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Wanda Gottus v. Job Service North Dakota

October 18, 2011

WANDA GOTTUS,
PETITIONER AND APPELLANT
v.
JOB SERVICE NORTH DAKOTA, RESPONDENT AND APPELLEE
AND SERVICE OIL INC.,
RESPONDENT



Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Thomas J. Schneider, Judge.

The opinion of the court was delivered by: Maring, Justice.

N.D. Supreme

CourtGottus v. Job Service North Dakota,

2011 ND 204

This opinion is subject to petition for rehearing. [Go to Documents]

[Download as WordPerfect]

AFFIRMED.

Opinion of the Court by Maring, Justice.

[¶1] Wanda Gottus appealed from a district court judgment affirming the decision of Job Service North Dakota denying her unemployment benefits and concluding she was discharged for actions constituting misconduct. We hold Job Service's decision that Gottus was discharged from her job for misconduct is supported by a preponderance of the evidence, and we affirm.

I

[¶2] In January 2008, Gottus began working as a cashier for Service Oil Inc. d/b/a Stamart. In addition to acting as a cashier, Gottus's job duties included attending to the store's shelves, light cleaning, and other similar tasks. Gottus's employment with Stamart ended in August 2010 when she was discharged for poor job performance. Gottus subsequently filed for unemployment insurance benefits. Job Service initially approved Gottus for unemployment benefits indicating she was not discharged for misconduct. Stamart appealed this decision, and a telephone hearing was held before an appeals referee.

[¶3] The testimony and evidence presented during the hearing revealed there were at least sixteen instances when Gottus's job performance fell below the level expected of Stamart employees. According to the written warnings admitted into evidence at the hearing, Gottus's deficient conduct included failing to give cash advances to drivers, standing idle, carrying on nonwork-related conversations with customers, and leaving a roll of dimes on the counter. However, the warnings reveal the most numerous instances of deficient conduct involved Gottus being either "long" or "short" on her register. A Stamart manager testified, being "long" on a register occurs when a cashier, at the end of a shift, has too much money in the register relative to the amount of goods sold as recorded by the register, while being "short" occurs when there is too little money in the register at the end of the shift. Stamart's manager further stated, typically, a register is "long" or "short" because a customer did not receive the correct change for his or her purchases. There was no suggestion any of the discrepancies were caused by Gottus taking money for herself.

[¶4] After the hearing, the appeals referee found Stamart issued numerous warnings to Gottus regarding her work performance, and the warnings were related to the quality of her work and the cash shortages and longs on her register. The appeals referee further found after Stamart warned Gottus of her work inadequacies her job performance would show improvement. Based on this finding, the referee concluded Gottus was discharged for misconduct and reversed the initial determination that Gottus was eligible for unemployment benefits.

[ΒΆ5] Gottus appealed the referee's decision and sought bureau review. The bureau reviewed the record and affirmed the referee's decision. Gottus then petitioned for judicial review. Gottus argued her job performance was merely unsatisfactory but did not constitute misconduct. The district court ...


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