Scrivener Oil Co. v. Division of Emp. Sec.
| Decision Date | 28 February 2006 |
| Docket Number | No. 27043.,27043. |
| Citation | 184 S.W.3d 635 |
| Parties | SCRIVENER OIL COMPANY, INC., Employer-Appellant, v. DIVISION OF EMPLOYMENT SECURITY, State of Missouri, Respondent, and Jamie Obernuefemann, Claimant-Respondent. |
| Court | Missouri Court of Appeals |
Rick E. Temple, Springfield, for appellant.
Alan J. Downs, Jefferson City, for respondent.
This is an appeal by Scrivener Oil Company, Inc. ("Employer") from an order by the Labor and Industrial Relations Commission ("Commission") affirming the decision of the Appeals Tribunal, which determined that Jamie Obernuefemann ("Claimant") was not disqualified for unemployment compensation benefits by reason of her discharge by Employer. Employer contends that the Commission erred in finding that Claimant did not disobey an instruction of management, and because substantial evidence supported the conclusion that Claimant was discharged for misconduct connected with her work. We affirm in part and reverse in part.
Employer owns and operates eight Signal convenience stores. On September 9, 2004, Claimant, who was the manager of the Signal store in Buffalo, Missouri, was given a below satisfactory performance evaluation for cash register accuracy, inventory control, attitude and personnel relations. As a result of this unsatisfactory evaluation, Claimant was not given a pay raise, was given sixty days in which to bring the cash register accuracy and inventory control scores up to good or excellent, and to improve her attitude and personal relations with other employees. During this sixty-day probationary period, Claimant received several audits of the store which indicated a decrease in her cash register accuracy, inventory control, and lack of store cleanliness inside and out. Claimant was sent several warnings concerning her cash register accuracy and a copy of each was placed in her personnel file.
Employer also alleges that Claimant failed to follow instructions during the probationary period because she failed to move a beef jerky display as instructed by Employer's inventory specialist. Employer was also concerned about Claimant's attitude and lack of ability to set a good example for other employees. On October 13, 2004, Employer terminated Claimant's employment.
The next day Claimant filed for unemployment benefits with the Division of Employment Security ("the Division"), which was contested by Employer. The Division issued its "Determination," finding that Claimant was discharged by Employer on October 13, 2004, for "misconduct connected with work," which disqualified her from receiving unemployment benefits for six weeks under the Missouri Employment Security Law.
On October 27, 2004, Claimant appealed the Division's determination to deny her benefits to the Appeals Tribunal. A hearing was held and the Appeals Tribunal issued its findings of fact and conclusions of law reversing the Division's determination. The Appeals Tribunal found that "[C]laimant [was] not disqualified for benefits, by reason of her discharge by [Employer] on October 13, 2004," Employer filed an "Application for Review" of the Appeals Tribunal's decision and the Commission entered its order, adopting and affirming the decision of the Appeals Tribunal. Employer now appeals.
Employer raises two points on this appeal. In Point I, Employer argues that the Commission erred in finding that Claimant did not disobey an instruction of management. In Point II, Employer asserts that the Commission erred by concluding that Claimant was not disqualified for benefits in that her failure to follow the above alleged instruction, and her declining job performance, amounted to misconduct connected with her work.
Our review of the Commission's decision is governed by Section 288.210,1 which states 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;
(4) That there was no sufficient competent evidence in the record to warrant the making of the award.
Hoover v. Cmty. Blood Center, 153 S.W.3d 9, 12 (Mo.App. W.D.2005) (quoting Section 288.210.) We examine the whole record to determine whether there is sufficient competent and substantial evidence to support the award. Id. In the rare case in which the award is contrary to the overwhelming weight of the evidence, this standard is not met. Dolgencorp, Inc. v. Zatorski, 134 S.W.3d 813, 817 (Mo.App. W.D.2004). We will not substitute our own judgment for that of the Commission's regarding its evaluation of the evidence relative to its findings. Dixon v. Div. of Employment Sec., 106 S.W.3d 536, 540 (Mo.App. W.D. 2003). We defer to the Commission's "determinations regarding weight of the evidence and the credibility of witnesses." Id. On appeal, we are not bound by the Commission's conclusions of law or its application of the law to the facts. Hoover, 153 S.W.3d at 12. Whether an employee's actions constitute misconduct related to her work is a question of law. Dixon, 106 S.W.3d at 540.
