Johnson v. Div. Of Employment Sec.

• Decision Date: 07 September 2010
• Docket Number: No. WD 71884.,WD 71884.
• Citation: 318 S.W.3d 797
• Parties: Samantha JOHNSON, Appellant,v.DIVISION OF EMPLOYMENT SECURITY, Respondent.
• Court: Missouri Court of Appeals

318 S.W.3d 797

Samantha JOHNSON, Appellant,v.DIVISION OF EMPLOYMENT SECURITY, Respondent.

No. WD 71884.

Missouri Court of Appeals Western District.

Sept. 7, 2010.

Samuel I. McHenry, Kansas City, MO, for appellant.

Larry R. Ruhmann, Jefferson City, MO, for respondent.

Before: JAMES M. SMART, JR., P.J., MARK D. PFEIFFER, and CYNTHIA L. MARTIN, JJ.

PER CURIAM:

Samantha Johnson appeals the Labor and Industrial Relations Commission's (hereinafter “Commission”) determination that she is disqualified from unemployment benefits under section 288.050.¹ She argues that the Commission erred in finding that she voluntarily left her employment. She contends the record shows that she was discharged (and that she did not, as the Commission believed, voluntarily resign her employment) and contends further that she was not guilty of disqualifying misconduct. Because the record does not show that she voluntarily resigned her employment, and because the record also does not show that Ms. Johnson was guilty of disqualifying misconduct, we reverse the judgment of the Commission.

Background

Samantha Johnson was an hourly employee for approximately seven months in the packaging department of a plant operated by Farmland Foods, Inc. She started work in October 2008. The last day she performed services for Farmland was Tuesday, May 26, 2009. On Wednesday, May 27, and Thursday, May 28, Johnson was absent from work. She reported that her car had broken down and was being repaired, which resulted in transportation and child care problems.

On both days, Johnson called prior to her shift to report that she could not come into work. She did not get an answer, but left a message. Johnson's shift was from 7 a.m. to 3:30 p.m. Johnson is a single mother residing in the far southeast portion of Kansas City. The record does not show where the Farmland plant is located.

Johnson's transportation issues were slightly more complicated than merely traveling to work. Because her daycare did not start accepting children until 7:30 a.m., yet her shift at work started at 7:00 a.m., she would ordinarily take her children to another person's house rather than directly to day care. She then drove to work to try to be there for the start of her shift at 7:00. Because her car was out of commission, she claimed, she was unable to come in on May 27 and 28.

Johnson testified that she also called Farmland at 1:30 p.m. on May 28, and spoke to Sandra in the human resources department to see “if she still had a job.” She said that, in that phone conversation on the 28th, Sandra told her that she “wouldn't have a job” if she did not “come in then at that moment.”

Johnson said she did not go into work after her 1:30 p.m. phone call to Farmland because she “just couldn't do it” and “couldn't make it.” She said that if she “could have” she “would have.” The next day, Johnson picked up her final paycheck.

Johnson applied for unemployment benefits. Farmland protested this claim. On August 31, 2009, the Division of Employment Security (“Division”) determined that Johnson was disqualified from benefits because she “left work with the employer voluntarily without good cause attributable to the work or the employer.”

Johnson appealed to the Division's Appeals Tribunal, which conducted a telephone hearing on September 30, 2009. Johnson testified, as did Farmland's human resources manager. Johnson testified as to her version of the events. The Farmland representative testified that Johnson called in on May 27 and 28 to notify of her absence. Someone in human resources entered in Farmland's records that the absence in each case was for “personal business.” The only other relevant testimony was that the absences on May 27 and 28 put Johnson at “13 points” and “15 points” respectively. The human resources manager said that fifteen points is “termination on our attendance program.” No testimony was provided as to the functioning of the attendance policy. The Appeals Tribunal issued its decision, again finding that Johnson was disqualified from benefits because she resigned her employment voluntarily.

Johnson appealed to the Labor and Industrial Relations Commission, which affirmed and adopted the Appeals Tribunal's 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.”

Johnson now appeals to this court.

