Nicholson v. Transamerica Occidental Life

• Decision Date: 10 August 2004
• Docket Number: No. WD 62741.,WD 62741.
• Citation: Nicholson v. Transamerica Occidental Life, 144 S.W.3d 302 (Mo. App. 2004)
• Parties: Thaisheena NICHOLSON, Appellant Pro Se, v. TRANSAMERICA OCCIDENTAL LIFE INSURANCE COMPANY, Defendant, Division of Employment Security, Respondent.
• Court: Missouri Court of Appeals

144 S.W.3d 302

Thaisheena NICHOLSON, Appellant Pro Se, v. TRANSAMERICA OCCIDENTAL LIFE INSURANCE COMPANY, Defendant Division of Employment Security, Respondent.

No. WD 62741.

Missouri Court of Appeals, Western District.

August 10, 2004.

Motion for Rehearing and/or Transfer to Supreme Court Denied September 28, 2004.

Appeal from the Labor and Industrial Relations Commission.

Thaisheena Nicholson, Kansas City, MO, pro se.

Ninion S. Riley, Asst. Atty. Gen., Jefferson City, for respondent.

Before BRECKENRIDGE, P.J., HOWARD and SMART, JJ.

PATRICIA BRECKENRIDGE, Judge.

Thaisheena Nicholson appeals two decisions of the Labor and Industrial Relations Commission. In one decision, the Commission found that Ms. Nicholson was disqualified from receiving unemployment benefits until she earned wages for insured work equal to ten times her weekly benefit amount because she left work voluntarily without good cause attributable to the work or the employer. In the second decision, the Commission found that Ms. Nicholson was ineligible for unemployment benefits because she was not fully available for work. On appeal, Ms. Nicholson requests that this court "reverse and remand with directions to the trial court" to enter judgment in her favor awarding her unemployment benefits. This court dismisses Ms. Nicholson's appeal for failure to comply with Rule 84.04 and failure to include any legal authority in support of her claim.

Factual and Procedural Background

Ms. Nicholson was employed as an insurance clerk by Transamerica Occidental Life Insurance Company for approximately one and a half years.¹ Ms. Nicholson's scheduled work hours were from 8:00 A.M. to 4:45 P.M., Monday through Friday. In early September 2002, one of Ms. Nicholson's children started school. Because of her child's new schedule and transportation needs, Ms. Nicholson was able to work from only 8:30 A.M. to 4:00 P.M., Monday through Friday. Ms. Nicholson requested a change in her work hours to accommodate her child care responsibilities, but Transamerica denied her request. During the week of September 3, 2002, Ms. Nicholson arrived late for work each morning. One morning, she arrived as much as two and a half hours late. She also left early each afternoon.

Transamerica made the decision to terminate Ms. Nicholson on Monday, September 9, 2002, for her continued violations of the company's attendance policy.² Erin Warner, a human resources consultant with Transamerica, testified that on September 9, 2002, Ms. Nicholson left work early without informing her manager and, consequently, the company was unable to inform her of its decision on that day. According to Mr. Warner, the company met with Ms. Nicholson the following morning and informed her that she was being terminated because of her failure to follow the company's attendance policy.³

Thereafter, Ms. Nicholson filed an application for unemployment benefits. On September 24, 2002, a deputy with the Division of Employment Security took two statements from Ms. Nicholson. In one statement, Ms. Nicholson stated that she could not complete forty hours of work because her son started school and she needed to pick him up. Thus, she could work from only 9:00 to 3:30 until her son's school began extended care. In her second statement, she stated that she could work only part-time from 9:00 to 3:30 because she did not have extended day care.

On October 21, 2002, a deputy with the Division issued two determinations. In the first determination, the deputy found that, under section 288.050,⁴ RSMo 2000,⁵ Ms. Nicholson was disqualified from benefits from September 9, 2002, because she left work voluntarily without good cause attributable to the work or the employer. In the second determination, the deputy found that, under section 288.040,⁶ Ms. Nicholson was ineligible for benefits from September 8, 2002, because her desire to work no more than thirty hours per week made her unavailable for work.

Ms. Nicholson timely appealed both of the deputy's determinations to the appeals tribunal. An appeals referee conducted, by way of a telephone conference, a separate hearing on each of the deputy's determinations. On December 18, 2002, in two separate decisions, the appeals tribunal affirmed the deputy's determinations. Ms. Nicholson appealed both decisions to the Commission. On April 1, 2003, the Commission affirmed and adopted both decisions of the appeals tribunal. This appeal followed.

