           In the Missouri Court of Appeals
                   Eastern District
                                       DIVISION FOUR

ROBIN STAHL,                                     )
                                                 )   No. ED103466
       Respondent,                               )
                                                 )   Appeal from the Labor and
vs.                                              )   Industrial Relations Commission
                                                 )
HANK'S CHEESECAKES, LLC,                         )   Filed: May 10, 2016
                                                 )
       Appellant,                                )
                                                 )
and                                              )
                                                 )
DIVISION OF EMPLOYMENT SECURITY,                 )
                                                 )
       Respondent.                               )

                                           DISSENT

       I respectfully dissent and would reverse the decision of the Commission.

       For over sixty years, the explicit purpose of the Missouri Employment Security Law,

Section 288.010, et seq., has been to provide economic stability for the citizens of Missouri who

have become unemployed "through no fault of their own." Lindsey v. Univ. of Mo., Div. of

Emp't Sec., 254 S.W.3d 168, 171 (Mo. App. W.D. 2008) (emphasis added); see also Section

288.020.1, RSMo 1951. A claimant is ineligible and disqualified from receiving unemployment

benefits if said claimant "caused his dismissal by his wrongful action or inaction or his choosing

not to be employed." Ayers v. Sylvia Thompson Residence Ctr., 211 S.W.3d 195, 198 (Mo.
App. W.D. 2007) (emphasis in original). A claimant is ineligible for unemployment benefits if

the claimant was "discharged for misconduct connected with claimant's work[.]"              Section

288.050.2, RSMo Cum. Supp. 2015. Initially, the claimant bears the burden of proving his or

her right to receive unemployment benefits; however, when an employer asserts that the claimant

was discharged for "misconduct," the burden shifts to the employer to prove, by a preponderance

of the evidence, claimant is ineligible for "misconduct connected with work." Seck v. Dep't of

Transp., 434 S.W.3d 74, 82 (Mo. banc 2014).

       "The determination of whether an employee is discharged for misconduct connected with

work is a question of law that we review de novo." Williams v. Enter. Rent-A-Car Shared

Servs., LLC, 297 S.W.3d 139, 142 (Mo. App. E.D. 2009); McClelland v. Hogan Pers., LLC, 116

S.W.3d 660, 664 (Mo. App. W.D. 2003) ("Whether the Commission's findings support the

conclusion that an employee was guilty of misconduct is a question of law.").

       The principal opinion correctly notes that Hank's allegation of employee misconduct

must be examined under the auspices of Section 288.030.1(23)(a), RSMo Cum. Supp. 2015,

which reads as follows:

       "Misconduct", only as the term is used in this chapter, conduct or failure to act
       in a manner that is connected with work, regardless of whether such conduct or
       failure to act occurs at the workplace or during work hours, which shall include:

       (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[.]

(emphasis in original).

       I believe the Appeals Tribunal Determination, as adopted by the Commission,

misconstrued this statutory language as follows:

       The claimant credibly testified that she did not mean to hit the co-worker on the
       butt and had no malicious intent in striking him. The claimant merely smacked

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       the coworker in the heat of the moment and had no knowing intent. This
       innocuous act was certainly poor judgment, but the Tribunal would not find that it
       was a knowing violation of the standards which the employer expects. The
       claimant did not intend or realize she was violating those standards (emphasis
       added).

       As the principal opinion observes, there exists no Missouri case directly on point to

answer the question whether Stahl's "deliberately striking a co-employee" constituted

"misconduct" under Section 288.030.1(23)(a). In the absence of precedent this court reverts to

statutory interpretation. Pursuant to the most recent amendment to the governing statute, I

believe our analysis of misconduct is simply whether Stahl's conduct constituted "a knowing

violation of the standards which the employer expects" and that Stahl's "deliberately striking a

co-employee" constitutes misconduct, as a matter of law, under Section 288.030.1(23)(a).

       In Seck v. Department of Transportation, 434 S.W.3d 74 (Mo. banc 2014), the Supreme

Court of Missouri determined "even in the absence of an oral or written rule, an employee

commits misconduct . . . if (s)he disregards the 'standards of behavior which the employer has a

right to expect' from its employees."     Seck, 434 S.W.3d at 83 (quoting in part Section

288.030.1(23), RSMo Cum. Sum. 2004)). The Missouri Supreme Court went on to define

"standards of behavior which the employer has a right to expect" as those standards "that apply

universally in the workplace" and "which no such notice is needed because they are fairly

understood by both the employer and the employee even where not included in the employer's

express rules." Seck, 434 S.W.3d at 83 (emphasis added).

       I believe "deliberately striking a co-employee," especially in anger, as Stahl did in this

case, is universally and fairly understood by both employers and employees alike to be

inappropriate work-related conduct. Stahl's claim that she did not know "deliberately striking a

co-employee" in anger is without merit. In Missouri, we find employers are "entitled to expect



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that its employees will not falsify medical certificates[,]" Seck, 434 S.W.3d at 84, and we hold

"the idea that sleeping on the job is anything other than misconduct is absurd[,]" Nickless v.

Saint Gobain Containers, Inc., 350 S.W.3d 871, 874 (Mo. App. E.D. 2011).              I believe

"deliberately striking a co-employee" is similar misconduct.

       Every kindergartener is taught that deliberately striking another individual is

inappropriate and subjects one to a wide array of consequences. Furthermore, Stahl's conduct

was of such a nature as to subject Stahl to criminal and/or civil penalties. See, e.g., Section

565.070 (criminal statute for assault); Armoneit v. Ezell, 59 S.W.3d 628, 632 (Mo. App. E.D.

