Difatta-Wheaton v. Dolphin Capital Corporation, No. WD 67789 (Mo. App. 1/29/2008)
| Decision Date | 29 January 2008 |
| Docket Number | No. WD 67789,WD 67789 |
| Parties | Amy Difatta-Wheaton, Appellant, v. Dolphin Capital Corporation, Defendant, State of Missouri, Division of Employment Security, Respondent. |
| Court | Missouri Court of Appeals |
Amy Difatta-Wheaton, Pro Se, for Appellant.
Marilyn Green, for Respondent.
Before Breckenridge1 and Ellis, JJ.
After an authorized leave from her employment, Amy DiFatta-Wheaton (Wheaton) suffered a medical emergency the evening before her anticipated return to work and was unable to attend work as scheduled. Upon receiving notice from her employer, Dolphin Capital Corporation (Dolphin), that she had voluntarily abandoned her employment, she immediately sought unemployment benefits. A deputy denied benefits and that decision was affirmed by the Appeals Tribunal and the Labor and Industrial Relations Commission (Commission). She now seeks review under section 288.2102 claiming that she did not voluntarily terminate her employment, nor was she guilty of misconduct and is, therefore, entitled to unemployment benefits. We reverse the Commission's order.
Wheaton began working for Dolphin Capital Corporation on November 14, 2005, as a sales representative. She was scheduled to work Monday through Friday, from 8:00 a.m. to 5:00 p.m. After receiving authorization, she took a medical leave of absence from May 23, 2006, to May 29, 2006.3 She provided Dolphin with appropriate written notification from her doctor. During this period, Wheaton suffered from excessive bleeding caused by a hysterectomy and ovarian cancer. The written notification from her doctor, dated May 22nd, stated she would be able to return on May 29, 2006. It is undisputed that Wheaton's illness was personal and unrelated to her work as a sales representative.
On the evening of May 28, 2006, Wheaton had a medical emergency and her doctor requested that she go to the doctor's office early on the morning of May 29, 2006. Consequently, she was unable to return to work as scheduled. She testified that on the morning of May 29th she left a message on the office manager's answering machine notifying her of the medical emergency and that a written excuse from the doctor would be forthcoming, had her doctor fax a note that she would be unable to work until July 27, 2006, and had her friend hand-deliver a copy of the doctor's note at 4:30 in the afternoon.4
Joan Boyetchwars, Dolphin's office administrator and only witness, testified that she did not receive the doctor's note other than the one stating that Wheaton would be unable to work until May 29th. She did, however, testify that Wheaton "left a message on 5-30 stating she was going to get an excuse to us on Friday but that they closed early." Boyetchwars did not indicate that she would have been informed had Wheaton conveyed proper notice to Dolphin. Dolphin's attendance policy stated:
In the event an employee must be absent, he or she must notify his or her supervisor in advance or as soon as possible after the need to be absent becomes evident. An employee absent from work for three (3) consecutive business days without having provided proper notification will be considered to have voluntarily abandoned his or her job.
On June 8, 2006, Wheaton received a letter from Dolphin, dated June 5, 2006, which noted that she had been absent and stated:
According to the Certificate to Return to Work, faxed to our office on June 2, 2006 (enclosed), you were to return to work on May 29, 2006. Your failure to return to work as scheduled leads us to believe that you have voluntarily resigned from your position at Dolphin Capital Corp., due to job abandonment.
Therefore, your employment with Dolphin Capital Corp. ended effected [sic] May 29, 2006, the date that you were suppose [sic] to return to work.
Wheaton denies that she voluntarily resigned.
