Lucido v. Div. of Emp't Sec.

• Decision Date: 09 September 2014
• Docket Number: No. WD 76940.,WD 76940.
• Citation: 441 S.W.3d 172
• Parties: Mary K. LUCIDO, Appellant, v. DIVISION OF EMPLOYMENT SECURITY, Respondent.
• Court: Missouri Court of Appeals

441 S.W.3d 172

Mary K. LUCIDO, Appellant

v.DIVISION OF EMPLOYMENT SECURITY, Respondent.

No. WD 76940.

Missouri Court of Appeals, Western District.

Sept. 9, 2014.

Mary K. Lucido, Columbia, MO, Appellant, pro se.

Ninion S. Riley, Jefferson City, MO, for Respondent.

Before Division I: MARK D. PFEIFFER, Presiding Judge, and LISA WHITE HARDWICK and KAREN KING MITCHELL, Judges.

Opinion

MARK D. PFEIFFER, Presiding Judge.

Mary K. Lucido (“Lucido”) appeals a decision of the Labor and Industrial Relations Commission (“Commission”), which affirmed the decision of the Appeals Tribunal denying Lucido's application for unemployment benefits. We reverse and remand for further proceedings consistent with this opinion.

Factual and Procedural Background

Lucido began working for American Greetings Corp. (“Employer”) in January of 2007. She was a part-time merchandiser, handling Employer's greeting cards and gift wrap in one Wal–Mart store and three Dollar General stores in Columbia, Missouri. She earned $8.09 per hour. Lucido worked fifteen to twenty hours per week among the four stores, but the vast majority of her work involved the Wal–Mart store. The three Dollar General stores combined only required about forty-two minutes of her time every other week.

When there were changes in management at the Wal–Mart store in early 2013, Lucido began to experience some difficulties with the new management. She informed her supervisor, Ed Cleaveland (“Cleaveland”), about her difficulties, and he recommended that Lucido have her husband accompany her to the store to help her. At one point, Cleaveland asked Lucido why she didn't just quit and told her that another merchandiser wanted the Wal–Mart store. Lucido responded that she couldn't live on what she would make working only at her other three stores (which would have yielded just over $11.00 per month). On May 8, 2013, Cleaveland sent Lucido an email stating that he had reassigned the Wal–Mart store to another merchandiser and that Lucido should turn in the Motorola scanner that she used to keep track of the inventory at all of the stores she controlled. Lucido was directed to meet Cleaveland at the Wal–Mart store the next day to return the scanner.

On May 9, 2013, Lucido met with Cleaveland and returned her Motorola scanner. She told Cleaveland that she was shocked and stated, “I cannot believe you're getting rid of me like this.” Cleaveland responded, “Why are you surprised? You weren't happy here.” Then Cleaveland told Lucido she could keep her other three stores (which he knew would pay her about $11.00 per month) and that he would get her an older scanner for her work at the other three stores. She was not offered any additional stores to replace Wal–Mart. Lucido responded, as she had previously told Cleaveland, that it was not financially feasible for her to exclusively work the other stores for forty-two minutes every other week and reiterated that she could not live on $11.00 per month. Cleaveland offered nothing further to Lucido, and Lucido left. After the meeting, both Cleaveland and Lucido understood that Lucido no longer worked for Employer. They did not speak again after that meeting.

Lucido filed a claim for unemployment benefits. Employer challenged Lucido's claim, maintaining that Lucido had quit her job voluntarily, and Lucido's claim for benefits was denied. Lucido appealed to the Appeals Tribunal, and a telephone hearing was held. Lucido and Cleaveland both testified at the telephone hearing.¹ After the hearing, the appeals referee made the following findings in the decision:

The employer's witness credible [sic] testified that claimant [Lucido] was assigned four stores and because of lack of performance in one store, she was removed from that store and instructed to return the mechanical scanner that belonged to that particular store. Claimant was still assigned to cover three other stores, but informed the supervisor that it was not worth her time to continue her employment.

(Emphasis added.) The appeals referee's decision concluded that Lucido resigned voluntarily and without good cause because Lucido did not make a good faith effort to maintain her employment, concluding: “Here, claimant quit a job because she was removed from 1 of the 4 stores where she was assigned.”

Lucido appealed the referee's decision to the Commission, which affirmed the referee's determination over the dissent of one Commissioner. Lucido appeals the Commission's decision here.

Standard of Review

Our review of the Commission's decision denying unemployment benefits is governed by section 288.210.² In keeping with section 288.210:

We may not reverse, remand, or set aside the Commission's decision unless the Commission acted without or in excess of its powers, the decision was procured by fraud, the decision was not supported by facts, or the decision was not supported by sufficient competent evidence in the whole record to warrant the making of or the denial of the award.

