Koenen v. BRG Liberty, LLC, ED110045

CourtCourt of Appeal of Missouri (US)
Writing for the CourtKelly C. Broniec, Judge
PartiesSUZANNE KOENEN, Appellant, v. BRG LIBERTY, LLC, and DIVISION OF EMPLOYMENT SECURITY, Respondents.
Decision Date07 June 2022
Docket NumberED110045

SUZANNE KOENEN, Appellant,
v.

BRG LIBERTY, LLC, and DIVISION OF EMPLOYMENT SECURITY, Respondents.

No. ED110045

Court of Appeals of Missouri, Eastern District, First Division

June 7, 2022


Appeal from the Labor and Industrial Relations Commission

Kelly C. Broniec, Judge

I. INTRODUCTION

Suzanne Koenen ("Koenen") appeals from the decision of the Missouri Labor and Industrial Relations Commission ("Commission"), which denied her claim for unemployment benefits after her employer, BRG Liberty, LLC ("Employer"), began reducing her work hours in March of 2020, at the very beginning of the COVID-19 pandemic, and eventually took her off the work schedule altogether without ever expressly terminating her employment. Employer nonetheless opposed her benefits claim on the basis that she purportedly failed to report for work. Koenen brings three points on appeal, each of which argues that the Commission erred in denying her benefits claim because the Commission's factual findings are not supported by the record.

We reverse and remand.

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II. STANDARD OF REVIEW

Our standard for reviewing the Commission's decisions in unemployment compensation cases is found in art. V, § 18 of the Missouri Constitution and § 288.210.[1] Mickles v. Maxi Beauty Supply, Inc., 566 S.W.3d 274, 276-77 (Mo. App. E.D. 2019). "According to art. V, § 18, we must determine whether the Commission's decision is 'authorized by law' and 'whether it is supported by competent and substantial evidence upon the whole record.'" Id. at 277 (quoting Darr v. Roberts Mktg. Grp., LLC, 428 S.W.3d 717, 719 (Mo. App. E.D. 2014)). "Likewise, § 288.210 provides that this Court may modify, reverse, remand for rehearing, or set aside the Commission's decision upon finding (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 support the decision." Id.

"Essentially, the Missouri Constitution and the Missouri Employment Security Law task this Court with reviewing the Commission's unemployment-compensation decisions for legal error. In conducting such review, we manifestly are not bound by any of the Commission's legal conclusions or applications of the law to the facts." Id. (citing Turner v. Proffer Transp., Inc., 310 S.W.3d 769, 774 (Mo. App. E.D. 2010)). In addition, "[w]e review questions of law de novo." Id. (citing Difatta-Wheaton v. Dolphin Capital Corp., 271 S.W.3d 594, 596 (Mo. banc 2008)). Regarding questions of fact, "§ 288.210 prohibits us from hearing new evidence and requires us, in the absence of fraud, to accept the Commission's factual findings so long as they are supported by competent and substantial evidence in the record." Id. (citing Darr, 428 S.W.3d at 719).

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"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." Darr, 428 S.W.3d at 720 (quoting Hubbell Mechanical Supply Co. v. Lindley, 351 S.W.3d 799, 807 (Mo. App. S.D. 2011)). "We defer to the Commission's determinations on issues resolving matters of witness credibility and conflicting evidence," and thus, the Commission's decision should not be overturned "unless it is contrary to the overwhelming weight of the evidence." Id. Furthermore, we are not permitted to review the evidence and all reasonable inferences drawn therefrom in the light most favorable to the award. Id. Rather, we must "objectively review the entire record, including evidence and inferences drawn therefrom that are contrary to, or inconsistent with, the Commission's award." Id. (quoting Hubbell, 351 S.W.3d at 807).

As specifically pertinent to this case, the issue of whether an employee terminated their employment voluntarily or was discharged is generally a factual determination. Johnson v. Division of Employment 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.

