Difatta-Wheatonv.Dolphin Capital Corp.

Missouri Court of Appeals, Western DistrictJan 29, 2008
No. WD67789 (Mo. Ct. App. Jan. 29, 2008)

No. WD67789

January 29, 2008

Appeal from the Labor and Industrial Relations Commission.

Marilyn Green, Jefferson City, MO, Attorneys for Respondent.

Amy Difatta-Wheaton, Pro Se, Macon, MO, Attorney for Appellant.

Before: Howard, C.J., and Breckenridge and Ellis, JJ.

Breckenridge, J., was a member of this court at the time the case was argued and submitted. She was subsequently appointed a judge of the Supreme Court of Missouri but has been reassigned to this court as a special judge for the purpose of disposition of this case.


VICTOR C. HOWARD, Chief Judge.

After an authorized leave from her employment, Amy DiFatta-Wheaton (Wheaton) suffered a medical emergency the evening before her anticipated return to work and was unable to attend work as scheduled. Upon receiving notice from her employer, Dolphin Capital Corporation (Dolphin), that she had voluntarily abandoned her employment, she immediately sought unemployment benefits. A deputy denied benefits and that decision was affirmed by the Appeals Tribunal and the Labor and Industrial Relations Commission (Commission). She now seeks review under section 288.210 claiming that she did not voluntarily terminate her employment, nor was she guilty of misconduct and is, therefore, entitled to unemployment benefits. We reverse the Commission's order.

All citation to statutes refers to RSMo 2000 and all citation to rules refers to Missouri Supreme Court Rules (2007).

Facts and Background

Wheaton began working for Dolphin Capital Corporation on November 14, 2005, as a sales representative. She was scheduled to work Monday through Friday, from 8:00 a.m. to 5:00 p.m. After receiving authorization, she took a medical leave of absence from May 23, 2006, to May 29, 2006. She provided Dolphin with appropriate written notification from her doctor. During this period, Wheaton suffered from excessive bleeding caused by a hysterectomy and ovarian cancer. The written notification from her doctor, dated May 22nd, stated she would be able to return on May 29, 2006. It is undisputed that Wheaton's illness was personal and unrelated to her work as a sales representative.

Wheaton was not entitled to a guaranteed medical leave of absence under the FMLA.

On the evening of May 28, 2006, Wheaton had a medical emergency and her doctor requested that she go to the doctor's office early on the morning of May 29, 2006. Consequently, she was unable to return to work as scheduled. She testified that on the morning of May 29th she left a message on the office manager's answering machine notifying her of the medical emergency and that a written excuse from the doctor would be forthcoming, had her doctor fax a note that she would be unable to work until July 27, 2006, and had her friend hand-deliver a copy of the doctor's note at 4:30 in the afternoon.

It is undisputed that Wheaton was unable to work between May 29, 2006, and July 27, 2006, due to her medical condition.

Joan Boyetchwars, Dolphin's office administrator and only witness, testified that she did not receive the doctor's note other than the one stating that Wheaton would be unable to work until May 29th. She did, however, testify that Wheaton "left a message on 5-30 stating she was going to get an excuse to us on Friday but that they closed early." Boyetchwars did not indicate that she would have been informed had Wheaton conveyed proper notice to Dolphin. Dolphin's attendance policy stated:

In the event an employee must be absent, he or she must notify his or her supervisor in advance or as soon as possible after the need to be absent becomes evident. An employee absent from work for three (3) consecutive business days without having provided proper notification will be considered to have voluntarily abandoned his or her job.

On June 8, 2006, Wheaton received a letter from Dolphin, dated June 5, 2006, which noted that she had been absent and stated:

According to the Certificate to Return to Work, faxed to our office on June 2, 2006 (enclosed), you were to return to work on May 29, 2006. Your failure to return to work as scheduled leads us to believe that you have voluntarily resigned from your position at Dolphin Capital Corp., due to job abandonment.

