Osman v. Div. of Employment Sec.

• Decision Date: 01 February 2011
• Docket Number: No. WD 72610.,WD 72610.
• Citation: 332 S.W.3d 890
• Parties: Osman OSMAN, Appellant,v.DIVISION OF EMPLOYMENT SECURITY, Respondent.
• Court: Missouri Court of Appeals

332 S.W.3d 890

Osman OSMAN, Appellant,

v.DIVISION OF EMPLOYMENT SECURITY, Respondent.

No. WD 72610.

Missouri Court of Appeals, Western District.

Feb. 1, 2011.

Samuel I. McHenry, Kansas City, MO, for Appellant.Shelly A. Kintzel, Jefferson City, MO, for Respondent.Before Division II: JAMES EDWARD WELSH, Presiding Judge, and MARK D. PFEIFFER and KAREN KING MITCHELL, Judges.KAREN KING MITCHELL, Judge.

Osman Osman appeals from the decision of the Labor and Industrial Relations Commission (“the Commission”) finding him disqualified from unemployment benefits. The Commission determined that Osman voluntarily quit his employment without having good cause attributable to either the work or the employer. We affirm.

Factual and Procedural Background

Osman was employed by Ace Personnel, Inc. (“Ace”), a temporary agency, ¹ as a security guard. Broadway Medical was a client of Ace for which Ace assigned employees to provide security services. Osman had been stationed as a security guard in Broadway Medical's building for approximately six months, was working approximately thirty-five hours per week, and made $10.30 per hour. After several complaints about Osman's performance from staff and patients at Broadway Medical, Broadway Medical requested that Osman be removed from his post. On August 21, 2009, Osman reported to Broadway Medical, as usual. That day, he was told by an Ace staffer that it would be his last day at Broadway Medical and that he was to report to the Ace office the following Monday. On Monday, Osman was informed by Ace that another person was taking his place at Broadway Medical and that he would be assigned as a security guard for another of Ace's clients, a rental car company at the Kansas City airport. The new position paid $9.50 per hour, was for fewer hours per week, and Osman argued that it was farther from his home, although this conclusion is disputed. Osman rejected the new position.

Osman applied for unemployment benefits, and a deputy of the Division of Employment Security (“Division”) determined that Osman had quit work voluntarily with good cause attributable to the work or the employer, thus qualifying Osman for benefits.

Ace appealed, not claiming that Osman was without good cause to quit his employment voluntarily, but on the basis that Osman had “received several warnings about his performance at the Broadway Medical post.... After several warnings and no improvement, Broadway Medical asked that [Osman] be removed from the post.” The Division's Appeals Tribunal held a hearing on December 14, 2009. A representative of Ace testified that “on numerous occasions the property manager [of Broadway Medical] received complaints from the tenants of the building.” Ace also submitted a written exhibit stating that several of Broadway Medical's complaints involved Osman's leaving his security post and talking on his cell phone. Evidence was also presented comparing the terms of the offered position with the terms of Osman's position at Broadway Medical, including hourly rate of pay, hours offered per week, and commute distance. The Appeals Tribunal reversed the deputy's determination that Osman was qualified for benefits, finding that Osman had quit work voluntarily without good cause attributable to his work or his employer, because a 7.8 percent reduction in pay is not sufficient to constitute good cause. The Appeals Tribunal did not address whether Osman's assignment at Broadway Medical was terminated due to misconduct.

Osman appealed to the Commission, which adopted the Appeals Tribunal's decision by a two-to-one vote, with one Commissioner dissenting on the basis that he believed that the combination of the reduction in pay rate and hours worked per week and the increased commuting distance was sufficient to show that Osman had good cause to quit his employment. Osman now appeals to this court.

Standard of Review

We review appeals from the Commission under the narrow standard set forth in section 288.210.² Under this standard, we do not hear any new evidence but rather determine whether the Commission's findings of fact upon the record before us are supported by competent and substantial evidence. § 288.210. If so, the findings are deemed conclusive in the absence of fraud. Id. 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 decision; or (4) the decision was not supported by competent evidence in the record. Id.

“ ‘Decisions of the Commission which are clearly the interpretation or application of the law, as distinguished from a determination of facts, are not binding upon us and fall within our province of review and correction.’ ” Ross v. Whelan Sec. Co., 195 S.W.3d 559, 563 (Mo.App. S.D.2006) (quoting K & D Auto Body, Inc. v. Div. of Emp't Sec., 171 S.W.3d 100, 102 (Mo.App. W.D.2005)) (internal quotations omitted). When it is clear that the Commission's decision resulted from its application of the law, instead of its application of reason to the facts, we give no deference to the Commission's conclusions and use our own independent judgment. Id. at 563–64.

Discussion

The purpose of the unemployment compensation law is to “benefit ... persons unemployed through no fault of their own.” § 288.020.1. Chapter 288 indicates a legislative intent to create an incentive for employed persons to remain employed by withholding benefits from those who quit their jobs without good cause or are discharged for misconduct. § 288.050. Sections 288.050.1 and .2 set out four circumstances under which an unemployed worker may be denied unemployment compensation.

An unemployed claimant under Chapter 288 may be denied benefits if the claimant: (1) “has left work voluntarily without good cause attributable to such work or to the claimant's employer” (section 288.050.1(1)); (2) “has retired” (section 288.050.1(2)); (3) “has been discharged for misconduct connected with the claimant's work” (section 288.050.2); or (4) has “failed without good cause ... to accept suitable work when offered the claimant ... by an employer by whom the individual was formerly employed” (section 288.050.1(3)).

In this case, first the deputy, and then the Appeals Tribunal, and finally the Commission, all found that Osman had quit his employment voluntarily. They only differed as to whether Osman's decision to quit was supported by good cause attributable to his work or to his employer so as to disqualify him from benefits under section 288.050.1(1).³ Osman bears the burden of proving that his voluntary termination resulted from good cause attributable to his work or his employer. Sokol v. Labor & Indus. Relations Comm'n of Mo., 946 S.W.2d 20, 23 (Mo.App. W.D.1997).

“ ‘Good cause’ has no fixed or precise meaning, and is judged by the facts of each case.” Partee v. Winco Mfg., Inc., 141 S.W.3d 34, 38 (Mo.App. E.D.2004) (citing Cooper v. Hy–Vee, Inc., 31 S.W.3d 497, 502 (Mo.App. W.D.2000)). Good cause exists when there are circumstances 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 of Mo., 547 S.W.2d 841, 846 (Mo.App.1977)). The employee must demonstrate positive conduct that is “ ‘consistent with genuine desire to work and be self-supporting.’ ” Id. (quoting Belle State Bank, 547 S.W.2d at 846). Circumstances that are sufficient to show that an employee voluntarily terminated employment for good cause must be real, substantial and reasonable, “ ‘and good faith is an essential element.’ ” Id. (quoting ...