Cynthia Menendez v. Division of Employment Security , 2015 Mo. App. LEXIS 287 ( 2015 )

In the Missouri Court of Appeals
Eastern District
DIVISION THREE
CYNTHIA MENENDEZ, ) No. ED101860
)
Appellant, ) Appeal from the Labor and
) Industrial Relations Commission
vs. )
)
DIVISION OF EMPLOYMENT )
SECURITY, )
) Filed:
Respondent. ) March 17, 2015
Cynthia Menendez (“Claimant”) appeals from the decision of the Labor and
Industrial Relations Commission (“the Commission”) denying her petition for
unemployment benefits. Claimant argues the Commission erred in finding Claimant
engaged in misconduct connected with her work because Claimant’s early removal of a
patient’s sutures was an isolated act of negligence. We reverse.
Claimant was employed by Tesson Heights Orthopaedics and Arthroscopic
Associates (“Employer”) as a medical assistant for ten years until she was discharged
April 4, 2014. Claimant was terminated because she prematurely removed a patient’s
sutures. Claimant did not have the doctor’s permission to remove the sutures. The
patient had to undergo a second surgery to replace the sutures because the wound opened
up again. Employer terminated Claimant because she “failed to use reasonable judgment
in removing [the] sutures,” but Employer told Claimant she would “be eligible for
unemployment benefits.”
Subsequently, a deputy with the Division of Employment Security determined
Claimant was discharged for misconduct connected with her work. Thus, Claimant was
denied unemployment benefits.
Claimant appealed to the appeals tribunal, which held a telephone hearing at
which Claimant was the only participant. Claimant testified she was angry with a co-
worker and did not read the date on the patient’s chart correctly to notice his sutures were
not to be removed for another week. The appeals tribunal found Claimant could have
waited for the doctor to see the patient before removing the sutures, but she did not.
Further, it found Claimant did not exercise reasonable care because she did not properly
read the chart. Thus, the appeals tribunal affirmed the deputy’s determination that
Claimant was not entitled to unemployment benefits because she was discharged for
misconduct connected with her work.
Claimant then filed an application for review with the Commission. The
Commission affirmed and adopted the decision of the appeals tribunal. This appeal
follows.
In her sole point, Claimant argues the Commission erred in finding Claimant
engaged in misconduct connected with her work because Claimant’s early removal of a
patient’s sutures was an isolated act of negligence. We agree.
The standard of review when reviewing a decision by the Commission on
unemployment benefits is contained in Section 288.210, RSMo 2000,1 which provides
that we may reverse, modify, set aside, or remand a decision by the Commission on the
following grounds: 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
1
All further statutory references are to RSMo 2000, unless otherwise indicated.
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not support the award; or 4) that there was no sufficient competent evidence in the record
to warrant the making of the award. Stewart v. Duke Mfg. Co., 292 S.W.3d 495, 497
(Mo. App. E.D. 2009). The factual findings of the Commission, if supported by
competent and substantial evidence, in the absence of fraud, shall be conclusive and our
review shall be limited to questions of law. Id. However, whether a claimant’s actions
constituted misconduct connected with work is a question of law, which we review de
novo. Finner v. Americold Logistics, LLC, 298 S.W.3d 580, 584 (Mo. App. S.D. 2009).
We must accept the Commission’s judgment of evidence and defer to the Commission on
determinations regarding the evidence and the credibility of witnesses. Murphy v.
Aaron’s Automotive Products, 232 S.W.3d 616, 620 (Mo. App. S.D. 2007). Where, as
here, the Commission adopts the decision of the appeals tribunal, we consider the appeals
tribunal’s decision to be the Commission’s for purposes of review. Sheridan v. Division
of Employment Sec., 425 S.W.3d 193, 198-99 (Mo. App. W.D. 2014).
Section 288.050.2, RSMo Cum. Supp. 2009, provides “[i]f a deputy finds that a
claimant has been discharged for misconduct connected with the claimant’s work, such
claimant shall be disqualified for waiting week credit and benefits, and no benefits shall
be paid . . ..” Further, Section 288.030, RSMo Cum. Supp. 2009, defines “misconduct”
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.