On the same day that she received the letter from Dolphin, Wheaton filed for unemployment benefits. After a telephonic hearing, the deputy determined that Wheaton voluntarily left her employment without good cause attributable to Dolphin. The Appeals Tribunal affirmed. In its findings of fact, the Appeals Tribunal noted that claimant did in fact call her employer on May 29, 2006, and informed Dolphin that she would be unable to work. It also found that her doctor and her friend conveyed a similar written message to Dolphin on the same day. However, it cited Wimberly v. Labor & Industrial Relations Commission, 688 S.W.2d 344, 346 (Mo. banc 1985), for the proposition that, "[a] leave of absence without a guarantee of reinstatement has been treated as a `quit'"5 and concluded that Wheaton voluntarily left her employment. The Appeals Tribunal relied primarily on Reutzel v. Missouri Division of Employment Security, 955 S.W.2d 239 (Mo. App. S.D. 1997), a Southern District opinion, as reason for its decision, arguing that a failure to return to work after a guaranteed "leave of absence" constitutes a voluntary termination of employment. The Appeals Tribunal stated:
In Reutzel, the Missouri Court of Appeals held that the employee's failure to return to work at the expiration of her approved leave of absence constituted a voluntary separation from employment. The court reasoned that the employee in Reutzel was only guaranteed her job until the date her leave of absence expired. After that date, the employee was not guaranteed her job. The court held that under the Missouri Employment Security Law, the employee's failure to return constituted a voluntary separation. Similarly, in this case, the claimant's inability to return to work on May 29, 2006, constitutes a voluntary separation from work.
It then went on to note that Wheaton failed to actually obtain additional authorized sick leave or a guarantee of reinstatement. The Labor and Industrial Relations Commission affirmed, adopting the decision of the Appeals Tribunal as its own, although one member of the Commission dissented. The dissenter noted that Wheaton diligently notified her employer that she would be unable to work on May 29, 2006, and was, therefore, involuntarily discharged on June 6, 2006.
The scope of our review of the Commission's order is limited. "The 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. We disturb the order only if we find:
(1) That the Commission acted without or in excess of its powers;
(2) That the 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. "`If evidence before an administrative body would warrant either of two opposed findings, the reviewing court is bound by the administrative determination, and it is irrelevant that there is supportive evidence for the contrary finding.'" Pulitzer Publ'g. Co. v. Labor & Indus. Relations Comm'n, 596 S.W.2d 413, 417 (Mo. banc 1980) (quoting Bd. of Educ., Mt Vernon Sch. v. Shank, 542 S.W.2d 779, 782 (Mo. banc 1976)). It is our function to determine whether the Commission reasonably could have made its findings and drawn its conclusions. Burns v. Labor & Indus. Relations Comm'n, 845 S.W.2d 553, 554-55 (Mo. banc 1993). Rule 84.04
Wheaton's amended appellate brief is patently noncompliant with the Missouri briefing requirements. See Rule 84.04. Nevertheless, "[w]here possible, . . . [this court's] preference is to dispose of a case on the merits rather than to dismiss an appeal for deficiencies in the brief." Podlesak v. Wesley, 849 S.W.2d 728, 731 (Mo. App. S.D. 1993). "[C]ompliance with Rule 84.04 ensures that the appellate court does not act as an advocate for the party by speculating on facts and arguments that were not asserted. Woodson v. City of Independence, 124 S.W.3d 20, 24 (Mo. App. W.D. 2004). While inartfully drafted, Wheaton's claim is readily apparent. See Cubit v. Accent Mktg. Servs., LLC., 222 S.W.3d. 277, 280 (Mo. App. W.D. 2007). She argues that the Commission lacked evidence to determine that she voluntarily terminated her employment, and she supports that claim with relevant legal support. Moreover, often the briefing rules are rigorously applied to ensure that the respondent has opportunity to develop their opposing arguments. Kimble v. Muth, 221 S.W.3d 419, 421 (Mo. App. W.D. 2006). Here, the Division of Employment Security does not argue that it could not adequately respond to the appellate brief due to 84.04 violations. Despite the briefing defects, we opt to proceed to the merits ex gratia. See Rodriguez v. Osco Drug, 166 S.W.3d 138, 140 (Mo. App. W.D. 2005).
Missouri's Employment Security Law provides that cash payments be made to certain employees after separating from employment. Unemployment benefits are unavailable for those employees who either "left work voluntarily without good cause attributable to such work or to the claimant's employer" or are involuntarily discharged for "misconduct connected with the claimant's work." Sections 288.050.1(1), 288.050.2. "The purpose of the unemployment compensation act is to provide benefits to persons unemployed through no fault of their own." Kelley v. Manor Grove, Inc., 936 S.W.2d 874, 876 (Mo. App. E.D. 1997).
Our construction of the Employment Security Law is greatly facilitated by a statement of legislative intent.
As a guide to the interpretation and application of this law, the public policy of this state is declared to be as follows: Economic insecurity due to unemployment is a serious menace to health, morals, and welfare of the people of this state resulting in a public calamity. The legislature, therefore, declares that in its...
To continue reading
Request your trial