                                          In the
                          Missouri Court of Appeals
                                   Western District
EUGENE WESTBROOK,                            )
                                             )
                  Appellant,                 )   WD77570
                                             )
v.                                           )   OPINION FILED: March 10, 2015
                                             )
DIVISION OF EMPLOYMENT                       )
SECURITY,                                    )
                                             )
                 Respondent.                 )

               Appeal from the Labor and Industrial Relations Commission

     Before Division Three: Victor C. Howard, Presiding Judge, James E. Welsh, Judge and
                                     Gary D. Witt, Judge

          Appellant Eugene Westbrook ("Westbrook") appeals from a denial of his claim for

 unemployment benefits.        A Deputy with the Division of Employment Security

 ("Division"), following a hearing, determined that Westbrook was disqualified from

 receiving unemployment benefits because he was discharged for misconduct connected

 with his work. Westbrook appealed to the Appeals Tribunal, but his appeal was filed

 nine days past the statutory deadline. The Appeals Tribunal, following a hearing, decided

 that the Deputy's determination became final due to the untimeliness of the appeal to the

 Appeals Tribunal and lack of good cause for extending the appeal period. The Labor and
Industrial Relations Commission ("Commission") found the decision of the Appeals

Tribunal to be fully supported by competent and substantial evidence on the whole record

and affirmed and adopted the decision of the Appeals Tribunal as its own. We affirm the

Commission's order.

                      FACTUAL AND PROCEDURAL HISTORY

       Westbrook worked for 63rd Street Foods, LLC, a grocery store, for approximately

five years. Westbrook's tasks included stocking shelves and "anything else they asked

me to do." On December 12, 2013, Westbrook went to retrieve shopping carts from the

parking lot of the store. While Westbrook was outside, he "took a couple puffs" of a

cigarette and scratched a lottery ticket. Westbrook estimated this took three to five

minutes. As Westbrook was returning into the store, the owner came outside and asked

Westbrook if he had been scratching lottery tickets outside. Westbrook responded that he

had. The owner asked if he was on a break and Westbrook admitted that he was not. The

owner terminated Westbrook's employment immediately.

       Westbrook filed a claim for unemployment benefits. A Deputy with the Division

issued its denial of Westbrook's claim finding that he was "discharge[d] for misconduct

connected with work" on January 16, 2014. Printed on the bottom of the determination,

was a notice which read: "If you believe this determination is incorrect, you may file an

appeal not later than 02/18/14. The appeal period may, for good cause, be extended."

(Emphasis in original.)    Westbrook read the determination and disagreed with its

findings.



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       Westbrook visited the local unemployment office on February 27, 2014 and asked

for assistance. An employee explained that Westbrook needed to file an appeal if he

disagreed with the determination.      Westbrook wrote an appeal and faxed it to the

Division that same day.

       The Appeals Tribunal held a telephone conference hearing with Westbrook on

March 20, 2014 to hear testimony regarding the timeliness of Westbrook's appeal and the

merits of his claim. Westbrook testified that he did not understand the appeals process

and had "probably misread" the part explaining the deadline for an appeal of the

Determination because he did not read or spell very well. The Appeals Tribunal issued

its decision on March 27, 2014, declaring in pertinent part:

              Good cause shall be allowed only if there is a showing that the party
       acted in good faith and reasonably under all the circumstances. Here, the
       claimant received and read the determination, and although he further
       contends that he did not fully understand the determination, the
       determination states if you do not understand the determination to contact
       the office for assistance, but he failed to do so. The claimant also knew he
       disagreed with the determination when he read it, but yet, he chose to do
       nothing until after the appeals period had passed. Therefore, it cannot be
       concluded that the claimant has met his burden to show good cause, as he
       has not shown he acted reasonably under all the circumstances.
       Consequently, the Appeals Tribunal is without jurisdiction to address the
       merits of the Appeal.

       Westbrook submitted an application for review of the decision to the Commission

on April 2, 2014. The Commission's Order affirmed the decision of the Appeals Tribunal

on May 5, 2014, finding that it was supported by competent and substantial evidence.

       Westbrook timely filed an appeal to this court, alleging that the Commission erred

in adopting the decision of the Appeals Tribunal because its conclusion that Westbrook


                                             3
did not establish good cause for an extension of the deadline was not supported by

competent and substantial evidence on the whole record.

                                                 ANALYSIS

      Westbrook raises two points on appeal: (1) that the Commission erroneously

affirmed the Appeals Tribunal's decision that Westbrook failed to meet his burden to

establish good cause for the late filing of his appeal because the decision was not

supported by competent and substantial evidence on the whole record, and (2) that

Missouri should liberally interpret the statutory meaning of "good cause" in favor of the

discharged employee. For reasons explained herein, we affirm.

                                                     Point I

      In Point I, Westbrook argues that the Commission erred in affirming the Tribunal's

decision that he did not have good cause for failing to meet the deadline for filing his

appeal.

