Dearborn v. Great S. Fin. Corp.

• Decision Date: 10 February 2014
• Docket Number: No. SD 32774.,SD 32774.
• Citation: 422 S.W.3d 487
• Court: Missouri Court of Appeals
• Parties: Jennifer DEARBORN, Claimant–Respondent, v. GREAT SOUTHERN FINANCIAL CORPORATION, Employer–Appellant, Division of Employment Security, Respondent.

422 S.W.3d 487

Jennifer DEARBORN, Claimant–Respondent,

v. GREAT SOUTHERN FINANCIAL CORPORATION, Employer–Appellant,Division of Employment Security, Respondent.

No. SD 32774.

Missouri Court of Appeals,

Southern District,

Division Two.

Feb. 10, 2014.

Rick E. Temple, Law Offices of Rick E. Temple, L.L.C., Springfield, MO, for Appellant.

Bart A. Matanic, Division of Employment Security, Jefferson City, MO, for Respondent.

GARY W. LYNCH, J.

Great Southern Financial Corporation (“Great Southern”) appeals an order of the Labor and Industrial Relations Commission (“the Commission”) affirming and adopting the Appeals Tribunal's determination that Jennifer Dearborn (“Claimant”) was not disqualified from receiving unemployment benefits upon a finding that Claimant was discharged for lack of work after Great Southern sold its travel business to another corporation. Finding no error as alleged in Great Southern's sole point, we affirm.

Factual and Procedural Background

Claimant was employed by Great Southern Travel, a subsidiary of Great Southern, as a switchboard operator from July 2007 until December 2, 2012. Effective December 2, 2012, Great Southern Travel sold its travel division to Adelman Travel (“Adelman”). As part of the sale, Great Southern had negotiated with Adelman to allow its employees in its travel division to continue employment with Adelman, assuming the same position and receiving the same rate of pay and benefits. Great Southern notified its employees that, if they chose not to work for Adelman, they could apply for other positions available within Great Southern, with no promise of continued employment, or else quit entirely.

Claimant's employment with Great Southern ended on December 2, 2012, and she began employment with Adelman on December 3, 2012. On January 4, 2013, she was “let go” by her immediate supervisor at Adelman.

Claimant filed for unemployment benefits January 8, 2013. Great Southern, designated as a base period employer,¹ protested Claimant's claim, contending that Claimant's employment with Great Southern ended “due to an acquisition with Adelman. As a result of this acquisition, she was able to continue her employment with the acquiring institution at the same position and same rate of pay.”

On February 8, 2013, the Division of Employment Security (“Division”) determined that “Claimant is not disqualified because of the separation on 12/02/12. The separation was not for misconduct connected with work[ ]” for the reason that Claimant “was separated for reasons attributable to a lack of work because the employer sold the business.” Great Southern appealed the deputy's determination to the Appeals Tribunal, contending that “Great Southern believes that Claimant continued working (with Adelman Travel) on and after December 3, 2012. Therefore, Claimant did not become unemployed because of any actions of Great Southern, and Claimant should be disqualified from collecting Unemployment Compensation benefits against the account of Great Southern.”

A hearing via telephone conference was held March 26, 2013. Hannah Bollenbach, Great Southern's assistant director of human resources, testified on its behalf. She stated that the last day Claimant worked for Great Southern was December 2, 2012, and her employment with Adelman commenced December 3, 2012. When asked if Claimant quit or was discharged, Ms. Bollenbach opined that Claimant voluntarily quit, as her file was coded “eligible for rehire based on our agreement with Adelman Travel” based on a decision made by “management.” However, she further testified that employees affected by the purchase by Adelman were informed “[t]hat their last day with us would be December 2nd[.]” As part of the negotiation for the sale of Great Southern's travel business, it was agreed that employees of the travel division were to be offered to continue employment with Adelman at the same rate of pay, with the same benefits, and at the same position as that they had attained with Great Southern. Employees reported to the same location for work. Employees' accrued vacation and sick leave benefits were “transferred over to Adelman [,]” and they retained their seniority ranking. Ms. Bollenbach agreed that the employees “had the option to either go with Adelman or not work.”

