Ekres v. Div. of Emp't Sec.

• Decision Date: 15 February 2022
• Docket Number: WD 84496
• Citation: 641 S.W.3d 411
• Parties: Fedra EKRES, Appellant, v. DIVISION OF EMPLOYMENT SECURITY, Respondent.
• Court: Missouri Court of Appeals

641 S.W.3d 411

Fedra EKRES, Appellant,

v.DIVISION OF EMPLOYMENT SECURITY, Respondent.

WD 84496

Missouri Court of Appeals, Western District.

OPINION FILED: February 15, 2022

James Bennett Clark, Saint Louis, MO, for appellant.

Bart Anton Matanic, Jefferson City, MO, for respondent.

Before Special Division: Cynthia L. Martin, Chief Judge, Presiding, Gary D. Witt, Judge and W. Brent Powell, Special Judge

Cynthia L. Martin, Judge

Fedra Ekres ("Ekres") appeals from a decision by the Labor and Industrial Relations Commission ("Commission"), which found that Ekres was disqualified from receiving employment benefits because she voluntarily quit her employment at Franklin Energy Services, LLC ("Franklin") without good cause. Ekres argues that the Commission erred in concluding that she voluntarily quit her employment without good cause because she did not violate Franklin's pandemic remote-work policy by moving to New York, and because she would have returned to in-person work in St. Louis when required to do so. Because we find that Ekres did not leave her employment voluntarily, we reverse the Commission's decision and remand for entry of an award of benefits.

Factual and Procedural Background¹

In February 2019, Franklin hired Ekres to work as a full-time customer service representative in its St. Louis, Missouri call center. As a customer service representative, Ekres fielded calls from customers of Ameren Missouri, a client of Franklin's. In mid-March 2020, Franklin notified Ekres and other employees working in its St. Louis call center that they would be required to work remotely due to the COVID-19 pandemic.

Ekres began working remotely as instructed by Franklin. At that time, Ekres lived with her partner in a multi-floor apartment building in St. Louis. Ekres and her partner are immunocompromised. Due to health concerns given the COVID-19 pandemic, and because Ekres lived in a very populated apartment building, Ekres felt it was safest to move to New York state to be with her family.

Before moving, Ekres sent an email to her team leader, manager, supervisor, and regional director stating that she "was moving [ ] to New York, and [she] had arranged the move around [her] work schedule so that it would not affect [her] job." Ekres indicated that she wanted to continue working at Franklin, but was moving due to the COVID-19 pandemic and her immunocompromised status. Ekres requested "to have a response immediately if there was any issue." Someone from Franklin replied that they appreciated that Ekres had communicated her concern, and that they would be in touch with her.

Ekres moved to New York state. She continued to work remotely for a week without any issue. Ekres did not miss any scheduled work days during or after the move. However, Ekres's employment with Franklin ended on March 31, 2020, following a telephone call with two of her supervisors.

Ekres applied for unemployment benefits. Franklin protested Ekres's application for benefits, and claimed that Ekres was ineligible because she voluntarily quit her job. A deputy of the Division of Employment Security ("Deputy") concluded that Ekres was disqualified from receiving benefits because she voluntarily quit her employment at Franklin "due to a reason that was not good cause connected to the work" or to Franklin.

Ekres appealed the Deputy's decision to the Appeals Tribunal ("Tribunal"). The Tribunal heard testimony from Ekres and Linda Trimble ("Trimble"), a human resources representative for Franklin.

Ekres testified that she did not quit, but instead that Franklin terminated her during the March 31, 2020 call with two of her supervisors. Ekres said that her supervisors told her she was being let go because she had "moved out of state." Ekres testified about the email notifying Franklin that she planned to move to New York. Ekres also testified that she told her supervisors during the March 31, 2020 phone call that she wished to continue working at Franklin.

Though Trimble was not a participant on the March 31, 2020 call with Ekres, she was the only witness who testified for Franklin based on her personal knowledge of the company's business records and policies. The Tribunal asked Trimble why Ekres did not work after March 31, 2020, and Trimble replied:

[Ekres's] position was a position based out of [St.] Louis, Missouri, [ ] on the program there, so hers was a position that needed to be based there.... [E]ven though we were working remotely at the time, [ ] we had no indication of how long it would last. However [ ], we had full intention that it was a short tenure of working from home, and she would need to be--the position was based in that location, so when we were able to go back in the office[,] she would need to be at the office and not in another location .