Standard of Review

An appellate court may reverse or otherwise modify the Commission's decision only if it finds: “(1) That the commission acted without or in excess of its powers; (2) That the award 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 the absence of fraud, the Commission's factual findings are conclusive if supported by competent and substantial evidence. Section 288.210; Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222 (Mo. banc 2003). Whether an employee terminated employment voluntarily or was discharged is generally a factual determination. E.P.M. Inc. v. Buckman, 300 S.W.3d 510, 517 (Mo.App.2009). 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. Moore v. Swisher Mower & Mach. Co., 49 S.W.3d 731, 738 (Mo.App.2001) (quotation omitted); see also Shields v. Proctor & Gamble Paper Prods. Co., 164 S.W.3d 540, 543 (Mo.App.2005). Similarly, when the issue is whether the claimant was guilty of “misconduct,” the standard of review is de novo as to whether the facts found by the Commission constitute misconduct. Williams v. Enter. Rent-A-Car Shared Servs., LLC, 297 S.W.3d 139, 142 (Mo.App.2009).

In examining the record, we “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.” Hampton, 121 S.W.3d at 222-23. The reviewing court is not to view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the award. Id. at 223. Instead, we must objectively review the entire record, including evidence and inferences drawn therefrom that are contrary to, or inconsistent with, the Commission's award. E.P.M. Inc., 300 S.W.3d at 517.

Discussion

The Commission found that Johnson's transportation problems were a personal matter, and therefore she “left her work voluntarily” and was disqualified from receiving benefits under section 288.050. That section provides that a claimant shall be disqualified if “the claimant has left work voluntarily without good cause attributable to such work or to the claimant's employer.” Section 288.050.1(1). The phrase “left work voluntarily,” as used in the statute, actually means “left employment voluntarily,” or “voluntarily quit employment.” ² The “leaving work” it refers to is not that of an employee sneaking out early at the end of the day, or that of an employee being tardy or taking an unscheduled absence for a day with intent to return to work the next day. The “leaving work” it refers to is the kind of “leaving work” we usually call a resignation or an abandonment of a job or a “quit.” In other words, the intent of the subsection is to provide that a person cannot voluntarily resign and still draw unemployment compensation benefits. It also recognizes an exception: the circumstance in which the employee has resigned because of “good cause attributable to the work or the employer.”

When an employee has resigned, the employee is not eligible for benefits unless the employee shows that she resigned for good cause attributable to the work or the employer. Johnson's argument, in essence, reveals that the Division is misinterpreting the phrase “left work voluntarily” to mean that she missed scheduled work. Johnson acknowledges that she missed scheduled work, but argues that the record here shows that she was terminated and did not voluntarily resign and was not guilty of misconduct.

No doubt the Division is swamped with claims, but there is a need to obtain sufficient detail in a hearing to allow not only a ruling but also adequate review by the Commission and by this court. Reno v. Tyson Poultry, Inc., 204 S.W.3d 347, 352 (Mo.App.2006). In this case, we know next to nothing about Farmland's attendance policy. We know that Johnson accumulated enough absences to be dismissed under the policy. Johnson, an hourly employee who resided in far southeast Kansas City, notified Farmland on May 27 and 28 before her shift began that she would be absent due to her inoperable vehicle. She stated that when she called at 1:30 p.m. on May 28, she was told that she would be discharged if she did not come in then “at that moment.” She said she was unable to do so. She understood she was terminated.

The employer's evidence consisted solely of the fact that Johnson had reached the mark for dismissal because her absences on May 27 and 28 brought her to “fifteen points,” which is termination. There was no explanation as to how the point system works, that is, as to how points are accumulated, or specifically of what Johnson had been informed or when the policy was communicated to Johnson.

The Commission regarded the termination of Johnson's employment for violation of the attendance policy as unequivocally and categorically a “voluntary resignation.”

Absenteeism

It is, however, quirky to use the phrase “voluntary resignation from employment” to describe an employee's absence due to some adverse circumstance, after the employee has conscientiously provided notice of the absence, purports to want to be at work, and claims constraint from attendance by circumstances such as sickness or some other difficulty. We understand the phrase ...