Briefing Deficiencies Preclude Review

On appeal, Ms. Nicholson requests this court to "reverse and remand with directions to the trial court to enter summary judgment in favor of [Ms. Nicholson] on the issue of being compensated Unemployment benefits for all the weeks she claimed." Before this court can address the merits of Ms. Nicholson's point, however, this court must address the Division's motion to strike Ms. Nicholson's brief and dismiss the appeal.

In some cases, a brief may be so deficient that it precludes appellate review. Jenkins v. Manpower on Site at Proctor & Gamble, 106 S.W.3d 620, 623 (Mo.App.2003). "Appellate courts require compliance with Rule 84 to ensure they do not become advocates by speculating on facts and arguments that have not been asserted." Quarles v. Richman Gordman Stores, Inc., 68 S.W.3d 452, 454 (Mo.App.2001). Ms. Nicholson is not represented by counsel in this case. Nevertheless, a pro se litigant "is held to the same procedural rules as attorneys and will not receive preferential treatment regarding compliance, despite this [c]ourt's sensitivity to the problems faced by such litigants." Id.

Ms. Nicholson originally filed her brief on August 22, 2003. On August 27, 2003, this court struck her brief because it lacked a table of cases, in violation of Rule 84.04(a)(1); lacked a statement of facts with page references to the record on appeal, in violation of Rule 84.04(c) and 84.04(i); lacked a point relied on in compliance with Rule 84.04(d); and lacked a concise statement of the applicable standard of review for each claim of error, in violation of Rule 84.04(e). This court ordered Ms. Nicholson to file an amended brief, in compliance with Rule 84.04, by September 11, 2003. Thereafter, this court granted Ms. Nicholson two extensions of time within which to file her amended brief.

Despite these extensions of time, the amended brief Ms. Nicholson filed fails to comply with several requirements of Rule 84.04. Looking first at her point relied on, this court notes that when a party appeals from an administrative decision, the point must identify the administrative ruling the appellant is challenging, "state concisely the legal reasons for the appellant's claim of reversible error," and explain why the legal reasons support the claim of reversible error. Rule 84.04(d)(2). The rule further instructs:

The point shall be in substantially the following form: "The [name of agency] erred in [identify the challenged ruling or action], because [state the legal reasons for the claim of reversible error, including the reference to the applicable statute authorizing review], in that [explain why, in the context of the case, the legal reasons support the claim of reversible error]."

Rule 84.04(d)(2). The intent of Rule 84.04(d) is to give notice to the opposing party of the exact claim being made and to what it specifically must respond, and to advise this court of the questions presented for review. Finnical v. Finnical, 81 S.W.3d 554, 559 (Mo.App.2002). "Deficient points relied on preserve nothing for this court to review and are grounds for dismissal on appeal." Quarles, 68 S.W.3d at 454.

Ms. Nicholson's point relied on states:

Case 02-23985 R-A, he [sic] court erred in ruling that the appellant quit her employment, because there is no evidence that claimant abandoned or quit her employment.

Evidence supporting the termination essentially was testimony that claimant often left work early or arrived late due to needs related to her son and that she was warned about those short comings prior to her discharge.

Failure to follow an employer's instructions or reporting a few minutes late or leaving a few minutes early cannot be equated with "quitting". A clear distinction between actions which amount to "quitting" and actions which can be categorized as misconduct does exist. To quit one must at least take some action that equals putting one's self out of the workforce.

At no time did claimant ever perform any such acts. At most, what she can be found to have done is to fail to carry out her employer's instruction as to when she was to perform her duties. Not doing exactly as told may be misconduct, but is definitely not a quit.

Cases [sic] 02-23987 R-A, the court erred in ruling that the claimant was unavailable for work, because the claimant did not have her lawyer present and was not given a fair chance to answer the deputies [sic] question. Her son was often sick but she didn't know why until a doctor diagnosed the baby with asthma. After being diagnosed with asthma the baby was sent home with medicine so the child could be treated at home or at daycare so the mother didn't have to rush baby to the hospital or stay home with baby. Arrangement was also set up for her 7 year old son to be carried from school to daycare.

Ms. Nicholson's point relied on fails to follow the format set forth in Rule 84.04(d)(2). The point does comply with Rule 84.04(d)(2)(A), to some extent, by identifying the administrative rulings she is challenging. The point states that "the court erred in ruling that [she] quit her employment," and "the court erred in ruling that [she] was unavailable for work." The point does not, however, "concisely" state the legal reasons for the claimed errors. Rule 84.04(d)(2)(B). Nor does it "explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error." Rule 84.04(d)(2)(C). Rather, Ms. Nicholson's point, which is five paragraphs...