Harris v. Div. of Employment Sec.

• Court: Missouri Court of Appeals
• Writing for the Court: Before Division Three: VICTOR C. HOWARD, Presiding Judge, ALOK AHUJA, Judge and KAREN KING MITCHELL, Judge.
• Citation: Harris v. Div. of Employment Sec., 350 S.W.3d 35 (Mo. App. 2011)
• Decision Date: 04 October 2011
• Docket Number: No. WD 73059.,WD 73059.
• Parties: Shanna HARRIS, Appellant,v.DIVISION OF EMPLOYMENT SECURITY, Respondent.

350 S.W.3d 35

Shanna HARRIS, Appellant,

v.DIVISION OF EMPLOYMENT SECURITY, Respondent.

No. WD 73059.

Missouri Court of Appeals, Western District.

Oct. 4, 2011.

Mikah K. Thompson, for Appellant.Jeannie Mitchell, for Respondent.Before Division Three: VICTOR C. HOWARD, Presiding Judge, ALOK AHUJA, Judge and KAREN KING MITCHELL, Judge.VICTOR C. HOWARD, Judge.

Shanna Harris (“Claimant”) appeals the decision of the Labor and Industrial Relations Commission (“the Commission”) affirming the Appeals Tribunal's finding that Claimant voluntarily left her job without good cause attributable to work or her employer and was, therefore, disqualified for unemployment compensation benefits. On appeal, Claimant asserts that the Commission erred in finding that she voluntarily quit rather than finding that she was discharged and further contends that she was not discharged due to misconduct connected with work. The decision of the Commission is reversed.

Factual and Procedural Background

Claimant was hired by Barnes–Jewish Hospital (“Employer”) in 1999 and worked as a technician in the pharmacy department for approximately ten years. On November 8, 2009, Claimant began an approved medical leave pursuant to the Family and Medical Leave Act (“FMLA”) due to a diagnosed stomach condition. Claimant's FMLA leave was set to expire on February 8, 2010.

Employer instructed Claimant to have her doctor fill out a form releasing her to return to work. Claimant provided the form to her doctor, and the doctor faxed it to Employer. In the form, the doctor indicated that Claimant could return to work sometime in February but did not provide a specific date. Claimant contacted the doctor's office several times asking them to provide paperwork with a specific release date and to fax it to Employer or to her. Neither Employer nor Claimant ever received updated paperwork. Employer accepted applications for Claimant's position and replaced her sometime in February. Claimant thereafter filed a claim for unemployment benefits, and Employer protested the claim. A deputy of the Division of Employment Security (“the Division”) determined that Claimant was disqualified from receiving benefits because she voluntarily left work on February 8, 2010, without good cause attributable to her work or Employer.

Claimant filed an appeal, and a hearing was held before the Appeals Tribunal. Claimant testified that her FMLA leave ended on February 8, 2010. She stated that she was unable to return to work that day because her doctor did not specify the date on which she could return to work. When Claimant learned of this, she called the doctor's office repeatedly about updating the paperwork with a specific date. However, when Claimant spoke to her human resources contact with Employer, she stated that she had not received the paperwork. Claimant spoke to a secretary at the doctor's office several times after that. The secretary said she could not locate the paperwork but that she would take care of it if Claimant faxed her another copy of the paperwork. Claimant sent the paperwork to the doctor's office again. The doctor's office was supposed to fax an updated copy to Employer, but Claimant's human resources contact said that she still did not receive the paperwork.

Claimant testified that she also paid fees over the phone for the doctor's office to fax the documents to Employer and to mail a copy to Claimant, but Claimant never received her copy of the paperwork either. Claimant also explained that she never physically went to the doctor's office to try to obtain the correct paperwork because she did not have access to transportation at the time and the doctor's office was far from her home.

Tracy Cash, Claimant's immediate supervisor, also testified at the hearing. She testified that if an employee's FMLA leave was exhausted, the employee could apply for thirty days of non-FMLA leave. When asked whether Claimant applied for non-FMLA leave, Cash stated, “Not to my knowledge,” and “Not to me.” Cash stated that once Claimant exhausted her leave and Employer did not get the necessary information from her doctor, Employer replaced Claimant sometime in February. Cash contacted Claimant and told her that she needed to remove her belongings from her work locker. At that time, Claimant told Cash that she was trying to apply for non-FMLA leave. Claimant also spoke to Cash at some point about having a problem with the doctor's office not filling out the paperwork in a timely manner and giving her a specific date upon which she could return to work.

