Miller v. Great S. Bank

• Court: Missouri Court of Appeals
• Writing for the Court: DON E. BURRELL
• Citation: Miller v. Great S. Bank, 367 S.W.3d 111 (Mo. App. 2012)
• Decision Date: 05 April 2012
• Docket Number: No. SD 31192.,SD 31192.
• Parties: Sarah MILLER, Claimant–Respondent, v. GREAT SOUTHERN BANK, Employer–Appellant, and Missouri Division of Employment Security, Respondent.

367 S.W.3d 111

Sarah MILLER, Claimant–Respondent,

v. GREAT SOUTHERN BANK, Employer–Appellant,andMissouri Division of Employment Security, Respondent.

No. SD 31192.

Missouri Court of Appeals,

Southern District,

Division One.

March 26, 2012.

Application for Transfer Denied

April 5, 2012.

Application for Transfer

Denied May 29, 2012.

Rick E. Temple, Springfield, MO, for Appellant/Employer.

Larry R. Ruhmann, Jefferson City, MO, for Respondent/Claimant.

DON E. BURRELL, Presiding Judge.

Great Southern Bank (“Employer”) appeals the decision of the Labor and Industrial Relations Commission (“the Commission”) finding Sarah Miller (“Claimant”) eligible for unemployment benefits. Specifically, Employer argues that Claimant was disqualified for benefits because “the competent and substantial evidence supports the conclusion that Claimant ‘voluntarily left her work without good cause attributable to her work or the employer,’ in that Claimant was released by her doctor to return to work but did not follow up or notify [Employer] of such release.” Because Claimant's failure to return to work for Employer was “involuntary” due to a serious health condition, we affirm the decision of the Commission.

Applicable Principles of Review

Our review is governed by article V, section 18 of the Missouri Constitution and § 288.210.¹Scrivener Oil Co., Inc. v. Crider, 304 S.W.3d 261, 266 (Mo.App. S.D.2010). The Commission's decision must be “supported by competent and substantial evidence upon the whole record.” Mo. Const., art. V, sec. 18. “The findings of the [C]ommission as to the facts, if supported by competent and substantial evidence and in the absence of fraud, shall be conclusive,” and we

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.§ 288.210. The slightly different constitutional and statutory standards may be read together such that “[a] 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)).²

In determining whether there is sufficient competent and substantial evidence to support an award, we examine the whole record to determine whether the award is contrary to the overwhelming weight of the evidence, keeping in mind that the credibility of witnesses and the resolution of conflicting evidence are matters determined solely by the Commission. Harris v. Division of Emp't Sec., 350 S.W.3d 35, 39 (Mo.App. W.D.2011). “When the evidence of each party and inferences to be drawn therefrom conflicts, resolution of the conflicting inferences is the job of the [C]ommission, and its resolution is binding on the reviewing court.” Scrivener, 304 S.W.3d at 267.

Factual and Procedural Background

At the time of her separation from employment on June 14, 2010, Claimant had worked for Employer for almost eleven years. For the twelve-week time period immediately prior to June 7, 2010, Claimant had been on extended leave because “[s]he had an illness that prevented her from working.” Claimant suffered from a number of medical conditions, including uterine cancer and kidney disease. Employer did not contest the seriousness of Claimant's medical conditions.

On Monday, June 7, 2010, the day she was scheduled to return to work from her extended leave, Claimant called Employer and said she would not be able to make it in. The next day, Claimant met with her supervisor and Employer's assistant director of human resources (“ADHR”) to provide them with documentation of the fact that she had been released by her doctor to return to work. During that meeting, Claimant was informed that her supervisor would not be able to accommodate any further absences. Claimant worked the rest of that day as well as the next two days. On Friday, Claimant's husband called Employer and left a message for Claimant's supervisor that indicated Claimant would be unable to work because she had strep throat and was running a fever.