Weirich v. Div. of Emp't Sec., 301 S.W.3d 571, 574 (Mo.App. W.D.2009).

Unlike most of the cases we review, in unemployment benefit cases, we do not view the facts in the light most favorable to the Commission's decision; instead, we view the evidence objectively. Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. banc 2003). However, on matters of witness credibility, we will defer to the Commission's determinations. Seck v. Dep't of Transp., 434 S.W.3d 74, 79 (Mo. banc 2014). Conclusions of law and the application of the law to the facts are matters we review de novo. Id. at 78.

Analysis

An employee is disqualified from receiving unemployment benefits if she “has left work voluntarily without good cause attributable to such work or to the claimant's employer[.]” § 288.050.1(1). However, “[s]ection 288.050.1(1) must be strictly and narrowly construed in favor of finding that an employee is entitled to compensation.” Darr v. Roberts Mktg. Grp., LLC, 428 S.W.3d 717, 724 (Mo.App. E.D.2014).

The legislature explained the public policy behind the Employment Security Act within the Act itself:

1. ... Economic insecurity due to unemployment is a serious menace to health, morals, and welfare of the people of this state resulting in a public calamity.... [T]he public good and the general welfare of the citizens of this state require the enactment of this measure.

2. This law shall be liberally construed to accomplish its purpose to promote employment security....

§ 288.020.1–.2 (emphasis added).

In this case, Lucido contends that the Commission erred in determining that she had voluntarily left her employment without good cause attributable to her work. Therefore, we must determine first, whether she voluntarily left her employment; and second, if so, whether she did so with just cause attributable to her employment. “The question of whether an employee left work voluntarily or was discharged is generally a factual determination.” Kimble v. Div. of Emp't Sec., 388 S.W.3d 634, 639 (Mo.App. W.D.2013) (internal quotation omitted). Because it is a factual finding, we examine whether the Commission could reasonably have made the finding based upon the whole record.Id. Here, the Commission determined that Lucido had quit her work voluntarily. Lucido counters that she did not leave voluntarily because she wanted to continue to work for Employer, but she simply could not feasibly do so under the new changed terms of her employment. While we acknowledge that there is some authority stating that “a discharge for failure to agree to new terms of employment” may not always constitute a voluntary quit, Sokol v. Labor Indus. Relations Comm'n, 946 S.W.2d 20, 24 (Mo.App. W.D.1997), we need not re-examine the Commission's factual finding that Lucido's departure from Employer was voluntary, because, as in Sokol, we ultimately determine that she had good cause to quit.

Assuming that, as the Commission found, Lucido left her work voluntarily, the question becomes whether she had good cause attributable to her employer to leave her employment. Cooper v. Hy–Vee, Inc., 31 S.W.3d 497, 502 (Mo.App. W.D.2000). “The determination of whether an employee had ‘good cause’ to leave employment voluntarily is determined on a case-by-case basis.” Darr, 428 S.W.3d at 724. And whether the facts, as found by the Commission and supported by substantial evidence on the whole record, establish good cause is a determination of law, which we review independently, without deference to the Commission. Id. Lucido, as the claimant, bears the burden of demonstrating good cause for her voluntary departure from employment, and she must establish two elements—reasonableness and good faith. Kimble, 388 S.W.3d at 641. In Missouri, good cause has been interpreted as “ ‘cause that would motivate the average able-bodied and qualified worker in a similar situation to terminate his or her employment.’ ” Hessler v. Labor & Indus. Relations Comm'n, 851 S.W.2d 516, 518 (Mo. banc 1993) (quoting Belle State Bank v. Indus. Comm'n, 547 S.W.2d 841, 846 (Mo.App.1977) ).³

In most cases, “good faith will require a communication to the employer of the employee's problems or concerns. This is intended to provide the employer with an opportunity to correct or ameliorate conditions that the employer did not know about or did not know were a cause of concern to the employee.” Cooper, 31 S.W.3d at 504. As Kimble points out, however, exceptions exist in situations where attempts to work through the situation would be futile, where there is a drastic reduction in the employee's salary, or where a significant change in working conditions may be viewed as a “not so subtle push out the door.” Kimble, 388 S.W.3d at 641–43 (citing Cooper, 31 S.W.3d at 505 ; Rodriguez v. Osco Drug, 166 S.W.3d 138, 143 (Mo.App. W.D.2005) ; Armco Steel Corp. v. Labor & Indus. Relations Comm'n, 553 S.W.2d 506 (Mo.App.1977) ; and Sokol, 946 S.W.2d at 24 ).

The Commission's decision, which adopts the decision of the appeals referee, faults...