Nell v. Fern-Thatcher Co.

• Court: Missouri Court of Appeals
• Writing for the Court: ELLIS
• Citation: Nell v. Fern-Thatcher Co., 952 S.W.2d 749 (Mo. App. 1997)
• Decision Date: 09 September 1997
• Docket Number: No. WD,FERN-THATCHER,WD
• Parties: Marie NELL, Appellant, v.COMPANY, Defendant, Division of Employment Security, Respondents. 53883.

Page 749

952 S.W.2d 749

Marie NELL, Appellant, v. FERN-THATCHER COMPANY, Defendant Division of Employment Security, Respondents.

No. WD 53883.

Missouri Court of Appeals Western District.

Sept. 9, 1997.

Rehearing Denied Oct. 28, 1997.

Party Acting pro se.

Ronnae L. Coleman, Kansas City, for respondent.

Before EDWIN H. SMITH, P.J., and BERREY and ELLIS, JJ.

ELLIS, Judge.

Marie Nell appeals from a decision of the Labor and Industrial Relations Commission denying her claim for unemployment compensation.

The record reflects that Marie Nell worked for the Fern-Thatcher Company as a production worker from Wednesday, February 14, to Friday, February 16, 1996. The following Monday, around 7:00 a.m., Nell telephoned the company's general manager to notify her that she had a dentist appointment that morning, but would return to work that afternoon. The general manager asked Nell why she had not told her of the appointment sooner. Nell stated that she had not thought to do so. The general manager ended the conversation by telling Nell that she would see her later. Nell returned home from the dentist's office around noon. About 3:30 p.m., Nell called the general manager and advised her that she had secured another job and would not be back to work at Fern-Thatcher.

Thereafter, Nell filed a claim for unemployment benefits for the week of February 18, through February 24, 1996. On October 9, 1996, the Division of Employment Security considered Nell's claim and made the following determinations:

(1) Nell left her position voluntarily without good cause attributable to her work or employer, thereby disqualifying her for unemployment benefits for the week of February 18, through the 24th, until such time as she earns ten times her weekly benefit amount in insured work;

(2) Nell was ineligible for benefits for the week of February 18 through February 24, 1996, because she was not available for work, in that she was not actively and earnestly seeking work;

(3) Nell was overpaid $2,276 in benefits for the weeks February 18, 1996 through May 25, 1996, because she had collected benefits during a period of disqualification; and, ¹

(4) Nell was overpaid Trade Readjustment Allowance in the amount of $2,625 for the period May 26, 1996 through September 7, 1996, because she was not an unemployment insurance exhaustee.

Nell appealed to the Division's Appeals Tribunal. Following a hearing on November 6, 1996, the Appeals Tribunal affirmed the Division's findings. Nell then appealed to the Labor and Industrial Relations Commission. The Commission affirmed the findings of the Appeals Tribunal and adopted them as its own. Nell now appeals, pro se, from the Commission's decision.

Our review of the Commission's decisions in unemployment compensation proceedings is governed by § 288.210, RSMo Supp.1996, which provides in pertinent part:

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. The court, on appeal, 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.

In applying this section, we utilize the procedure announced in Davis v. Research Medical Center, 903 S.W.2d 557 (Mo.App. W.D.1995). See also Merick Trucking, Inc. v. Missouri Dep't. of Labor & Indus. Relations, Div. of Employment Sec., 933 S.W.2d 938, 940 (Mo.App. W.D.1996). Consequently,

Findings and awards of the Commission which are clearly the interpretation or application of the law, as distinguished from a determination of facts, are not binding on the court and fall within the court's province of independent review and correction where erroneous. And, where the findings of ultimate fact are reached not by a process of natural reasoning from the facts alone, but rather by application of law, it is a conclusion of law and subject to reversal by the court.

Davis, 903 S.W.2d at 571. Thus, to the extent an appeal involves issues of law, we do not defer to the Commission. On the other hand, to the extent it involves evaluating evidence relative to the Commission's findings, we may not substitute our judgment on the evidence for that of the Commission, and we defer to the Commission's determinations regarding the weight of the evidence and the credibility of witnesses. Id. Moreover, we employ a two-step process of review:

In the first step, the court examines the whole record, viewing the evidence and all reasonable inferences drawn therefrom in the light most favorable to the award, to determine if the record contains sufficient competent and substantial evidence to support the award. If not, the Commission's award must be reversed. If there is competent and substantial evidence supporting the award, the court moves to the second step, where it views the evidence in the light most favorable to the award, but must consider all evidence in the record, including that which opposes or is unfavorable to the award, take account of the overall effect of all of the evidence, and determine whether the award is against the overwhelming weight of the evidence.