                                            Standard of Review

      Review is governed by section 288.210,1 which provides in pertinent part:

      The findings of the commission as to the facts, if supported by competent
      and substantial evidence and in the absence of fraud, shall be conclusive,
      and the jurisdiction of the appellate court shall be confined to questions of
      law. The court, on appeal, may modify, reverse, remand for rehearing, or
      set aside the decision of the commission on the following grounds and no
      other:

      (1) That the commission acted without or in excess of its powers;

      (2) That the award was procured by fraud;


      1
          All statutory references are to RSMo (2000) as currently supplemented unless otherwise indicated.

                                                         4
       (3) That the facts found by the commission do not support the award;

       (4) That there was not sufficient competent evidence in the record to
       warrant the making of the award.

       An examination of the entire record is required to determine if the award is

contrary to the overwhelming weight of the evidence.          Hampton v. Big Boy Steel

Erection, 121 S.W.3d 220, 223 (Mo. banc 2003). "When, as here, the Commission

adopts the decision of the Appeals Tribunal, we consider the Tribunal's decision to be the

Commission's for purposes of our review." Ashford v. Div. of Employment Sec., 355

S.W.3d 538, 541 (Mo. App. W.D. 2011).                Although we review the record of

unemployment cases objectively rather than in the light most favorable to the decision

below, we still defer to the Commission for matters regarding witness credibility. Lucido

v. Div. of Employment Sec., 441 S.W.3d 172, 174 (Mo. App. W.D. 2014) (citation

omitted).

                                        Discussion

       Pursuant to Section 288.070.6, "[u]nless the claimant or any interested party

within thirty calendar days after notice of such determination is either delivered in person

or mailed to the last known address of such claimant or interested party files an appeal

from such determination, it shall be final." The statute further provides, "the thirty-day

period mentioned in subsection 6 of this section may, for good cause, be extended."

§ 288.070.10. There is no dispute that Westbrook filed his appeal past the statutorily

mandated thirty-day period; therefore, we need only consider whether the Commission's




                                             5
finding that Westbrook lacked good cause for missing that deadline was supported by

substantial and competent evidence.

       "[T]he legislature intended to leave the initial determination as to the existence of

good cause with the administrative agency." Todaro v. Labor and Indus. Comm’n of

Mo., 660 S.W.2d 763, 765 (Mo. App. E.D. 1983).             Good cause depends upon the

evaluation of many subtle factors, and therefore is subject to judicial review only for

abuse of discretion.    Id.   When contemplating good cause, "we are bound by the

Commission's determination, absent an abuse of discretion, even though we might have

reached a different decision had we considered the matter initially." Id.

       "To establish 'good cause,' [Westbrook] must show that he acted in good faith 'and

reasonably under all the circumstances.'" Byers v. Human Resource Staffing, LLC, 402

S.W.3d 605, 608 (Mo. App. E.D. 2013) (citing 8 CSR 10-5.010(2)(C)). Here, Westbrook

testified that he received and read the letter. He further testified that he was able to read

the determination and understand that he disagreed with its conclusions. He argues only

that he failed to properly comprehend the notice of his rights to appeal. In support, the

only evidence regarding good cause for the late filing was Westbrook's own testimony,

and we defer to the Commission regarding witness credibility. Lucido, 441 S.W.3d at

174 (citation omitted). Although Westbrook broadly argues that it is "illogical" for the

Appeals Tribunal to make assumptions based on "facts that are . . . not in the record," we

find nothing in the decision that is illogical or based on facts absent from the record.

Further, it was Westbrook who bore the burden of proof on this issue and who was

responsible for making a record to support his position on this issue. As noted above,

                                             6
even though Westbrook testified as to his limited reading skills, the Commission's order

was based on Westbrook's failure to seek assistance even though he knew he disagreed

with the determination. The record reflects that Westbrook waited more than five weeks

after a Deputy with the Division denied Westbrook's claim before he went to the

unemployment office to check his status, which was nine days past the deadline for filing

his appeal. The totality of this evidence supports the Commission's order.

       The Commission's order is consistent with a number of decisions. See Todaro,

660 S.W.2d 763 (holding that claimant did not establish good cause by showing he was

unable to comprehend the determination); Byers, 402 S.W.3d 605 (holding that claimant

did not establish good cause by showing he misplaced the document); Taylor v. St. Louis

Arc, Inc., 285 S.W.3d 775 (Mo. App. E.D. 2009) (holding that claimant did not establish

good cause because she erroneously thought the determination was not final).

       Because competent and substantial evidence supports the order, Westbrook's first

point on appeal is denied.

                                        Point II

       In Point II, Westbrook argues that Missouri courts should interpret regulations

regarding employment security more liberally to protect individuals from being

arbitrarily denied benefits. As we have affirmed the Commission's order finding the

appeal to be untimely, we decline to reach the merits of Westbrook's second point as it is

not properly before us. Westbrook's second point is denied.




                                            7
                                   CONCLUSION

      Because we find the Commission's decision to be based on competent and

substantial evidence, we affirm.




                                     __________________________________
                                     Gary D. Witt, Judge

All concur




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