Ms. Bollenbach contended, in regard to Claimant, “there never was a work separation” between December 2 and December 3, 2013. However, when questioned by the appeals referee as to what would have happened to Claimant's employment with Great Southern had she chosen not to work for Adelman, she stated, “she would have had the opportunity either to look for other employment within Great Southern because we coded her file ... voluntary, eligible for rehire; but, if she chose not to take the job with Adelman, she would not have had a position.”

Claimant testified she had been employed from July 2007 until December 2, 2012, by Great Southern as a switchboard operator. When asked whether she was discharged or quit, she answered, “I was transferred to Adelman.” However, on January 4, she “was let go by [her immediate supervisor][.]” Claimant testified, “[S]he said that I wasn't happy at my job and that she wasn't either.” Her understanding regarding the status of her employment when Adelman Travel acquired the travel division of Great Southern was that “if I didn't want to go to Adelman I could have tried to find another position within Great Southern, ... otherwise I just wouldn't have had a job.” Claimant did not try to find another position within Great Southern and stated that she “was just fine going over to Adelman.”

At the end of the hearing, counsel for Great Southern argued that Claimant was terminated by Adelman and that “Great Southern had nothing to do with her termination.” Counsel further argued that “there was no work separation for the claimant[,]” and Claimant's benefits should not be charged against Great Southern.

On March 29, 2013, the Appeals Tribunal issued its decision affirming the deputy's determination that Claimant was not disqualified for benefits. It found, in part, that

[e]mployees were told that they could transfer to the new company, ... [and] [i]f claimant chose not to transfer to the new company, she could look for another position within employer's company, or she would not be allowed to remain employed after December 2, 2012, because her position was no longer available. There was no evidence that positions for transfer were available for which claimant was qualified.

Claimant resigned her present employment effective on December 2, 2012, and began working with the new corporation on December 3, 2012. Employer's directions guided claimant's actions.

The Appeals Tribunal finds that on December 2, 2012, claimant was forced to resign from her employment in order to continue her same position with a new corporation.

In its conclusions of law, the tribunal found:

On the whole record the competent and substantial evidence shows that claimant was forced to leave her employment by employer's decision to sell their travel business. A forced resignation is a discharge. Claimant was discharged on December 2, 2012. The issue is whether she was discharged for misconduct connected with her work. Employer bears the burden of proving misconduct.

* * * * * * Claimant's employment with the new company is separate and does not affect her separation from employer. Claimant was discharged for lack of work when her employer required her to move to the new company or be discharged. This is not misconduct. Employer has not met its burden in proving misconduct by a preponderance of the evidence.

Great Southern applied to the Commission for review, contending:

the Appeals Tribunal analyzed this case under the wrong legal standard[ ] and placed the burden of proof on the wrong party. Contrary to the analysis of the Appeals Tribunal, the issue in this case is not whether Claimant was discharged for misconduct, but, rather, whether she had good cause to voluntarily leave employment with Great Southern.

Great Southern argued that “Claimant could have sought transfer to another position within Great Southern, but she chose not to do that[ ] and accepted employment with Adelman Travel. Accordingly, Claimant was not ‘forced’ to leave her employment with Great Southern as found by the Appeals Tribunal [.]” Great Southern contended it was not Great Southern's burden to prove misconduct; rather, “it was Claimant's burden to prove “good cause attributable to the employer” for her voluntary quit”; that it “had nothing to do with Claimant becoming unemployed, as admitted by Claimant during her testimony at the Hearing[,]” ²; and that Claimant “voluntarily resigned her employment without good cause attributable to Great Southern[.]”

The Commission affirmed and adopted the decision of the Appeals Tribunal. Great Southern timely appealed and presents one point relied on:

The Commission erred in concluding that Claimant was not disqualified from receiving unemployment compensation benefits by reason of her separation from employment with the employer, because the Commission analyzed this case under the wrong legal standard (“discharge for misconduct” rather than “good cause to voluntarily leave employment”) and thereby placed the burden of proof on the wrong party, in that Claimant was offered the choice to seek another position with the employer or work her same position with the company purchasing the travel division of the employer, and voluntarily chose to resign from employment with the employer and accept employment with the purchasing entity.

Great Southern disagrees with the Commission's finding that Claimant “was forced to resign from her employment in order to continue her same position with a new corporation[,]” as well as the Commission's conclusion that Great Southern required Claimant “to move to the new company or be discharged.” Great Southern concludes that Claimant should be...