2001) ("A battery is the willful touching of the person of another, and has been said to be the

consummation of the assault.") (citations omitted). Failure to understand the ramifications of

such conduct is not a defense either in criminal or tort law and should not be tolerated in the

workplace.

       Specifically, Stahl should not be permitted to cloak her ignorance of universally and

fairly understood standards of behavior which every employer has a right to expect of its

employees under the guise of naiveté. When Stahl "deliberately" struck a co-employee, no

matter her provocation, she performed "misconduct" as defined by Section 288.030.1(23)(a), and

said "misconduct" should disqualify her from receiving unemployment benefits.

       Unlike the principal opinion's analysis, I believe a review of the legislative history

requires a broader interpretation of misconduct.     For decades Missouri law did not define

"misconduct" by statute; rather the definition of "misconduct" was determined by the courts.

See, e.g., Powell v. Div. of Emp't Sec., Labor and Indus. Relations Comm'n of Mo., 669 S.W.2d

47, 50 (Mo. App. W.D. 1984) (quoting 76 Am.Jur.2d Unemployment Compensation § 52

(1975)) ("[M]isconduct within the meaning of an unemployment compensation act excluding



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from its benefits an employee discharged for misconduct must be 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 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 the employee's obligations to

the employer.").

       In 1997, without defining "misconduct," the Missouri Legislature began augmenting the

common law definition by statutorily embracing "absenteeism" as a means to find misconduct.

See Mo. H.B. 472 (1997); see also Section 288.050, RSMo Cum. Supp. 1997 ("A pattern of

absenteeism or tardiness may constitute misconduct regardless of whether the last incident alone

which results in the discharge constitutes misconduct."). In 2004, the Missouri Legislature

definitively and statutorily defined "misconduct." See Mo. H.B. 1268 (2004).

       Initially the statute defined "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(24), RSMo Cum. Supp. 2004.

       Finally, in 2014, the definition of "misconduct" was, again, amended. See Mo. S.B. 510

(2014). The principal opinion sets forth, in toto, the statutory definition of "misconduct" as

amended and as it currently reads. See Section 288.030.1(23).

       This legislative history strongly suggests an intent to expand those acts which fall under

the umbrella of "misconduct." For example, a "knowing disregard of the employer's interest[,]"



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Section 288.030.1(23), RSMo Cum. Supp. 2015 (emphasis added), is broader than "an act of

wanton or willful disregard of the employer's interest[,]" Section 288.030.1(23), RSMo Cum.

Supp. 2004 (emphasis added). Compare WILLFUL MISCONDUCT, Black's Law Dictionary (10th

ed. 2014) ("Misconduct committed voluntarily and intentionally.") with KNOWING, Black's Law

Dictionary (10th ed. 2014) ("Having or showing awareness or understanding; well-informed . . .

."). Expanding this specific example, under the 2004 amendment, the employer was required to

demonstrate both that claimant was "[1] aware of the requirement and [2] knowingly or

consciously violate[d] it." Tenge v. Wash. Grp. Intern., Inc., 333 S.W.3d 492, 497 (Mo. App.

E.D. 2011).

       Although current jurisprudence is lacking—possibly caused by the recent 2014

amendment—the legislative intent of the statute is clear. Parktown Imp., Inc. v. Audi of Am.,

Inc., 278 S.W.3d 670, 672 (Mo. banc 2009) ("This Court's primary rule of statutory

interpretation is to give effect to the legislative intent as reflected in the plain language of the

statue at issue.") (emphasis added). Section 288.030.1(23)(a) merely requires the employer to

evidence "a knowing violation of the standards which the employer expects" and does not permit

an examination of the innocuousness of the smack, whether the smack caused injury, whether the

smack was violent, or the length of time of the "episode."           Cf. Section 288.030.1(23)(e)

(prescribing exceptions to employee's violation of employer's express rules).

       Moreover, our Missouri statute does not provide for any exceptions found in other

jurisdictions, such as "good cause" or "hothead" exceptions. See, e.g., Potter v. N. Empire Pizza,

Inc., 805 N.W.2d 872 (Minn. App. 2011) (tracing the history of Minnesota's judicially created

"isolated hothead incident" and the ultimate statutory exclusion thereof).           The Missouri

Legislature is obviously adept at amending the statutory definition of "misconduct." If the



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Legislature intended for courts to examine that which has been examined by the Commission and

the principal opinion, the Legislature would have explicitly so prescribed; however, in electing

not to prescribe, it can only be inferred that said omissions were purposeful. State ex rel.

Nothum v. Walsh, 380 S.W.3d 557, 567 (Mo. banc 2012) ("It is cardinal rule of statutory

interpretation that the legislature is presumed to know the existing law when enacting a new

piece of legislation.") (internal citations omitted).

        Finally, I acknowledge that the obnoxious comment that provoked Stahl was completely

inappropriate in the workplace. In fact, had Stahl properly reported the comment, the employer

would have been greatly remiss in not disciplining that employee. However, Stahl implemented

her own remedy by deliberately "smacking" the speaker. If Stahl had been a male employee

"smacking" a female co-worker, I am highly skeptical the Commission would have awarded him

unemployment benefits.

        For the foregoing reasons, I would find the Commission erred in determining Stahl was

eligible for unemployment benefits, and I would reverse the decision of the Commission and

remand for further proceeding consistent with this opinion.




                                                        ____________________________________
                                                        Lisa P. Page, Judge




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