TRACI LUPE,                                      )
                                                 )
                     Appellant,                  )
                                                 )
         v.                                      ) No. SD34046
                                                 )
CHRISTIAN COUNTY, MISSOURI, and                  ) FILED: December 16, 2015
DIVISION OF EMPLOYMENT SECURITY,                 )
                                                 )
                     Respondents.                )

   APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

REMANDED WITH DIRECTIONS

(Before Scott, P.J., Bates, J., and Sheffield, C.J.)

         PER CURIAM. Traci Lupe (“Claimant”) quit her position as a deputy sheriff.

The Labor and Industrial Relations Commission (“Commission”) denied her claim

for unemployment benefits, finding that she voluntarily left work without good cause

attributable to the work or her employer. RSMo § 288.050.1(1). She appeals,

asserting that the Commission misapplied the law as to whether she quit for good

cause.
      We cannot intelligently review the Commission’s application of law to the

facts because it failed to make a critical finding of fact. As we cannot discern which

evidence the Commission believed and which it rejected, we must remand the case.

Edmonds Dental Co., v. Keener, 403 S.W.3d 87, 91 (Mo.App. 2013).

                                        Background 1

      Claimant worked three years for Christian County (“Employer”). She started

working in the jail and eventually was assigned to be a courtroom bailiff. Claimant

complained about her judge’s conduct, which she considered to be demeaning and

harassing, and that he threatened to have her reassigned to jail duties if she defied

him. After a meeting with Claimant, Employer reassigned her to courthouse door

security to distance her from that judge. Employer denied Claimant’s request for

transfer to another bailiff position.

      A few months later, Claimant filed formal EEOC and judicial-ethics

complaints regarding the judge’s conduct. Soon thereafter, Employer reassigned

Claimant to jail transportation duty, stating that it needed a qualified female officer

to transfer female inmates. Although her work hours, pay rate, and accrued benefits

did not change, Claimant deemed this a retaliatory demotion to a less desirable

position and quit work a week later.

      Claimant applied for unemployment benefits, but was denied because she had

quit voluntarily. An appeals tribunal affirmed the denial, finding credible Employer’s


1We summarize the background of this case based on the entire record, deferring to
the Commission’s determinations on issues resolving matters of witness credibility
and conflicting evidence. Darr v. Roberts Mktg. Group, LLC, 428 S.W.3d 717,
720 (Mo.App. 2014).

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witness who testified that Claimant’s reassignment to jail transportation was not

retaliatory.

       Claimant sought review by the Commission, which affirmed by a 2-1 vote,

again reciting Employer’s non-retaliatory reason for the transfer. However, the

Commission stated that it also found Claimant credible and “there is credible

evidence that indicates the transfer was, at least in part, in response to her

complaint. Under these circumstances it was not unreasonable for claimant to view

the transfer as retaliatory.” That said, the Commission found the transfer was not a

hardship for Claimant; she suffered no pay change or significant change in hours;

and she got along “ok” with her immediate co-workers. In concluding that Claimant

voluntarily left work without good cause attributable to the work or her employer,

the Commission wrote that “Claimant’s perception of an injustice, no matter how

reasonable, does not by itself render her work separation involuntary.”

                                     Analysis

       Claimant contends that the Commission misapplied the law in determining

that she lacked good cause for leaving work. We review de novo this legal question

upon which Claimant bore the burden of proof. Martin v. Div of Employment

Sec., 460 S.W.3d 414, 417 (Mo.App. 2015). Good cause is “an objective measure

based on what an average person would do acting reasonably and in good faith,” and

is “limited to instances where the unemployment is caused by external pressures so

compelling that a reasonably prudent person would be justified in giving up

employment.” Id. at 417-18.



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      The central issue in this case is whether Claimant’s last transfer was (1)

retaliation or discriminatory treatment 2 by Employer; or (2) an unwelcome but non-

discriminatory change of duties without a substantial change in pay or working

conditions. The latter likely would not support a good cause finding (see Darr, 428

S.W.3d at 728), but the former might do so.

      “Absent    discriminatory    or   unfair   or   arbitrary    treatment,   mere

dissatisfaction with working conditions does not constitute good cause for quitting

employment unless the dissatisfaction is based upon a substantial change in wages

or working conditions from those in force at the time the claimant’s employment

commenced.” Id. at 725 (our emphasis). Many cases so hold, 3 suggesting that

unlawful retaliation might constitute good cause for Claimant to quit despite the

Commission’s finding that her working conditions had not materially changed.

      As to whether the transfer was retaliatory, the Commission’s findings are

ambiguous. The Commission declared the evidence credible in both directions, but

made no finding on the actual fact issue. Although explicit credibility determinations

often aid our review, “[c]redible, believable, even uncontradicted proof of


2 In this context, we see retaliation as tantamount to discrimination. Cf. Missouri
Pub. Entity Risk Mgmt. Fund v. Inv’rs Ins. Co., 338 F. Supp. 2d 1046, 1051-
52 (W.D. Mo. 2004) aff’d, 451 F.3d 925 (8th Cir. 2006) (insurance coverage for
employment discrimination claims).
3 See also Bordon v. Div. of Employment Sec., 199 S.W.3d 206, 210 (Mo.App.

2006); Rodriguez v. Osco Drug, 166 S.W.3d 138, 142 n.3 (Mo.App. 2005);
Cooper v. Hy-Vee, Inc., 31 S.W.3d 497, 504 (Mo.App. 2000); VanDrie v.
Performance Contracting and Div. of Employment Sec., 992 S.W.2d 369,
373-74 (Mo.App. 1999); Sokol v. Labor & Indus. Relations Comm’n, 946
S.W.2d 20, 26-27 (Mo.App. 1997); Mitchell v. Div. of Employment Sec., 922
S.W.2d 425, 428 (Mo.App. 1996); Charles v. Missouri Div. of Employment
Sec., 750 S.W.2d 658, 661 (Mo.App. 1988).

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evidentiary facts may not prove a contested issue of ultimate fact to the fact-finder’s

satisfaction.” Black River Electric Cooperative v. People’s Community

State Bank, 466 S.W.3d 638, 640 (Mo.App. 2015).

      Having carefully read and re-read the Commission’s decision, we simply

cannot tell if the Commission was persuaded that Claimant’s transfer was, in fact,

retaliatory. Absent a discernable finding of fact on this key issue, we cannot

determine whether the Commission erred in applying the law.

      A Commission decision must leave no room for doubt about which evidence

was believed and which was rejected, provide for intelligent review of the decision,

and reveal a reasonable basis for the decision. Edmonds Dental, 403 S.W.3d at

90. Failure to make adequate findings of fact requires us to remand the case. Id. at

91.

                                    Conclusion

      We remand this case to the Commission with directions to make further

findings of fact as indicated herein “based on the evidence already presented or,

alternatively, to hear additional evidence if the Commission deems appropriate and

then enter its decision.” Id.




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