City of Branson v. Santo

• Court: Missouri Court of Appeals
• Writing for the Court: Kenneth W. Shrum
• Citation: City of Branson v. Santo, 111 S.W.3d 910 (Mo. App. 2003)
• Decision Date: 18 August 2003
• Docket Number: No. 25281.,25281.
• Parties: CITY OF BRANSON, Appellant, v. Mark SANTO and Division of Employment Security, Respondents.

111 S.W.3d 910

CITY OF BRANSON, Appellant, v. Mark SANTO and Division of Employment Security, Respondents.

No. 25281.

Missouri Court of Appeals, Southern District, Division Two.

August 18, 2003.

William C. Martucci, Kayden B. Howard, Shook, Hardy & Bacon, L.L.P., Kansas City, for appellant.

Timothy D. Richardson, Springfield, for respondent, Mark Santo.

KENNETH W. SHRUM, Judge.

This is an unemployment compensation case in which the City of Branson ("City") appeals from an adverse decision and order of the Missouri Labor and Industrial Relations Commission ("Commission"). Commission had affirmed a decision of the Appeals Tribunal that granted Mark Santo ("Claimant") benefits after he was fired from employment with City as a police officer. In its single point, City claims Commission erred because the award of unemployment benefits was not supported by sufficient competent evidence, and the facts found by the Commission did not support the award. This court disagrees; we affirm.

Claimant, a police sergeant, had worked for City approximately 14 years when he was discharged on April 2, 2002. During his tenure, City had imposed four disciplinary actions upon Claimant: (1) a two-day suspension and six-month probation in May 1998; (2) a verbal warning in April 2000; (3) a written warning in October 2000; and (4) a two-day suspension for violations committed in June 2001. All of the foregoing resulted from Claimant's failure to follow police department rules and regulations.

On March 23, 2002, Claimant was called to work three hours after his scheduled starting time. Claimant insisted this happened due to a change of schedule that occurred in his absence.

While City's police chief, Steven Mefford ("Mefford") was "looking into" Claimant's tardy arrival at work, another issue arose, namely, a complaint by Carla Naegele ("Naegele"), a female dispatcher, that Claimant had sexually harassed her and created a "hostile work environment."

On March 26, 2002, Claimant met with Mefford and two other City officials concerning Naegele's complaints.¹ Upon being confronted with Naegele's accusations, Claimant generally denied them and offered to take a polygraph examination regarding her claims. The examination was given by John Harvill who concluded that Claimant was being deceptive in his answers regarding the harassment issues.

On April 2, 2002, Claimant again met with Mefford and other City officials to "discuss the results of the polygraph." At the meeting, Claimant insisted the polygraph operator's conclusions were wrong, that the test was "not handled correctly," and that he was telling the truth. Even so, Claimant was told he was being terminated for "a number ... of policy violations that included several items in addition to the Carla Naegele matter." A termination letter (dated April 2, 2002) recited the four older disciplinary actions, Claimant's tardiness of March 23, 2002, and the alleged deception regarding the sexual harassment allegations as reasons for discharging Claimant from his job with City.²

Thereon, Claimant filed for unemployment benefits. City promptly protested Claimant's request for benefits, asserting, inter alia, that Claimant "was terminated for numerous violations of City personnel code and Branson Police Dept. policies, including dishonesty." On April 22, 2002, a deputy of the Division of Employment Security ("Division") ruled Claimant was not entitled to benefits because he lost his job "for misconduct connected with work." Specifically, the deputy found Claimant followed "a female co-worker to her home after work. [Employee] was harassing the co-worker." No other work-related misconduct finding was made by the deputy.³

Claimant appealed the deputy's decision to the appeals tribunal, and an evidentiary hearing was held August 13, 2002. At the hearing, the referee succinctly explained the issues to be, (1) why did City fire Claimant, (2) did the evidence support City's reason for termination, and (3) did Claimant's alleged actions amount to disqualifying conduct as a matter of law. After hearing the evidence, the referee rendered a decision that recited, inter alia:

"FINDINGS OF FACT.... The claimant was discharged on April 2, 2002, because the employer had received a complaint of sexual harassment against the claimant lodged by a female co-worker. The claimant had not in any manner sexually harassed the female co-worker."

Based on this finding, the referee reversed the deputy's determination and awarded Employee unemployment benefits. City appealed to the Commission. After Commission affirmed the appeals tribunal, City filed its appeal with this court.

In its single claim of reversible error, City asserts:

"The ... Commission erred in awarding benefits to [Claimant] ... because the facts found by the Commission do not support the award and there was not sufficient competent evidence to warrant... the award in that [Claimant's] employment was terminated for multiple acts of misconduct, including failure to pay attention to posted directives or details, failure to report to work, using City vehicles for personal use, dishonesty in connection with internal matters, and additional violations of multiple City and Police Department policies, all of which are grounds for disqualification under RSMo § 288.050.2."

To support its point, City argues the evidence clearly showed Employee was discharged for reasons other than sexual harassment; that the appeals tribunal was simply wrong when it found City had discharged Employee for that reason; and that Employee "was terminated for 12 other acts of misconduct, none of which were even addressed by [the appeals tribunal] in [its] decision."

A claimant is disqualified from receiving unemployment benefits if he or she is "discharged for misconduct connected with the claimant's work." § 288.050.2.⁴ The burden of proving that an employee was discharged for misconduct falls upon the employer. Baldor Elec. Co. v. Reasoner, 66 S.W.3d 130, 133[5] (Mo.App.2001). Although "misconduct connected with work" is undefined by statute, case law defines it as:

"`[A]n act of wanton or wilful disregard of the employer's interest, a deliberate violation of the employer's rules, a disregard of standards of behavior which the employer has the right to expect of his employee, or negligence in such degree or recurrence as to manifest culpability, wrongful intent, or evil design, or show an intentional and substantial disregard of the employer's interest or of the employee's duties and obligations to the employer.'"

Sain v. Labor and Ind. Rel. Comm'n., 564 S.W.2d 59, 62 (Mo.App.1978) (quoting 76

AM.JUR.2D Unemployment Compensation § 52 at 945).

Whether the Commission's findings support the conclusion that an employee's actions rise to the level of disqualifying misconduct is a question of law. George's Processing, Inc. v. Ottendorf, 57 S.W.3d 923, 925[2] (Mo.App.2001). On the other hand, the reason an employer discharged an employee is a question of fact. Reed v. City of Springfield, 758 S.W.2d 138, 150 n. 11 (Mo.App.1988). We defer to the Commission's resolution of witness credibility, and where the Commission, as a trier of fact, has reached one of two...