 

In the Missourt Com't of Appeals
Eastem District

DIVISION F()UR
LUCIA-CARMA GREER, ) No. ED103348
)
Appeliant, ) Appeal from the Labor and Industrial
) Relations Commission
vs. )
)
DIVISION OF EMPLOYMENT SECURITY, )
) Filed: September 6, 2016
Respondent. )

OPINION

Lucia~Carma Greer appeals from the Labor and Industrial Relations Cornrnission’s
decision Which found her ineligible to receive unemployment benefits during the period from
November 30, 2014 to December 6, 2014mwhen she Was in New Yorl< for Air National Guard
training~#because the Commission concluded that she Was therefore not “available for Work."
Greer contends that the Commission’s decision Was erroneous because the record shows that
throughout the relevant period she remained ready, Willing, and able t0 accept a suitable job and
thus was “available for Work” as that phrase is defined under Missouri law. We agree, and we
reverse and remand

Factual and Procedural Background
During Master Sergeant Greer’s 355-year military career in the United States Air Force,

she has served several periods of active duty. Following her most recent period of active duty

 

(August 18, 2008 - September 29, 2013), she was released from active duty, and due to medical
issues she has remained on inactive duty status. As a result, Greer faced an unanticipated period
of unemployment while her medical fitness for active duty was determined Aided by the Air
Force’s transition assistance program and the Missouri Division of Employment Security, Greer
filed her claim for unemployment benefits on September 29, 2014, and began drawing weekly
benefits

As a member of the New York Air National Guard, Greer was required to complete
annually 48 units of inactive duty training_Which, if distributed evenly throughout the year,
equates to about one weekend of training per month-and she had to travel to New York to
participate in the training For the week at issue in this case, Greer had the opportunity to combine
three weekends’ worth of this mandatory training into one week-long period in New York. This
training plan allowed her to save on out-of-pocket travel costs and significantly reduced the
amount of potential job-search or work time she may otherwise have lost due to travel.

While in New York, she did not place on hold her pursuit of employment; she engaged in
online evening job searches, contacting and submitting applications to over two dozen employers
Greer had good reason to continue her search while at training: her commanding officer indicated
in a subsequent letter to the Division’s Appeals Tribunal that it was the New York Air National
Guard’s common practice_and his particular unit’s procednre~to allow its members to
reschedule their training when necessary for civilian employment purposes, including to act on an
offer of employment received while participating in training in New York.

Nevertheless, the Division took the position that Greer’s Week-long stay in New York made
her ineligible for benefits during that week because she was not “available for work.” Greer

appealed the Division’s determination and on April 6, 2015, the Division’s Appeals Tribunal

 

issued its decision affirming the determination of ineligibility On May 5, 2015, Greer appealed
the opinion of the Appeals Tribunal to the Commission, and on July 17, 2015, the Commission
affirmed because “[s]he was not ‘ready’ to accept work while she was in New York[-][e]ven
assuming that [Greer’s] commanders were willing to accommodate [her] needs, the reality was
that it would have taken [her] time to seek and gain written approval to leave her service in New
York[,] . . . [and] [s]he would have then had to change her existing return flight arrangements and
catch a flight from New York to Missouri,” which “would have all taken the better part of a day.”
'i`his appeal follows
Standard of Review

We review the Commission’s decision to determine whether it is “supported by competent
and substantial evidence upon the whole record.” MO. CONST. art. V, section 18. This Court
may modify, reverse, remand for rehearing, or set aside the decision of the Commission when: (l)
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 decision; or (4) there was no sufficient
competent evidence in the record to warrant making the decision Ga)'dne)‘ v. Div. ofEmp ’t. Sec. ,
369 S.W.3d 109, 112 (Mo.App.E.D. 2012) (citing § 288.2101). Absent a showing of fraud, we
view the factual findings of the Commission as conclusive So long as they are supported by
competent and substantial evidence. Id. (citing § 288.210). In determining whether competent
and substantial evidence was presented_i.e., whether the decision is supported by the
overwhelming weight of the evidence as determined by the Commission-we do nor view solely
the evidence favorable to the decision and the Commission’s inferences drawn therefrom; rather,

we objectively review the claire record, including any unfavorable evidence or any such inferences

 

1 All statutory references are to RSMO 2012 unless otherwise indicated

3

 

drawn therefrom. Id. (citing Hubbell Mechanical Supply Co. v. Li'ridley, 351 S.W.3d 799, 807
(Mo.App.S.D. 201 1)). We are not bound by the Comniission's conclusions of law or its application
of the law to the facts. Id.