Claimant provided further testimony after Cash and stated that throughout the FMLA process, she was supposed to speak with an employee in the human resources department rather than with her direct supervisor. Claimant also stated that she applied for the thirty-day non-FMLA leave, but her request was not approved. Employer told Claimant that if she could get the corrected paperwork to Employer by April 6, Employer would allow her to work with a recruiter to apply for different jobs with Employer.

In its findings of fact, the Appeals Tribunal found that Claimant did not inform Employer that she was having problems getting the correct paperwork from her doctor. It further found that when Claimant did not provide the proper paperwork to Employer, it replaced Claimant at the expiration of her leave. The Appeals Tribunal concluded that Claimant's separation from work was voluntary on her part because there was work available if she had reported to work. Finally, the Appeals Tribunal concluded that Claimant voluntarily quit without good cause attributable to the work or Employer and was disqualified from receiving benefits. Claimant filed an application for review with the Commission. The Commission affirmed and adopted the decision of the Appeals Tribunal, finding it to be supported by competent and substantial evidence on the whole record and in accordance with Missouri law. Claimant's appeal from the Commission's decision followed.

Standard of Review

The appellate court's review of the Commission's decision in an unemployment compensation case is governed by section 288.210, RSMo 2000. Ayers v. Sylvia Thompson Residence Ctr., 211 S.W.3d 195, 197 (Mo.App. W.D.2007). Section 288.210 provides:

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 appellate court “ ‘must examine the whole record to determine if it contains sufficient competent and substantial evidence to support the award, i.e., whether the award is contrary to the overwhelming weight of the evidence.’ ” Reno v. Tyson Poultry, Inc., 204 S.W.3d 347, 350 (Mo.App. W.D.2006) (quoting Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222–23 (Mo. banc 2003)). In reviewing the Commission's decision, an appellate court must “view the evidence objectively, not in the light most favorable to the decision of the Commission.” Id. However, “[o]n matters of witness credibility and resolution of conflicting evidence, the appellate court defers to the Commission's determinations.” Ayers, 211 S.W.3d at 198.

While the appellate court gives deference to the Commission's findings of fact, the court is not bound by the Commission's conclusions of law or the Commission's application of law to the facts. Lindsey v. Univ. of Mo., 254 S.W.3d 168, 170 (Mo.App. W.D.2008). The question of whether an employee left work voluntarily or was discharged is generally a factual determination. Johnson v. Div. of Emp't Sec., 318 S.W.3d 797, 799 (Mo.App. W.D.2010). “However, the standard of review is de novo when the issue is whether the facts found by the Commission can, as a matter of law, be considered to constitute a voluntary departure from employment.” Id.

Discussion

In her first point on appeal, Claimant contends that the Commission erred in denying her unemployment benefits because the evidence showed that she was discharged from her employment and that she did not voluntarily quit. The issue Claimant presents is governed by section 288.050, RSMo Cum.Supp.2010, which provides in pertinent part that:

1. Notwithstanding the other provisions of this law, a claimant shall be disqualified for waiting week credit or benefits until after the claimant has earned wages for work insured pursuant to the unemployment compensation laws of any state equal to ten times the claimant's weekly benefit amount if the deputy finds:

(1) That the claimant has left work voluntarily without good cause attributable to such work or to the claimant's employer.

§ 288.050.1(1). The claimant generally has the burden of showing that he is eligible for benefits. Miller v. Help At Home, Inc., 186 S.W.3d 801, 806 (Mo.App. W.D.2006). Therefore, “if the receipt of benefits is challenged by the employer, for the employee's voluntarily leaving employment without good cause, the employee has the burden of showing that either he did not leave employment voluntarily, or, that if he did, he did so with good cause.” Id.

The first question we must address under the statute is whether Claimant left work voluntarily, because “those who leave work involuntarily are never disqualified from eligibility under [section 288.050.1(1) ].” See Difatta–Wheaton v. Dolphin Capital Corp., 271 S.W.3d 594, 598 (Mo. banc 2008) (holding that an employee did not leave work voluntarily when she was discharged for missing work due to a...