2008-412, APPEAL OF JULIE MOTUZAS

The petitioner, Julie Motuzas, appeals a decision of the

Kaczmarek on the brief and orally), for the respondent. Littler Mendelson, P.C., of Boston, Massachusetts (Christopher B.

for the petitioner. to press. Errors may be reported by E-mail at the following address: Pilkington-Casey and Peter S. Wright, Jr. on the brief, and Mr. Wright orally), Franklin Pierce Law Center Civil Practice Clinic, of Concord (Mary

(New Hampshire Department of Employment Security) APPEAL OF JULIE MOTUZAS page is: http://www.courts.state.nh.us/supreme.

No. 2008-412 editorial errors in order that corrections may be made before the opinion goes Department of Employment Security Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as p. 2 $163.68 in cash.

exit with the televisions.

leave and investigate. Motuzas finished the transaction and gave the woman

manager testified that Motuzas yelled over “she’s all set,” and that he let her out a large purchase, again asked the woman if she had a receipt. The supervisor that she had seen children stealing DVDs, causing the supervisor to woman exited the store, a manager, who was helping another customer carry a code that authorized the cash transaction. The woman then told the however, she had to call a supervisor, who performed a “key flick” and entered

Motuzas indicated the woman was free to leave with the televisions. As the

authorized the transaction, Motuzas began processing a cash refund. To do so, had. Security footage, however, clearly showed that the manager spoke with

Club witness testified at the hearing that the greeter told investigators that

that she could get a cash refund for all five. Believing that Flaherty had Motuzas if the woman had paid for the televisions, and that Motuzas said she

greeter looked over toward the desk and then let the woman leave. A Sam’s stopped the woman, who motioned toward the membership services desk. The woman said that Flaherty instructed her to bring in the unopened bag, and security footage, which did not contain any audio, showed that the exit greeter manager testified that he returned to the membership desk and directly asked had called the manager, Steve Flaherty, the day before to ask for a refund. The 2 She told Motuzas that she had bought five bags that were spoiled, and that she

investigation ensued. During the investigation, Sam’s Club learned that A later audit revealed that two televisions were missing, and an

customer the entire time he was at the desk talking to the other associate. different associate at the desk, and that Motuzas was helping another

televisions onto a flatbed cart, and proceeded to the exit without paying. The After helping the other customer load the purchase into a car, the

crumpled partial receipt and asked for a cash refund for five bags of dog food.

issued on gift cards.

return, and serve to notify membership service associates that the customer

The woman then returned to the sales floor, loaded two 32-inch

to the entrance greeter, who gave her a slip. The woman then gave Motuzas a

have a door slip or a receipt, and, in the absence of a receipt, that refunds be

Door slips are given to customers as they enter a store with merchandise to

Here, because the woman did not have a door slip, Motuzas directed her

manager become involved in a return transaction when a customer does not

Store policy requires the customer have a door slip to make a return.

associate. The woman told Motuzas that she would like to return the dog food. and went to the membership services desk, where Motuzas was working as an additional comments from the parties. Despite the fact that the footage p. 3 hearing, the tribunal viewed the unedited footage in its entirety, and took prior decision without any additional findings concerning the video. At that

third hearing was required, however, because the tribunal simply retyped its to protect the employers [

only an edited copy of the security footage, the tribunal issued a decision. A determination based on the following. The claimant was discharged for failing

tribunal for a fourth hearing to be held

introduction of the videotapes. After the hearing, to which Sam’s Club brought Club then appealed to the tribunal, stating: “We wish to appeal the witnesses. The motion was granted for the limited purpose of allowing the security tapes, but rather relied upon the testimony of Sam’s Club

security tapes. The board therefore vacated the decision and remanded to the in $3000 + loss.”

