Ewing v. Ssm Health Care

• Decision Date: 07 October 2008
• Docket Number: No. ED 90805.,ED 90805.
• Citation: 265 S.W.3d 882
• Parties: Bridget EWING, Appellant, v. SSM HEALTH CARE and Division of Employment Security, Respondents.
• Court: Missouri Court of Appeals

265 S.W.3d 882

Bridget EWING, Appellant, v. SSM HEALTH CARE and Division of Employment Security, Respondents.

No. ED 90805.

Missouri Court of Appeals, Eastern District, Division One.

October 7, 2008.

Amany Ragab Hacking, Saint Louis University Law Clinic, St. Louis, MO, for appellant.

SSM Health Care, Pro Se, Phoenix, AZ, for respondent, SSM Health Care.

Marilyn G. Green, Department of Labor and Industrial Relations, Division of Employment Security, Jefferson City, MO, for respondent, Division of Employment Security.

KURT S. ODENWALD, Presiding Judge.

Introduction

Bridget Ewing (Claimant) appeals from the Order of the Labor and Industrial Relations Commission (the Commission) finding that she is not eligible for unemployment benefits because she voluntarily quit her employment with SSM Health Care—St. Joseph Health Center (Employer) without good cause attributable to her work or Employer. We affirm.

Background

Claimant was hired by Employer on June 4, 2007, for a full-time clinical partner position. She worked in that position until June 19, 2007. Claimant was scheduled to work on June 21, 2007, however, her brother died that day, so she called into work to report her absence to Employer. As the Appeals Tribunal found and Claimant testified, Claimant also called into work to report her absences, due to her brother's death, on June 23, 2007, June 25, 2007 and June 26, 2007. Claimant left messages for her supervisor, Maureen Bell (Bell), but no one from Employer returned her calls.

Claimant was next scheduled to work on June 30, 2007. On that date, however, she was attending her brother's funeral in Pine Bluff, Arkansas. Claimant was next scheduled to work on July 1, 2007, but did not return to work on that date because she was still grieving the death of her brother. Claimant was also scheduled to work on July 5, 2007. She did not go to work or call in that day because she assumed she was fired after not having any of her phone calls returned by Employer. Claimant reported that after calling and leaving messages, she never received any return phone calls from Employer or Employer's Human Resources Department.

Thereafter, Claimant filed a claim for unemployment compensation. In response, Employer filed a "Letter of Protest," which reported Claimant "was a no call, no show on 6/25/07 and 6/26/07." Employer listed that Claimant was "discharged" for "Absenteeism, Unreported."

The Deputy's Determination Concerning Claim for Benefits (Deputy's Determination), mailed on July 19, 2007, disqualified Claimant from unemployment benefits because the Deputy found that she was discharged for misconduct associated with work. The Deputy's Determination found that Claimant was discharged because of her unreported absences on June 25, 2007 and June 26, 2007.

Claimant appealed the Deputy's Determination to the Appeals Tribunal on August 8, 2007, noting "I called into the job and told them that my brother had passed away." A telephone hearing was held August 27, 2007, between Claimant, Bell, and the Appeals Referee. Bell testified that she filled out the appropriate paperwork and made the decision to discharge Claimant on June 27, 2007, after Claimant was a no-call, no-show on June 25 and 26. Bell stated that she "put a note in for H.R." to contact Claimant and let her know her employment was terminated. Bell further stated that someone from human resources did, in fact, notify Claimant that she no longer had a job, though Bell did not have the date of that call offhand. Bell noted for the record that Employer considered Claimant's case "job abandonment and voluntary resignation." Bell testified that Employer's policy stated that two no-call, no-shows constituted voluntary resignation.

The Appeals Tribunal issued its decision modifying the Deputy's Determination, though still denying Claimant unemployment benefits. The Appeals Tribunal first found that Claimant "voluntarily left her employment after June 26, 2007." The Appeals Tribunal further found that "regardless of any decision made by [Employer,] [Claimant] stopped reporting to work after June 26, 2007," and "[a]t no time did anyone with the employer notify [Claimant] that she no longer had a job." The Appeals Tribunal found that Claimant "did not have good cause to quit employment within twenty-eight days of starting," noting that she either quit due to her brother's recent death or her belief that she had already been discharged. The Appeals Tribunal concluded that Claimant "voluntarily left her employment without good cause attributable to the work or [Employer] on June 26, 2007."