Therefore, your employment with Dolphin Capital Corp. ended effected [sic] May 29, 2006, the date that you were suppose [sic] to return to work.

Wheaton denies that she voluntarily resigned.

On the same day that she received the letter from Dolphin, Wheaton filed for unemployment benefits. After a telephonic hearing, the deputy determined that Wheaton voluntarily left her employment without good cause attributable to Dolphin. The Appeals Tribunal affirmed. In its findings of fact, the Appeals Tribunal noted that claimant did in fact call her employer on May 29, 2006, and informed Dolphin that she would be unable to work. It also found that her doctor and her friend conveyed a similar written message to Dolphin on the same day. However, it cited Wimberly v. Labor Industrial Relations Commission, 688 S.W.2d 344, 346 (Mo. banc 1985), for the proposition that, "[a] leave of absence without a guarantee of reinstatement has been treated as a `quit'" and concluded that Wheaton voluntarily left her employment. The Appeals Tribunal relied primarily on Reutzel v. Missouri Division of Employment Security, 955 S.W.2d 239 (Mo.App.S.D. 1997), a Southern District opinion, as reason for its decision, arguing that a failure to return to work after a guaranteed "leave of absence" constitutes a voluntary termination of employment. The Appeals Tribunal stated:

Wimberly, 688 S.W.2d at 346 n. 2.

In Reutzel, the Missouri Court of Appeals held that the employee's failure to return to work at the expiration of her approved leave of absence constituted a voluntary separation from employment. The court reasoned that the employee in Reutzel was only guaranteed her job until the date her leave of absence expired. After that date, the employee was not guaranteed her job. The court held that under the Missouri Employment Security Law, the employee's failure to return constituted a voluntary separation. Similarly, in this case, the claimant's inability to return to work on May 29, 2006, constitutes a voluntary separation from work.

It then went on to note that Wheaton failed to actually obtain additional authorized sick leave or a guarantee of reinstatement. The Labor and Industrial Relations Commission affirmed, adopting the decision of the Appeals Tribunal as its own, although one member of the Commission dissented. The dissenter noted that Wheaton diligently notified her employer that she would be unable to work on May 29, 2006, and was, therefore, involuntarily discharged on June 6, 2006.

Standard of Review

The scope of our review of the Commission's order is limited. "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." § 288.210. We disturb the order only if we find:

(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.

Id. "`If evidence before an administrative body would warrant either of two opposed findings, the reviewing court is bound by the administrative determination, and it is irrelevant that there is supportive evidence for the contrary finding.'" Pulitzer Publ'g. Co. v. Labor Indus. Relations Comm'n, 596 S.W.2d 413, 417 (Mo. banc 1980) (quoting Bd. of Educ., Mt Vernon Sch. v. Shank, 542 S.W.2d 779, 782 (Mo. banc 1976)). It is our function to determine whether the Commission reasonably could have made its findings and drawn its conclusions. Burns v. Labor Indus. Relations Comm'n, 845 S.W.2d 553, 554-55 (Mo. banc 1993).

Rule 84.04

Wheaton's amended appellate brief is patently noncompliant with the Missouri briefing requirements. See Rule 84.04. Nevertheless, "[w]here possible, . . . [this court's] preference is to dispose of a case on the merits rather than to dismiss an appeal for deficiencies in the brief." Podlesak v. Wesley, 849 S.W.2d 728, 731 (Mo.App.S.D. 1993). "[C]ompliance with Rule 84.04 ensures that the appellate court does not act as an advocate for the party by speculating on facts and arguments that were not asserted. Woodson v. City of Independence, 124 S.W.3d 20, 24 (Mo.App.W.D. 2004). While inartfully drafted, Wheaton's claim is readily apparent. See Cubit v. Accent Mktg. Servs., LLC., 222 S.W.3d. 277, 280 (Mo.App.W.D. 2007). She argues that the Commission lacked evidence to determine that she voluntarily terminated her employment, and she supports that claim with relevant legal support. Moreover, often the briefing rules are rigorously applied to ensure that the respondent has opportunity to develop their opposing arguments. Kimble v. Muth, 221 S.W.3d 419, 421 (Mo.App.W.D. 2006). Here, the Division of Employment Security does not argue that it could not adequately respond to the appellate brief due to 84.04 violations. Despite the briefing defects, we opt to proceed to the merits ex gratia. See Rodriguez v. Osco Drug, 166 S.W.3d 138, 140 (Mo.App.W.D. 2005).

