Turner v. Mitch Murch's Maint. Mgmt. Co.

• Court: Missouri Court of Appeals
• Writing for the Court: ROBERT G. DOWD
• Citation: Turner v. Mitch Murch's Maint. Mgmt. Co., 436 S.W.3d 222 (Mo. App. 2013)
• Decision Date: 26 March 2013
• Docket Number: No. ED 98665.,ED 98665.
• Parties: Edward TURNER, Appellant, v. MITCH MURCH'S MAINTENANCE MGMT. COMPANY and Division of Employment Security, Respondents.

436 S.W.3d 222

Edward TURNER, Appellant,

v.MITCH MURCH'S MAINTENANCE MGMT. COMPANY and Division of Employment Security, Respondents.

No. ED 98665.

Missouri Court of Appeals,

Eastern District,

Division Three.

March 26, 2013.

John J. Ammann, St. Louis University Legal Clinic, St. Louis, MO, for Appellant.

Robert A. Bedell, Mitch Murch's Maint. Mgmt. Co., Pro Se, Jefferson City, MO.

ROBERT G. DOWD, JR., Presiding Judge.

Edward Turner (“Claimant”) appeals from a decision of the Labor and Industrial Relations Commission (“the Commission”) denying him unemployment benefits. Claimant argues the Commission erred in concluding he voluntarily quit his job by not calling in or showing up to work after June 25, 2010. We reverse.

I. BACKGROUND

Claimant began working for Mitch Murch's Maintenance Management (“Employer”) in September of 2006. He started to experience dizziness, blackouts, and lack of energy in May of 2010 and sought medical treatment after his shift on May 11, 2010. Claimant was diagnosed with esophageal cancer and a bleeding ulcer for which he required a blood transfusion. Forced to miss work due to his illness, Claimant called Employer's call center to report his absences beginning on May 12, 2010, the first day of his hospitalization. Claimant was released from the hospital on May 26, 2010 and sent to an extended care nursing home for further treatment.

On June 15, 2010, Employer completed an Employee Record Notification (“ERN”) regarding Claimant's employment status. After the words “Effective Date,” Employer wrote “6/15/10.” Under the word “separations,” the Employer listed Claimant's last date worked as May 11, 2010. Under the words “reason for termination” on the document, the Employer circled “voluntary quit” and “never showed up or called.” Above the words “Date Signed,” Employer wrote “6/15/2010.” The document was then signed by Brian Await (“Await”), an area manager for Employer.

On June 25, 2010, in response to an inquiry regarding his employment status, Claimant received a letter from Employer via fax stating the first and last dates he had worked. As found by the Commission, Claimant “ceased his calls to Employer on June 25, 2010.” ¹ The Commission found Claimant likely stopped calling Employer out of frustration because Employer “was not responsive to his queries” as to his employment status. Five days later, on June 30, 2010, Claimant filed a claim for unemployment benefits.

In response to Claimant's unemployment claim, Employer filed the ERN in preparation for a hearing before the Appeals Tribunal. As found by the Commission, Claimant “did not receive this documentfrom Employer before he made the decision to stop calling Employer on June 25, 2010.” Instead, Claimant received the ERN from the Division of Employment Security (the “Division”) after he had filed for unemployment benefits.

The Division denied Claimant's unemployment claim. Claimant timely appealed the Division's decision, and the Appeals Tribunal affirmed the denial of benefits. Claimant then timely appealed to the Commission. By a 2–1 margin, the Commission affirmed the denial of benefits on the same grounds as the Appeals Tribunal. The dissent disagreed with the Commission's credibility determinations and its legal conclusions. Claimant then appealed to this Court. The Division filed a motion to remand for further findings. Claimant consented to this motion and we remanded the case to the Commission for further findings; the Commission then remanded to the Appeals Tribunal for a second hearing, citing “evidentiary deficiencies” identified by the parties.²

After a second hearing by the Appeals Tribunal, at which only Claimant appeared, the Commission entered findings of fact and conclusions of law. The Commission found that Claimant “ceased his calls to [E]mployer on June 25, 2010” and that Claimant did not seek further clarification of his employment status after that date.³ The Commission also found that while Claimant's phone calls ceased due to the letter he received on June 25, Claimant could not have legitimately believed he had been discharged as a result of the letter. Instead, the Commission found Claimant understood the letter only to provide his first and last days of work with Employer. The Commission further found Claimant stopped communicating with Employer at this time in part out of frustration with what he perceived to be Employer's failure to tell him whether he had been discharged. Finally, the Commission found Claimant filed his claim for unemployment before receiving the ERN showing a termination date of June 15, 2010 and before learning whether a work separation had occurred. Based on its findings, the Commission concluded Claimant had voluntarily quit his job on June 25, 2010 and affirmed the denial of unemployment benefits. This appeal follows.

