                                                                      MODIFIED 4/28/2015




         IN THE MISSOURI COURT OF APPEALS
                 WESTERN DISTRICT

ROSE SPEED,                                )
                                           )
               Appellant,                  )
                                           )
vs.                                        )      WD77350
                                           )
DIVISION OF EMPLOYMENT                     )      Opinion filed: March 24, 2015
SECURITY,                                  )
                                           )
               Respondent.                 )


      APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

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

        Rose Speed was a full-time care assistant at Children’s Mercy Hospital (hereinafter

“CMH”) for approximately six years until December 2011, at which time she was discharged for

violating CMH’s Service Excellence Policy.      Ms. Speed then applied for unemployment

compensation benefits.       The Labor and Industrial Relations Commission (hereinafter

“Commission”) denied Ms. Speed’s claim, finding that she had been discharged for misconduct.

Ms. Speed appeals. The decision of the Commission is affirmed.

                                    Factual Background

        Ms. Speed worked as a full-time care assistant at CMH for approximately six years. At

her hiring she was made aware of CMH’s Service Excellence Policy, and the policy was
routinely addressed in department meetings and through occasional required trainings at the

hospital. The policy includes the following language:

       Respect- We respect our patients, families and one another with dignity,
       compassion and courtesy.           We honor individuality and diversity. We
       acknowledge the vulnerability of our community’s children by extending the
       highest quality of care to all those we serve.

       ....

       It is the responsibility of each team member . . . to demonstrate the behavioral
       expectations which engender care, service and respect in every interaction.

       ....

       Respect
       1. Demonstrate respect in every interaction
       ....
       3. Demonstrate positive intent through your behavior.

       Ms. Speed was in school during at last part of her employment with CMH, and was a part

of CMH’s weekend option policy, which allowed care assistants attending school to work on

weekends in order to attend school during the week. Ms. Speed was removed from the program

in November of 2011, because she was not meeting the requirements of the policy.

       In December of 2011, Ms. Speed was discharged for violating CMH’s Service Excellence

Policy. Prior to her discharge, Ms. Fucik, CMH’s Director of Patient Care Resources, conducted

an investigation into the incident that led to Ms. Speed’s discharge and documented her inquiries

and findings.

       On December 19, 2011, Ms. Speed filed for unemployment benefits, and CMH appealed.

A deputy for the Division of Employment Security (hereinafter “Division”) determined that Ms.

Speed was disqualified from receiving benefits because she was discharged for misconduct

connected with work. Ms. Speed appealed, and a hearing was to be held March 7, 2012, but Ms.

Speed did not call into the hearing at the correct time, and the Appeals Tribunal of the Division

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dismissed the appeal. Upon Ms. Speed’s request for reconsideration, the Appeals Tribunal reset

the matter to determine if Ms. Speed had good cause for failing to appear at the March 7 hearing,

and subsequently held that she failed to show she had good cause and dismissed the appeal. Ms.

Speed appealed to the Commission, which affirmed the decision of the Appeals Tribunal. Ms.

Speed appealed the decision to this Court, where the Commission’s decision was reversed and

remanded to be heard on the merits. Speed v. Div. of Emp’t Sec., 402 S.W.3d 153 (Mo. App.

W.D. 2013).

       A hearing on the merits of Ms. Speed’s claim for unemployment benefits was held on

October 3, 2013. The appeals referee stated at the beginning of the hearing that she was required

to receive the appeals packet into the record, of which each party had a copy, and told the parties

they had the opportunity to object to the admission of the packet if they had any objections. She

described the appeals packet page by page and it was entered as Division’s Exhibit 1. The

exhibit included an “employee policy acknowledgement[,]” an “employee counseling report[,]” a

“signature page[,]” a “termination document[,]” which was prepared by Ms. Fucik and

documented her investigation of the alleged complaint against Ms. Speed that led to her

termination, and an “administrative policy.” After going through the exhibit, the appeals referee

said, “Again, I am required to receive the packet into the record, but before I do, Ms. Speed, do

you have any objections to its admission?” to which Ms. Speed expressly answered, “[N]o,

ma’am.” During the hearing, CMH put on testimony from Lonna Anderson, a full-time manager

or supervisor for CMH, and Ms. Fucik, and Ms. Fucik also referred to Division’s Exhibit 1 at

times, and Ms. Speed testified on her own behalf.

       The Appeals Tribunal found that a patient’s mother reported to a charge nurse and later

the director that Ms. Speed was telling the mother her personal business as it pertained to work,



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specifically, that she said to her “You cannot trust the mother-f***ing white people that work

here! They discriminate against black people.” The mother said she tried to overlook the

comment but that Ms. Speed later continued explaining that she was dealing with discrimination,

and that a white woman there took her off work on the weekends knowing she was in school and

referring to the people with whom she was upset as “b****es.” The mother then said to Ms.

Speed that she was there because her child was sick and she really did not want to hear Ms.

Speed’s personal business.

