Starr v. Industrial Claim Appeals Office

• Decision Date: 10 December 2009
• Docket Number: No. 08CA2413.,08CA2413.
• Citation: 224 P.3d 1056
• Parties: Dana K. STARR, Petitioner, v. INDUSTRIAL CLAIM APPEALS OFFICE of the State of Colorado and Community Hospital Association, Respondents.
• Court: Colorado Court of Appeals

224 P.3d 1056

Dana K. STARR, Petitioner, v. INDUSTRIAL CLAIM APPEALS OFFICE of the State of Colorado and Community Hospital Association, Respondents.

No. 08CA2413.

Colorado Court of Appeals, Div. VI.

December 10, 2009.

Law Office of William Benjamin, William E. Benjamin, Boulder, Colorado, for Petitioner.

John W. Suthers, Attorney General, A.A. Lee Hegner, Assistant Attorney General, Denver, Colorado, for Respondent Industrial Claim Appeals Office.

Caplan and Earnest, LLC, W. Stuart Stuller, Boulder, Colorado, for Respondent Community Hospital Association.

Opinion by Judge ROTHENBERG.^*

Petitioner, Dana K. Starr (claimant), seeks review of a final order of the Industrial Claim Appeals Office (Panel) affirming a hearing officer's decision disqualifying her from receiving unemployment benefits. We set aside the Panel's order and remand for further findings.

I. Background

Claimant worked for twenty-six years as a data registrar for the Community Hospital Association (employer) until she was terminated for the alleged theft of the remnants of toilet paper rolls.

Several witnesses testified at the hearing, including claimant herself. She admitted taking the remains of several small end rolls of toilet paper without asking her employer's permission, but testified that she had simply removed — either from the floor or on the toilet paper shelf above the toilet paper holders — what she believed was trash, that is, discarded and dirty toilet paper remnants that were, or had been, on the floor. She explained that her purpose in doing so was to donate the otherwise unusable toilet paper remnants to a nonprofit group that sent them to the troops in Iraq for their personal use in the field.

Claimant called as a witness a friend who had informed her of the soldiers' need for small rolls of toilet paper "that they could put in their pocket to go on missions." The friend told claimant, "[T]he roll would] have to fit in a pocket, and their pockets are already pretty full. So [the soldiers had] requested small rolls of toilet paper." She testified that when she had visited the hospital where claimant was employed, she (the friend) "saw in the bathrooms small rolls of toilet paper on the floor, repeatedly." She said she had "mentioned it to [the claimant] and [the claimant] started bringing [her] a few of the tiny rolls."

The friend brought to the hearing some of the actual rolls claimant had given her and testified that they were each about one and a half inches in diameter. She testified that before she sent a roll to Iraq, she would unroll "two or three lines just to make sure it's clean, because it's been on the floor."

The employer had five witnesses who testified by telephone, including an employer representative, a human resources manager, the manager of environmental services, and one of claimant's coworkers.

The employer's representative testified that claimant had admitted taking the remnants and had explained that "she considered it garbage." The representative stated: "We decided to discharge because the hospital has a zero tolerance policy on theft. So since [claimant] had admitted that she'd taken the toilet paper, we determined that it was theft, and so we terminated her."

However, when asked whether employer had a written policy on theft, she stated:

We don't have a written policy specifically on theft. We do have, you know, a corrective action policy that says we can [discipline] people [unintelligible] up to an[d] including termination depending on the severity of the — severity of the issue. . . . We have terminated people for the theft of a hard boiled egg in the cafeteria, the theft of a can of pop in the cafeteria. . . .

The manager of environmental services testified that employer sought to reduce waste and that "the idea with this [type of coreless toilet paper roll] is so that you can use it right down to the very end." She also testified that she had seen rolls of toilet paper on the floor in the bathrooms. When asked whether employer recycled the small cores of the toilet paper rolls, she stated that her staff "probably more often would just throw them away, because they're small and they don't really collect them." She was asked if she considered "trash and even the cores of [the toilet paper rolls] to be hospital property" and she answered, "Yes. I would think — my staff would determine if they were truly trash and throw them away."

