HILDA TAVENNER,                             )
                                            )
       Claimant-Appellant,                  )
                                            )
       vs.                                  )             No. SD36367
                                            )
PRESBYTERIAN MANORS, INC.,                  )             Filed: May 21, 2020
                                            )
       Employer-Respondent,                 )
                                            )
and MISSOURI DIVISION OF                    )
EMPLOYMENT SECURITY,                        )
                                            )
       Respondent.                          )

      APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

REVERSED AND REMANDED

       Hilda Tavenner (“Employee”) was a twenty-three year employee of Presbyterian Manors,

Inc. (“Employer”). One of her duties was to submit reports to a government agency. Her

February 2019 report contained an error. Employer was notified two months later of the error

and Employee was subsequently fired. Employee filed for unemployment benefits; Employer

challenged the claim. A Missouri Division of Employment Security (“DES/Respondent”) deputy

found that Employee was not disqualified for misconduct connected with work; however, the

DES Appeals Tribunal reversed the deputy’s determination and ruled that Employee was guilty


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of misconduct in failing to submit a timely and complete report. The Labor and Industrial

Relations Commission (“the Commission”) affirmed the ruling of the Appeals Tribunal and

adopted its decision as its own. We reverse the Commission’s decision and remand for an award

of benefits.

           Whether the Commission’s decision is supported by competent and substantial evidence

is judged by examining the evidence in the context of the whole record. Fisher v. Ste.

Genevieve County Health Department, 561 S.W.3d 857, 860 (Mo.App. E.D. 2018) (citing MO.

CONST. art. V, § 18; see also section 288.210). 1

           Upon review, this Court may modify, reverse, remand for rehearing, or set aside
           the decision of the Commission upon the following grounds and no other:
           (1) when the Commission has 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 decision; or
           (4) there was no sufficient evidence in the record to warrant the decision.

Id. (citing section 288.210).

           It is the Commission’s responsibility to make unequivocal, affirmative findings of fact in

its decision. Wooden v. Div. of Employment Sec., 341 S.W.3d 770, 774 (Mo.App. W.D. 2011).

We defer to the Commission on issues involving the credibility of witnesses and the weight

given to the testimony. Fisher, 561 S.W.3d at 861. “In conducting such review, we manifestly

are not bound by any of the Commission’s legal conclusions or application of the law to the

facts.” Mickles v. Maxi Beauty Supply, Inc., 566 S.W.3d 274, 277 (Mo.App. E.D. 2019).

“Essentially, the Missouri Constitution and the Missouri Employment Security Law task this

Court with reviewing the Commission’s unemployment-compensation decisions for legal error.”

Id. The question of whether the Commission’s findings support the conclusion that an

unemployment compensation claimant engaged in disqualifying misconduct connected with his


1
    All references to statutes are to RSMo 2016, unless otherwise specified.


                                                            2
or her work is a question of law subject to de novo review. Fisher, 561 S.W.3d at 861. “[W]e

do not view the evidence and all reasonable inferences drawn therefrom in the light most

favorable to the award.” Wooden, 341 S.W.3d at 774 (emphasis added).

       “The purpose of Missouri’s unemployment compensation act is to provide benefits to

persons who are unemployed through no fault of their own. . . . Because of this, we must strictly

construe the act’s disqualifying provisions against the disallowance of benefits to unemployed

but available workers.” Id. at 773 (internal citations and quotations omitted). Employer bears

the burden of proving misconduct. Business Centers of Missouri, Inc. v. Labor and Industrial

Relations Commission, 743 S.W.2d 588, 589 (Mo.App. E.D. 1988).

       With these standards of review in mind, we accept as credibility determinations from the

Commission that:

               [Employee’s] job responsibilities included completing and submitting a
       quarterly report to the federal government. This report affected [E]mployer’s
       online retirement community ratings. [Employee] had successfully submitted the
       reports since 2016. She knew that it was a priority, along with other priority
       duties.
               One quarterly report was due November 15, 2018. Employer expected
       [Employee] to submit it before the due date, so that it could be reviewed for
       mistakes. [Employee] submitted it on the due date. The next quarterly report was
       submitted on February 15, 2019, but was incomplete. It was missing staffing
       hours, which were available to [Employee]. [Employee] admitted that the report,
       including the missing staffing hours, was her responsibility and her mistake.
               On April 1, 2019, [E]mployer issued a performance review, stating that
       information was to be completed monthly in preparation for the quarterly report.
       Neither [Employee] nor [E]mployer realized that the information from the
       February 15, 2019, report was incomplete, until April 22, 2019, when [E]mployer
       received a lowered rating from five to three stars, mainly attributable to the
       incomplete report.
               On May 10, 2019, [E]mployer discharged [Employee] for neglect of her
       duties.

