Davis v. School of the Ozarks, Inc.

• Decision Date: 28 February 2006
• Docket Number: No. 26882.,26882.
• Citation: 188 S.W.3d 94
• Parties: Jonathan DAVIS, Claimant-Appellant, v. The SCHOOL OF THE OZARKS, INC., d/b/a College of the Ozarks, and Division of Employment Security, Respondents-Respondents.
• Court: Missouri Court of Appeals

188 S.W.3d 94

Jonathan DAVIS, Claimant-Appellant, v. The SCHOOL OF THE OZARKS, INC., d/b/a College of the Ozarks, and Division of Employment Security, Respondents-Respondents.

No. 26882.

Missouri Court of Appeals, Southern District, Division Two.

February 28, 2006.

Motion for Rehearing and Transfer Denied March 22, 2006.

Application for Transfer Denied May 2, 2006.

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Timothy S. Davis, Branson, for Appellant.

Virginia L. Fry, Jennifer R. Growcock, Blackwell Sanders Peper Martin, LLP, Springfield, for respondent The School of the Ozarks, Inc., d/b/a College of the Ozarks.

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

KENNETH W. SHRUM, Presiding Judge.

Jonathan Davis ("Claimant") appeals from an order of the Labor and Industrial Commission ("Commission") that denied his claim for unemployment benefits. His brief contains four points of alleged Commission error. We affirm.

Claimant previously worked for The School of the Ozarks, Inc., d/b/a College of the Ozarks ("College") as a biology professor. This employment was pursuant to a series of one year, probationary contracts. Claimant's last contract with College was for the 2003-04 school year and ended May 31, 2004.

College notified Claimant via letter dated December 18, 2003, that his contract for the 2004-05 year would not be renewed. A separate letter informed Claimant he was suspended (with pay) for the spring 2004 semester. This happened after Claimant sent out anonymous e-mails, memorandums, and letters that questioned whether a doctorate degree claimed by Larry Cockrum (College's dean of administration) was a "diploma mill" degree.

College's reasons for sending Claimant the non-renewal letter and suspension notice were that (a) Claimant did not use grievance procedures set forth in College's Faculty Handbook to raise the "diploma mill" issue and (b) Claimant's use of College's computers to send the subject e-mails violated established policy regarding computer usage. Claimant admitted he knew of the grievance procedures, but maintained he was excused from using them because of the subject at issue, namely, "unethical conduct or fraud by a top administrator of the college."

Once Claimant learned of College's action regarding his employment, he filed three grievances per procedures afforded him by the faculty handbook. During the pendency of these grievances, College's president sent Claimant a letter dated March 2, 2004. Therein, College offered to keep Claimant employed, provided he fulfilled certain conditions.¹ Claimant failed to respond to the letter. That failure is why Commission found Claimant left his employment voluntarily without good cause attributable to his work or his employer.

Because of its relevance, we reproduce parts of the March 2, 2004, letter, as follows:

"I propose the following nonnegotiable resolution of these matters."

. . . .

"Second, I [College president] will have your probationary contract issued for the next academic year in the usual manner. This contract will be issued with the strict condition that you will review the Faculty Handbook, have a thorough knowledge of its contents, and agree to follow the Handbook in the future. If you successfully complete your probationary period, I will have the record of your suspension and nonrenewal removed from your file."

. . . .

"As you know, contracts are being issued this week, so I need your response to this proposal no later than Thursday, March 4th."²

At the hearing on his claim, Claimant testified he thought the March 2 offer was "too vague," although he admitted never contacting College's president to ask questions or get more details.

Because Claimant never responded to the March letter offering a 2004-05 contract, the grievance procedure continued. That process was completed May 10, 2004, when College's board of trustees ruled its administrators were justified in notifying Claimant of non-renewal of his 2004-05 contact and suspending him for the spring 2004 semester.

Claimant filed for unemployment benefits on June 11, 2004, claiming loss of employment as of May 31, 2004. College timely protested, asserting Claimant's unemployment resulted from misconduct connected with his work. Based on that assertion, College argued Claimant was disqualified for benefits for the period in which he sought them. A deputy for the Division of Employment Security ("Division") agreed with College, finding that Claimant was disqualified for five weeks from June 6, 2004, because of "misconduct connected with work."