The certifying officer therefore granted Motuzas’ request for benefits. Sam’s televisions, causing a $3000 loss, it provided no documentation or evidence. Motuzas filed a motion to reopen the matter because the tribunal did not view 3 performed an improper refund and helped a woman leave the store with

purpose for reopening by taking new evidence in addition to viewing the “failure to follow proper refund policy. Not getting mngmt approval—resulting days later, as well as by the fact that the tribunal went beyond the limited of Company Assets).” The form specifically stated that she was terminated for consideration of an additional and irrelevant theft by the same woman three Misconduct – Integrity Issue (Theft, Violent Act, Dishonesty, Misappropriation The board found that Motuzas had been prejudiced by the tribunal’s

New Hampshire Department of Employment Security Appellate Board (board). required Motuzas to reimburse the State for $1816 in overpaid benefits. nonetheless denied Motuzas benefits. Motuzas appealed the decision to the something when I did not.” Although Sam’s Club responded that Motuzas had The tribunal therefore reversed the decision of the certifying officer, and contradicted the testimony of some of the store’s witnesses, the tribunal improper refund and had assisted the woman in leaving with the televisions. directly

a box was checked indicating that Motuzas was terminated for “Gross

stating: “I got accused of letting a member go out the door without paying [for] After a hearing, the tribunal found that Motuzas had performed an

employer.”

Sam’s Club then terminated Motuzas’ employment. On the exit interview form, the dog food refund, but could not recall anything concerning the televisions. regional loss prevention representative, interviewed Motuzas, who remembered

Following her termination, Motuzas applied for unemployment benefits,

she had also helped the woman steal the televisions. Jacqueline Bell, the Motuzas had helped the suspect with the dog food refund, and believed that their own. unexplained absence. p. 4 terminated him, stating that he had quit voluntarily by reason of a three-day

findings, inferences, or conclusions were “unauthorized, affected by an error of substantial rights of the petitioner were prejudiced because the administrative was discharged for misconduct. misconduct, and that benefits should therefore be denied. Id. at 51; see RSA 282-A:32, I(b). We held, noted that the tribunal has some discretion to determine whether an employee I(b) (Supp. 2008). Sam’s Club argues that it terminated Motuzas for citing incidents other than the three-day absence. connected with [her] work, if so found by the commissioner.” RSA 282-A:32, Id. at 50. On appeal, we upheld the denial of benefits because of the employee’s excessive absenteeism,

employee missed three days of work because his wife was sick; his employer Motuzas relies upon Smith v. Adams, 118 N.H. 48 (1978). In Smith, an impermissible justification for denying benefits. In support of her argument, We first address Motuzas’ argument that the tribunal substituted an

denied; this appeal followed. reverse, modify or remand the decision for further proceedings if the overpaid benefits. Her appeal to the board and motion for reconsideration were (2003). A person is ineligible for benefits if she is “discharged for misconduct

Appeal of Lakeview NeuroRehabilitation Ctr., 150 N.H. 205, 208

rights. New Hampshire’s unemployment compensation system is predicated

Kaplan, 153 N.H. 296, 298 (2006); see RSA 282-A:67, V.

evidence on questions of fact. RSA 282-A:67, IV, V (1999). We will, however, determination of the certifying officer, and required Motuzas to repay $1816 in not substitute our judgment for that of the tribunal as to the weight of the Our review of the tribunal’s decision is confined to the record and we will

notice as to the grounds for her termination, thereby violating her due process disregard of her employer’s best interests; and (3) not giving her adequate impermissible grounds for finding misconduct; (2) finding she acted in willful On appeal, Motuzas argues that the tribunal erred in: (1) interjecting

Motuzas had nothing to do with the television theft, it nonetheless reversed the legitimate interests of the employer”). Thus, although the tribunal found that “a deliberate violation of a company rule reasonably designed to protect the (holding that single instance of misconduct is sufficient to deny benefits if it is of New Hampshire Sweepstakes Commission, 130 N.H. 659, 664 (1988) constituted the type of misconduct warranting denial of benefits under Appeal televisions. It did, however, conclude that the improper refund alone no evidence supporting the allegation that Motuzas helped the woman steal the After the de novo hearing, the tribunal found that there was absolutely her admittance of not following policy, we lost over $3,000 . . . .”

