Andrea Williams, Claimant/Appellant, v. Central Missouri Pizza, Inc., Employer/Respondent and Division of Employment Security, Respondent.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Eastern District Case Style: Andrea Williams, Claimant/Appellant, v. Central Missouri Pizza, Inc., Employer/Respondent and Division of Employment Security, Respondent. Case Number: ED87889 Handdown Date: 10/31/2006 Appeal From: Labor and Industrial Relations Commission Counsel for Appellant: Party Acting Pro Se Counsel for Respondent: Larry Raymond Ruhmann Opinion Summary: Andrea Williams appeals from the labor and industrial relations commission's decision in favor of Central Missouri Pizza, Inc., and the division of employment security. The commission determined that Williams is disqualified for unemployment benefits because Central Missouri Pizza discharged her for misconduct connected with work. REVERSED. Division Four holds: There was not sufficient competent evidence to support the commission's finding that Central Missouri Pizza discharged Williams for misconduct connected with her work. Citation: Opinion Author: Sherri B. Sullivan, Judge Opinion Vote: REVERSED. Richter, P.J., and Knaup Crane, J., concur. Opinion: Introduction Andrea Williams ("Claimant"), appeals from the decision of the Labor and Industrial Relations Commission ("the Commission") in favor of Respondents, Central Missouri Pizza, Inc. ("Employer") and the Division of Employment

Security ("the Division"). The Commission determined that Claimant is disqualified for unemployment benefits because she was discharged by Employer for misconduct connected with work. We reverse. Background Claimant worked for Employer, a pizza delivery business, between February 24, 2003, and December 23,

1. On December 27, 2005, Claimant was discharged for failing to show up for her scheduled shift on December

24, 2005. Claimant was scheduled to begin work on December 24 at 5:00 p.m. Her shift would end when Employer decided to send her home, and Claimant was told the store would remain open until 9:00 p.m., "depending on business." Claimant was absent for her scheduled shift because she was out-of-town, visiting her fiancé's family in Springfield, Missouri. Claimant had told her supervisor on several occasions that she would be out-of-town on that day and asked to be off on Christmas Eve. Her supervisor told her that the fact that Claimant was dependent upon her fiancé for transportation and that her family lived out of the vicinity was not his problem, everyone in the store was going to work, and it was mandatory that everyone work. However, her supervisor allowed three other people to take off Christmas Eve. Claimant was next scheduled to work on Wednesday, December 28, beginning at 5:00 p.m. On December 27, Claimant called Employer to let her supervisor know that she would probably not be able to arrive on December 28 until approximately 5:30 p.m., due to transportation issues. Her supervisor told her that she was discharged because she did not show up to work on Christmas Eve. Claimant had not received any prior warning about her attendance or absenteeism. Thereafter, Claimant filed her claim for unemployment benefits with the Division. After reviewing her claim, a deputy determined that Claimant was disqualified for waiting week credit and benefits until she had earned wages for insured work equal to six times her weekly benefit amount, on a finding that Claimant was discharged for misconduct connected with her work. Claimant filed an appeal from the deputy's determination, and the Appeals Tribunal heard her appeal via telephone conference. Only Claimant testified, as Employer did not participate in the hearing. The Appeals Tribunal affirmed the deputy's determination. Claimant thereafter filed an Application for Review with the Commission, which adopted the decision of the Appeals Tribunal. This appeal follows. Points on Appeal Claimant raises two points on appeal. In her first point, Claimant argues that the Commission did not take

into consideration the fact that she was not notified prior to her discharge that the shift she was scheduled to work on December 24, 2005, was mandatory when it determined that she was disqualified to receive unemployment compensation. In her second point, Claimant claims the Commission erred in its determination because it did not receive substantial and competent evidence from Employer that Claimant was discharged for "misconduct" connected with work. Standard of Review We will uphold the award of the Commission if there is sufficient competent and substantial evidence to support the award. Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222-23 (Mo. banc 2003). Whether the Commission's findings support the determination of misconduct connected with work is a question of law. Five Star Mfg., Inc. v. Tanksley, 168 S.W.3d 719, 721 (Mo. App. S.D. 2005). Discussion Under Section 288.050.2 RSMo 2000,(FN1) claimants may be denied waiting-week credit from four to sixteen weeks of unemployment benefits when they are fired for misconduct related to their work. Dameron v. Drury Inns, Inc., 190 S.W.3d 508, 511 (Mo. App. E.D. 2006). Missouri employment security law 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[.] Section 288.030.1(23). Essentially, in both of her points on appeal, Claimant is maintaining the Commission's finding that she was discharged for misconduct connected with work was not supported by sufficient and competent evidence. Although, generally, a claimant has the burden of showing she is entitled to unemployment benefits, the burden of proof shifts to the employer when the employer claims that the claimant was discharged for misconduct connected with work. Croy v. Division of Employment Sec., 187 S.W.3d 888, 892 (Mo. App. S.D. 2006). A claimant can be found to have committed misconduct so as to disqualify her for unemployment compensation benefits for violating a reasonable work rule; however, the employer must show by a preponderance of the evidence that the claimant willfully violated its rules. Id. Moreover, there is a vast distinction between the violation of a rule that would justify the employee's discharge and a rule violation that would constitute disqualifying misconduct under Section 288.050.2. Id.

Employer here bore the burden of proving Claimant willfully violated its rules or standards. Employer, however, failed to participate at any stage in this matter. It offered no evidence relating to its policies regarding absences from work or mandatory shifts or as to any misconduct by Claimant. Accordingly, we hold that there was insufficient competent evidence to support the Commission's finding that Claimant was discharged for misconduct connected with her work. Conclusion The order of the Commission is reversed and this matter remanded for further proceedings consistent with this opinion. Footnotes: FN1. Unless otherwise indicated, all statutory references are to RSMo 2000. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.