Discussion

Section 288.040 provides that a claimant who is unemployed shall be eligible for benefits
only if she is able to work and available for work.2 § 288.040.1(2). To be deemed available, a
claimant must be actively and earnestly seeking work. lai The claimant also “must be closely
attached to the labor market and be ready, willing, and able to accept a suitable job.” Ri'ves v.
Labor and Indas. Re[ations Comm ’n, 592 S.W.2d 252, 253 (Mo.App.E.D. 1979).

Here, the Commission found that Greer was actively and earnestly seeking work
throughout the period for which she seeks benefits in this case. However, the Commission deemed
Greer ineligible to receive benefits since her participation in Air National Guard training in New
Yorl< meant that she was not “ready to accept a suitable job” and therefore was not “available for
work.”

Greer asserts that the Commission incorrectly interpreted the phrase “available for work,”
but in substance it appears that her argument challenges the Commission’s underlying factual
finding that she was not ready to accept a suitablejob whiie she was in New York participating in
Air National Guard traiiiing. As stated above, we defer to the Commission's factual findings as

conclusive so long as they are supported by substantial and competent evidence from the entire

 

2 “Available for woi'k” is not defined in the statute because its meaning varies depending on each
claimant's circumstances Rives v. Labor and Indus. Relarions Comm ’)1, 592 S.W.2d 252, 253
(Mo.App.E.D. 1979). lnvariably, however, the phrase is to be interpreted to promote the explicit
purpose of Missouri employinth security law, which is to benefit those persons unemployed due
to no fault of their own. See z'd.

 

record. The Coinrnission‘s decision should not be overturned unless it is contrary to the
overwhelming weight of the evidence. Gardner, 369 S.W.3d at 113.

Hei'e, however, the Commission’s finding is based on a niisconstrual of the phrase “ready
to accept”~»~resulting iii a misapplication of the lawmand is unquestionably contrary to the
overwhelming weight of the evidence on the whole record. in finding that Greer, while in New
York, was not ready to accept a suitable job, the Commission relied upon the fact that it would
have “taken the better part of a day” for her to catch a flight home to St. Louis, Missouri, after
obtaining permission to leave her training. But these facts simply do not support the finding that
Greer was not at the time ready to accept a suitable job.

Viewing the entire record as required by our standard of review, with due deference to the
Commission, we are compelled to conclude that Greer was i'eady, willing, and able to accept-m
and almost certainly Would have accepted~a suitable job offer if she had been offered one while
she was in New York. The Coinrnission found that while in New York, Greer engaged in online
evening work searches that were “active, earnest, zealous, ardent, sincere, and hearty.” There was
no evidence that Greer would not have accepted a suitable job if offered one while she was in New
York. Greer testified that she would even have been able to show up for work the next day after
receiving such an offer, if necessai'y.

That Greer would not have been present within the state of Missouri at the time of accepting
such an offer is immaterial to whether she was “available for Work” under § 288.040. No Missouri
authority provides that to be ready, willing, and able to accept a suitable job_and thus “available
to work” under Missouri employment security law_a claimant of unemployment benefits must

be present within the state of Missouri, or even ready to actually perform any suitable job the very

 

moment or day it is offered.3 Nevertheless, the Commission adopted this stricter but completely
unfounded interpretation of the phrase “available to work,” and as a result misapplied Missouri
employment security iaw, reachiirg a decision contrary to the overwhelming weight of the evidence
on the whole record.

