Fendler v. Hudson Servs.

• Decision Date: 03 July 2012
• Docket Number: No. SC 92177.,SC 92177.
• Citation: 370 S.W.3d 585
• Parties: Carol FENDLER, Appellant, v. HUDSON SERVICES, and Division of Employment Security, Respondents.
• Court: Missouri Supreme Court

370 S.W.3d 585

Carol FENDLER, Appellant,
v.
HUDSON SERVICES, and Division of Employment Security, Respondents.

No. SC 92177.

Supreme Court of Missouri,
En Banc.

July 3, 2012.

[370 S.W.3d 586]

Timoth A. Weil, Haar & Woods LLP, St. Louis, John J. Ammann and Julianne M. Rodriguez, Saint Louis University Legal Clinic, St. Louis, for Fendler.

Ninion S. Riley, Jefferson City, for Division.

LAURA DENVIR STITH, Judge.

The Labor and Industrial Relations Commission denied the appellant, Carol Fendler, unemployment benefits after it found that she engaged in willful misconduct by repeatedly and deliberately disregarding her supervisor's instructions. Ms. Fendler appealed, arguing that the commission erred in finding that she engaged in misconduct because although she may have acted negligently she did not deliberately violate her supervisor's instructions. This Court affirms.

Section 288.030.1(23) ¹ provides that an employee engages in misconduct if she deliberately violates her employer's reasonable instructions or rules or if she repeatedly acts with a degree of negligence that manifests a substantial disregard for her employer's interests or of her duties and obligations to the employer. Here, competent and substantial evidence supported the commission's finding that Ms. Fendler willfully failed to follow her supervisor's instructions, although able to do so, on 11 separate occasions after her supervisor warned her three times that she needed to comply with the instructions. Affirmed.

[370 S.W.3d 587]

I. FACTUAL AND PROCEDURAL BACKGROUND

Hudson Services provides property management services, including commercial cleaning and security. Ms. Fendler was hired by Hudson in 1994, and by 2008 she had become an operations assistant in the housekeeping department. Hudson's janitorial employees use an automated telephone system to clock in and out of work. The resulting information is used to determine payroll.

One of Ms. Fendler's duties was to verify the hours of employees who failed to use the telephone system for a particular work shift. Hudson had no written policy as to how she was to undertake the verification. Until July 2008, her supervisor authorized her to do so by calling employees and entering the total hours the employees said they worked. Beginning in July 2008, Ms. Fendler was placed under a new supervisor, Pam Meister, who instructed her that entry of the total hours worked no longer would be sufficient. Ms. Fendler instead was directed to record the specific times that employees who failed to use the telephone system said they started and ended work. Ms. Meister also informed Ms. Fendler that if she wanted to enter only the total number of hours an employee worked, she needed to obtain approval from the general manager.

During 2009, Ms. Meister gave Ms. Fendler warnings on two occasions when Ms. Fendler failed to comply with the new procedure. On December 28, 2009, Ms. Meister gave Ms. Fendler a third warning when the latter again failed to comply with the required verification procedure. Nevertheless, during January 2010, Ms. Fendler failed to enter the exact time employees clocked in and out on 11 separate occasions. On January 25, 2010, Hudson fired Ms. Fendler.

Ms. Fendler filed a claim for unemployment benefits. On March 3, 2010, the division of employment security denied Ms. Fendler benefits because it found that she was discharged for misconduct.² Ms. Fendler appealed to the appeals tribunal, which held a hearing at which both Ms. Fendler and Ms. Meister testified.³ Ms. Fendler testified that she always called employees to verify when they started and stopped work but that she simply failed to enter the exact times into the payroll system. She admitted that Ms. Meister told her to input employees' actual clock-in and clock-out times into the payroll system and said she did not do so because she was used to not having to do it under her previous supervisor. She denied that she received a third warning on December 28, 2009. She did not claim she did not know how to comply with Ms. Meister's instructions but instead explained that she did not know that her failure to follow the instructions would jeopardize her employment and that she would have complied with the instructions had she known she would be fired for non-compliance.

Ms. Meister testified that she instructed Ms. Fendler to enter the exact times that employees began and ended their work shifts and to get approval from the general manager before simply entering the total

[370 S.W.3d 588]

hours an employee worked. Ms. Meister also testified that she warned Ms. Fendler three times, including on December 28, 2009, that she needed to comply with these instructions. Finally, Ms. Meister stated that because Ms. Fendler did not enter the exact times that employees clocked in and out, she believed Ms. Fendler was not calling employees to verify the hours they actually worked.

The appeals tribunal reversed the deputy's finding of misconduct. Hudson appealed to the commission, which found that Ms. Meister's testimony was more credible and concluded that Hudson had met its burden of showing that Ms. Fendler had engaged in misconduct, stating:

Claimant was in charge of checking employer's payroll and reconciling discrepancies in employees' reported hours. Claimant's supervisor, Ms. Meister, instructed her to list clock-in and clock-out times on employer's payroll program. Claimant consistently failed to comply with this directive. Ms. Meister gave claimant three chances to correct her behavior. Claimant was formally warned by Ms. Meister on December 28, 2009, to verify hours. After that warning, claimant failed on eleven occasions to list clock-in and clock-out times for employees. Claimant's repeated failure to comply with explicit instructions takes her conduct outside the realm of mere mistakes or poor work performance and into the realm of insubordination. See Freeman v. Gary Glass & Mirror, LLC, 276 S.W.3d 388, 393 (Mo.App.2009) (holding that claimant's “repeated failure to follow the Employer's specific directions” amounts to misconduct connected with work).

(emphasis added). Ms. Fendler appealed. Following a decision by the Missouri Court of Appeals, this Court granted transfer. Mo. Const. art. V, § 10.

II. STANDARD OF REVIEW AND BURDEN OF PROOF

Article V, section 18 of the Missouri Constitution provides for judicial review of the commission's decisions to determine whether they “are supported by competent and substantial evidence upon the whole record.” Mo. Const. art. V, § 18. Under section 288.210:

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. The court, on appeal, 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. An appeal shall not act as a supersedeas or stay unless the commission shall so order.

§ 288.210. “Whether the award is supported by competent and substantial evidence is judged by examining the evidence in the context of the whole record.” Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. banc 2003). “This Court defers to the Commission on issues involving the credibility of witnesses and the weight given to testimony,” Johnson v. Denton Const. Co., 911 S.W.2d 286, 288 (Mo. banc 1995), but...