Claimant filed an Application for Review with the Commission on September 5, 2007. The Commission affirmed and adopted the decision of the Appeals Tribunal, with one commissioner filing a dissenting opinion.

Claimant filed her Notice of Appeal with this Court on January 4, 2008.

Points on Appeal

Claimant raises three points on appeal. First, Claimant argues the Commission erred in denying her unemployment benefits because its finding that she voluntarily left her employment was not supported by competent and substantial evidence. Claimant contends that the evidence in the record shows she was fired from her employment on June 27, 2007.

Second, Claimant asserts the Commission erred in denying her benefits because she did not engage in misconduct connected with work, but was grieving the death of her brother and properly reported all absences from her employer before being terminated on June 27, 2007.

Finally, Claimant alleges the Commission erred because, even if she did voluntarily quit her employment, Claimant had good cause attributable to her employer so as to not disqualify her from unemployment benefits when she, in good faith, left her employer several phone messages inquiring about her work status and reasonably assumed she was discharged when she received no response by July 1, 2007.

Standard of Review

Article 5, Section 18 of the Missouri Constitution and Section 288.210, RSMo 2000¹ set forth the standard for reviewing decisions of the Commission in unemployment compensation cases. On appeal, this Court,

may modify, reverse, remand for rehearing, or set aside the 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 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.

Section 288.210.

In cases involving unemployment compensation, our review "is limited to deciding whether the Commission's decision is supported by competent substantial evidence and authorized by law." Cotton v. Flik Int'l Corp., 213 S.W.3d 189, 192 (Mo.App. E.D.2007). We will "review the evidence and all reasonable inferences drawn therefrom in the light most favorable to the Commission's findings." Id. Our function "is to determine whether the Commission, based upon the whole record, could have reasonably made its findings and reached its result." Mena v. Cosentino Group, 233 S.W.3d 800, 803 (Mo.App. W.D.2007).

Discussion

Point I—Discharge or Voluntary Quit

Claimant first argues that the Commission's finding that she voluntarily quit her employment was not supported by competent and substantial evidence, and that the record supports her claim that she was discharged by Employer. We disagree.

Section 288.050 of Missouri's unemployment benefits law provides that benefits will be denied to unemployed workers if "the claimant has left work voluntarily without good cause attributable to such work or to the claimant's employer." Where an employee "leaves of his own accord, as opposed to being discharged, dismissed, or subjected to layoff by the employer," he is deemed to have left work voluntarily. Lindsey v. Univ. of Mo., 254 S.W.3d 168, 171 (Mo.App. W.D. 2008). An employee, not the employer, "bears the burden of proving [an employee] was discharged and did not voluntarily quit." Cotton, 213 S.W.3d at 193.

The determination of the Commission as to "whether an employee voluntarily left work or was discharged is a factual determination." Id. Findings of facts by the Commission, "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. Thus, the Commission's factual findings are treated deferentially. K & D Auto Body, Inc. v. Div. of Employment Sec., 171 S.W.3d 100, 103 (Mo.App. W.D. 2005).

The Commission adopted the Appeals Tribunal's holding that Claimant "voluntarily left her employment after June 26, 2007." While the Appeals Tribunal lists this finding under "Conclusions of Law," case law is clear that the determination of whether an employer was fired or quit is a question of fact and should therefore be reviewed with deference to the Commission's decision. Lindsey, 254 S.W.3d at 171; Cotton, 213 S.W.3d at 193.

We find the Commission's factual determination that Claimant quit, and was not fired by Employer, was based on competent and substantial evidence. Bell testified at the hearing that Employer's policy is that two "no-call, no-shows" is treated as a "voluntary resignation" and that Employer considered Claimant abandoned her job and voluntarily resigned. Furthermore, because Claimant was never notified that she no longer had her job, her decision not to report to work or call on June 30, July 1, or July 5, can reasonably be viewed by the Commission as demonstrating Claimant's intent to voluntarily resign her employment. Claimant was in Arkansas for her brother's funeral on June 30, 2007. Claimant testified that she did not report to work on July 1 because she was still mourning the loss of her brother, and did not report or call in on July 5 because she assumed she no longer had a job. Regardless of...