Richardson v. Div. of Emp't Sec.

• Decision Date: 15 November 2011
• Docket Number: No. WD 73076.,WD 73076.
• Citation: 361 S.W.3d 425
• Parties: Dawn RICHARDSON, Appellant, v. DIVISION OF EMPLOYMENT SECURITY, Respondent.
• Court: Missouri Court of Appeals

361 S.W.3d 425

Dawn RICHARDSON, Appellant,

v.DIVISION OF EMPLOYMENT SECURITY, Respondent.

No. WD 73076.

Missouri Court of Appeals, Western District.

Nov. 15, 2011.

Dawn Richardson, Appellant pro se.

Bart A. Matanic, for Respondent.

Before Division Three: JAMES E. WELSH, Presiding Judge, JAMES M. SMART, JR., Judge and JOSEPH M. ELLIS, Judge.

JOSEPH M. ELLIS, Judge.

Dawn Richardson (“Claimant”) appeals from an order issued by the Labor & Industrial Relations Commission disqualifying her from receiving unemployment benefits for five weeks based upon a finding that she was terminated from her employment with Seniortrust of Columbia, LLC (“Seniortrust”) for misconduct related to work. For the following reasons, the Commission's decision is reversed and remanded for further proceedings.

Claimant was employed by Seniortrust in Columbia, Missouri as a certified nurse's aide at a nursing home from July 26, 2007, until April 8, 2010. On the night of April 7, 2010, Claimant was the sole person assigned to work the 10 p.m. to 6 a.m. shift in the Alzheimer's unit. She had just arrived home from an automobile trip to Virginia at 8:00 p.m. After she had an allergic reaction to some seafood, including swelling of her throat, Claimant tried to call in sick, but was told by her supervisor that, pursuant to Seniortrust policies, she could not call in sick that close to the start of her shift. Claimant took some Benadryl to counter the allergic reaction and reported to work for her shift.

When the Director of Nursing, Jackie White, came by the unit during Claimant's shift, Claimant was asleep behind the desk. After waking Claimant, which took considerable effort, White told Claimant that sleeping on the job was unacceptable. As she was leaving for the evening, White instructed the nighttime supervisor, Amy Cunningham, to check on Claimant later to make sure she was not sleeping on the job. Later that night, when Cunningham checked on the Alzheimer's unit, she found Claimant again asleep at her desk and notified White of that fact. Cunningham sent Claimant home, and the following day, White discharged Claimant.

Later that day, Claimant filed a claim for unemployment benefits. On April 21, 2010, Senior Trust filed its letter of protest, asserting that Claimant had been discharged for misconduct related to work because she was sleeping on the job. On April 27, 2010, a deputy for the Division of Employment Security issued his determination that Claimant should be disqualified from unemployment benefits for five weeks because she had been discharged for misconduct connected with work when she was caught sleeping at work.

Claimant filed an appeal of the deputy's determination with the Appeals Tribunal. A hearing was conducted on Claimant's claim on June 17, 2010. The Appeals Tribunal subsequently issued its decision concluding that Claimant had been discharged from her employment for misconduct related to work for reporting to work without proper rest and under the influence of medication. On September 10, 2010, the Commission affirmed the decision of the Appeals Tribunal and adopted that decision as its own.

In her sole point on appeal, Claimant asserts that the Commission's finding that she was discharged for misconduct was not supported by the evidence. She contends that her sleep was the result of an involuntary reaction to Benadryl and that she had been told to take that drug by her supervisor.

Our review of the Commission's decisions is governed by § 288.210 which states:

The findings of the commission as to 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.

“We will affirm the Commission's decision if we find, upon a review of the whole record that ‘there is sufficient competent and substantial evidence to support the [Commission's decision].’ ” Higgins v. Missouri Div. of Employment Sec., 167 S.W.3d 275, 279 (Mo.App. W.D.2005) (quoting Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. banc 2003)). “[W]e defer to the Commission on issues involving the credibility of witnesses and the weight to be given to their testimony.” Martinez v. Nationwide Paper, 211 S.W.3d 111, 115 (Mo.App. S.D.2006) (internal quotation omitted). “However, we owe no deference to the Commission's conclusions of law or application of the law to the facts.” Higgins, 167 S.W.3d at 279.