       The Commission then made the following conclusions:

             On the whole record the competent and substantial evidence shows that
       [Employee] knew that one of her top job priorities was to submit a quarterly



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        report to the federal government. Employer expected the report to be submitted in
        time to allow a review for accuracy. [Employee] submitted the reports on the due
        date. One of the reports was incomplete, causing harm to [E]mployer’s online
        ratings. Employer discharged [Employee] for neglect of her duties, by submitting
        reports on the due date, without [E]mployer’s review, and then submitting an
        incomplete quarterly report to the federal government.
                Under the statute, misconduct includes conduct or failure to act
        demonstrating a knowing disregard of [E]mployer’s interest or a knowing
        violation of [E]mployer’s standards, and includes carelessness or negligence in
        such degree or recurrence as to manifest culpability, wrongful intent, or a
        knowing disregard of the [E]mployer’s interest or of the employee’s duties and
        obligations to [E]mployer.
                When [Employee] failed to submit the reports until the due date, she
        knowingly violated [E]mployer’s interest and standards. When she failed to
        submit a complete report, causing damage to the company, she was careless or
        negligent in such degree as to manifest a knowing disregard of [E]mployer’s
        interest and [Employee’s] duties and obligations to [E]mployer. Therefore, under
        the statute, [Employee’s] conduct and failures do rise to the level of misconduct.
                The [E]mployer has met its burden of proving misconduct by a
        preponderance of the evidence. The [Commission] concludes that [Employee]
        was discharged on May 10, 2019, for misconduct connected with [Employee’s]
        work.

        In summary, the Commission concluded that the failures to submit reports until the due

date violated Employer’s interests and standards as one act of negligence and in failing to submit

a “complete” report as the second act of negligence. The question we must answer in both Points

I and II is whether the conduct, described as “neglect” of Employee’s duties, meets the definition

of “misconduct” as set forth in section 288.030.1(23). The relevant sections of misconduct in

this case are:

        (a) Conduct or a failure to act demonstrating knowing disregard of the employer’s
        interest or a knowing violation of the standards which the employer expects of his
        or her employee;
        (b) Conduct or a failure to act demonstrating carelessness or negligence in such
        degree or recurrence as to manifest culpability, wrongful intent, or a knowing
        disregard of the employer’s interest or of the employee’s duties and obligations to
        the employer[.]

Section 288.030.1(23)(a) and (b).




                                                4
        Simple negligence can be sufficient for misconduct, but only if (1) it was the employee’s

motive or purpose to injure the employer’s interest or (2) that the employee’s disregard of those

interests (or of employee’s duties and obligations) was both intentional and substantial. Seck v.

Department of Transp., 434 S.W.3d 74, 82-83 (Mo. banc 2014). The scienter required for

misconduct relevant to this case, as defined in Seck, is category three, a showing of knowing

“disregard” that was both intentional and substantial. The Commission stated that the failure to

submit the reports early and accurately was a knowing disregard of Employer’s interest.

        Employee appeals both the Commission’s findings on the two different acts of

misconduct as found by the Commission, the timing and the accuracy of the reports submitted to

the government agency. In Point I, Employee appeals the Commission’s conclusion of

“misconduct” in the submission of the reports in November 2018 and February 2019 directly to

the federal agency rather than internally so it could be reviewed. In Point II, Employee appeals

the Commission’s conclusion of misconduct in the submission of the February 2019 report

which contained errors. 2

         Regarding Point I, we must and do accept a factual finding regarding the November

2018 report that “Employer expected [Employee] to submit it before the due date, so that it could

be reviewed for mistakes.” We must determine whether the expectations of Employer and

subsequent failure of Employee to adhere to those expectations constitute “misconduct” as

defined under the Employment Security Act. As noted, whether the factual finding that

Employee failed to submit the report before the due date is “misconduct” is a question of law.

        Employer bore the burden of showing that the filing of the report on its due date was

“misconduct.” Although Respondent cites Employer’s expectations to find “misconduct,” it

2
  Employee brings a third point that we need not address. Employee posits the Commission erred in concluding that
Employee was disqualified from benefits on the basis of misconduct because, in the context of the “whole
record,” the Commission failed to show that Employee engaged in any misconduct connected with her work.


                                                       5
cited no cases in which “expectations” were found to be misconduct. We could find no cases to

support that proposition either. Whether an employer has grounds to terminate an employee is

not the same issue as whether the former employee qualifies for compensation under the

Employment Security Act. Ausley v. CCL Label (St. Louis) Inc., 513 S.W.3d 390, 397

(Mo.App. E.D. 2017). Thus, while not meeting expectations of the employer may be grounds for

firing, it is not necessarily grounds for the denial of unemployment benefits.

