 

In the Missouri Court of Appeals
Eastern Distm'ct

DIVIS{ON TWO

MARION DORTCH, )
) ED103757
Appellaiit, )
)
v. ) Appeal from the Labor and Iridustrial
) Relations Cornniission
ZOLTEK CORPORATION, )
) Cornniission N0. LC-l5~02529
and ) Appeal N0. 15-14252 R-A
)
DIVISION OF EMPLOYMENT )
SECURITY, ) FILED: June 14,2016
)
Respondeiits. )
introduction

Marion Dortch (Clairnant) appeals the decision by the Laboi‘ and Iridustrial
Relations Commission (Coinlnission), denying him tinemployinent compensation benefits
after his termination by the Zoltek Corporation (Employer) for misconduct connected with
his Work. We afiirm.

Bacl<gro\.llid

Claiinant worked for Employer from April 7, 2014, through Septembei' 25, 2015.
On Aiigust 28, 2015, Eiiiployei' received a telephone call from someone Einployei' believed
to be a reliable source, with information prompting Eniployex‘ to call a third party cornpany,

Gtlardiaii, to conduct a drug and alcohol screen with Clairnalit. Guardian came to

Clairnant’s workplace that day to conduct the screen on-site, but Claiinant refused to
provide a urine sarnple. Enrployer terminated Claiinant on Septeniber 25, 2()15, after
receiving the records of Clairnaiit’s refusal front Gtlardiali.

Claiinaiit filed for uneinployn'rerrt benefits The Deputy initially considering
Clairnant’s request denied beneflts, finding Enrployei' discharged (.Ilaiinant for misconduct
connected with work. Claiiriant appealed

At a liearilig conducted by the Appeals Tribtliial, Nan Clark (Clark), Enrployer’s
Corporate HR l\/Ianager, testified that Einployei' has a zero tolerance policy concerning
drug use. She stated it is Enrployer’s policy to conduct clrug screens at random or when
there is cause or reasonable suspicion that an einployee may be under the influence of
alcohol or drugs at work. Clarl< testified that when the test is conducted due to a reasonable
suspicion of drug use, there is 110 means for an employee to challenge the basis for
Eiirployer’s suspicion. Rather, regardless of why employees are being tested, they must
take the test upon Employer’s request.

Clairnant testified that in his case, he refused to provide a urine sainple for the test
because he was asked to do so in front of a feniale. I-le testified that in the bathroom, the
stalls had been taped off and the only option was to urinate in front of the female
representative from Griardian, which he felt was inhunrane. Clark responded that Clainiant
liad access to one stall in the bathroom, and that the Guardian representative had only taped
off the other stalls as part of the procedure to prevent tampering with the sample.

'l`he Appeals Tribunal concluded Eiiiployer’s evidence was more credible than
Claiinaiit’s. The Tribuiial found that Claimant was required to use a designated stall to

provide a urine sarnple, and he refused. The Tribtlnal concluded that Clainrant was

discharged fo1' violating Ernpioyer’s policies on drug testing and upheld the denial of
benefits.

Claimant appealed to the Labor and industrial Relations Colnmission, which
affirmed and adopted the decision of the Appeals Tribunal. This appeal follows.

Standard of Review

When we review a decision of the Comniission, the Commission’s findings as to
the facts and the credibility of witnesses shall be conclusive Berwin v. Lindenwood, 205
S.W.3d 291, 294 (Mo. App. E.D. 2006). We review only questions of law. _I_Q "The
determination of whether an einployee is discharged for iniscondtict connected with work

is a question of law that we review cie novo." Wiliialns v. Eiiterprise Reiit-A-Cai' Shared

 

Servs. LLC, 297 S.W.3d 139, 142 (Mo. App. E.D. 2()09).
We may modify the decision of the Commission under the following
circumstances:
(l) That the Coinniission acted without or in excess of its powers;
(2) That the decision was procured by fraud;
(3) That the facts found by the Coininission do not support the award; or

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

Section 288.210, RSMo. (2000). We determine whether the Connnission’s decision is
supported by competent and substantial evidence in the context of the whole record. Quik
N’ Tast Foods Inc. v. Div. of Eni lo ment Sec., 17 S.W.3d 620, 623»624 (Mo. App.

W.D. 2000).

Discussion

Claimant raises two points on appeal. First, he argues that the Coininissioii’s
decision is unsupported by competent and substantial evidence on the whole record
because Erriployer failed to establish that it had reasonable suspicion to require Clailnatit
to submit to a drug screen. Next, he argues that the Connnission erred in finding Ernployer
terminated Clailriant for misconduct connected with work because Ernployer’s rule was
not fairly or consistently enforced. Because these points are related based on the statutory
definition of ;niscoridtict, we discuss them together. We conclude both are without lnerit.

A claimant generally has the burden of establishing he or she is entitled to
iinemployiireiit cornpensation benefits; but when the ernployer argues the claimant is
ineligible for benefits due to being discharged for iniscondtlct connected with work, the
burden shifts to the employer to denronstrate such iniscondttct by a preponderance of the
evidence Meriendez v. Div. of Employrnerrt Sec., 461 S.W.Sd 837, 839 (Mo, App. E.D.
2015); see also Section 288.050.2 (clainiatit discharged for iniscondtict connected with
work is disqualified for benefits). Uirdel' the 2014 amendments to Section 288.030.1(23),1
rnisconduct is defined as "conduct or failure to act in a manner that is connected with
work," including the following:

(e) A violation of an einployer’s rule, unless the employee can
demonstrate that:

a. He or she did not l<now, and could not reasonably l<now,
of the rule’s requirements;

b. The rule is not lawful; or

c. The rule is not fairly or consistently enforced.

