Rpcs, Inc. v. Waters

• Court: Missouri Court of Appeals
• Writing for the Court: Gary W. Lynch
• Citation: Rpcs, Inc. v. Waters, 190 S.W.3d 580 (Mo. App. 2006)
• Decision Date: 05 May 2006
• Docket Number: No. 27309.,No. 27311.,27309.,27311.
• Parties: RPCS, INC., Appellant, v. Renee WATERS and Division of Employment Security, Respondents.

190 S.W.3d 580

RPCS, INC., Appellant, v. Renee WATERS and Division of Employment Security, Respondents.

No. 27309.

No. 27311.

Missouri Court of Appeals, Southern District, Division One.

May 5, 2006.

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Austin E. Williamson and Aaron D. Jones, Hulston, Jones & Marsh, Springfield, MO, for Appellant.

Cynthia A. Quetsch, Jefferson City, MO, for Respondent Missouri Dept. of Labor and Industrial Relations.

GARY W. LYNCH, Judge.

RPCS, Inc. ("Employer") appealed two decisions by the Labor and Industrial Relations Commission ("Commission") determining that: 1) Renee Waters ("Claimant") was not disqualified for unemployment compensation benefits by reason of her discharge by Employer (Appeal No. 27309); and 2) Claimant was not ineligible for benefits between July 10 through July 23, 2005, as she was available for work, able to work and actively and earnestly seeking work (Appeal No. 27311). We ordered consolidation of the appeals and affirm the Commission's decision in each.

1) Standard of Review

The limits of our review are governed by both the Missouri Constitution and by statute. Article V, § 18 of the Missouri Constitution requires us to determine whether the Commission's decision is "authorized by law" and whether it is "supported by competent and substantial evidence upon the whole record."¹ Pulitzer Publishing Co. v. Labor & Indus. Rel. Comm'n, 596 S.W.2d 413, 417 (Mo. banc 1980). In addition, section 288.210² further defines the boundaries of review by providing, in part:

Upon appeal no additional evidence shall be heard. 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 decisions 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 deciding if the Commission's decisions are allowed by law, we are not confined to its conclusions of law or its application of law to the facts. Shelby v. Hayward Baker, Inc., 128 S.W.3d 164, 165-66 (Mo.App.2004). Each question receives independent review with no deference given to the Commission's determinations. Hoover v. Cmty. Blood Ctr., 153 S.W.3d 9, 12 (Mo.App.2005). Whether an employee's actions constitute misconduct related to her work is a question of law. Dixon v. Div. of Employment Sec., 106 S.W.3d 536, 540 (Mo.App.2003).

On the other hand, we will not replace the Commission's conclusions with our own as to their factual findings. Id. We defer to the Commission's "determinations regarding weight of the evidence and the credibility of witnesses." Id. Absent fraud, the Commission's factual findings are conclusive on appeal if they are supported by competent and substantial evidence upon the whole record and are not clearly against the overwhelming weight of the evidence. Clark v. Labor & Indus. Rel. Comm'n, 875 S.W.2d 624, 626 (Mo. App.1994). When the Commission has reached one of two possible conclusions from the evidence, this Court will not reach a contrary conclusion even if we could reasonably do so. Id. at 626-27. If the evidence before the Commission would warrant either of two opposed findings, we are bound by the administrative determination. Pavia v. Smitty's Supermarket, 118 S.W.3d 228, 234 (Mo.App.2003).

2) Factual and Procedural Background

Renee Waters began working for Employer in March of 2004 as a cashier earning $5.50 an hour. Claimant's employment was terminated on June 22, 2004, because she continually had cash shortages in her cash drawers throughout the four months of her employment. Testimony revealed that in June 2004, Claimant's cash register drawers had the following shortages:

June 2 — $20.70

June 9 — $3.87

June 10 — $3.41

June 11 — $17.69

June 12 — $10.94

June 13 — $22.29

June 14 — $4.65

June 15 — $9.66

June 16 — $20.31

Employer, by internal policy, restricted Claimant to $5.00 shortage on each of day of work. Therefore, the shortages on June 9, 10, and 14 did not violate any store policy. The store manager questioned Claimant and testified that she appeared flustered, nervous and concerned about the shortages. She told the manager she did not understand why the shortages were occurring. The manager testified that he had suspicions that Claimant was stealing, but no one observed Claimant taking any money. Claimant testified that she had worked tills during her past employment at other places and had never had the shortage problems. Claimant was discharged by a store official who related that her discharge was due to the cash shortages. Claimant does not dispute that she had shortages but did raise concern over the store's security policy and method of accounting.

