsistent testimony, to find that the claimant advised the customer that she should not have "stiffed her" and continued to argue with this customer.

The referee determined that the claimant's conduct violated the employer's guest relation policy, and that the employer reasonably applied its policy in discharging the claimant. Although the claimant had received no prior discipline, the referee found that the employer reasonably applied the rule by discharging the claimant because her conduct substantially harmed a significant employer interest in providing good customer service. In determining whether an employer has reasonably applied its rules to discharge a claimant, we must consider whether compelling circumstances mitigated the claimant's rule violation and whether the punishment the employer imposed upon the claimant was a disproportionate response to the violation committed. If the answer to either of these inquiries is affirmative, the application of the rule to the claimant is not reasonable. Regs., Conn. State Agencies § 31-236-26b(d); see also Dinger v. Ursery Companies, Inc., Board Case No. 963-BR-96 (8/19/96).

We have held that discharge is generally not a reasonable application for a first offense, unless the violation poses a significant safety hazard or substantial harm to a significant employer interest. See Dennis v. Autotote Enterprises, Inc., Board Case No. 20-BR-07 (3/9/07); see also, Cruz v. Mercury-Excelum, Inc., Board Case No. 617-BR-97 (11/26/97). It is generally insufficient to prove that a claimant's conduct may negatively impact the employer's business interests. See Prendergast v. Comfort & Care of Wallingford, LLC, Board Case No. 26-BR-10 (4/15/10). Rather, the claimant's conduct must pose a substantial harm to a significant employer interest, such as the employer's interest in preventing theft of its property⁽¹⁾, in safeguarding its proprietary business information⁽²⁾, in protecting its employees' and clients' confidentiality⁽³⁾, and in prohibiting its employees from violating state or federal law.⁽⁴⁾

In Prendergast, supra, the board ruled that although the claimant's asking the employer's client for gas money could have adversely affected the employer's relationship with its client, the conduct did not substantially harm a significant employer interest because the claimant did not threaten the patient's safety or cause substantial economic harm to the employer. Similarly, in Froese v. Panera, LLC, Board Case No. 1022-BR-09 (7/23/09), we held that the employer unreasonably applied its policy to discharge the claimant for a first offense of locking the store's front door thirteen minutes early, because the violation posed no safety issue and did not substantially harm a significant employer interest.

We recognize that the claimant's conduct in the case before us could have harmed the employer's relationship with its customer, who was upset by the claimant's questioning her regarding a gratuity, and any other customers who heard the argument. Nonetheless, the claimant's conduct did not cause substantial economic harm to the employer, did not otherwise significantly harm a substantial employer interest, and did not pose a significant safety hazard to employees, customers or the general public. Therefore, we conclude that the employer did not reasonably apply its policy in discharging the claimant for her first policy violation.

However, we have found a claimant disqualified under the deliberate misconduct definition of wilful misconduct where he or she has committed an act that is not consistent with the standards of behavior that an employer, in the operation of its business, should reasonably expect from an employee, and has committed the act intentionally or with reckless indifference for the probable consequences of the act. See Regs., Conn. State Agencies § 31-236-26a. We have specifically held that a claimant's that engaging the employer's customer in a verbal dispute may rise to the level of deliberate misconduct. See Atterberry v. TA Operating, LLC, Board Case No. 1651-BR-13 (1/24/14).

In the case before us, we find that the claimant was recklessly indifferent to the employer's interests in arguing with a customer about a gratuity. The claimant started the argument with the customer by inserting herself into the customer's conversation with the bartender. Furthermore, the claimant proceeded to argue with customer about the tip, even though the claimant was aware the customer did not have money to leave a tip. Accordingly, we conclude that the claimant's conduct rose to the level of deliberate misconduct.

In so ruling, we adopt the referee's findings of fact, except that we add the phrase "On June 9, 2014" to the beginning of the first sentence of the referee's finding of fact no. 4. We substitute the phrase "$50 coupon" for the word "credit" in the referee's finding of fact no. 5. We substitute the following sentences for the first two sentences of the referee's finding of fact no. 6: "The claimant told the customer, 'You say you're a server or used to be and you stiff me like that, c'mon!' The claimant also mentioned that she needed to 'tip out' her bartender and bus people. The customer became more upset and left the restaurant with her children."

We add the following finding of fact:

8. At the administrator's June 19, 2014 predetermination hearing, the claimant stated that she 'never once yelled at [the customer] nor did I ever say anything to [the customer] about a gratuity. I was not even upset that the [customer] never tipped me since she informed me previously that she had a $50.00 coupon. I was aware that the company policy indicates that you will be terminated if you question a customer about gratuity..."

V. DISPOSITION AND ORDER

The referee's decision is affirmed, as modified, and the appeal is dismissed. The claimant is disqualified from receiving unemployment compensation benefits effective June 8, 2014.

BOARD OF REVIEW

_______________________________

Lynne M. Knox, Chair,

ES Board of Review

In this decision Board Member Bruce Zeke Zalaski concurs.

LMK:DBA:mb

IF YOU WISH TO APPEAL THIS DECISION, YOU MUST DO SO BY NOVEMBER 17, 2014. SEE LAST PAGE FOR IMPORTANT INFORMATION REGARDING YOUR APPEAL RIGHTS.

1. See Alexis v. Shopwell Inc., Board Case No. 3-BR-00 (3/13/00), aff'd Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. CV-00-0177642-S (February 5, 2001).

2. See Mattheeussen v. Turbine Engine Component Technologies Corporation, Board Case No. 1690-BR-07 (2/6/08), aff'd Superior Court, judicial district of Hartford, Docket No. CV-08-4038459-S (9/29/08).

3. See Formica v. Branford Hills Health Care Center, Board Case No. 521-BR-10 (8/5/10).

4. See Franco v. Generis, Inc., Board Case No. 242-BR-10 (4/29/10).