"If a claimant is determined to have voluntarily left work, the question becomes whether the claimant had good cause, attributable to the work or to the employer, to leave employment." Darr, 428 S.W.3d at 724 (citing § 288.050.1(1)). "Whether good cause is established upon the particular facts of each case is a question of law, which we review independently without any deference to the Commission's determination." Id.; see also Mickles, 566 S.W.3d at 277 (similarly recognizing that the issue of "good cause" in this context is a legal issue that we

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review de novo). "The burden of proving the existence of good cause for leaving work attributable to work or to the employer is upon the claimant." Darr, 428 S.W.3d at 724.

III. FACTUAL AND PROCEDURAL HISTORY

On May 2, 2019, Koenen began working for Employer on an hourly basis. Employer operates a Burger King fast food franchise, and Koenen primarily worked in the dining room or at the front counter, but would also occasionally work the drive-thru line in order to give team members who regularly worked that job a break. However, Koenen admitted that she was not as proficient as many of her co-workers who worked the drive-thru line, stating that she is "older than these young kids"; thus, she preferred working in the dining room or at the front counter, where she felt most comfortable. Koenen also admitted that she was not trained as a cook and was not a manager. Although the record is not explicit in this regard, it appears that prior to March of 2020, Koenen was a permanent employee and regularly worked full-time shifts.

As with virtually all retail businesses, Employer was significantly affected when the COVID-19 pandemic struck our nation in the spring of 2020 (the "Pandemic"), which resulted in Employer shutting down its dining room service in mid-March of 2020. However, Employer still provided drive-thru service to customers during this time. As a result of Employer's dining room being closed, Koenen's hours were gradually cut over the following 2-3 weeks to the point where she was taken off the work schedule entirely by early April of 2020 and given no hours.[2]According to Employer, Koenen's last day of work was March 24, 2020. However, although Koenen initially stated that she did not remember the exact date she last worked, she believed it was April 4, 2020.

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Koenen made numerous requests to her manager, Donna Trent ("Ms. Trent"), to be kept on the work schedule as much as possible, claiming financial hardship if she did not have regular work hours. Nevertheless, Ms. Trent told Koenen that no hours were available for her, citing Employer's need to reduce labor costs due to the dining room being closed. Koenen maintains that she never received a notice of termination from Employer and Employer agreed that she was never terminated. In addition, Koenen maintains that she never gave Employer notice of her intent to leave her position, as she specifically stated that she "liked" her job and was "good" at it. On the contrary, after her hours were cut to zero, Koenen contacted the restaurant several times to ask whether she could get some hours, but had a difficult time getting through to anyone. When she was finally able to reach someone at the restaurant, she received the same answer as before-that no hours were available because the dining room was still closed. Specifically, Koenen was told that although her name was still on the work schedule, she simply had not been allocated any hours. The record does not reflect with whom Koenen spoke at this time, but Koenen recalls that it was not Ms. Trent. Koenen believes this conversation occurred on April 11 or 12, 2020. Koenen further testified that a few days after the foregoing phone conversation, she sent a text message to Ms. Trent, again inquiring about getting work hours. However, Ms. Trent never responded to the text message. Koenen also testified that shortly after sending Ms. Trent the text message, she physically went to the restaurant at a time when she believed Ms. Trent would be there, as she wanted to speak with Ms. Trent in person about her work situation, but Ms. Trent was not at the restaurant when Koenen visited.

Upon realizing that she was not going to get any work hours at Employer's restaurant for the foreseeable future, Koenen contacted other area Burger King franchises to ask about getting work hours, but she was unable to find any available hours, as each of those restaurants were

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facing the same situation as Employer, and were likewise trying to reduce their labor costs by cutting non-essential worker hours. Thus, despite her repeated efforts, Koenen remained without any work hours in the weeks and months following the closure of Employer's dining room.

On or about April 17, 2020, Koenen filed an application for unemployment benefits with the Missouri Division of Employment Security (the "Division"). However, in a written determination dated July 14, 2020, a deputy of the Division determined that Koenen was disqualified for unemployment benefits on the basis that she "quit due to a reason that was not good cause connected to the work or the employer." Koenen subsequently learned that Employer reported to the Division that she had quit her job, specifically claiming that she had not shown up for work as scheduled. However, Koenen disagreed with this assertion, claiming that she had not been scheduled to work ever since her hours had been reduced to zero. Thus, Koenen reached out to Ms. Trent, believing that she must have been the one who made this report to the Division, either directly or through a...

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