Wisness v. Nodak Mutual Ins. Co.
2011 ND 197
| N.D. | 2011Background
- Gottus began as a Stamart cashier in January 2008 with duties including stocking shelves and light cleaning.
- She was discharged in August 2010 for poor job performance.
- Stamart issued numerous warnings for deficiencies, including cash-register shorts/longs and nonwork-related conduct.
- Initial unemployment determination found no misconduct; Stamart appealed and a hearing followed.
- Appeals referee found warnings showed potential improvement after warnings, but ultimately concluded misconduct occurred and denied benefits.
- District court affirmed Job Service’s decision; Gottus appealed to the Supreme Court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Gottus’ conduct constitutes misconduct for unemployment purposes | Gottus argues performance issues are unsatisfactory but not misconduct | Job Service asserts conduct reflected deliberate disregard constituting misconduct | Yes; conduct amounts to misconduct under the applicable standard |
| Whether the evidence supports a finding of preponderant misconduct | Gottus contends evidence shows only unsatisfactory performance | Stamart proved repeated warnings and disregard despite temporary improvement | Yes; findings supported by preponderance of the evidence |
Key Cases Cited
- Perske v. Job Serv., 336 N.W.2d 146 (N.D. 1983) (misconduct requires intentional disregard or substantial fault beyond mere inefficiency)
- Spectrum Care v. Stevick, 718 N.W.2d 593 (N.D. 2006) (review standard for agency findings; preponderance required for misconduct)
- Schadler v. Job Serv., 361 N.W.2d 254 (N.D. 1985) (employer bears burden to prove misconduct by preponderance)
- Johnson v. Job Serv., 590 N.W.2d 877 (N.D. 1999) (consideration of employment nature in misconduct analysis)
- Holiday Inn v. Karch, 514 N.W.2d 374 (N.D. 1994) (employment context matters in misconduct determination)