Hise v. PNK (River City), LLC

• Decision Date: 22 August 2013
• Docket Number: No. ED 99082.,ED 99082.
• Citation: 406 S.W.3d 59
• Parties: Joshua HISE, Appellant, v. PNK (RIVER CITY), LLC, and Division of Employment Security, Respondent.
• Court: Missouri Court of Appeals

406 S.W.3d 59

Joshua HISE, Appellant,

v.PNK (RIVER CITY), LLC, and Division of Employment Security, Respondent.

No. ED 99082.

Missouri Court of Appeals,

Eastern District,

Division Three.

July 9, 2013.

Rehearing Denied Aug. 22, 2013.

Joshua Hise, Farmington, MO, pro se.

Stuart R. Berkowitz, St. Louis, MO, Robert Anthony Bedell, Jefferson City, MO, for respondent.

ROY L. RICHTER, Judge.

Joshua Hise (“Claimant”) appeals from the decision of the Labor and Industrial Relations Commission (“Commission”) denying Claimant unemployment benefits. Finding no error, we affirm.

I. BACKGROUND

Claimant was an hourly employee for approximately nineteen months, as a surveillance operator, for Pinnacle Entertainment (“Employer”) in St. Louis. He started work on September 21, 2009.

Employer had a “no fault” or “no excuses” attendance policy; the policy did not distinguish between excused and unexcused absences. The attendance policy utilized a point system to keep track of employee absences and tardies. The number of points issued depended on the severity or timing of the infraction. For example, if the employee notified Employer of his anticipated absence, the employee was assigned one point, and any absences on a Friday though Sunday were assessed double points. With regard to tardies, if the employee was less than twenty minutes late, the employee was issued a half point, whereas if the employee was tardy by more than twenty minutes, the employee was assigned one point. This attendance policy provided for warnings at various levels and for termination after the employee accrued ten points.

Claimant was made aware of the Employer's attendance policy on January 13, 2010, and Claimant's first infraction was cited in April 2010. After accruing more than ten points, Claimant was terminated on May 6, 2012.

Thereafter, Claimant applied for unemployment benefits, and on June 11, 2012, a deputy with the Missouri Division of Employment Security determined that Claimant had been terminated for misconduct and therefore denied benefits. The Appeals Tribunal, in a written opinion, upheld the deputy's decision denying Claimant unemployment benefits.

Claimant appealed to the Commission, which affirmed and adopted the Appeals Tribunal decision finding it to be “fully supported by the competent and substantial evidence on the whole record and ... in accordance with the relevant provisions of the Missouri Employment Security Law.”

Claimant now appeals to this Court.

II. DISCUSSION

Claimant sets forth two points on appeal. In his first point, Claimant charges error in the Commission's decision that Claimant's actions constituted misconduct, in that the Commission, contrary to the law, placed the burden upon the Claimant to prove his absenteeism and tardiness did not constitute misconduct. Second, Claimant argues the Commission erred in concluding that he committed misconduct because the Commission's decision was not supported by competent and substantial evidence.

Standard of Review

This Court reviews the decision of the Commission pursuant to the standard set forth in Section 288.210.¹Turner v. Div. of Emp't Sec., 392 S.W.3d 525, 527 (Mo.App.E.D.2013); see also Section 288.210. Upon review, an appellate court may modify, reverse, remand for rehearing, or set aside the decision of the Commission upon 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 decision; or

(4) That there was not sufficient competent evidence in the record to warrant the decision.

See Section 288.210; see also Martin v. Div. of Emp't Sec., 384 S.W.3d 378, 381 (Mo.App.E.D.2012). As required by the Missouri Constitution, this Court reviews the entire record to ascertain whether the Commission's decision is supported by competent and substantial evidence. SeeMo. Const., art. 5, section 18; see also Fendler v. Hudson Serv., 370 S.W.3d 585, 588 (Mo. banc 2012).

While this Court defers to the Commission on issues of fact—so long as they are supported by competent and substantial evidence—we owe no deference to the Commission's conclusions of law or application of the law to the facts, and review such issues de novo. Welsh v. Mentor Mgmt., Inc., 357 S.W.3d 277, 280 (Mo.App.E.D.2012). “Whether the Commission's findings support the conclusion that an employee was guilty of misconduct is a question of law.” Frisella v. Deuster Elec., Inc., 269 S.W.3d 895, 898 (Mo.App.E.D.2008) (quoting in part Miller v. Kansas City Station Corp., 996 S.W.2d 120, 122 (Mo.App.W.D.1999)) (internal quotation omitted).