‘ All statutory references are to RSMo. (Supp. 201 5), unless otherwise indicated.

4

Secion 288.03U.l(23)(e). Missotiri courts have held that a single instance of intentional
disobedience of an ernployer’s reasonable directive can constitute misconduct. Smith v.

Delmar Gardens of Creve Coeur, 406 S.W.3d 95, 98 (Mo. App. E.D. 2013) (quoting Finner

v. Americold Logistics, LLC, 298 S.W.3d 580, 584 (Mo. App. S.D. 2009)). The amended
definition of rniscoiidtlct is consistent \vith these holdings, assuming the claimant cannot
establish any of the exceptions listed in subsection (e).

Here, Clairnant first argues that Ernpioyer failed to provide sufficient competent
and substantial evidence to support the Cornmission’s findings that Claimant was
discharged for iniscoridtlct connected with work in that an tlncorroborated, anonymous
phone call did not give rise to a reasonable suspicion that Claimant was working while
under the influence of drugs. Ho\vever, this is not the focus of our review given the
Einployer’s policy here. The evidence, viewed in light of the Cornniission’s determination
that Eiiiployer’s testimony was more credible, showed that Enrployei' had a zero tolerance
policy providing for random drug screens as well as drug screens based on suspected drug
use. Employees were not permitted to contest the reason for a drug test, and refusal to
submit to a drug test constituted violation of Einployer’s policy.

Thus, we do not review whether there was competent and substantial evidence on
the record for Ernployer’s suspicion regarding Claimant’s possible drug use at worl<.z
Rather, we review whether competent and substantial evidence supports the Comlnission’s
findings that (l) Clainiant violated Employer’s drug screening policy, and (2) Elnployei'
terminated Clailnant’s employment due to such policy violation. We find substantial and
coinpetent evidence on the whole record supporting the Connnission’s conclusions

2 Moreover, there is no basis for analyzing Eritployer’s “reasonable suspicion" under Fourtli Ariiend:nent
jurisprudence as it relates to investigatory st0ps, as Claiiiiaiit argues in his brief.

5

First, all of the evidence, including Claimant’s testiinony, established that
Einployer' required Claimant to submit a urine sample for a drug screen and Claimant
refused to do so. Eniployei' testified its policy provided Entployei‘ could require employees
to undergo drug screens either when Employer suspected drug use or regardless of any
suspicion, even fo1' no reason at all. Thus, the reason for Ernployer’s request to Claimant
is irrelevant under such a policy, and Ernployei' established that by failing to submit to the
requested drug screen, Claimant violated one of Ernpioyer’s rules. Section

288.030.l(23)(e); S1nith, 406 S.W.3d at 98.

Second, regarding the exceptions contained in Section 288.030.l(23)(e), Claimant
does not argue that he did not know of the rule, or that the rule was unlawful. To the extent
Claimant argues that enforcement of the drug screening policy was tmla\vftll or
tlnreasonable in this case because he was required to tn‘inate in front of a female, the
Connnission found this testimony less credible than Employer’s testimony that Claimant

was not in fact asked to do so. We must defer to these credibility findings _Sg Berwin,

205 S.W.3d at 294. The Comrtiission found that Claimant "was required to use a
designated stall in the men’s restroom and he refused." 'i`lius, Claimant’s actions
constituted a violation of his employer’s rule under Section 28S.030.1(23)(e).
Nevertlieless, Claimant argues that the Connnission erred in denying
uneniployilierit conrpensation benefits because Eritployer' did not fairly or consistently
enforce its policy, under Section 288.030.1(23)(e)(c). However, the statute shifts the
burden to the claimant in such case to demonstrate that the employer’s rule is not fairly or
consistently enforced. He1'e, the Connnission’s conclusion that Claimant failed to meet his

burden is supported by competent and substantial evidence.

Claimant testified that he was treated differently than other employees because
Eniployei' gave other employees 24 hours to complete a drug screen at a clinic off-site.
Claimant testified that during the time he worked there, no one had come to the workplace
to conduct a drug test on-site. Clark responded that Employer has two bases for screening
employees for drugs: random tests and those based on suspected drug use. She added that
while Empioyer does give 24-hour windows for employees to conduct a random drug
screen off-site; because of the phone call in this instance and the risk Claimant may be
under the influence of drugs at work, Einployer decided to call in the third party and have
Claimant tested right a\vay. Claimant presented no evidence to contradict Clark’s
testiinoiiy regarding the reasons Eiiiployer gave more time for employees to complete
random drug tests than those suspected of being under the influence of drugs at work, or
that Employer treated other employees suspected of using drugs differently than Einployei'
treated Claimant.

The Coinmission found Einployer’s evidence more credible than Claimant’s and
concluded that Claimant failed to present evidence that Enxployer’s policy was not fairly
or consistently enforced 'i`his finding is supported by competent and substantial evidence
on the whole record.

Conclusion
The Commission did not err in concluding that Einployer discharged Claimant due

to inisconduct connected with work under Section 288.030.1(23). The Commission’s

    

Gary Mertner, Jr., Judge

Philip M. Hess, P. J. concurs.
Angela T. Quigless, J. concurs.