Id.

Nell first challenges the Commission's finding that she voluntarily quit her job with Fern-Thatcher. Nell claims she was discharged by the general manager when she called in on the afternoon of February 19th.

At the hearing, Nell testified as to her conversation with the general manager:

I waited for the numbness to wear off and I called her I think it was about 2:30, 3 o'clock and told her that I'd be on in, I knew it was late in the afternoon but I'd be on in and she said well you was probably out looking for a job anyway. And she was kind of rude so I said okay, yeah, whatever.... And I told her that if I find another job it would be one with benefits.

According to Nell, the general manager responded by saying, "well I won't see you tomorrow then." When asked why she did not return to work the next day, Nell answered: "the way she put it I won't see you tomorrow made me feel that she wasn't expecting me to be back tomorrow either." Also introduced into evidence was a statement made by Nell to a Division employee during a telephone conversation on September 23, 1996, wherein she stated: "I quit because I did not like the owner's attitude."

The general manger testified at the hearing on Fern-Thatcher's behalf. She stated that she made a written note of her telephone conversation with Nell, and according to her notes, Nell had called the factory at 3:30 p.m. on the 19th and told her that "she found another job with benefits and would not be coming back in." After evaluating the evidence before it, the Commission concluded that Nell left work voluntarily on February 19, 1996, because she did not like the general manager's attitude.

The only evidence supporting Nell's contention that she was discharged is her testimony to that effect. The evidence before the Commission concerning the February 19th telephone calls was conflicting. Resolution of conflicting evidence is for the Commission, and its choice is binding upon this court. Fehr v. R & S Exp., 924 S.W.2d 331, 333 (Mo.App. E.D.1996). Thus, to the extent Nell is asking this court to re-weigh her credibility, we decline to do so. There was sufficient, competent evidence to support the Commission's determination that Nell voluntarily quit her employment with Fern-Thatcher, and that conclusion was clearly not against the overwhelming weight of the evidence.

Pursuant to § 288.050.1 of the Missouri Employment Security Law, an employee who voluntarily quits work without good cause attributable to his work or employer does not qualify for benefits. § 288.050.1, RSMo 1994. ² Nell bears the burden of establishing that she quit her employment for good cause. Mitchell v. Division of Employment Sec., State of Mo., 922 S.W.2d 425, 427 (Mo.App. S.D.1996). Whether the employee had "good cause" to terminate employment is a question of law. Clark v. Labor & Indus. Relations Comm'n, 875 S.W.2d 624, 627 (Mo.App. W.D.1994). Where the question is one of law, we are not bound by the decision of the Commission, but must determine for ourselves whether the evidence and inferences drawn therefrom establish good cause. Davis, 903 S.W.2d at 571.

"Good cause is a cause which reasonably would motivate the average able-bodied and qualified worker in a similar situation to terminate his or her employment with its certain wage rewards in order to enter the ranks of the compensated unemployed." Division of Employment Sec. v. Labor & Indus. Relations Comm'n, 636 S.W.2d 361, 363 (Mo.App. E.D.1982). "A worker has good cause to terminate employment voluntarily when that conduct conforms to what an average person, who acts with reasonableness and in good faith, would do." Heavy Duty Trux, Ltd. v. Labor & Indus. Relations Comm'n, 880 S.W.2d 637, 641 (Mo.App. W.D.1994). This standard requires that the employee's concerns be real or that of a reasonable worker, not the supersensitive. Tin Man Enter., Inc. v. Labor & Indus. Relations Comm'n, 866 S.W.2d 147, 149 (Mo.App. E.D.1993). Moreover, they must be so compelling that a reasonably prudent person would be justified in terminating employment. Charles v. Missouri Div. of Employment Sec., 750 S.W.2d 658, 661 (Mo.App. W.D.1988). Mere dissatisfaction with working conditions generally does not constitute good cause for quitting one's employment. Id. To demonstrate good faith, the employee must show he made an effort to resolve the dispute before quitting. Tin Man, 866 S.W.2d at 149.

The evidence, viewed in the appropriate...