Analysis

Missouri's Employment Security Law provides that cash payments be made to certain employees after separating from employment. Unemployment benefits are unavailable for those employees who either "left work voluntarily without good cause attributable to such work or to the claimant's employer" or are involuntarily discharged for "misconduct connected with the claimant's work." §§ 288.050.1(1), 288.050.2. "The purpose of the unemployment compensation act is to provide benefits to persons unemployed through no fault of their own." Kelley v. Manor Grove, Inc., 936 S.W.2d 874, 876 (Mo.App.E.D. 1997).

Our construction of the Employment Security Law is greatly facilitated by a statement of legislative intent.

As a guide to the interpretation and application of this law, the public policy of this state is declared to be as follows: Economic insecurity due to unemployment is a serious menace to health, morals, and welfare of the people of this state resulting in a public calamity. The legislature, therefore, declares that in its considered judgment the public good and the general welfare of the citizens of this state require the enactment of this measure, under the police powers of the state, for compulsory setting aside of unemployment reserves to be used for the benefit of persons unemployed through no fault of their own.

§ 288.020.1. The statute also provides that it "shall 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." § 288.020.2. The "disqualifying provisions of the law are to be strictly construed against the disallowance of benefits to unemployed but available workers." Mo. Div. of Employment Sec. v. Labor Indus. Relations Comm'n, 651 S.W.2d 145, 148 (Mo. banc 1983).

The current case largely turns on the meaning of the term "left work voluntarily without good cause attributable to [her] work or to [her] employer." § 288.050.1(1). "[D]isqualification ensues only if the termination of employment is (1) voluntary, and (2) not related to employment. Wimberly, 688 S.W.2d at 352 (Blackmar, J., dissenting). For the purpose of a claim for unemployment compensation benefits, "[a]n employee is deemed to have left work voluntarily when he leaves of his own accord, as opposed to being discharged, dismissed, or subjected to layoff by the employer." Miller v. Help At Home, Inc. 186 S.W.3d 801, 806 (Mo.App.W.D. 2006).

Wheaton claims that she did not leave her work voluntarily but rather was fired after she was unable to attend work due to a medical emergency. Dolphin argues that Wheaton voluntarily resigned because she abandoned her job. Whether an employee voluntarily quits or is involuntarily discharged is a question of fact to which an appellate court is immensely deferential. See Quik `n Tasty Foods, Inc. v. Div. of Employment Sec., 17 S.W.3d 620, 625 (Mo.App.W.D. 2000). The current case, however, does not present a set of disputed facts. "Because the basic facts in this case are not disputed, and yet the significance of the facts can be viewed in different ways, this case involves primarily the application of the law to the facts." Madewell v. Div. of Employment Sec., 72 S.W.3d 159, 163 (Mo.App.W.D. 2002).

