Flanigan v. City of Kansas City
| Decision Date | 21 May 1996 |
| Docket Number | No. WD,WD |
| Citation | 926 S.W.2d 98 |
| Parties | Margaret FLANIGAN, Appellant, v. CITY OF KANSAS CITY, Missouri, Respondent, Division of Employment Security, Respondent. 51726. |
| Court | Missouri Court of Appeals |
Samuel I. McHenry, Kansas City, for appellant.
Cecilia O. Abbott, Ronnae L. Coleman, Mo. Div. of Employment Security, Kansas City, for respondents.
Before LAURA DENVIR STITH, P.J., and ULRICH and SMART, JJ.
Margaret Flanigan appeals the decision of the Labor and Industrial Relations Commission affirming the decision of an appeals tribunal to deny her six weeks of unemployment compensation benefits. She contends the commission erred in affirming the finding that she was discharged from her employment for misconduct. She claims she was not guilty of misconduct because the actions precipitating her discharge resulted from a psychological condition known as "factitious disorder," rendering her a victim of uncontrollable tendencies. Her inability to control these tendencies, she contends, negated culpability for her actions. Therefore, she argues, her actions could not be found to be "misconduct" within the meaning of § 288.050.2, RSMo 1994. 1
Appellant Flanigan was employed by the City of Kansas City, Missouri, in the Department of Revenue. She began working for the City in 1986. In October, 1992, she informed the Commissioner of Revenue and her fellow employees that she had terminal cancer. For the next two years, the claimant frequently reported on her symptoms and her medical procedures. She reported experiencing severe pain. Co-workers were upset to learn of her suffering. Sympathetic tears were shed by co-workers at their desks. Co-workers prayed for Ms. Flanigan and found ways to try to support her, such as providing food. In March, 1993, Ms. Flanigan was given a flexible work schedule so she could start early and leave work early. Later, arrangements were made for her to be allowed to work at home from a personal computer. In October, 1993, her duties were modified so she could work in a training position. Because of her frequent absences, schedules often had to be changed. Since she did not have sufficient vacation and sick leave time to cover her absences, other employees donated a total of 280 hours of sick leave to her account. Claimant's condition became more debilitated as time went by, to the point that she was using a walker when venturing out. In October, 1994, she told other employees she had been to the hospital and that a biopsy had been performed on her right lung. She described having difficulty breathing and said she was vomiting. She told her co-workers that the doctors did not know what to do and that she was trying to find a cure on her own. On October 31, she informed co-workers she was "on her death bed" and in extreme pain.
On November 22, 1994, Ms. Flanigan's sister confronted the appellant with suspicions that Ms. Flanigan did not really have cancer. Ms. Flanigan initially insisted that she did have cancer. A few days later, appellant admitted she did not have cancer. The truth was that she had never been diagnosed with cancer, and had never even sought medical care for cancer. She had obtained books about cancer so she could speak intelligently about cancer. After this confrontation, on December 1, 1994, Ms. Flanigan began consulting with a psychologist. About that same time, she informed her immediate supervisor she was feeling better and wanted to start working more regular hours. In her computer message to her supervisor, she said she wanted to start coming in on a more regular basis: On December 21, 1994, prior to an employee Christmas gift exchange, appellant told five co-workers that she did not have cancer. She asked them not to tell anyone until she had a chance to inform her supervisor herself. On January 3, 1995, the Commissioner of Revenue, having heard indirectly that appellant had been lying about her condition, confronted appellant. Appellant was suspended pending a hearing, and thereafter terminated for conduct reflecting discredit to the city, misconduct, falsification of reports, withholding information, and hindering city operations. Appellant exercised her appeal rights as to the termination without avail.