Claimant appealed from the deputy's decision. After an evidentiary hearing, the appeals tribunal (per a decision by referee Villines) agreed that Claimant was disqualified for benefits, but found a different reason for disqualification. Specifically, the referee found Claimant ineligible because he quit work voluntarily without good cause attributable to work or the employer. The "quit work" finding was based on Claimant's lack of response to College's March 2, 2004, proposal.³

An appeal of this decision was taken by Claimant to Commission. It affirmed the Appeal Tribunal's decision. Claimant's appeal to this court followed.

Review is under section 288.210.⁴ "Under that section, appellate review in unemployment compensation cases is limited to whether the Commission's decision is supported by competent substantial evidence and authorized by law." Streitz v. Juneau, 940 S.W.2d 548, 550[1] (Mo.App. 1997). "The evidence is viewed in the light most favorable to the finding of the Commission and all reasonable inferences drawn therefrom which support the decision." Id. at 550[2]. "We defer to the Commission's resolution of witness credibility, and where the Commission, as a trier of fact, has reached one of two possible conclusions from the evidence, this court will not reach a contrary conclusion even if such a conclusion might have reasonably been reached." City of Branson v. Santo, 111 S.W.3d 910, 914[4] (Mo.App. 2003).

Claimant's first point maintains Commission committed reversible error because the facts found by Commission do not support denying his claim for benefits. He says this is so because all evidence, from both Claimant and College, shows that Claimant lost his job because he was discharged rather than voluntarily quit; that the only factual issue before Commission was whether he was discharged for misconduct associated with his work. He insists that the words "left work voluntarily" cannot, by any construction, extend to the situation shown by this record.

In pertinent part, section 288.050.1 provides that claimant is "disqualified for waiting week credit or benefits until [he] has earned wages . . . equal to ten times [his] weekly benefit amount if the deputy finds: (1) That [he] has left work voluntarily without good cause attributable to [his] work or to his employer." (Emphasis supplied.)

In urging reversal, Claimant points out that section 288.050.1(1) only has application when a person leaves work of his own accord and volition. See Moore v. Swisher Mower & Machine Co., Inc., 49 S.W.3d 731, 737[8] (Mo.App.2001). Accordingly, an employee will not be held to have left work voluntarily when the employer decides to end the employment relationship. Sokol v. Labor and Industrial Relations Comm'n, 946 S.W.2d 20, 25 (Mo. App.1997). Moreover, the "voluntary quit" provision in section 288.050.1 is one that is to be strictly and narrowly construed in favor of finding an employee entitled to compensation. Moore, 49 S.W.3d at 739[18].

While these are well-established general principles of Missouri employment security law, their applicability, as with many such rules, is fact driven and tempered by other considerations. Dept. of Nat. Resources v. Lossos, 960 S.W.2d 537, 540[7] (Mo.App. 1998) (holding "the phrase `good cause' has no precise meaning; it depends on the facts of each case").

Here, uncontradicted evidence shows Claimant was suspended (with pay) beginning January 8, 2004, and was notified by a separate letter that his teaching contract would not be renewed for the 2004-05 school year. If those facts stood alone, Claimant's point would have merit and remand would result so Commission could decide the "discharge for misconduct" issue. That, however, is not the whole story.

While Claimant was still employed, i.e., under suspension but being paid, he contested College's announced intent to end his employment.⁵ He did this by filing grievances concerning College's conduct. When his grievances reached the college president level, he (the president) wrote Claimant on March 2, 2004, to say that he would have Claimant's "probationary contract issued for the next academic year in the usual manner." This was routine in the sense that Claimant's employment with College had always been via a one-year probationary contract. Had Claimant signed the contract, he would have remained employed. More than that, the offer was for a 2004-05 contract "in the usual manner." However, Claimant never responded to College's March 2 letter. Claimant's non-response was the basis for Commission's finding that Claimant quit without good cause and was, therefore, ineligible for benefits. See note 3.

Claimant's Point I argument focuses on this Commission finding:

"Based upon the claimant's nonresponse [to College's March 2, 2004, offer of employment for school year 2004-05], the president forwarded the claimant's grievances to the Board of Trustees. On May 10, 2004, the Board of Trustees wrote . . . and notified the claimant generally that since he had rejected the president's offer to return to work it denied his grievances and upheld the actions of his suspension and nonrenewal."

By quoting this and ignoring all else in Commission's decision, Claimant asserts that "[g]iven these findings . . . by the Commission, it is evident that the College chose to terminate [Claim...