             In the Missouri Court of Appeals
                     Eastern District
                                       DIVISION ONE

LARRY MORRIS,                               )       No. ED100917
                                            )
       Respondent,                          )
                                            )
       vs.                                  )
                                            )
GLENRIDGE CHILDREN’S                        )       Appeal from the Labor and
CENTER, INC.,                               )       Industrial Relations Commission
                                            )
       Appellant,                           )
                                            )
and                                         )
                                            )
DIVISION OF EMPLOYMENT                      )       Filed: July 22, 2014
SECURITY,                                   )
                                            )
       Respondents.                         )

       Glenridge Children's Center, Inc., ("Employer") appeals from the decision of the

Missouri Labor and Industrial Relations Commission ("Commission") finding Employer

discharged Larry Morris ("Claimant") on June 7, 2013. The Commission's decision reversed the

decision of the Appeals Tribunal, which affirmed the decision of the deputy of the Division of

Employment Security ("Division") finding that Claimant was disqualified for benefits until he

has earned wages from insured work equal to ten times his weekly benefit amount after June 7,

2013, because he left work for Employer voluntarily without good cause. We reverse.
                                                  I. Background

           Claimant worked for Employer for five years as a recreational supervisor at Employer's

child care center. He worked part-time for Employer and part-time for the Clayton School

District. Both jobs were ten-month jobs, requiring Claimant to work only during the time

coinciding with the school year. The childcare center was closed during the school's summer

vacation.

           Claimant's last day of work was June 7, 2013. He had the option of coming back to work

for Employer in August, when the school again opened. However, by May 7, 2013, Employer

had provided Claimant with a paper asking him to indicate whether he was interested in working

the following school year. He was given three options: First, "Yes IF there is a position

available I would like to return to GCC [Employer] for the 2013-14 school year;" second, "No I

am unable to return to GCC [Employer] for the 2013-14 school year;" and third,"I am looking

for full time employment for the fall. If I am not able to find a full time job and there is a

position available at GCC [Employer], I would like to work the schedule below." Claimant

indicated unequivocally that he would be unable to return the following school year. Claimant

decided not to return because he wanted a full-time job, thought he possibly could be hired full-

time at the library, and was ready for a change.

           The Commission found Employer discharged Claimant on June 7, 2013. The

Commission concluded that Employer had no work for Claimant, and there were no facts

supporting a finding of short-term layoff or suspension in this case. The Commission also stated

that Employer did not enjoy the protections provided by the legislature in Section 288.040.3(1),

RSMo (Cum. Supp. 2011), 1 for educational institutions. Next, the Commission concluded that

Claimant did not engage in any type of bad behavior to cause the lack of work for a finding of
1
    All further statutory references will be to RSMo (Cum. Supp. 2011).

                                                           2
misconduct. Thus, the Commission concluded Employer did not meet its burden of proving that

Claimant should be disqualified from the receipt of unemployment insurance benefits under

Section 288.050.2.

       This appeal follows.

                                         II. Discussion

       Employer raises four points on appeal. In its first point, Employer alleges the

Commission erred in reversing the decision of the Appeals Tribunal and applying the legal

standard of "involuntary discharge" under Section 288.050.2 because the Commission should

have used the standard of "voluntary quit" under Section 288.050.1 in that Claimant made his

intention to resign his employment clear and unambiguous.

       Second, Employer alleges the Commission erred in reversing the decision of the Appeals

Tribunal and applying the legal standard of "misconduct connected with work" under Section

288.030.1 because Claimant was not involuntarily discharged in that Claimant made his intention

to resign from his employment clear and unambiguous.

       Third, Employer argues the Commission erred in reversing the decision of the Appeals

Tribunal because, had the Commission applied the correct legal standard of "voluntary quit"

under Section 288.050.1, it would have found in favor of Employer in that the substantial weight

of the evidence proves that Claimant quit voluntarily, that he did not have good cause for

quitting voluntarily, and that the cause was not attributable to the work or Employer.

       Lastly, Employer contends the Commission erred in reversing the decision of the Appeals

Tribunal because it appears as if the Commission confused two separate unemployment claims

filed by Claimant (one with Employer and one with Clayton School District), and in so doing,

mistakenly applied a set of facts and certain provisions of law to reach an erroneous conclusion.