We cannot conclude that Wheaton's unemployment resulted from a voluntary action. She took an authorized medical leave of absence and then, on the eve of her anticipated return to work, suffered a medical emergency. Shortly thereafter, she received a letter from her employer notifying her that she no longer was employed. We cannot describe this as a voluntary termination. A causal connection between personal illness and unemployment does not necessarily produce a voluntary termination. Wheaton's severance from employment was in no sense voluntary. Nor can we say that her involuntary termination was the product of fault on her part. It is difficult to imagine how an employee's battle with ovarian cancer and ancillary complications, the sole cause of unemployment, could be construed as fault on her part. She suffered a medical emergency, not caused by negligence or choice, and acted diligently to maintain her employment. A contrary interpretation of the term "voluntary termination" defies any reasonable and ordinary meaning of the term, the express legislative intent to provide benefits to those who become "unemployed through no fault of their own," and the rule of construction, which requires that disqualification provisions be strictly construed in favor of granting benefits. See Mo. Div. of Employment Sec., 651 S.W.2d at 148.

The Commission's focus on employer guarantees and authorization for additional sick leave is misplaced. Wheaton's lack of permission to take additional medical leave and Dolphin's immediate need for an employee may have been factors in Dolphin's decision to terminate Wheaton, but these factors do not affect whether the termination was voluntary or involuntary. As stated earlier, for the purpose of a claim for unemployment compensation benefits, "[a]n employee is deemed to have left work voluntarily when he leaves of his own accord, as opposed to being discharged, dismissed, or subjected to layoff by the employer." Miller, 186 S.W.3d at 806.

Other than by the implication in stray lines of dicta, personal illness that causes a leave of absence has only been held to cause a voluntary termination of employment in three distinct situations. In the first type, there is sufficient evidence on record for the deputy to find that the employee expressly tendered resignation, either directly or through certain types of voluntary leaves without a guarantee of reemployment. See Duffy v. Labor Indus. Relations Comm'n, 556 S.W.2d 195, 197 (Mo.App. 1977) (evidence was sufficient to determine employee voluntarily terminated employment because she told her employer "I will not return"); Div. of Employment Sec. v. Labor Indus. Relations Comm'n, 617 S.W.2d 620, 626-27 (Mo.App.W.D. 1981) (a voluntary leave of absence conditioned upon there being employment available upon return is a voluntary termination).

In the second type of voluntary termination caused by a personal medical condition, a well-known, written employment policy states that if an employee is absent for a specified period of time, then they will be deemed to have voluntarily abandoned their employment. See Turner v. Labor Indus. Relations Comm'n, 793 S.W.2d 191, 195 (Mo.App.W.D. 1990) (noting that an employee voluntarily abandoned her employment when she was in "violation of a well known and enforced company policy providing that an individual's failure to show, or to provide notice for three consecutive days, constituted a self-termination or a voluntary quit."); Ayers v. Sylvia Thompson Residence Ctr., 211 S.W.3d 195, 199 (Mo.App.W.D. 2007) (noting that an employee voluntarily abandoned her employment after she failed to notify her employer of an absence and there was a policy which held "[i]f an employee does not show up or call in, it will be considered job abandonment and voluntary termination.").

In the third type, an employee takes an authorized voluntary leave of absence and fails to take reasonable measures to maintain their position. See Madewell, 72 S.W.3d at 165 (disobeying a "specific order" to return to work after a leave of absence combined with a lack of effort to do all reasonable acts to preserve employment could amount to voluntary termination). No precedent holds that if an employee is fired because they cannot attend work due to personal illness, then the employee will be considered to have quit. See Garden View v. Labor Indus. Relations Comm'n, 848 S.W.2d 603, 606 (Mo.App.E.D. 1993); Kelley, 936 S.W.2d at 876 (in both cases the employee was fired because of absenteeism caused by personal illness and was not considered to have voluntarily left employment).