II. DISCUSSION

In his sole point on appeal, Claimant argues the Commission erred in ruling Claimant voluntarily quit his job for failing to continue to call Employer after June 25, 2010. We agree.

Appellate review of an award made by the Commission is governed by Section 288.210.⁴ We may 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 award, or (4) there was no sufficient competent evidence in the record to warrant the making of the award. Ayers v. Sylvia Thompson Residence Ctr., 211 S.W.3d 195, 197–98 (Mo.App. W.D.2007); Section 288.210(1)–(4). We defer to the Commission on all factual issues as long as those findings were supported by competent and substantial evidence and were found in the absence of fraud. Section 288.210. We consider all issues of fact not found by the Commission “as having been found in accordance with the result reached.” Rule 73.01.⁵ We owe no deference to the Commission's conclusions of law or application of the law to the facts. Munson v. Div. of Empl. Sec., 323 S.W.3d 112, 114 (Mo.App. W.D.2010).

In this case, there was no sufficient competent evidence in the record to support a denial of benefits. Instead, the facts conclusively show Claimant was involuntarily terminated on June 15, 2010.

A claimant is disqualified from receiving employment benefits if it is found that he left work voluntarily without good cause attributable to such work or to the claimant's employer. Section 288.050.1(1). The employee bears the burden of establishing he was discharged and did not voluntarily quit. Sartori v. Kohner Props. Inc., 277 S.W.3d 879, 884 (Mo.App. E.D.2009).

A Section 288.050 analysis involves several interrelated words that describe different types of work separation. The word “termination” may refer to a voluntary or an involuntary work separation. See Ross v. Whelan Sec. Co., 195 S.W.3d 559, 565 (Mo.App. S.D.2006) (identifying the three disqualifying events in Section 288.050 addressing the manner of the employee's work separation as voluntary termination, retirement, and discharge). A voluntary termination, or “voluntary quit,” occurs when the employee “leaves work voluntarily without good cause attributable to such work or to the [employee's] employer.” Section 288.050.1(1). An involuntary termination, or “discharge,” occurs when the employer ends the work relationship. See Section 288.050.2.

In a voluntary quit analysis, our Supreme Court has recognized that the word “voluntary” should be given its plain meaning of “proceeding from the will: produced in or by an act of choice.” Difatta–Wheaton v. Dolphin Capital Corp., 271 S.W.3d 594, 598 (Mo. banc 2008). A claimant's absence from work due to a non-work-related illness is not, as a matter of law, leaving work voluntarily. Id. It is difficult to apply the phrase “left work voluntarily” where “the employee has conscientiously provided notice of the absence, purports to want to be at work, and claims constraint from attendance by circumstances such as sickness or some other difficulty.” Johnson v. Div. of Emp't Sec., 318 S.W.3d 797, 801 (Mo.App. W.D.2010). Instead, voluntary quit should be “reserved for those cases in which the employee not only does not show up, but also impliedly rejects the employment and the employer by some action such as failing to provide notification of the absence.” Id. at 804. Further, the language of Section 288.050.1(1) “must be strictly and narrowly construed in favor of finding that an employee is entitled to compensation.” Robinson v. Courtyard Mgmt. Corp., 329 S.W.3d 736, 739 (Mo.App. E.D.2011).

Based on an examination of the record as a whole, we find that there is insufficient competent and substantial evidence to support the Commission's finding that Claimant voluntarily left his employment on June 25, 2010.

Preliminarily we note that even if we believed Claimant did voluntarily quit, the facts the Commission found would not support a termination date of June 25, 2010. Testimony during the first hearing before the Appeals Tribunal established Employer had a three day “no call, no show” policy, after which time Employer would document the employee to be a voluntary quit. The Commission found Claimant called Employer through June 25, 2010. Therefore, the earliest Claimant could have voluntarily quit, according to the Commission's facts and the Employer's policies, was on June 28, 2010, three days after Claimant stopped calling Employer.

Claimant did not voluntarily quit, however, and the Commission incorrectly concluded that the ERN, documenting Claimant's termination date of June 15, 2010, was not relevant in determining Claimant's date of termination. The Commission concluded that the ERN was not controlling because (1) the ERN did not suggest Employer discharged Claimant, but instead merely deemed Claimant to have voluntarily quit, and (2) Claimant did not receive the document until after June 25, 2010. We believe both conclusions were in error.

First, we disagree with the...