       The Appeals Tribunal further found that when the patient’s mother reported the incident

with Ms. Speed, she gave the charge nurse Ms. Speed’s name, job title, and physical description.

Further, according to Ms. Fucik’s investigation, Ms. Speed was in fact removed from the

weekend option and likely learned of her removal the day of the complaint. Ms. Fucik also

testified that there was an incident reported to a different director where Ms. Speed was

overheard on the unit saying loudly that her “[prejudiced] white instructor was going to flunk her

out of school.” The Appeals Tribunal specifically found that Ms. Speed’s testimony was not

credible because it materially differed from the facts as discussed above, because the

complaining mother was able to provide CMH with detailed information about Ms. Speed and

her work situation, and because the patient’s mother had no motivation to mislead CMH about

the events.

       The Commission adopted the Appeals Tribunal's decision.            In its adoption of the

Tribunal’s decision and credibility determinations, the Commission noted its recognition that “all

of the allegations against [Ms. Speed] are based on hearsay as the actual witnesses to the alleged

comments did not testify for themselves at the hearing.” The Commission also expressed that




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“an employer will almost never be able to present firsthand testimony” in the given

circumstances. Ms. Speed appeals.

                                      Standard of Review

       Section 288.210 specifies that, in reviewing the decision of the Commission,

       [t]he 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 decision was procured by fraud;
       (3) That the facts found by the commission do not support the award; or
       (4) That there was no sufficient competent evidence in the record to warrant the
       making of the award.

       While we substantially defer to the Commission's determination on disputed factual

issues, we do not defer to its conclusions of law or application of the law to the facts. Evans v.

Div. Emp’t Sec., 354 S.W.3d 220, 223 (Mo. App. W.D. 2011) (quoting Schilb v. Duke Mfg. Co.,

338 S.W.3d 392, 395 (Mo. App. W.D. 2011)). Specifically, whether the Commission’s factual

findings support a finding of misconduct is a legal issue, which we review de novo. Id. at 223-

24.

                                            Analysis

       Ms. Speed’s sole point on appeal contends that the Commission's finding of misconduct

was not supported by competent and substantial evidence. She specifically argues that CMH

“did not present any written documentation other than the verbal comments that the mother of

the patient allegedly made to [Ms.] Fucik” and that “[t]here w[ere] no witnesses to the incident[,]

thus the comments without any other evidence [were] [h]earsay.” Ms. Speed cites Hill v. Norton

& Young, Inc., 305 S.W.3d 491 (Mo. App. E.D. 2010), to support her position that because (1)

CMH’s only evidence that she was discharged for misconduct connected with work was hearsay

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and (2) she was unrepresented and made statements at the hearing from which an objection could

be inferred, CMH failed to meet its burden to show by a preponderance of the evidence that she

was discharged due to misconduct connected with work. Rather than address Ms. Speed’s

argument, the Division’s briefing focuses on what constitutes misconduct and argues that the

findings of the Commission meet those requirements.

       Pursuant to section 288.050.2, a claimant is disqualified from receiving unemployment

benefits “[i]f a deputy finds that a claimant has been discharged for misconduct connected with

the claimant's work.” Misconduct is defined 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[.]

§ 288.030.1(23).

       Generally, it is the claimant’s burden to show that he or she is entitled to unemployment

benefits. Wooden v. Div. of Emp’t Sec., 364 S.W.3d 750, 753 (Mo. App. W.D. 2012). However,

when the employer asserts that the claimant was discharged for misconduct connected with

work, the burden moves to the employer to prove such misconduct. Id.

       The conduct of unemployment hearings and the use of hearsay in those proceedings is

governed by the Missouri Code of State Regulations, which provides:

       The hearing need not be conducted according to the common law or statutory
       rules of evidence or the technical rules of procedure. Hearsay evidence is
       generally admissible. Evidence is admissible if it is not irrelevant, immaterial,
       privileged or unduly repetitious. Hearsay which is timely objected to shall not
       constitute competent evidence which, by itself, will support a finding of fact. A
       party or his/her attorney may advise the hearing officer of a defect in the character
       of any evidence introduced by voicing an objection. The hearing officer shall rule
       on the admissibility of all evidence. Any evidence received without objection



                                                  6
       which has probative value shall be considered by the hearing officer along with
       other evidence in the case.

Hill v. Norton & Young, Inc., 305 S.W.3d 491, 494 (Mo. App. E.D. 2010) (quoting 8 CSR 10–

5.015(10)(B).4).

       At the hearing, Ms. Speed testified that when she was told about the patient’s mother’s

complaint, she was dumbfounded and did not know what Ms. Fucik was talking about “because

[she] didn’t say anything to anybody” and she told Ms. Fucik that she didn’t do it. Regarding the

weekend program, Ms. Speed testified that she was not upset about being taken out of the

program and did not make any racial comments to other employees about her instructor in that

program nor use any profanity in reference to the instructor of the program. Further, Ms. Speed

denied making a comment to a patient’s mother about her feelings regarding the weekend

program, and also denied using profanity or any negative racial statements when talking to a

patient’s mother.