        We must look to case law defining misconduct to make that determination. In Fisher,

the applicant for benefits had gotten into a verbal confrontation with her employer when the

employer refused to let the employee take off two hours to take her child to the doctor. 561

S.W.3d at 858-59. The appellate court affirmed the Commission’s finding that the applicant’s

actions in becoming visibly and audibly upset for a short period of time while protesting a denial

of her request for leave did not undermine Employer’s interest or subvert its standards despite

the fact that it may have been grounds to terminate her employment as a violation of its code of

conduct for employees. Id. at 861. The court found that a contrary viewpoint would “entail a

draconian construction” of the meaning of the word “misconduct” as set forth in the statute. Id.

       Likewise, in Wooden, the employee failed “to complete his assigned duties, specifically,

picking up trash on the grounds first thing when he arrived at work.” 341 S.W.3d at 771. The

employer contended that the employee had been given specific instructions “numerous times” to

pick up the trash when he first arrived at work at 7:00 a.m. each morning. Id. Employer stated

that a state agency that was reviewing employer to see if the employer had corrected any

problems, such as trash on the grounds, was returning for a visit on the day employee was fired.

Id. at 772. Despite not meeting the employer’s expectations and a finding that employee had

been given specific instructions to pick up the trash, the appellate court found that the




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Commission did not make unequivocal, affirmative findings of fact warranting the denial of

benefits. The court further found that it could not make an intelligent review of the decision and

remanded for further findings. Id. at 774. In remanding for further findings, the court rejected

the Division’s request to draw reasonable inferences from the evidence and from the record as a

whole because the court determined that two inferences could be made. Id. 3

         In Con-Way Truckload, Inc. v. Wood, 511 S.W.3d 478 (Mo.App. W.D. 2017), an

employee was fired in violation of section 288.050.2(a) and (b). Id. at 480. The employee,

while driving a company truck, misjudged a highway entrance ramp, and taking it at a higher rate

of speed than his load allowed, overturned the truck and trailer. Id. at 481. He was fired by his

employer and applied for unemployment benefits. Id. Despite Employer’s employee conduct

policy providing that “unacceptable pattern or history of unsafe driving . . . were grounds for

automatic discharge” and that employee was driving too fast on the day of the accident, the

appeals tribunal concluded that the employee was not disqualified from benefits because

3
  The court in Wooden remanded to the Commission for a finding whether a “rule” had been violated by Wooden.
Respondent latches onto Wooden to contend that a remand is necessary for findings whether Employee violated
section 288.030.1(23)(e), a provision that allows for a finding of misconduct if employee violated a “rule” of
employer. Respondent does not address what “rule” Employee is said to have violated. Employer did not make that
contention at any of the hearings and there is no evidence in the entire record that Employer had a “rule” that
provided a deadline for the filing of the report. A review of the record in this case indicates that there are not two
reasonable inferences as to the knowledge of Employee of a rule that the reports were to be submitted prior to the
due date to the federal government. For instance, while Employer complains that the November 15, 2018 report was
not timely filed with Employer prior to November 15th, the evidence was clear that Employee was out sick on
November 13th and 14th. Despite that fact that Employee was already not meeting Employer’s expectations if a rule
was being violated, Employer supplied technical help so that the report could be filed on November 15th, not
November 12th. There is no testimony as to how much before the filing date the report should have been filed for
review with Employee’s supervisors. The testimony is also clear that after the report was filed in February 2019,
Employer did not check the report to see if there were any errors in it. In fact, the Commission made the finding that
neither Employee nor the Employer knew of any errors in the report. Thus, there is no evidence that Employee
prevented a review of the report (ostensibly the reason for the early preparation of the report) in violation of any
rule.
         In contrast, in the case of Jackson v. Walgreen Co., 516 S.W.3d 391 (Mo.App. E.D. 2017), cited by
Respondent, employer had a Social Media and Personal Web Sites policy which established rules that prohibited
certain behavior by employees on social media and personal websites. Id. at 392. Employee violated that written
policy by posting a pornographic video and falsely connecting the video with two female coworkers. Id. The
appellate court found sufficient competent evidence on the record as a whole to find misconduct as defined by
section 288.030.1(23)(e). Id. at 394-95. In the case at hand, Respondent has not demonstrated evidence in the
record to support a remand.


                                                          7
employer did not provide competent and substantial evidence that employee’s accident was more

than simple negligence or that his safety history involved more than two recurring episodes of

carelessness or negligence which were distant in time from the final incident. Id. at 482. The

appellate court affirmed that employer had failed to establish that employee had knowingly

disregarded the employer’s interest or knowingly violated a standard which employer expected

of him. Id. at 484. Despite findings that the employee was speeding, the employer presented no

evidence that employee was driving in excess of a posted speed limit or that he knew he was

driving too fast for the conditions. Id. The Commission had determined that his driving was “at

most a matter of poor judgment in handling the tractor-trailer.” Id. at 482.