On the following Monday, June 14th, Claimant again called in sick. ADHR made arrangements for a conference call early that afternoon between herself, Claimant, and Claimant's supervisor. During that conference call, Claimant told Employer's representatives that she did not know when she would be able to return to work and that her doctors were urging her to consider seeking disability benefits. ADHR explained to Claimant that she understood Claimant's situation and that Claimant didn't want to leave her position, but she testified:

[Claimant] had returned to work and—and, again, she was stating that she didn't know if she was going to be able to return to work. And at some point we had to make a business decisionto say, well, the—the job is open. You're telling us that you can't fill the job. So we're not going to hold it against you but please understand we're going to look at that as a voluntary resignation and we need to fill the position.

ADHR explained that she would record the separation as a voluntary resignation so that Claimant would be eligible for rehire when Claimant had a doctor's release stating that she could return to work. Claimant believed that Employer had terminated her employment during that conference call.

In addition to ADHR's testimony, Employer offered (and the Appeals Tribunal received into evidence) multiple exhibits related to the June 14th telephone conference. One of these exhibits was a typed, signed memorandum from another employee dated June 14, 2010 (“the FMLA memorandum”). The FMLA memorandum bore a handwritten note on the upper corner with the same initials as those of ADHR; the note stated that the employee was Employer's “FMLA document specialist” and that the employee was present for the conference call with Claimant although Claimant was unaware of her presence. It also stated that the employee “sat in on a conference call” regarding Claimant on June 14, 2010, summarized Claimant's work attendance leading up to the meeting, noted statements Claimant made during the call about her physical condition, and provided the following details:

[Claimant] stated that she did not know what she was going to do since she had no Medical Leave left. [ADHR] explained to her that since she did not have any Leave left that we would consider that she had voluntary [sic] resigned and she could apply for other opportunities within [Employer] that would be more accommodating.

[Claimant] stated again that she can't resign and asked us to send her something in writing. [ADHR] told her that we would not be able to provide anything in writing.

[Claimant] again stated that she did not want to resign and it looked like she would not be able to work anywhere.

[ADHR] finished the call by summarizing the meeting we had with [Claimant] on June 8th and explained that we could not accommodate any future absences. And since [Claimant] was not resigning her position, we would document her file as such.

Arrangements were made for her to pick [sic] her personal possessions she had at her desk and returning her phob [sic] when she cam[e] to pick them up. [The memorandum goes on to discuss the handling of Claimant's accrued vacation and retirement and investment plans.]

I called Security to have them deactivate her phob [sic].

Another memorandum received into evidence was purportedly authored by ADHR and also concerned the June 14th telephone conference (“the ADHR memorandum”). The ADHR memorandum stated:

[ADHR] explained that since [Claimant] was not able to come to work and her absences were related to her previous condition that it would need to be treated like a leave situation and since she has exhausted her leave that means she would be required to work her full-time schedule. [ADHR] also explained that in similar situations when an employee has not been able to return to work once they've exhausted their leave we consider that a voluntary resignation. By treating it this way, she would have the ability to look at other opportunities within [Employer] that could possibly accommodate a flexible and/or part-time schedule. At this point [Claimant's supervisor] does not have anything else available except for full time.

The ADHR memorandum also documented ADHR's refusal to “provide something to [Claimant] in writing to document this for the unemployment office” and that “since [Claimant] was not choosing to return to work we would document the file as such.” It reflected that ADHR told Claimant “that the phob [sic] would be deactivated but if she could bring it by and give it to [her supervisor] at the time she gathered her personal belongings, it would be appreciated.”

Later in the afternoon of June 14th, Claimant went to the doctor, and the doctor cleared her at that time to return to work the next day, June 15th. Claimant did not call Employer to inform her supervisor or ADHR about her latest release to return to work because she believed she had already been terminated. Instead, Claimant applied for unemployment benefits on June 15, 2010.

The same day Claimant filed for benefits, ADHR mailed Claimant a letter which summarized the content of the previous day's telephone conference. The body of the letter stated:

I am sending this letter to document the telephone conversation held with you yesterday regarding your employment with Great Southern Bank. Participants on this call included yourself, your immediate supervisor, Jim Mallonee, and me. The call was prompted as a...