B-155743, MAY 4, 1965

B-155743: May 4, 1965

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WE HAVE REVIEWED MRS. THE FACTS THAT MUST CONTROL IN OUR REVIEW OF THE MATTER ARE AS FOLLOWS: (1) ON FEBRUARY 17. ALTHOUGH A PROTECTIVE GRILLE WAS LOCATED IN THE WINDOW IT WAS. WAS ENGAGED IN THE USE OF A TELEPHONE WHICH NECESSITATED HER LEAVING THE CASHIER'S WINDOW UNATTENDED WHILE THE TWO PERSONS WHO HAD PRESENTED THEMSELVES WAITED AT THE WINDOW. DEMICHAEL'S BACK WAS TURNED TO THE WINDOW DURING THIS PERIOD. (4) DURING THIS PERIOD ONE OF THE THREE PERSONS CONVICTED OF THE THEFT REACHED THROUGH OR UNDER THE GRILLE IN THE WINDOW. THAT THE CASH TRAY WAS TOO CLOSE TO THE WINDOW AND THIS FACT PROBABLY CONTRIBUTED MOST TO THE SHORTAGE. WHILE WE ARE SYMPATHETIC WITH MRS. (1) SHE WAS CARELESS IN ALLOWING THE CASH TRAY TO BE IN SUCH CLOSE PROXIMITY TO THE CASHIER'S WINDOW.

B-155743, MAY 4, 1965

TO THE HONORABLE W. J. DRIVER, ADMINISTRATOR, VETERANS ADMINISTRATION:

BY LETTER DATED APRIL 16, 1965, YOU ASKED THAT OUR OFFICE REVIEW ITS ACTION OF JANUARY 14, 1965, WHICH DENIED RELIEF TO MRS. GLADYS M. DEMICHAEL, CLASS "B" CHASHIER, VETERANS ADMINISTRATION CENTER, DAYTON, OHIO, FOR A SHORTAGE OF FUNDS AMOUNTING TO $830. THIS AMOUNT REPRESENTS THE SUM STOLEN FROM HER CASH TRAY ON FEBRUARY 17, 1964. YOU ENCLOSED AN APPEAL SUBMITTED BY MRS. DEMICHAEL AND, ON THE BASIS OF FACTS AND CIRCUMSTANCES SET FORTH IN THAT APPEAL, URGE THAT THE CASE BE FAVORABLY RECONSIDERED AND RELIEF GRANTED.

WE HAVE REVIEWED MRS. DEMICHAEL'S APPEAL TOGETHER WITH CERTAIN OTHER RELEVANT DOCUMENTS. THE FACTS THAT MUST CONTROL IN OUR REVIEW OF THE MATTER ARE AS FOLLOWS:

(1) ON FEBRUARY 17, 1964, A TRAY CONTAINING THE STOLEN FUNDS HAD BEEN REMOVED FROM A CASH BOX AND PLACED ABOUT ONE FOOT TO THE SIDE OF THE CASHIER'S WINDOW. ALTHOUGH A PROTECTIVE GRILLE WAS LOCATED IN THE WINDOW IT WAS--- AS THE EVIDENCE SHOWS--- POSSIBLE FOR PERSONS OUTSIDE THE WINDOW TO REACH TO THE CASH TRAY.

(2) ON THIS DAY TWO OF THE THREE PERSONS CONVICTED OF THE THEFT PRESENTED THEMSELVES AT MRS. DEMICHAEL'S WINDOW AND ONE OF THEM INQUIRED OF AN AMOUNT DUE HIM FROM THE VETERANS ADMINISTRATION CENTER.

(3) FOR APPROXIMATELY FIVE MINUTES MRS. DEMICHAEL, IN SERVICING THIS INQUIRY, WAS ENGAGED IN THE USE OF A TELEPHONE WHICH NECESSITATED HER LEAVING THE CASHIER'S WINDOW UNATTENDED WHILE THE TWO PERSONS WHO HAD PRESENTED THEMSELVES WAITED AT THE WINDOW. BY HER OWN ADMISSION, MRS. DEMICHAEL'S BACK WAS TURNED TO THE WINDOW DURING THIS PERIOD.

(4) DURING THIS PERIOD ONE OF THE THREE PERSONS CONVICTED OF THE THEFT REACHED THROUGH OR UNDER THE GRILLE IN THE WINDOW, PULLED THE CASH TRAY NEARER THE WINDOW OPENING AND EACH OF THE THREE THIEVES TOOK CURRENCY FROM THE TRAY.

(5) A VETERANS ADMINISTRATION BOARD OF INVESTIGATION CONCLUDED ON MARCH 5, 1964, THAT THE CASH TRAY WAS TOO CLOSE TO THE WINDOW AND THIS FACT PROBABLY CONTRIBUTED MOST TO THE SHORTAGE.

WHILE WE ARE SYMPATHETIC WITH MRS. DEMICHAEL'S POSITION OUR REVIEW OF THE FACTS LEAVES US WITH THE CONCLUSIONS THAT;

(1) SHE WAS CARELESS IN ALLOWING THE CASH TRAY TO BE IN SUCH CLOSE PROXIMITY TO THE CASHIER'S WINDOW,

(2) IN VIEW OF THE LOCATION OF THE CASH TRAY SHE WAS NEGLIGENT IN LEAVING THE WINDOW UNATTENDED AND IN TURNING HER BACK WHILE PEOPLE WERE STANDING AT THE WINDOW, AND,

(3) BUT FOR HER CARELESSNESS OR NEGLIGENCE THE THEFT WOULD NOT HAVE BEEN ACCOMPLISHED.

WE ARE THEREFORE UNABLE TO CONCUR IN YOUR DETERMINATION THAT RELIEF SHOULD BE GRANTED. SUCH CONCURRENCE IS A CONDITION PRECEDENT TO A GRANT OF RELIEF UNDER THE LAWS CODIFIED AT 31 U.S.C. 82A-1. ACCORDINGLY, OUR PREVIOUS ACTION IN THE MATTER IS SUSTAINED AND, ON APPEAL, THE RELIEF SOUGHT IS DENIED.