p. 5 third hearing, which the tribunal held to view the unedited footage, she again that I only did a refund for dog food. It was nothing involved with TVs.” At the

we wouldn’t have lost those televisions. . . . [B]y her not following policy and had been called over, if the policies at the door had been handled properly . . . Bell stated: “[I]f the policies had been followed, if a member of management

an improper refund involving a $3,000 loss, which the refund clearly shows

procedures.” When asked what Motuzas was told when she was terminated, actually terminated. denial of benefits upon a justification other than that for which Motuzas was and the television incident. Thus, it argues, the tribunal did not base the footage, Motuzas stated: “[W]hen I was told that I was let go it was from doing

puts in place in order to prevent that from happening and by not following the Motuzas’ closing statements at the final televisions and she was primarily involved in the process that the company why Motuzas was dismissed, Bell stated: “Basically, we lost a couple of Sam’s Club responds that it terminated Motuzas for both the improper refund discharged for failing to protect the employers [At the second hearing, which the tribunal held to view the security

Indeed, Sam’s Club operated under such a theory until it responded to was discharged because of her perceived complicity in the television theft. $3000.00 loss to employer.” When asked by the tribunal at the first hearing grounds for Motuzas’ termination. The record clearly indicates that Motuzas televisions, and would not in fact have done so based upon the refund alone. sic] assets which resulted in a because of its mistaken belief that she had been complicit in the loss of the appealed the certifying officer’s decision, it stated that Motuzas “was misconduct justifying termination. Rather, Sam’s Club terminated her solely ultimately states that Motuzas was fired for the $3000 loss. When Sam’s Club Although the exit interview form references the improper refund, it

same conclusion. television theft. After a review of the record, we cannot help but reach the found, however, there was no evidence that Motuzas was involved in the

not persuaded that Sam’s Club used the improper return as independent Appeal of Kelly, 129 N.H. 462, 465 (1987). After a review of the record, we are connection between her and the woman, but not as a separate incident of have found that Sam’s Club terminated Motuzas on two separate grounds. See we must review the record to determine whether a reasonable person could Given the parties’ disagreement concerning the reason for termination, employment relationship.”

Motuzas argues that Sam’s Club saw the improper dog food refund as a

disregard of the stated and conceded reason for the termination of an however, that the “inquiry into possible misconduct may not be conducted in theft of the televisions.

p. 6 is precisely what her exit form states.

loss of the televisions, the tribunal’s inquiry should have been limited to the Sam’s Club terminated Motuzas because it believed her actions resulted in the in this case merited termination for misconduct. Because it was clear that

refund “that resulted in the loss of $3,000,” not a loss of $163.68. In fact, that however, reveals that Motuzas believed she was terminated for an improper “terminated for an improper refund.” Reviewing her testimony in context,

associate, Bell used it as a comparison to demonstrate why the degree of loss

Sam’s Club points out that Motuzas testified that she believed she was

distinct offenses occurred. address her remaining arguments.

Although that policy did not apply to Motuzas as a membership services that store policy was to terminate cashiers causing a loss of more than $500. of her walking out of the building with two televisions . . . .” Bell also testified BRODERICK, C.J., and DALIANIS and HICKS, JJ., concurred. refund, and thus that the two incidents were separate grounds for termination,

then, at the close of the fourth tribunal hearing, that Sam’s Club argued two Because we reverse based upon Motuzas’ first argument, we need not

violating company policies that led directly to a loss of in excess of $3,000

circumstances in which there could have been an intervention in that process

In support of its argument that Motuzas was in fact terminated for the

deliberate incident that justifies denial of benefits for misconduct. It was only in the theft, and that the improper return by itself was not the type of single, . . . .” Motuzas then argued that there was no evidence she had participated

testimony . . . Sam’s Club has established that Ms. Motuzas was terminated for written documentation, testimony under oath today, and the videotape Indeed, in closing, Sam’s Club stated: “[T]hrough a combination of with two televisions, and there were other ample times, there were taken [to protect assets], there was someone that was able to exit our building See Smith, 118 N.H. at 51.

was those two TVs on this date.” was fired because her failure to follow policy “resulted in a $3,000 loss, which

terminated. She testified that Motuzas was discharged because “steps were not At the final de novo hearing, Bell was again asked why Motuzas was

that she had nothing to do with that incident. In response, Bell stated that she stated that she was told she was discharged for the television loss, and argued