       Despite Ms. Speed’s testimony denying the conduct for which CMH discharged her, her

argument that she effectively objected to the Division’s evidence showing she was discharged

for work-related misconduct and that no competent and substantial evidence supported the

Commission’s finding that she was discharged for such misconduct is without merit.

       Ms. Speed relies on decisions from our sister districts holding that, where a claimant is

not represented by counsel at the administrative hearing, the claimant may make statements that,

while they are not classic objections, do not amount to a waiver of the claimant’s right to

competent and substantial evidence. Bridges v. Mo. Southern State Univ., 362 S.W.3d 436, 442

(Mo. App. S.D. 2012) (noting the objections and inferred objections in precedent, specifically

that in Jenkins v. George Gipson Enters., LLC, claimant's denial of the operative facts implied an

objection, 326 S.W.3d 839, 843 (Mo. App. E.D. 2010); in Hill, claimant made statements from

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which an objection could be inferred, 305 S.W.3d at 494; and in Helfrich v. Labor and Indus.

Relations Comm'n, Div. of Emp’t Sec., claimant said “he's lying,” 6 S.W.2d 663, 666 (Mo. App.

E.D. 1988)). We need not comment on the soundness of these cases because we find them

inapplicable due to Ms. Speed’s affirmative statements.

       In this case Ms. Speed affirmatively stated she had no objection to the hearsay evidence.

After introducing and discussing page by page the exhibit, the appeals referee specifically asked

Ms. Speed, whether she had any objections to its admission, to which Ms. Speed expressly

answered, “[N]o, ma’am.” “The affirmative representation that a party has ‘no objection’ to

evidence or instructions waives all review, including plain-error review.” Atkinson v. Corson,

289 S.W.3d 269, 277 n. 6 (Mo. App. W.D. 2009).

       Specifically, Ms. Fucik testified that she heard from an assistant department director of a

November 17, 2011, complaint regarding Ms. Speed from the mother of a CMH patient and

decided to investigate the complaint. The assistant department director provided Ms. Fucik the

contact information from the complaining mother, and Ms. Fucik spoke to her. The patient’s

mother reported that

       she was approached on two separate occasions by [Ms. Speed] and she was
       discussing her problems with her. She stated that you can’t trust mother f***ing
       white people that work here, they discriminate against black people. . . . [Ms.
       Speed] said that she was dealing with discrimination with a white woman that
       took her off weekends and that those b****es kn[e]w that [she was] in school.

The patient’s mother said she “blew it off the first time that she was talking to her about these

things but did speak up on the second time and said that [she was] there to make sure [her]

daughter gets good care.” The mother told Ms. Speed “I don’t even know you and you’re telling

me your business,” and Ms. Speed “started in again” and the mother told her “that’s not why I’m




                                                8
here.”    The mother told Ms. Fucik that she felt that Ms. Speed was “way out of line in

representing the hospital in that manner.”

         Ms. Fucik further testified that when she spoke to Ms. Speed about the complaint, Ms.

Speed denied that she would say such things and that she did not know why the mother or the

nurse reporting the initial complaint would say those things about her, and that maybe the mother

was outside and overheard her friend, who also worked at CMH and “uses that kind of language

and thinks that everyone is discriminating against her,” talking about the weekend option and

how it would affect her schooling. Ms. Fucik told Ms. Speed that the mother specifically said it

was Ms. Speed that said those things, and Ms. Speed maintained that she did not talk that way

and would never talk about those types of things with parents.

         Ms. Fucik testified that she told Ms. Speed in a meeting on December 12 that based on

her review of the documentation, because it was a violation of the Service Excellence Policy to

use profane language toward CMH patients’ families and unacceptable to engage in the kind of

discussion she did with CMH visitors, she had decided to terminate Ms. Speed’s employment.

                                             Conclusion

         Ms. Speed specifically expressed that she had no objection to Division’s Exhibit 1 when

the appeals referee asked explicitly whether she did. Ms. Fucik’s testimony largely mirrored the

investigation notes contained within the termination document in Division’s Exhibit 1. The

Commission found the version of events as related in Ms. Fucik’s testimony and the

documentation to be credible, and this Court defers to that determination of credibility. Lucido v.

Div. of Emp’t Sec., 441 S.W.3d 172, 174 (Mo. App. W.D. 2014). Ms. Speed does not argue that

the conduct for which CMH asserted that she was discharged, taken as true, would not constitute




                                                 9
misconduct sufficient to disqualify her from unemployment benefits under section 288.050.2,

and this Court does not so find.

       The Order of Commission Affirming Appeals Tribunal denying Ms. Speed

unemployment compensation benefits because she was discharged by CMH for misconduct

connected with her work is affirmed.




                                          __________________________________________
                                          VICTOR C. HOWARD, JUDGE

All concur.




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