Appellant also claimed unemployment compensation benefits. Her claim was opposed by the city. Section 288.050.2, RSMo Supp.1995 provides that when a claimant has been discharged for misconduct connected with work, the claimant shall be disqualified for waiting week credit or benefits "for not less than four nor more than sixteen weeks" for which the claimant seeks benefits and is otherwise eligible. A deputy with the Division of Employment Security found she was not disqualified for any benefits. He found her discharge was not for misconduct because, he found, appellant believed she did have cancer. The deputy's determination was appealed by the city. Contrary to the findings of the deputy, the appeals tribunal found that the discharge was for work related misconduct. The appeals tribunal found appellant was disqualified for six weeks of waiting week credit or benefits under § 288.050. Ms. Flanigan then filed her application for review with the Labor and Industrial Relations Commission, which affirmed the decision of the appeals tribunal and adopted the written decision of the tribunal. She now appeals the decision of the Commission pursuant to § 288.210.
On appeal, she contends the commission erred in its determination because there was not sufficient competent evidence in the record to warrant the making of the award because the evidence shows that the employee was discharged due to a "mental/emotional disability," a psychological disorder known as "factitious disorder." She points to the fact that she cannot be disqualified unless it is determined that she has been discharged for misconduct connected with her work under § 288.050.2. She points out that the evidence shows that she was a good worker, and had favorable reviews of her performance even during the time that she was understood to have cancer. She argues that the uncontradicted evidence of her psychological disorder precludes a determination that she had the necessary culpability to be guilty of misconduct.
The term "misconduct" in the employment security context has been defined as follows:
[M]isconduct ... must be an act of wanton or willful disregard of an employer's interest, a deliberate violation of the employer's rules, a disregard of standards of behavior which the employer has the right to expect of his employee, or negligence in such degree or recurrence as to manifest culpability, wrongful intent, or evil design, or show an intentional and substantial disregard of the employer's interest or of the employee's obligations to the employer.
Powell v. Div. of Employment Sec., 669 S.W.2d 47, 50 (Mo.App.1984). Consistent with this concept, the Court of Appeals has also stated:
One purpose of this type of provision is to deny the benevolent benefits of the statute to those who bring about their own unemployment by conducting themselves, as respects their employment, with such callousness, deliberate or wanton misbehavior, or lack of consideration that, to the minds of reasonable men, would justify the employer in discharging the employee ...
In considering an appeal from the Labor and Industrial Relations Commission, this court "reviews the evidence in a light most favorable to the findings and decision of the Commission and must disregard all opposing and unfavorable evidence." Burns v. Labor & Indus. Relations Comm'n, 845 S.W.2d 553, 555 (Mo. banc 1993). The reviewing court defers to the judgment of the commission when judging the credibility of each witness. Clark v. Labor and Indus. Relations Comm'n, 875 S.W.2d 624, 626 (Mo.App.1994).
We turn to Ms. Flanigan's own testimony, given before the appeals tribunal, in evaluating the decision of the Commission:
Q. It was indicated that you were--Mr. Walstrom indicated that in October, 1992, you went to him and informed him that you had terminal cancer. Is that correct, ma'am?
A. Yes.
Q. Did you have terminal cancer at that time?
A. No.
Q. Had you been diagnosed as having terminal cancer at that time?
A. No.
Q. Were you ill at that time?
A. Yes.
Q. With cancer?
A. No.
Q. With what, ma'am?
A. With all the symptoms of cancer. I believed I had cancer even though I was not diagnosed with it. I made myself have all the necessary ailments that should have gone along with it. I purchased cancer manuals so that I could speak intelligently about it and then I made myself have cancer. I--I was ill. Sometimes deathly ill.
Q. When you say you were ill what are you--are you talking about physical symptoms?
A. Yes.
Q. What physical symptoms?
A. Pain in my--in--around--in and around the uterus, in my--I had supposedly had Stage 4B cancer which would have been spread through all the lymph nodes of the body and due to all of that that's where I was experiencing the pain. And so it became difficult for me to have the strength to get out of bed some--somedays.
Q. And did this pain develop after you had read up about it as you said?
A. I would say yes.
Q. Why did you concoct this story about having cancer, ma'am?
A. I don't know.
Q. Why did you say that you had...
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