In Madewell, the Commission denied an employee's claim for unemployment benefits after determining that she voluntarily left her employment. 72 S.W.3d at 161. There an employee voluntarily applied for a one-month personal medical leave of absence under the FMLA. Id. She was informed that her guaranteed leave would last so long as it was "[c]oncurrent with her disability until RTW [return to work] or when 12 weeks used" per the FMLA. Id. at 162. Her leave was later extended to an indefinite period. Id. at 161. Approximately five months later, after her guaranteed FMLA leave expired, the employer orally directed the employee to attend work the following day. Id. Her insurance carrier informed her that she could not return to work until she received an appropriate release from a medical doctor, and she did not attend work as her supervisor ordered. Id. We held that the Commission had sufficient evidence to conclude that she voluntarily terminated her employment by not returning to work because she


did not do what she reasonably could to preserve her position with the employer. By failing to contact the employer concerning her return to work date after the leave expired, she left herself vulnerable to discharge. Then, when she received a specific order to return . . . she failed to show up as ordered.

Id.
at 165. The aggregate result of these two facts, which amounted to negligence in failing to maintain her employment, led us to believe that the finding that she voluntarily left her employment was not against the overwhelming weight of the evidence. Id.

The evidence manifestly demonstrates that Wheaton did not voluntarily tender her resignation by oral notice, letter, or implication. Nor did she knowingly take a voluntary leave of absence conditioned upon there being an available position upon her return. Furthermore, while there was evidence of a Dolphin policy providing that if an employee failed to attend work for three days that employee would be considered to have voluntarily abandoned their position, this policy was not implicated. The policy stated, "[a]n employee absent from work for three (3) consecutive business days without having provided proper notification will be considered to have voluntarily abandoned his or her job." Neither party disputes that Wheaton was absent from work for more than three days; however, the Commission made an explicit finding that Wheaton made considerable effort to contact her employer concerning her medical emergency: she called at least once, had her doctor fax notice, and had a friend deliver a printed copy of the note from her doctor. Each of these instances of notice occurred before the expiration of the three-day limit outlined in the attendance policy. Nor can it be said that Wheaton failed to diligently maintain her employment after taking a medical leave of absence. See generally Madewell, 72 S.W.3d at 165. The Commission could not have reasonably concluded, upon the record before it, that Wheaton voluntarily terminated her employment.

It is also readily apparent from the record that Dolphin did not fire Wheaton due to misconduct. She was fired because she failed to report to work after a bona fide medical emergency. Absenteeism, without additional facts, does not constitute misconduct. Kelley, 936 S.W.2d at 876.

To the extent that the current opinion deviates from precedent holding that an employee who always, and under all circumstances, will be deemed to have voluntarily terminated their employment where they are unable to work due to personal medical infirmity — we decline to follow such precedent. See Lake v. Labor Indus. Relations Comm'n, 781 S.W.2d 207, 208 (Mo.App.E.D. 1989) ("An employee whose employment terminates because of personal illness unrelated to her employment is considered to have voluntarily left her work without good cause attributable to her employer unless the illness was caused or aggravated by her work."). See also Reutzel, 955 S.W.2d at 242. Such a rule, if strictly applied, would contravene the express policy of Missouri's Employment Security law, which attempts to provide financial security for those who are "unemployed through no fault of their own." § 288.020.1. The Missouri Supreme Court has never held, nor does the statute require, that an employee involuntarily discharged because they could not attend work due to personal illness would automatically be considered to have voluntarily severed employment.

This statement is of dubious origin. Lake overextends a Western District case, Division of Employment Security v. Labor Industrial Relations Commission, 617 S.W.2d 620 (Mo.App.W.D. 1981), to support the proposition that "an employee whose employment terminates because of personal illness unrelated to her employment is considered to have voluntarily left." Lake, 781 S.W.2d at 208. In Division of Employment Security, the question framed was:


Is an employee who takes a leave of absence, the terms of which provide that at the end of the period, the return to work is contingent upon the availability of a job, deemed to have voluntarily left the job without cause attributable to the job or employer, for the purpose of disqualification for unemployment benefits claimed for a period after the employer failed to reemploy at the expiration of the leave period?

