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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Department of Employment Security No. 2008-412 APPEAL OF JULIE MOTUZAS (New Hampshire Department of Employment Security) Argued: April 7, 2009 Opinion Issued: May 1, 2009 Franklin Pierce Law Center Civil Practice Clinic, of Concord (Mary Pilkington-Casey and Peter S. Wright, Jr. on the brief, and Mr. Wright orally), for the petitioner. Littler Mendelson, P.C., of Boston, Massachusetts (Christopher B. Kaczmarek on the brief and orally), for the respondent. DUGGAN, J. The petitioner, Julie Motuzas, appeals a decision of the New Hampshire Department of Employment Security Appeal Tribunal (tribunal), which found that she was terminated by the respondent, Sam's East, Inc. (Sam's Club), for misconduct. On appeal, Motuzas argues that the tribunal based its decision upon impermissible grounds and violated her due process rights. We reverse. The record supports the following facts. On October 3, 2005, an unidentified woman entered the Sam's Club store in Hudson and stole two 32inch televisions together valued at approximately $3000. According to Sam's Club, the same woman had been defrauding Sam's Club stores throughout the northeast. The woman, who was not a member of Sam's Club, entered the store empty handed. She proceeded to the sales floor, took a bag of dog food,

and went to the membership services desk, where Motuzas was working as an associate. The woman told Motuzas that she would like to return the dog food. Store policy requires the customer have a door slip to make a return. Door slips are given to customers as they enter a store with merchandise to return, and serve to notify membership service associates that the customer actually brought the item into the store. The policy also requires that a manager become involved in a return transaction when a customer does not have a door slip or a receipt, and, in the absence of a receipt, that refunds be issued on gift cards. Here, because the woman did not have a door slip, Motuzas directed her to the entrance greeter, who gave her a slip. The woman then gave Motuzas a crumpled partial receipt and asked for a cash refund for five bags of dog food. She told Motuzas that she had bought five bags that were spoiled, and that she had called the manager, Steve Flaherty, the day before to ask for a refund. The woman said that Flaherty instructed her to bring in the unopened bag, and that she could get a cash refund for all five. Believing that Flaherty had authorized the transaction, Motuzas began processing a cash refund. To do so, however, she had to call a supervisor, who performed a "key flick" and entered a code that authorized the cash transaction. The woman then told the supervisor that she had seen children stealing DVDs, causing the supervisor to leave and investigate. Motuzas finished the transaction and gave the woman $163.68 in cash. The woman then returned to the sales floor, loaded two 32-inch televisions onto a flatbed cart, and proceeded to the exit without paying. The security footage, which did not contain any audio, showed that the exit greeter stopped the woman, who motioned toward the membership services desk. The greeter looked over toward the desk and then let the woman leave. A Sam's Club witness testified at the hearing that the greeter told investigators that Motuzas indicated the woman was free to leave with the televisions. As the woman exited the store, a manager, who was helping another customer carry out a large purchase, again asked the woman if she had a receipt. The manager testified that Motuzas yelled over "she's all set," and that he let her exit with the televisions. After helping the other customer load the purchase into a car, the manager testified that he returned to the membership desk and directly asked Motuzas if the woman had paid for the televisions, and that Motuzas said she had. Security footage, however, clearly showed that the manager spoke with a different associate at the desk, and that Motuzas was helping another customer the entire time he was at the desk talking to the other associate. A later audit revealed that two televisions were missing, and an investigation ensued. During the investigation, Sam's Club learned that 2

Motuzas had helped the suspect with the dog food refund, and believed that she had also helped the woman steal the televisions. Jacqueline Bell, the regional loss prevention representative, interviewed Motuzas, who remembered the dog food refund, but could not recall anything concerning the televisions. Sam's Club then terminated Motuzas' employment. On the exit interview form, a box was checked indicating that Motuzas was terminated for "Gross Misconduct

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