In Point I, Employer argues that the Commission erred in finding that Claimant did not disobey an instruction from Employer because it failed to consider uncontroverted testimony and an exhibit which demonstrated that she failed to comply with an instruction given to her to move a beef jerky display.2 We agree.
The Commission adopted the decision of Appeals Tribunal and therefore we turn to that decision in reviewing the judgment of the Commission. The Appeals Tribunal found that Claimant was discharged, after being placed on probation, for her below satisfactory evaluation, because of a decline in cash register accuracy, inventory control, store cleanliness and "it was reported that [C]laimant did not move the beef jerk [display] as suggested by an inventory specialist." Relevant to Point I, the Appeals Tribunal found specifically that "[C]laimant was not told by the inventory specialist to move the beef jerky [display]."
Employer argues that there was uncontroverted evidence that Claimant was told to move the display. At the hearing the following exchange occurred between counsel for Employer and Terry Bumgarner ("Bumgarner"), Employer's retail coordinator, regarding a report made to him by Kelly Gremling ("Gremling"), Employer's inventory specialist at the time:
Q. [A]nd at the time she prepared this, did she talk with you about the problem that she had with [Claimant]?
A. Yes.
Q. And — and what was the problem?
A. The — the specific problem here was she asked her to move a — shipper [display] and it never was moved. She asked I believe on the 28th of September it says there. And as far as October 7 it hadn't been moved yet.3
Q. So she — she would have went into the store not if something that needed to be changed for purposes of salebility [sic]?
A. Right.
Q. And would have directed [Claimant] to move that?
A. Right.
Q. And would [Claimant] have been responsible to follow those directions?
A. Yes.
When Claimant was asked if Gremling told her to move the display she stated, "yeah, I guess she probably did." When asked if she moved it she replied, Furthermore, Gremling's report was entered into evidence and it stated, in pertinent part:
I asked [Claimant] to move a Jack Link jerky shipper [the display] to a different position on the counter or shelf to help sell the product down. I made my request on September 28th. I was back at her store a week later [and] the shipper was in the same place.4
As noted above, the "Commission determines the weight and credibility of the evidence, and, when that evidence conflicts, the Commission's determination of the facts is conclusive." Geiler v. Mo. Labor and Industrial Relations Comm'n, 924 S.W.2d 606, 608-609 (Mo.App. E.D. 1996). However, the Commission may not "disregard or ignore undisputed testimony of a witness not shown to have been impeached or disbelieved by the agency." Lusher v. Gerald Harris Const., Inc., 993 S.W.2d 537, 545 (Mo.App. W.D.1999). Only when the Commission finds it to be unbelievable or not credible, is it free to ignore such evidence or testimony. Id.
There is no evidence in the record to support the Commission's express finding that Claimant was not told to move the display. The Commission did not specifically find Bumgarner's testimony unbelievable. In fact, the Commission did not address Bumgarner's testimony or Gremling's report in its decision. Given the absence of contradictory evidence in the record before us, the Commission was not free to disregard the testimony and the report. See Id. A clear review of the whole record simply reveals that Claimant was told to move the display.
We note, however, a simple failure to follow instructions is not necessarily grounds for a finding that a claimant is disqualified for misconduct from unemployment compensation benefits. The Commission must consider whether Claimant's failure, as Employer argues in Point II, to follow that instruction implicates Section 288.050.2, which states in pertinent part:
If a deputy finds that a claimant has been discharged for misconduct connected with the claimant's work, such claimant shall be disqualified for waiting week credit and benefits, and no benefits shall be paid nor shall the cost of any benefits be charged against any employer for any period of employment within the base period until the claimant has earned wages for work insured...
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