617 S.W.2d at 623-24. The court answered that the employee had voluntarily terminated employment where the employee knowingly took a leave of absence when her return was contingent upon a job being available upon return. Id. at 628. Any broader interpretation of Division of Employment Security is unfounded.
Moreover, Duffy v. Labor Indus Relations Commission, 556 S.W.2d 195, 197 (Mo.App.E.D. 1977), which the Lake Court also relied on, does not provide support for the broad statement made in Lake. In Duffy the Commission found that the claimant expressly told her employer, "I will not return" to work and had expressly "resigned." Id. at 197. In both cases, the leave was voluntary. Duffy principally dealt with the second part of the disqualification: good cause attributable to the employer.

Reutzel also appears to misstate the law. It overextends the logic of Turner v. Labor Industrial Relations Commission, 793 S.W.2d 191 (Mo.App.W.D. 1990), a case where an employee voluntarily terminated employment by failing to report to work as scheduled. In Turner, a written, well-known policy provided that employees who did not report to work for three consecutive days would be considered to have voluntarily terminated employment. Id. at 195. Reutzel states, "Here, as in Turner, claimant was advised when she would be required to return to work in order to retain her job. She failed to do so." Reutzel, 955 S.W.2d at 242 (emphasis added). In Reutzel, the claimant was only advised that if she did not return by a certain date the employer would consider her employment terminated. Id. at 240. Unlike Turner, the fact that the company would consider her position voluntarily terminated, rather than merely terminated, was not expressed in a well-known policy.
Furthermore, in an attempt to bolster its reliance on Reutzel, the Commission cited the Supreme Court's statements in Wimberly v. Labor Industrial Relations Commission, 688 S.W.2d 344, 346 (Mo. banc 1985). That case merely stated, that a "leave of absence without a guarantee of reinstatement has been treated as a `quit'." Id. "Missouri courts have interpreted this provision to disqualify claimants who quit their job on account of pregnancy or personal illness unrelated to the employment." Id. (footnote omitted). The Supreme Court certainly did not state that an unauthorized leave of absence caused by personal illness always will be construed as a quit. Rather, the leave of absence will be treated as a quit where the employee voluntarily takes that negotiated leave knowing that her job is not guaranteed upon her anticipated return or the employee expressly tenders resignation. Id. Moreover, it appears as if no opinion in Wimberly commanded a majority of the court, and, therefore, its precedential value is questionable. State ex rel. State v. Riley, 992 S.W.2d 195, 196-97 (Mo. banc 1999).

Conclusion

The order of the Commission is set aside and the matter is remanded for judgment to be entered in accordance with this opinion.

Breckenridge and Ellis, JJ., concur.

MISSOURI APPELLATE COURT OPINION SUMMARY

Ruling: REVERSED Division IV holds :

After an authorized leave from her employment, Amy DiFatta-Wheaton suffered a medical emergency the evening before her anticipated return to work and was unable to attend work as scheduled. Upon receiving notice from her employer, Dolphin Capital Corporation, that she had voluntarily abandoned her employment, she immediately sought unemployment benefits. A deputy denied benefits and that decision was affirmed by the Appeals Tribunal and the Labor and Industrial Relations Commission. She now seeks review under section RSMo 288.210 (2000) claiming that she did not voluntarily terminate her employment, nor was she guilty of misconduct and is, therefore, entitled to unemployment benefits.

We reverse the Commission's order. Ms. DiFatta-Wheaton did not voluntarily terminate her employment. The record is undisputed that she made all reasonable efforts to maintain her employment and did not expressly or by implication tender her resignation. The evidence manifestly demonstrates that Wheaton did not voluntarily tender her resignation by oral notice, letter, or implication. Nor did she knowingly take a voluntary leave of absence conditioned upon there being an available position upon her return. Although Ms. DiFatta-Wheaton suffered a medical emergency unrelated to her employment, she became unemployed through no fault of her own.

THIS SUMMARY IS UNOFFICIAL AND SHOULD NOT BE QUOTED OR CITED.

Howard, C.J., and Breckenridge and Ellis, JJ. CONCURRING.