The Division and the Commissioir suggest that by failing to be present in Missouri during
the period for which she seeks benefits in this case, Greer was unavailable for work because she
imposed air unreasonable restriction on her accessibility to eniployers, and thus demonstrated the
sort of “willingness to merely be employed conditionally [that] does not meet the test of
availability.” Wester v. Labor and r'ndzts. Relatr'ons Comm 'n, 134 S.W.3d 757, 760 (Mo.App.S.D.
2004). But Greer did not demonstrate a willingness to be employed only conditionally_she

clearly showed her willingness to be employed full-tiine, without conditions4

 

3 Indeed, within the relevant context of Missouri employment security law, it would be improper
for the phrase “available for work,” not defined by statute, to be interpreted so as to make such
requirements of claimants of unemployment benefits Section 288.020.2 commands that Missoui‘i
employment security law “be liberally construed to accomplish its purpose to promote
employment security . . . by providing for the payment of compensation to individuals in respect
to their unemployment,” and a long~standing corollary from Missouri case law, see, e.g. , Lance v.
Div. of E)rrp ’t Sec., 335 S.W.3d 32, 36 (Mo.App.W.D. 2011) (citing Brown v. Labor & fridus.
Re!atr`ons Comm ’11, 577 S.W.2d 90, 94 (Mo.App, 1978)), provides that under § 288.020.2 we must
strictly construe disqualifying provisionsl Accordingly, we cannot, abiding by § 288.020.2, hold
that Greer was unavailable for work, since the phrase “available for work” permits the reasonable
interpretation (notably, that provided by Missouri case law) that Greer need not have been ready,
willing, and able during the relevant period to actually perfarm, but merely, as she was, to accept
a suitable job~to unequivocally respond “yes” to a suitable offer_to have been “available” hei'e.
4 To say that Greer placed an unreasonable restriction on her accessibility to employers because
she was not, while participating in military training in New York, ready to actually perform any
suitable job the very moment or day it was oferea', is itself unreasonable and approaches-or, as
the dissenting member of the Comniission in this case declared, reaches_“the height of
bureaucratic nonsense.” Holding claimants to such a Standard would, contrary to the purposes of
Missouri employment security law, punish them for tinding, and performing their duties in, paid
positions that increase their attachment to the labor market, increase their chances of future
employment, and reduce their need for unemployment benefits, simply because meeting the
demands of such positions_which positions claimants may not be able to afford to abandon, or

6

 

Moreover, the cases to which the Division cites, and those on which the Commission relied,
that have found a claimant unavailable to work because she placed unreasonable restrictions on
her employment and thus demonstrated her willingness to be employed only conditionally, are
easily distinguished from Gr'eer"s case and are inapposite here. ln Gola'en v. lndas. Comm ’n, 524
S.W.2d 34, 38 (Mo.App. 1975), for example, the claimant was found to have been unavailable to
work because he was a full~time student and was available only for jobs that did not conflict with
his classroom hours. The claimant did not assert that he would have given up his schooling once
offered a job, as Greer testified she would have cut short her training if offered a suitable job. Sec
ia'. (“Claiinant expressed rio desire, willingness or ability to adjust present class hours or
completely forego his educational pursuits if that be necessary and required to gain employment
. . . [W]e cannot say the Commission unreasonably concluded that claimant's primary object was
to be a full-time college student who was not available for work because he was riot
unconditionally, realistically and genuinely seeking attachment to the labor market.”). Thus, Greer
cannot be said to have deinonstrated, as the student iii Golden did, the willingness to be employed
only conditionally; indeed, the record as a whole shows that she demonstrated just the opposite.

Nor is Greer like the claimant in Bi'ackman v. Indus. Comm ’n, 491 S.W.2d 18, 24 (Mo.App.
1973), who was found to be unavailable for Work because she refused six jobs because the salary
was too low, and one because a six-day work week was required There is no evidence that Greer
refused a job offered, much less that she did so for a reason that rendered her unavailable to work

under l\/lissouri law. lnstead, all the evidence in the record indicates that Greer engaged in an

 

may have a duty riot to abandon, even after they receive new job offers_rnay prevent claimants
from immediately beginning to perform new jobs they are nevertheless ready to accept.

7

 

active and sincere pursuit of a suitable job without placing any unreasonable restrictions or

conditions 011 her acceptance of it. Point grairted.

Conclrrsion

For the reasons stated above, we reverse the Commission’s decision and remand for a

determination of benefits consistent with this opinion.

Kui't. S. Odenwald, J., and
Gary M. Gaertner, .lr., J., concur.

hit

Jaii\ es Wwd, %\Siding Judge

 