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       Appellate review of an award made by the Labor and Industrial Relations Commission is

governed by Section 288.210. The appellate court 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 not 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). Under

Section 288.210, we review the whole record to determine if it contains 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). "Substantial evidence is evidence which has probative force on the

issues and from which the trier of facts can reasonably decide the case." Miller v. Great

Southern Bank, 367 S.W.3d 111, 118 (Mo. App. S.D. 2012). Whether there is substantial

evidence to support the decision does not necessarily depend on the quantity of the evidence. Id.

The testimony of one witness, even if contradicted by the testimony of other witnesses, may be

sufficient competent evidence to support an administrative decision. Id.

       The weight to be given to the evidence and the resolution of conflicting evidence are for

the Commission, and its choice is binding upon this Court. Willcut v. Div. of Emp't Sec., 193

S.W.3d 410, 412 (Mo. App. E.D. 2006). We defer to the Commission on issues involving the

credibility of witnesses and the weight to be given to their testimony. Munson v. Div. of Emp't

Sec., 323 S.W.3d 112, 114 (Mo. App. W.D. 2010). However, we owe no deference to the

Commission's conclusions of law or application of the law to the facts. Id.

       The Commission's determination of whether an employee voluntarily left his

employment or was discharged is ordinarily essentially a factual determination. Valdez v. MVM

Sec., Inc., 349 S.W.3d 450, 454 (Mo. App. W.D. 2011). In reviewing the factual findings, the



                                                4
court is to determine whether the Commission, based upon the whole record, could have

reasonably made its findings and reached its result. Id. The factual findings of the Commission

must be supported by substantial and competent evidence in the record. Id. In determining

whether Claimant voluntarily quit his employment or was discharged, we examine "whether the

employer or the employee committed the final act severing the employment relationship."

Mauller v. Div. of Emp't Sec., 331 S.W.3d 714, 718 (Mo. App. W.D. 2011). "Judicial

interpretation of the unemployment statutes have required that an employee not have caused his

dismissal by his wrongful action or inaction or his choosing not to be employed." Shields v.

Proctor & Gamble Paper Prods. Co., 164 S.W.3d 540, 544 (Mo. App. E.D. 2005) (quoting Div.

of Emp't Sec. v. Labor & Indus. Relations Comm'n, 651 S.W.2d 145, 149 (Mo. banc 1983)). A

claimant for unemployment compensation benefits bears the burden of proving eligibility for

such benefits. Coday v. Div. of Emp't Sec., 423 S.W.3d 775, 782 (Mo. banc 2014). When an

employer claims an employee voluntarily left his or her employment without good cause

attributable to the employer, it is the employee's burden to prove that it is not the case. Valdez,

349 S.W.3d at 456.

       Where the findings of the Commission involve the interpretation or application of the

law, as distinguished from a factual determination, it is not binding on this Court and therefore

falls within our province of review and correction. Id. at 454. "Moreover, where the

Commission's finding of ultimate fact is reached by the application of rules of law instead of by a

process of natural reasoning from the facts alone, it is a conclusion of law and subject to our

reversal." Id. (quoting Ross v. Whelan Sec. Co., 195 S.W.3d 559, 563 (Mo. App. S.D. 2006)).

This Court is not bound by the Commission's conclusions of law or its application of law to the

facts, and questions of law are reviewed independently. Id.



                                                  5
       Here, the Commission ruled Claimant was discharged based on Employer's lack of work

for Claimant. However, this Court believes the Commission misapplied the law and, instead,

Claimant failed to meet his burden of proving that he is eligible for unemployment benefits after

leaving Employer voluntarily and without good cause attributable to Employer.

       The evidence shows, by Claimant's own testimony, as well as the testimony of Employer,

that Claimant worked for Employer on a part-time, ten-month schedule. Claimant said that the

school year ended on May 31, 2013, but he worked at a mini camp offered by Employer until

June 7, 2013. Employer's "Guide for Personnel Policies & Procedures" also stated that

compensation would be made "per school year," and paid time off was given "per semester

(Aug.- Dec.) and (Jan.-May)."

       Further, Claimant testified, "The second job [with Employer] I chose to step down after I

completed the school year even at the time I stepped down, there was no work for me to do."