“Pursuant to § 288.050.2, if an individual is fired for misconduct connected with his or her work, that individual may be denied employment security benefits for four to sixteen weeks.” Peck v. La Macchia Enters., 202 S.W.3d 77, 80 (Mo.App. W.D.2006) (internal quotation omitted). Section 288.030.1(23) defines “misconduct” as:

an act of wanton or willful disregard of the employer's interest, a deliberate violation of the employer's rules, a disregard of standards of behavior which the employer has the right to expect of his or her employee, or negligence in such degree or recurrence as to manifest culpability, wrongful intent or evil design, or show an intentional and substantial disregard of the employer's interest or of the employee's duties and obligations to the employer.

“Work-related misconduct must involve a willful violation of the rules or the standards of the employer.” Mathews v. B & K Foods, Inc., 332 S.W.3d 273, 277 (Mo.App. S.D.2011) (internal quotation omitted). “Willful misconduct can be established when a claimant, either by action or inaction, consciously disregards the interest of the employer or behaves in a way that is contrary to that which an employer has a right to expect from an employee.” West v. Baldor Elec. Co., 326 S.W.3d 843, 847 (Mo.App. E.D.2010). “In general, a claimant bears the burden of demonstrating that he or she is entitled to unemployment benefits; however, when the employer claims that the applicant was discharged for misconduct, the burden shifts to the employer to prove the claim of misconduct connected with work.” Peck, 202 S.W.3d at 80. Ordinarily, “an employee's conduct off the working premises or outside the course or scope of his or her employment is not considered as misconduct in connection with employment.” 81 C.J.S. Social Security & Public Welfare § 398 (2004).

The Commission rested its decision on findings that traveling all day before reporting to work, thereby reporting to work insufficiently rested, and using allergy pills constituted misconduct because Employer had a right to expect its employees would not engage in such activities and that those actions demonstrated substantial disregard of Claimant's obligation to Employer.

As to taking Benadryl, Claimant testified that she had an allergic reaction to seafood and felt like her throat was swelling shut. The Commission found that testimony credible.¹ Having found that Claimant was suffering from an allergy attack, the Commission could not reasonably conclude that Claimant committed an act of misconduct by treating that condition with medication, absent evidence and a finding that Claimant was aware that her use of that medication would compromise her ability to perform her work duties ² and that an acceptable, alternative treatment was available, particularly when failing to treat allergies can, in some instances, compromise an employee's ability to work. Moreover, the Commission does not indicate how Claimant's act of taking an allergy pill at home can be deemed to be connected with her work.³

As to the Commission's finding that Claimant reported to work without proper rest, the evidence does not establish that Claimant got significantly less sleep than usual as a result of her trip home from Virginia or that she was more tired than usual as a result of that trip. The record does not reflect when Claimant arose to travel that day, whether anyone was traveling with Claimant, or whether Claimant was able to sleep during the trip. Moreover, even if it were proper to infer that Claimant woke especially early and drove all the way from Virginia by herself, the evidence does not establish that Claimant had reason to know that her travel would significantly compromise her ability to stay awake during her shift or that she would have otherwise fallen asleep absent the ingestion of the Benadryl. And, again, the Commission's decision does not explain how Claimant's driving across the country in her off-time, or her sleeping habits in general, can be deemed to be connected with her work.

The Commission's conclusions that Claimant was guilty of misconduct related to work for taking Benadryl and for not being rested when reporting to work are clearly erroneous. As noted supra, [o]rdinarily, “an employee's conduct off the working premises or outside the course or scope of his or her employment is not considered as misconduct in connection with employment.” 81 C.J.S. Social Security & Public Welfare § 398 (2004); see also Miller v. Kansas City Station Corp., 996 S.W.2d 120, 125–26 (Mo.App. W.D.1999). Had Employer discharged claimant as soon as she reported for work, we would certainly not be able to conclude that these actions were misconduct connected to Claimant's work.

This leads us to the real issue in this case, but unfortunately, one which the Commission failed to address. The work-connected conduct for which Claimant was actually fired was falling asleep on the job. This was the sole reason for her discharge asserted by Employer, and Claimant conceded that she fell asleep at her p...