O'NEAL v. MARANATHA VILLAGE, INC.

• Decision Date: 23 June 2010
• Docket Number: No. SD 29998.,SD 29998.
• Citation: 314 S.W.3d 779
• Court: Missouri Court of Appeals
• Parties: Bobbie O'NEAL, Appellant, v. MARANATHA VILLAGE, INC., Respondent, and Division Of Employment Security, Respondent.

314 S.W.3d 779

Bobbie O'NEAL, Appellant, v. MARANATHA VILLAGE, INC., Respondent, and Division Of Employment Security, Respondent.

No. SD 29998.

Missouri Court of Appeals, Southern District, Division One.

June 23, 2010.

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Craig R. Heidemann and Nathan Duncan, Douglas, Haun & Heidemann, P.C., Bolivar, for Appellant.

Shelly A. Kintzel, Jefferson City, for Respondent.

ROBERT S. BARNEY, Judge.

Bobbie O'Neal ("Claimant") appeals from the Labor and Industrial Relations Commission's ("the Commission") "Order" adopting the decision of the Appeals Tribunal which had determined that Claimant was ineligible for unemployment compensation benefits following her termination from Maranatha Village, Inc. ("Employer").¹ In her sole point relied on, Claimant argues the Commission erred in affirming the decision of the Appeals Tribunal because such a decision was not supported by competent and substantial evidence. We affirm the decision of the Commission.

Claimant began working for Employer on November 17, 2008, as a nurse's aide. She was terminated from her employment on March 17, 2009, due to her failure to complete a certification examination to become a certified nursing assistant. Claimant then filed her initial request for compensation and was notified by the Division that she was "not disqualified" from receiving benefits. Employer then filed a notice of appeal to the Appeals Tribunal and a hearing was held on June 5, 2009. The Appeals Tribunal determined that, due to her failure to complete certain certification requirements, Claimant could not continue in her position with Employer such that she was not "discharged" under the law, but she instead "left work voluntarily on March 17, 2009, without good cause attributable to the work or to Employer." Accordingly, the Appeals Tribunal reversed the prior decision and found Claimant was disqualified from receiving benefits. Claimant next filed her Application for Review with the Commission on June 23, 2009. Thereafter, the Commission affirmed the decision of the Appeals Tribunal and Claimant filed a letter requesting reconsideration of the decision. This request for reconsideration was denied by the Commission on August 5, 2009. This timely appeal by Claimant followed.

In her sole point relied on, Claimant urges Commission error in its affirmance of the Appeals Tribunal's decision disqualifying her from receiving benefits. Specifically, she asserts such a decision was contrary to the evidence

in that Missouri law did not require Claimant to be a certified nurse to work as a nurse's aide and in that Claimant's failure to qualify as a certified nurse had nothing to do with her ability to perform work as a nurse's aide because she was not hired to work as a certified nurse but as a nurse's aide.²

This Court's review of the Commission's decision in an unemployment compensation case is governed by both Article 5, Section 18 of the Missouri Constitution and section 288.210³ of the Missouri statutes. Ragan v. Fulton State Hosp., 188 S.W.3d 473, 474 (Mo.App.2006). In our review, we

may modify, reverse, remand for rehearing, or set aside the decision of the Commission only where: (1) the Commission acted without or in excess of its powers; (2) the decision was procured by fraud; (3) the facts found by the Commission do not support the award; or (4) there was no sufficient competent evidence in the record to warrant the making of the award.

Ayers v. Sylvia Thompson Residence Ctr., 211 S.W.3d 195, 197-98 (Mo.App.2007); § 288.210. "The findings of the Commission as to the facts, if supported by competent and substantial evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the appellate court shall be confined to questions of law." § 288.210. "`We examine the whole record to determine whether there is sufficient competent and substantial evidence to support the award.'" Weinbaum v. Chick, 223 S.W.3d 911, 913 (Mo.App.2007) (quoting Scrivener Oil Co., Inc. v. Div. of Employ. Sec., 184 S.W.3d 635, 638 (Mo.App.2006)). We defer to the Commission on the resolution of conflicting evidence regarding a factual issue, the weighing of evidence, and the credibility of witnesses. Burns v. Labor & Indus. Comm'n, 845 S.W.2d 553, 554-55 (Mo. banc 1993). Notwithstanding this deference, this Court reviews questions of law de novo. Dixon v. Div. of Empl. Sec., 106 S.W.3d 536, 540 (Mo.App.2003).