From April 2005 until June 25, 2005, Claimant participated in an alcoholic rehabilitation program at Carol Jones Center that required her to attend classes three days a week from nine o'clock in the morning until noon. After June 25, 2005, she attended class one day per week, but she had the option to choose what day and time. Classes were held during both the day and the evening. When asked what she would have done had she been offered a job prior to June 25, 2005 which conflicted with the sessions at Carol Jones Center, Claimant answered that she would either change her days, work weekends or later nights, ask for a day off work, or change her schedule at Carol Jones Center. Claimant further testified that if she had been offered a job after June 25, 2005 that required her to work Monday through Friday from 9:00 am till noon that she would have attended the Carol Jones Center classes at night.

Before mid-July, Claimant had a vision problem that prevented her from working. Claimant obtained new glasses in mid-July that rectified her condition, and she was able to work thereafter. Claimant also testified that the lowest wage she was willing to receive was "minimum [wage] to six" dollars per hour.

Claimant filed a claim for unemployment benefits on June 10, 2005. The Commission found that Claimant was not disqualified because her discharge was not for misconduct connected with her work (Appeal No. 27309). Specifically, the Commission found, in part:

The record lacks substantial and competent evidence that the claimant was violating any of the employer's procedures regarding handling money or that the claimant was taking money. The tribunal concludes that the evidence of the cash shortages alone is not substantial and competent evidence of misconduct. . . . Consequently, the tribunal concludes the record lacks substantial and competent evidence of disqualifying misconduct.

At most the evidence shows the shortages were caused by poor work performance or an inability to perform the job. . . . Therefore, the tribunal concludes the claimant was discharged on June 22, 2004, but not for misconduct connected with work.

The Commission found that Claimant was ineligible for benefits from June 5, 2005 through July 9, 2005, but she was eligible from July 10, 2005 through July 23, 2005 (Appeal No. 27311). The Commission concluded, in part:

The evidence before the Tribunal shows the claimant was not physically able to work prior to July 9, 2005. From July 10, 2005 through July 23, 2005 the claimant was physically able to work because she suffered no physical impairments. The evidence shows that the claimant's mandatory attendance to the alcoholic rehabilitation program did not prevent her from accepting full-time employment because the program provided flexible options for the claimant.

Therefore the Tribunal concludes the claimant was not physically able to work and she is therefore ineligible from June 5, 2005 through July 9, 2005. The claimant was physically able to work, available for work and earnestly and actively seeking work from July 10, 2005 through July 23, 2005 and is therefore eligible for benefits during that time.

3) Employer's Points on Appeal

Employer raises three points on appeal. Point I, directed toward Appeal No. 27309, contends that the Commission's conclusions that Claimant was not disqualified from receiving benefits due to misconduct connected with work is erroneous and not supported by competent and substantial evidence on the record as a whole. Employer supports this allegation by offering that Claimant was repeatedly and inexcusably "short in her tills" and, therefore, her discharge was due to misconduct. Point II, directed toward Appeal No. 27311, contends that the Commission erred in determining that Claimant was eligible for benefits during the period of July 10, 2005 through July 23, 2005. Employer asserts that Claimant was unavailable for work because of her participation in a recovery program, that she restricted her job search by refusing to take employment for less than $6.00 an hour, and that she had a physical condition which prevented her from conducting an active job search. Employer contends that all of these made her ineligible for benefits. Point III, presumably directed toward both appeals, claims error in the Commission's "refusal to allow Employer to admit the Division Employment Packet into the record as is allowed" under Section 288.190.2. We will address the Employer's points in the order presented.

4) Claimant's Discharge — Appeal No. 27309

In seeking unemployment compensation, Claimant had the burden of proving her eligibility for benefits. Tri-State Motor Transit Co. v. Indus. Comm'n, 509 S.W.2d 217, 220 (Mo.App. 1974). The rationale of the Missouri Employment Security Law is to provide benefits to persons "unemployed through no fault of...