This evidence, together with the form signed by Claimant indicating only that he would not

return the following school year, is not sufficient evidence to support the Commission's findings

or conclusions. Conversely, this evidence demonstrates only that Claimant did not meet his

burden to prove he was eligible for unemployment benefits. When an employer claims an

employee voluntarily left his or her employment without good cause attributable to the employer,

it is the employee's burden to prove that it is not the case. Valdez, 349 S.W.3d at 456. Here,

Claimant insomuch admitted on the record that he intended to leave his work voluntarily upon

completing the school year, ending his employment without the prospect of returning when the

school year started again. He testified that he was entitled to unemployment benefits from being

laid off in March from his part-time position with the Clayton School District, but he was not




                                                6
concerned about getting benefits from his other part-time position with Employer, for which he

continued working until the end of the school year.

       Instructive to our decision is the Willcut case, wherein this Court also found the

Commission's decision was not supported by substantial evidence. Willcut v. Div. of Emp't Sec.,

193 S.W.3d 410, 413-14 (Mo. App. E.D. 2010). However, unlike here, the substantial evidence

in Willcut demonstrated that the employer unilaterally terminated the claimant's employment,

and the claimant did not voluntarily leave. Id. The claimant had informed her employer of her

intent to retire, and both claimant and employer had agreed to her retirement and the date thereof.

Id. Although the claimant attempted to rescind her retirement, her employer rejected that

request. Id. Moreover, prior to the retirement date, the employer told the claimant to "get your

stuff and get out now," which the Commission concluded was thereby advancing the retirement

date by approximately one month. Id. This Court found the Commission's conclusion was not

supported by competent and substantial evidence because the claimant did not agree to advance

her retirement date. Id.

       Here, although Claimant informed Employer of his intent to leave Employer, all

competent and substantial evidence points to Claimant's departure at the end of the school year

rather than the beginning of the following school year as Claimant now suggests. The fact that

Claimant stopped working on June 7 was not Employer's effective discharge of Claimant,

thereby advancing Claimant's voluntary termination date. Instead, we find that was Claimant's

voluntary termination at the end of the school year.

       A claimant is disqualified from receiving unemployment 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). In finding Claimant here left work voluntarily, we next determine whether



                                                7
Claimant left work voluntarily for good cause attributable to the work or employer. Section

288.050.1. "There are two elements of good cause, reasonableness and good faith." Bunch v.

Div. of Emp't Sec., 965 S.W.2d 874, 878 (Mo. App. W.D. 1998). Courts have applied the

objective standard of what a reasonable person would do in the same or similar circumstances.

Rodriguez v. Osco Drug, 166 S.W.3d 138, 141 (Mo. App. W.D. 2005). "Good cause" is:

       cause that would motivate the average able-bodied and qualified worker in a
       similar situation to terminate his or her employment . . . . [Good cause] is positive
       conduct which is consistent with a genuine desire to work and be self-supporting .
       . . . [T]he circumstances motivating an employee to voluntarily terminate
       employment must be real, not imaginary, substantial, not trifling, and reasonable,
       not whimsical, and good faith is an essential element.

Id. (quoting Hessler v. Labor and Indus. Relations Comm'n, 851 S.W.2d 516, 518 (Mo. banc

1993)). To demonstrate good faith, a claimant must show that he made an effort to resolve the

dispute before he resorted to the drastic remedy of termination of employment. Lashea v. Fin-

Clair Corp., 30 S.W.3d 237, 241 (Mo. App. E.D. 2000). The claimant bears the burden of

proving both elements of good cause. Ewing v. SSM Health Care, 265 S.W.3d 882, 888 (Mo.

App. E.D. 2008).

       Here, Claimant claimed that he decided not to return to Employer because he wanted a

full-time job, thought he possibly could be hired full-time at the library, and was ready for a

change. Claimant's reasons do not show good cause attributable to his Employer.

       Accordingly, we find the Commission's decision is not supported by substantial and

competent evidence and grant Employer's appeal. Finding the substantial evidence demonstrates

Claimant voluntarily quit his employment without good cause attributable to his Employer,

Claimant is disqualified from receiving unemployment compensation benefits.




                                                 8
                                      III. Conclusion

       The Commission's decision is reversed.




                                           ___________________________________
                                           ROY L. RICHTER, Presiding Judge

Clifford H. Ahrens, J., and
Gary M. Gaertner, Jr., J., concur.




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