Spain v. R&L Carriers Shared Servs., WD 73173.

• Citation: 361 S.W.3d 433
• Decision Date: 15 November 2011
• Docket Number: No. WD 73173.,WD 73173.
• Parties: Jeffery SPAIN, Appellant, v. R & L CARRIERS SHARED SERVICES; Division of Employment Security, Respondents.
• Court: Court of Appeal of Missouri (US)

361 S.W.3d 433

Jeffery SPAIN, Appellant,
v.
R & L CARRIERS SHARED SERVICES; Division of Employment Security, Respondents.

No. WD 73173.

Missouri Court of Appeals, Western District.

Nov. 15, 2011.

[361 S.W.3d 434]

Charles Kevin Baldwin, Liberty, MO, for Appellant.

Kenneth Paul Carp, Clayton, MO and Robert Anthony Bedell, Jefferson City, MO, for Respondents.

Division Three: JAMES E. WELSH, P.J., JAMES M. SMART, JR., and JOSEPH M. ELLIS, JJ.

JAMES M. SMART, JR., Judge.

Jeffery Spain appeals the decision of the Labor and Industrial Relations Commission (“Commission”) denying him unemployment benefits based upon a finding that he was discharged for misconduct connected with work. We affirm.

Factual and Procedural Background

Jeffery Spain was employed as a dock worker and forklift operator by R & L Carriers Shared Services (“R & L”) from September 2, 2008 until May 6, 2010. His job duties included operating a forklift for the purpose of loading and unloading customers' shipments. Prior to his employment, Spain completed forklift training and received his certification on August 28, 2008. On that same date, Spain signed an “Employee Acknowledgment Form” confirming that his “relationship with [R & L] is voluntarily entered into and is subject to termination by [Spain] or [R & L] at will, with or without cause, at any time.” He acknowledged in writing that he had “received, read, and understand, and will comply with the policies, programs and benefits contained in [the employee] handbook and any revisions or supplements hereto.” ¹

The employee handbook included a section on “Disciplinary Procedures,” which stated the following, in pertinent part:

As an employee, you are expected to comply with the Company's standards of behavior and performance. Any violation will be subject to disciplinary action, up to and including termination.

* * *

It is not possible to list all behavior that is considered unacceptable. The following are examples of violations, which may result in disciplinary action up to, and including termination of employment.

• Violation of safety or health rules ... [.]

The above list of infractions is not an exclusive list of conduct which could result in discipline, up to and including termination. If conduct is viewed as disruptive, counter-productive, or in any way, threatening to the safe and efficient operation of the Company, its customers or the public, the employee will be disciplined up to and including termination. [Emphasis added.]

After completing forklift training, Spain began working for R & L on September 2, 2008. On February 17, 2010, Spain was discharged from R & L after he deliberately tampered with a forklift's computer system in order to increase the forklift's speed. After a peer review proceeding, he got his job back but was placed on notice that if charged with another preventable offense, he could be terminated.

[361 S.W.3d 435]

Just a couple months later, on April 30, 2010, Spain was involved in two more workplace incidents. While another employee, Kevin McFadden, was sitting on his forklift at a complete stop on the freight dock, he noticed Spain driving his forklift directly towards him. As he approached “head on” towards McFadden, Spain turned at the last minute, but hit a skid ² on the front of McFadden's forklift. At the point of impact, the two forklifts became stuck together and McFadden and Spain had to disconnect their forklifts before moving on. After disengaging his forklift, McFadden drove around the corner of the dock, parked, and stepped off of his forklift to check to see if the drum on his skid was leaking. He then proceeded to get back on his forklift and was beginning to drive away when his forklift was struck a second time by Spain's forklift. This time, the force of the impact caused McFadden to fall forward onto the shifters of his forklift, injuring him.³ McFadden reported both incidents to his supervisor, Mike Thomas, who was also the operations manager at R & L. After an investigation conducted by R & L, Spain was terminated on May 6, 2010.

On May 13, 2010, Spain filed a claim for unemployment benefits with the Division of Employment Security (“Division”). R & L contested the claim on the basis that Spain was discharged for violating the company's reasonable safety rules and regulations which are in place for the safety and well-being of its employees. Specifically, R & L noted that Spain was terminated for gross negligence, violent forklift driving, placing fellow employees in danger, and abuse of company property. A deputy with the Division concluded that Spain was ineligible for benefits because he had been discharged for misconduct connected with work for operating his forklift in an unsafe manner and striking McFadden's forklift, causing injury.

Spain filed an appeal with the Appeals Tribunal. The Appeals Tribunal held a hearing on August 4, 2010, and received testimony from McFadden, Spain, the service center manager from R & L, and a co-worker. After the hearing, the Appeals Tribunal issued its decision, affirming the deputy's determination that Spain had been discharged for misconduct connected with work. The Tribunal entered the following findings of fact and conclusions of law:

FINDINGS OF FACT:

The claimant performed services for the employer as a dock worker. The claimant operated a forklift. A forklift runs at a maximum speed of 8.5 miles per hour. In February 2010, the claimant was discharged because he had altered the controls to make the forklift run faster. The claimant was reinstated after a peer review.

The dock is about one city block long and about forty feet wide. There are 75 doors on the dock. About 14 forklifts operate at any given time. Forklifts occasionally bump or scrape each other.

On April 30, 2010, another forklift operator was sitting in his forklift on the dock. The other operator's forklift was not moving. The claimant was operating his forklift. The front wheel of the claimant's forklift hit a skid on the other operator's forklift. The claimant had attempted to turn right before the impact. A few minutes later, while the

[361 S.W.3d 436]

other forklift was in motion, the claimant again bumped into the other operator's forklift. The impact caused the other operator to hit the controls of his machine. The other operator sustained some injuries, but did not require medical treatment.

The other operator reported the incidents. The service center manager conducted an investigation. On May 6, 2010, the claimant was discharged for unsafe operation of his forklift.

The Appeals Tribunal specifically accepts the testimony of the other forklift operator about the sequence of events and the points of impact, as the other forklift operator made a report of the incidents near the time of the occurrences while events were fresh in his mind and as the other forklift operator had particular reason to remember the details. The claimant did not dispute hitting the other forklift, but testified to a different sequence of events and slightly different circumstances. The Appeals Tribunal also specifically finds unsupported by the evidence any suggestion that the claimant deliberately operated his forklift with the intent to “ram” the other operator's forklift.

* * *

CONCLUSIONS OF LAW:

The claimant was discharged from his employment with the employer on May 6, 2010, because he twice bumped into another operator's forklift on April 30, 2010. The issue in the appeal is whether the discharge was for misconduct connected with work, so as to disqualify the claimant for unemployment benefits.

The claimant must have been aware after his discharge and reinstatement that careful operation of forklifts was expected by the employer. The claimant did not deliberately operate his forklift on April 30, 2010, with the intent to “ram” the other operator's forklift. Nonetheless, the claimant bumped into the other operator's forklift within minutes of the first incident. The first incident could be considered no more than an accident, or simple negligence without willful intent, which would not rise to the level of misconduct. Dobberstein v. Charter Communications, Inc., 241 S.W.3d 849, 853 (Mo.App.2007). However, a second incident involving sufficient impact to cause the other operator to hit the controls on his machine, occurring within a few minutes of the first event, indicates that the claimant was operating his forklift on April 30, 2010, with such degree of negligence as to show an intentional and substantial disregard of the employer's interest in safety and his own duty to use care. Therefore, the Appeals Tribunal concludes that the claimant was discharged from his employment on May 6, 2010, for misconduct...