The co-worker testified that she saw claimant putting the small toilet paper rolls into a bag, and that claimant had told the co-worker "that she takes [the small end pieces of the toilet paper rolls] home and she packs them in a box" and "send[s] them to the soldiers in Iraq." The co-worker had responded, "I think our government can afford toilet paper for the soldiers." The co-worker confirmed that claimant said that "[the soldiers] really love the little ones because they can put them in their pockets" and that she "only [took] the partly used ones." According to the co-worker, when she went home and told her husband about it, he told her she was "naive and gullible" and expressed his opinion that claimant was lying. Thereafter, the co-worker accused claimant of theft and reported her to management.

Following the testimony, the hearing officer found that (1) employer bought "coreless toilet paper [for use in its building] so no waste occurs"; (2) "[t]hese toilet paper rolls can be used almost completely"; (3) claimant "admitted taking the small or end rolls of toilet paper" and "that she had done so without requesting [employer's] authorization"; and (4) claimant was terminated because employer has a "zero tolerance policy" and will terminate any employee who takes any property belonging to it.

Based on these findings, the hearing officer found claimant at fault for the separation and disqualified her from receiving benefits pursuant to section 8-73-108(5)(e)(XI), C.R.S.2009 (providing for disqualification where theft is the reason for the separation). The Panel upheld the hearing officer's decision.

II. Standard of Review

The Panel's findings of fact may not be altered on review if supported by substantial evidence, but a decision by the Panel must be set aside if the findings of fact do not support the decision, or if the decision is erroneous as a matter of law. § 8-74-107(6), C.R.S.2009; Nielsen v. AMI Industries, Inc., 759 P.2d 834, 835 (Colo.App.1988).

III. Evidence of Value

Claimant contends the evidence does not support the hearing officer's finding that she was discharged for "theft" because there was no specific evidence or findings regarding the value of the toilet paper remnants that were taken. She maintains that the meaning of theft in section 8-73-108(5)(e)(XI) should be substantially the same as the criminal definition of theft in section 18-4-401, C.R.S.2009, including the requirement that the item taken be a "thing of value." We agree section 18-4-401 offers guidance regarding the elements of theft, but disagree that specific evidence of value is required to support a disqualification from the receipt of benefits based on theft.

Section 18-4-401(1), C.R.S.2009, provides, as relevant here:

A person commits theft when he knowingly obtains or exercises control over anything of value of another without authorization . . . and . . .

[i]ntends to deprive the other person permanently of the use or benefit of the thing of value; or . . .

[k]nowingly uses . . . the thing of value in such manner as to deprive the other person permanently of its use or benefit.

In Jefferson County v. Kiser, 876 P.2d 122, 123 (Colo.App.1994), it was undisputed that the claimant, who worked for the Jefferson County Sheriff's Department, had shoplifted while off duty. The dispositive issue was whether the Panel erred in determining that he was still entitled to unemployment benefits because § 8-73-108(5)(e)(XI) only contemplates theft from an employer which is committed in the course of employment. A division of this court concluded that the General Assembly did not intend to distinguish between theft in the course of employment and theft outside the course of employment, and therefore, that the claimant was not entitled to benefits. Id.

Although Kiser is factually distinguishable, it is instructive in determining the elements that must be shown when a theft is alleged in an unemployment compensation case as the basis for denying benefits. The division there applied a "plain and ordinary" meaning analysis in reaching its conclusion, and determined that, in the context of unemployment benefits, theft means "the act of stealing; the wrongful taking and carrying away of the personal goods or property of another; larceny." Id. The panel quoted the definition of theft in Webster's Encyclopedic Unabridged Dictionary of the English Language 1470 (1989); see § 18-4-401(1).

Evidence of value is required in criminal theft cases because it affects the severity of the offense. See § 18-4-401(2)(b), C.R.S. 2009 (providing that theft is a "class 2 misdemeanor if the value of the thing involved is less than five hundred dollars"). In such cases, the value "of the thing involved" depends upon objective criteria, and the jury is not required to find the defendant was aware of the actual value of the stolen items. See People v. Cowden, 735 P.2d 199, 201 (Colo. 1987) (stating that the grade of theft is determined by the value of the items taken, not by the mens rea of the defendant). But this is a civil case, and we agree with the division in Kiser that the absence of a specific finding regarding the value of the items allegedly taken does not preclude a disqualification for theft under section 8-73-108(5)(e)(XI). Kiser, 876 P.2d at 123; see also Wright v. Commonwealth, 77 Pa.Cmwlth. 278, 465 A.2d 1075, 1077 (1983) (upholding disqualification for willful misconduct based on employee's theft of trash bags and toilet paper from employer, despite lack of evidence regarding...