Cotton v. Flik Intern. Corp.

• Decision Date: 30 January 2007
• Docket Number: No. ED 88302.,ED 88302.
• Citation: 213 S.W.3d 189
• Parties: David COTTON Jr., Claimant/Appellant, v. FLIK INTERNATIONAL CORP., Employer, and Division of Employment Security, Respondent.
• Court: Missouri Court of Appeals

213 S.W.3d 189

David COTTON Jr., Claimant/Appellant, v. FLIK INTERNATIONAL CORP., Employer, and Division of Employment Security, Respondent.

No. ED 88302.

Missouri Court of Appeals, Eastern District, Division Four.

January 30, 2007.

Richard C. Homire, St. Louis, MO, for appellant.

Flik International Corporation, St. Louis, MO, Employer Acting pro se.

Marilyn Green, Cynthia Quetsch, Jefferson City, MO, for Division of Employment Security, respondent.

KATHIANNE KNAUP CRANE, Judge.

Claimant, David Cotton, appeals from the order of the Labor and Industrial Relations Commission (the Commission) disqualifying him from receiving unemployment benefits and affirming the decision of the Appeals Tribunal of the Division of Employment Security (the Division) that claimant was discharged for misconduct connected with work. Claimant appeals, asserting that his documented absences for illness and family emergencies did not constitute misconduct connected with work. The Division concedes this point. However, the Division urges us to affirm on the ground that there was evidence that claimant voluntarily quit without good cause. We reverse and remand with directions to remove claimant's disqualification.

Claimant was employed by Flik International Corporation (employer), a food service business, from April 12, 2005 until March 1, 2006.¹ On March 6, 2006, claimant filed a claim for unemployment benefits with the division. Employer's manager, Paula McCollan, filed a letter of protest, which stated:

[Claimant] quit his job on Wednesday, March 1[.] He told the Chef "He wasn't going to make it[.]" He had already been reprimanded for his attendance. He was at work when he told the Chef he quit [and] left the job 3 hrs before his day ended.

On March 24, 2006, a deputy denied claimant's claim for unemployment benefits by applying Section 288.050.1(1) RSMo, which provides for disqualification if a claimant voluntarily quits without good cause attributable to his work or employer. The deputy determined that "the claimant is disqualified . . . because the claimant left work with ... [employer] voluntarily without good cause." It gave as its reason: "The claimant quit because he believed he was going to be fired eventually because of his attendance. Although he had been warned about his attendance, no one in authority told him he was fired."

Claimant filed an appeal with the appeals tribunal of the Division. In his notice of appeal, claimant stated:

I was told that I only had a 1/2 occurrence left. On 3-1-06 I had an emergency I needed to pick up my son, his mother was out of town and his grandmother just had her leg amputated 2 weeks prior. I was told by leaving I would be terminated. I need my unemployment.

On April 12, 2006, the appeals referee conducted a hearing. At the beginning of the proceedings, the referee announced that there were two issues before him: 1) whether there was good cause for a voluntary separation from work as found by the deputy or 2) whether claimant was discharged for misconduct connected with his work. Claimant was the only participant and only witness at the hearing. The referee asked claimant if he quit or was discharged, and claimant replied that he was discharged. Claimant testified that he had previously missed work due to his own two-day hospitalization, his follow-up medical appointment, and car problems. He provided documentation of the absences to employer. However, employer issued two final written warnings to claimant stating that he would be terminated if he came in late or left early again. On March 1, 2006, claimant informed employer that he needed to leave work to pick up his son because no other relative was able or available to do so. Employer, through its executive chef, told claimant that if he left work he would be terminated. Claimant testified that he had "no other alternative" but to leave work, and he understood he would be terminated for his absence. Claimant had no further contact with employer.

On April 14, 2006, the appeals tribunal entered its order reviewing the decision of the deputy and determined that claimant had been discharged for misconduct connected with work under section 288.050.2. It found that on March 1, 2006, employer warned claimant that if he left he would be terminated and that "claimant had no choice and had to leave." The appeals tribunal further found that prior to March 1, 2006, claimant had received two prior warnings and that some of claimant's absences were due to a medical situation. It found that claimant "was discharged ... because of poor attendance" and that his absences showed "a disregard of the standards of behavior the employer has a right to expect of its employee." The appeals tribunal determined that employer had no obligation to excuse the absences, that employer followed its attendance policy and progressively disciplined claimant for his absences, and that claimant was "discharged March 1, 2006 for misconduct connected with his work." It modified the deputy's determination that claimant had quit, and disqualified claimant for waiting week credit and benefits until claimant earned wages for insured work equal to six times the claimant's weekly benefit amount after March 1, 2006.

On May 1, 2006, claimant filed an application for review with the Commission. The Commission affirmed and adopted the decision of the appeals tribunal. Claimant appeals.

DISCUSSION

On appeal from an order of the Commission, "[t]he findings of the Commission as to the facts, if supported by competent and substantial evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the appellate court shall be confined to questions of law." Section 288.210 RSMo (2000). We may modify, reverse, remand for rehearing or set aside a decision of the Commission on the following grounds and no other: 1) that the Commission acted without or in excess of its powers; 2) that the Commission's decision was procured by fraud; 3) that the facts found by the Commission do not support the award; or 4) that there was no sufficient competent evidence in the record to warrant the making of the award. Id.

Accordingly, our review in unemployment compensation cases is limited to deciding whether the Commission's decision is supported by competent substantial evidence and authorized by law. Streitz v. Juneau, 940 S.W.2d 548, 550 (Mo.App. 1997). We review the evidence and all reasonable inferences drawn therefrom in the light most favorable to the Commission's findings. Id. at 550. We defer to the Commission's resolution of witness credibility. City of Branson v. Santo, 111 S.W.3d 910, 914 (Mo.App.2003). When the Commission, as a trier of fact, has reached one of two possible conclusions from the evidence, we will not reach a contrary conclusion even if we might have reasonably done so. Id.

We defer to the Commission on issues of fact, but review questions of law de novo. National Resort Mart, Inc. v. Hitchcock, 88 S.W.3d 459, 461-62 (Mo.App. 2002). Whether the Commission's findings support the conclusion that a claimant engaged in misconduct connected with work is a question of law. Five Star Mfg., Inc. v. Tanksley, 168 S.W.3d 719, 721 (Mo.App. 2005); Branson, 111 S.W.3d at 914; Dixon v. Division of Employment Sec., 106 S.W.3d 536, 540 (Mo.App. W.D.2003).

In his sole point on appeal, claimant contends that the Commission erred in denying his claim for unemployment benefits because there was no competent evidence to support a conclusion that his documented absences due to...