Analysis

Point I—Burden Was Properly Shifted to Claimant

Unemployment compensation proceedings are governed by Chapter 288, et seq., the Missouri Employment Security Law. Dixon v. Div. of Emp't Sec., 106 S.W.3d 536, 539 (Mo.App.W.D.2003). Pursuantto Section 288.050.2, unemployment compensation benefits will be denied to a terminated claimant who was “discharged for misconduct connected with the claimant's work[.]” See Section 288.050.2. The term “misconduct” has been defined by statute as:

an act of wanton or willful disregard of the 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 or her 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 duties and obligations to the employer[.]

See Section 288.030.1(23).

This Court agrees with Claimant, that under Missouri precedent, generally, the burden of proving eligibility for unemployment compensation benefits initially lies with the claimant, but the burden shifts to the employer if termination is premised upon an allegation of misconduct. Venz v. Convergys Customer Mgmt. Grp. Inc., 326 S.W.3d 554, 557 (Mo.App.E.D.2010). Thus, in such circumstances, the employer, not the claimant, bears the burden of proving by substantial and competent evidence that the claimant was discharged for misconduct connected with work. Tutwiler v. Fin–Clair Corp., 995 S.W.2d 497, 499 (Mo.App.E.D.1999). Accordingly, the employer must demonstrate, by a preponderance of the evidence, “that the employee willfully violated the rules or standards of the employer or that the employee knowingly acted against the employer's interest.” Hagler v. True Mfg. Co., Inc., 353 S.W.3d 53, 59 (Mo.App.E.D.2011) (emphasis added); see e.g., Wieland v. St. Anthony's Med. Ctr., 294 S.W.3d 77, 78–79 (Mo.App.E.D.2009) (finding the Commission erred in denying unemployment benefits to a claimant who negligently mislabeled blood types, because such accidents did not show a “willful intent”).

However, the disposition of Claimant's first point requires this Court resolve a perceived conflict between Section 288.050.2 and those cases interpreting this statute, and Section 288.050.3 due to the amendment of the latter in 2006.² To understand the import of the 2006 amendment, a brief review of Section 288.050.3 and its amendatory history is required.

In 1997, Section 288.050 was amended in House Bill 472 to include a new subsection. See Mo. H.B. 472 (1997). Section 288.050.3., RSMo Cum.Supp.1997 stated:

A pattern of absenteeism or tardiness may constitute misconduct regardless of whether the last incident alone which results in the discharge constitutes misconduct.

SeeSection 288.050.3, RSMo Cum.Supp.1997.

This Court, in interpreting the 1997 amendment to Section 288.050, held that this new subsection only provided “that the fact-finder may consider a pattern of absenteeism to be misconduct in appropriate circumstances, regardless of the nature of the final incident of absence.” Tutwiler, 995 S.W.2d at 500. Thus, the general rule remained unaltered: the employer carries the burden of establishing misconduct if termination was premised upon an allegation of misconduct—including absenteeism and tardiness. Id. at 459. (“The determination of whether excessive absences are statutory misconduct is a separate considerationfrom whether an employee violated the absenteeism policy of his employer.”); see e.g., Div. of Emp't Sec. v. Gardner–Denver Mach., Inc., 941 S.W.2d 13 (Mo.App.W.D.1997) (employee discharged for absenteeism under a “no-fault” attendance policy was still eligible to receive unemployment benefits because employer failed to evidence employee's willful disregard rising to the level of misconduct); Kelley v. Manor Grove, Inc., 936 S.W.2d 874 (Mo.App.E.D.1997) (employee discharged for absenteeism under a “no-fault” attendance policy was still eligible for unemployment benefits because employee's absences were due to illness which did not constitute misconduct connected with work).

Next, in 2004, Section 288.050.3 was amended in House Bill 1268. See Mo. H.B. 1268 (2004). Section 288.050.3, RSMo Cum.Supp.2004 read:

Absenteeism or tardiness may constitute misconduct regardless of whether the last incident alone constitutes misconduct. In determining whether the degree of absenteeism or tardiness constitutes a pattern for which misconduct may be found, the division shall consider whether the discharge was the result of a violation of the employer's attendance policy, provided the employee had received knowledge of such policy prior to the occurrence of any absence or tardy upon which the discharge is based.

SeeSection 288.050.3, RSMo Cum.Supp.2004.

When called upon to interpret the 2004 amendment, the Missouri Court of Appeals, Western District, held “persistent absenteeism” could constitute grounds for a finding of misconduct, but, nevertheless, the employer contending that a discharge was justified by an employee's work-related misconduct bore the burden of establishing the employee's willfulness rising to the level of misconduct. Cubit v. Accent Mktg. Serv., 222 S.W.3d 277,...