       In Zinevich v. Digital Monitoring Products, Inc., 462 S.W.3d 923 (Mo.App. S.D. 2015),

employee failed to follow managerial directives, particularly, failing to attend a webinar. Id. at

925. The appeals tribunal specifically found credible employee’s testimony that he did not

attend the webinar because he did not receive the password and login information required to

attend. Id. at 926. The appeals tribunal concluded that while employee may have shown poor

judgment in contacting fellow employees instead of a supervisor or manager to obtain the

webinar password, he did not willfully violate Employer’s standard by failing to attend the

webinar. Id. This Court reviewed the scienter required to support “negligence” as sufficient for

misconduct only if employee’s motive or purpose was to injure employer’s interest or that

employee’s disregard of those interests (or of employee’s duties and obligations) was both

intentional and substantial. Id. at 928-30.

       There is no finding, allegation, or evidence suggesting that Employee had a motive or

purpose to injure the Employer’s interest or that any disregard of Employer’s interest was both

intentional and substantial. There was no finding by the Commission that Employee knew of




                                                 8
Employer’s expectations. The Commission did not cite any evidence, nor does the record show

that Employee was reprimanded for not filing the report with management prior to the filing with

the government in November or February. Employee was not fired after either “late” report.

The November report was not completed and submitted prior to its due date. The evidence

indicates that, in November, Employee was allowed sick leave to be at home the two days prior

to the filing date. Employer arranged for Employee to work remotely to compete the report in

time for direct filing. Employee was not fired in February when the report was not submitted

directly to Employer prior to the filing with the government agency. She was not fired until after

the mistake in the February report was made known to Employer. Thus, there is no evidence to

suggest that the filing of a report on its due date was even a violation of Employer’s standards,

much less that it includes carelessness or negligence in such a degree or recurrence as to manifest

culpability, wrongful intent or a knowing disregard of the Employer’s interests or of the

employee’s duties and obligation to the Employer. Respondent insists that the conclusion of law

is a credibility determination. Respondent must make findings of fact that can be reviewed by

this Court. A simple statement that Employee committed a “willful violation” is not a factual

finding, but, rather, a conclusion of law. We reject the conclusion as not supported by the facts

found by the Commission. Point I has merit.

       In Point II, Employee contends that the filing of the incomplete report in February, at

most, suggests simple negligence and not “carelessness or negligence in such degree or

recurrence as to manifest culpability, wrongful intent, or a knowing disregard of the employer’s

interest or of the employee’s duties and obligations to the employer.” We agree. There was only

one incident of a mistake being made on a report, which was the report made on February 15,

2019. As noted, the negligence must be in such a degree to manifest culpability, wrongful intent




                                                 9
or a knowing disregard of Employer’s interest or of Employee’s duties and obligations to the

Employer; however, there was no evidence of any wrongful intent as required by section

288.030.1(23)(a). Negligence can stand as misconduct only if it was a “knowing” disregard of

Employer’s interests. The findings of the Commission directly rebut that claim. The

Commission found that the report submitted on February 15, 2019, was incomplete. The

Commission calls the report “[Employee’s] mistake.” 4 The Commission specifically found that

neither Employee nor Employer knew of the mistake.

        Respondent’s only argument concerning the mistaken report is that, “[Employee] failed

to properly fill-out the February 15, 2019 report.” Making a mistake on a financial report or not

meeting Employer’s expectation, even if it caused a problem for Employer, is not the sort of

misconduct that constitutes a knowing disregard of the employer’s interest or a knowing

violation of the standard of which the employer expects of his or her employee. “‘Simple acts of

negligence, accidents and mistakes, bad judgment, or poor workmanship do not rise to the level

of scienter required to constitute disqualifying misconduct.’” Wayne v. Division of Employment

Security, No. WD83132, 2020 WL 2027318, at *3 (Mo.App. W.D. Apr. 28, 2020) (quoting

Wilson v. Progressive Waste Solutions of Mo, Inc., 515 S.W.3d 804, 808 (Mo.App. E.D.

2017)). We can find no cases that define “misconduct” as defined in section 288.030.1(23) for

the failure to properly fill out a report. The Commission found it to be a mistake; mistakes are

made in the workplace. Point II also has merit.

        The decision of the Commission is reversed and remanded.




4
  Employer also argues in response to Employee’s Point II that Employee did not use due diligence in submitting the
reports because she failed to submit both reports in a timely manner. That claim is rejected in Point I.



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Nancy Steffen Rahmeyer, J. – Opinion Author

Gary W. Lynch, P.J., – Concurs

William W. Francis, Jr., J., – Concurs




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