(Emphasis added.) The Tribunal asked whether Trimble recalled Ekres's testimony that other Franklin employees were permitted to work remotely from outside of Missouri, and Trimble replied: "[W]e do have others that work in different locations[,] but we have[ ] call centers in different areas[ ] and it depends on the particular contract that they are supporting as to [ ] where we can support ... a work location." In reference to the March 31, 2020 call, the following exchange occurred:

[Trimble]: The information provided to me [was] that [Ekres's supervisors] spoke with her [ ] and explained [that] they knew about her decision to move to New York, and that they could no longer support her position from that location. [Y]ou know they understood her circumstances[,] but again, when they return to the office her position was based ... in [St.] Louis because of our contract obligations with our clients, that they would not be able to support her at that point working remotely .

[Tribunal]: They could not support her working remotely from New York is what you're saying.

[Trimble]: Correct [,] since her position was tied to [St.] Louis, Missouri.

[Tribunal]: All right, so if she had [ ] stayed in Missouri, she would [still have] been able to work [ ] remotely at that time? I assume [Franklin] was still working [ ] remotely on March 31, 2020....

[Trimble]: Yes.

[Tribunal]: And when did [Franklin] stop [ ] working remotely or when did it return to office [ ] operations?

[Trimble]: [W]e are still working remotely ....

....

[Tribunal]: [H]er work was satisfactory [as of] March 31, 2020. Wasn't it?

[Trimble]: Yes.

(Emphasis added.)

Trimble explained that before the COVID-19 pandemic, Franklin's employee handbook contained a remote work policy requiring an employee to receive advance management approval before working remotely, but that Franklin "made a dramatic switch when COVID and the pandemic hit as the safety of our employees [sic] to have everyone that could work remotely be at home-base and not in the offices, [ ] so we were no longer able to go by that policy in our handbook, so we gave permission to everyone to work remotely."

The Tribunal sought to clarify whether it was a violation of Franklin's contract with Ameren Missouri if an employee's remote work was not based in the St. Louis area:

[Tribunal]: All right, but nevertheless, [ ] it was viewed as a contract violation [ ] if [ ] remote work was not [ ] based in the [St.] Louis area?

[Trimble]: Wait, so ... Franklin [ ] has contracts with different utility companies and within that contract, we have a certain amount of positions that we're obligated to have in [the] city of [St.] Louis, Missouri to do the work.

[Tribunal]: And then the position that [Ekres] held ... was that a position that [ ] was not entitled to work remotely from another state ?

[Trimble]: Correct, outside of the pandemic .

[Tribunal]: During the pandemic she could have worked [ ] her position [ ] out of state, such as in New York?

[Trimble]: Yes. We were allowed or are allowing employees to work remotely. However, as I indicated, [ ] they would need to be in [St.] Louis at the time of resuming normal operations and at that point, we had no determination of when that would be but[,] yes. She could have .

[Tribunal]: Well, if she could have worked out of state, then why was she separated from the work on March 31, 2020 ?

[Trimble]: Because her position ... was a [St.] Louis-based position and at that point, it needed to be based in [St.] Louis, and the team was not able to support her [because] we didn't have those type of positions in New York, and hers was tied to a program in [St.] Louis . However[,] now that the pandemic has lasted longer than we've ever thought it would last , we still have employees working remotely.

(Emphasis added.)

In rebuttal, Ekres testified that she did not want to end her employment at Franklin, and that "if they told me that you know that they gave me the option to [ ] go back to [St.] Louis and keep my position[,] I would have." The Tribunal asked Ekres whether she communicated her willingness to return to St. Louis to her supervisors on March 31, 2020, and she replied, "They never discussed that with me. They never discussed that option and in the handbook it says that they're supposed to offer me some [ ] I guess formal process, and that wasn't given to me." Ekres explained that Franklin's employee handbook provided for a disciplinary process which Franklin was to follow prior to discharging an employee; however, Ekres stated that she had not received any warning, but was let go on March 31, 2020 after she worked satisfactorily, but remotely in New York, for a week. Trimble then testified that on March 31, 2020, Franklin representatives communicated that Ekres's position needed to be based in St. Louis, and that Ekres's "indication was that ... due to her health concerns, she needed to be [ ] in New York. There was no indication of her going back." Ekres contested that she was given an opportunity to move back to St. Louis in order to keep her job at Franklin.

The Tribunal issued its decision affirming the Deputy's determination disqualifying Ekres from receiving benefits, finding...