At the hearing before the Appeals Tribunal, Jenni Hall ("Ms. Hall"), Employer's business manager, testified that Claimant was discharged from her employment position because when she was hired she was "notified that she would have to be certified within 120 days and she failed to get that certification and according to state regulations employees in her position cannot work past 120 days without being certified." See § 198.082, RSMo Cum.Supp.2003;⁴ 19 CSR 30-84.010(6)(H) (2007). She related Claimant was required to take certain classes and complete certain tests in order to receive her certification. Ms. Hall also testified that Claimant failed one of the tests and did not complete the certification course. She related that Employer had no choice in terminating Claimant's employment because continuing to employ Claimant would be contrary to state regulations.

Claimant testified that her supervisor informed her on March 17, 2009, that she was being discharged for failing to pass a certification test and that such a failure prevented her from continuing the coursework. She related she was allowed to take the test three times and remained unable to pass it. Claimant testified that she was aware that completing the classes was a requirement of her employment and she stated Employer paid for the classes as well as adjusted Claimant's work schedule accordingly in order to accommodate her class schedule. Further, she admitted that she knew if she failed to receive the required certification she would be fired.

Section 288.050.1(1), RSMo Cum. Supp.2007, states in pertinent part that:

notwithstanding the other provisions of this law, a claimant shall be disqualified for waiting week credit or benefits until after the claimant has earned wages for work insured pursuant to the unemployment compensation laws of any state equal to ten times the claimant's weekly benefit amount if the deputy finds:

(1) That the claimant has left work voluntarily without good cause attributable to such work or to the claimant's employer....

"The claimant has the burden of proof with respect to eligibility for benefits." Miller v. Help At Home, Inc., 186 S.W.3d 801, 806 (Mo.App.2006). "Thus, if the receipt of benefits is challenged by the employer, for the employee's voluntarily leaving employment without good cause, the employee has the burden of showing that either he did not leave employment voluntarily, or, that if he did, he did so with good cause." Id. Additionally, "`while the terms that the parties use to describe cessation of an employee's employment may be instructive, the relevant facts and circumstances are controlling.'" Id. (quoting Worley v. Div. of Empl. Sec., 978 S.W.2d 480, 483 (Mo.App.1998)). This Court defers to the Commission in such factual determinations, but reviews questions of law de novo. Sartori v. Kohner Props., Inc., 277 S.W.3d 879, 885 (Mo.App.2009).

On the issue of whether Claimant voluntarily left her employment, we find this matter is akin to that found in Bd. of Educ. of the City of St. Louis v. Labor & Indus. Rel. Comm'n, 633 S.W.2d 126 (Mo. App.1982). In that case, a teacher was hired with a temporary teaching certificate that "allowed her to teach 45 days during the school year." Id. at 127. "At the request of the Board of Education, the State Board granted the teacher a 45 day extension of her temporary certificate;" however, "at the end of ... 90 days the teacher was prohibited from teaching in a public school by statute and the Board of Education was prohibited from offering her further employment in that school year...." Id. After being discharged from her employment, the teacher applied for unemployment compensation benefits and the Board of Education countered by asserting she "was not eligible for unemployment benefits because she had `voluntarily quit....'" Id. After appeals from both sides, the matter made its way to the circuit court which "concluded that it was technically the `fault' of the teacher that she was unemployed, as the word fault not only means misconduct, but also includes the `failure of volition' by an employee in retaining a job." Id. at 128. As such, the circuit court found the teacher was disqualified from unemployment benefits. Bd. of Educ., 633 S.W.2d at 128. The teacher appealed. Id.

On appeal, noting that this was a case of first impression at the time, the Western District of this Court noted

at the onset that everyday definitions of such pivotal terms as `voluntary,' `discharge' and `fault' are not easily plugged into a factual situation such as this one to reach consistent results. For example, one could say that the teacher here did not leave her job because she `wanted to,' but only because she was forced to leave by operation of law. In this sense, her leaving was `involuntary' and she should qualify for benefits. On the other hand, another could say that it was the claimant's `fault' that she lost her job because she did not have a permanent certificate, and she should therefore be denied benefits.

Id. After reviewing Missouri case law as well as case law from other jurisdictions, the reviewing court concluded that the teacher

left her work `voluntarily' and is therefore disqualified for benefits under section 288.050.1(1). The teacher accepted her employment with her eyes wide-open, fully aware that she would be unemployed when the 45 day certificate and its extension expired. There is no question that she `exercised a free-will choice and control' as to the consequences of her actions,

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