Although the burden of proving eligibility for unemployment compensation benefits
initially lies with the claimant, once an employer alleges that the claimant was discharged
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for misconduct connected with work, the burden shifts and the employer must
demonstrate such misconduct. Freeman v. Gary Glass & Mirror, L.L.C., 276 S.W.3d
388, 391 (Mo. App. S.D. 2009). In order to do so, the employer must show, by a
preponderance of the evidence, that the claimant willfully violated the rules or standards
of the employer or that the claimant knowingly acted against the employer’s interest. Id.
There is a distinction between the violation of an employer’s rule justifying the
employee’s discharge and the violation of an employer’s rule that warrants a finding of
misconduct connected to the employee’s work. Id.
In Seck v. Department of Transportation, 434 S.W.3d 74, 82-83 (Mo. banc 2014),
the Supreme Court examined each category of behavior in the definition of misconduct.
The Supreme Court noted a single act in disregard of the employer’s interest can
constitute misconduct for purposes of Section 288.030, but only if the employee’s
disregard for that interest is “wanton or willful.” Id. at 82. Moreover, a single violation
of employer’s rules can be misconduct, but only if it was deliberate. Id. at 83. Also,
even in the absence of an oral or written rule, an employee commits misconduct if he or
she disregards the standards of behavior which the employer has a right to expect. Id.
Lastly, simple negligence can constitute misconduct, but only if the nature or recurrence
of the employee’s action demonstrates the employee’s motive or purpose was to injure
the employer or the employee’s disregard of those interests was intentional and
substantial. Id. at 82-83.
In this case, Claimant’s premature removal of the sutures was not “wanton or
willful,” nor was it a deliberate violation of Employer’s rules. Moreover, it was an
isolated mistake by Claimant and its nature does not indicate it was done to purposely
injure Employer or to intentionally disregard Employer’s interests. Thus, the question is
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whether Claimant disregarded standards of behavior which Employer had a right to
expect and in so doing committed misconduct. We find she did not.
We have repeatedly held that poor workmanship and mere negligence do not rise
to the level of misconduct. Dixon v. Division of Employment Sec., 106 S.W.3d 536, 541
(Mo. App. W.D. 2003). The context of the term “disregard” in the definition of
misconduct indicates, instead, that disregard of the standards of behavior means “an
intentional slight.” Id. This meaning of the term “disregard” is consistent with the other
definitions of “misconduct” and consistent with the holdings of cases utilizing the
“disregard of the standards of behavior which the employer has the right to expect of his
employee” definition to find misconduct. Id.
As Employer has pointed out, if there is one unique area of employment law
where strict compliance with protocol and military-like discipline is required, it is in the
medical field. Pemiscot County Memorial Hosp. v. Missouri Labor & Industrial
Relations Com'n, 897 S.W.2d 222, 228 (Mo. App. S.D. 1995). However, in that case, the
court found the employee was not guilty of misconduct for performing an invasive
procedure on a patient without proper authorization. Id. While a mistake in the medical
field might have more serious consequences than a mistake in a non-medical job, our
analysis is the same. We still require some kind of “intentional slight” to find misconduct
in this type of circumstance. Dixon, 106 S.W.3d at 541.
In Hoover v. Community Blood Center, 153 S.W.3d 9, 10 (Mo. App. W.D. 2005),
an employee was counseled about three errors she had made in either reviewing donor
history forms or failing to place unit number labels on the donation bags. Those mistakes
had resulted in the destruction of the collected blood units. Id. Subsequently, the
employee failed to place a unit number label on the corresponding donor history form,
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and when this mistake was later discovered, the blood unit was destroyed. Id. Next the
employee failed to notice that a potential donor had indicated on her donor history form
that she did not feel well that day. Id. When the oversight on the donor history form was
later discovered, the blood unit was destroyed. Id. at 11. Lastly, the employer received a
complaint from a donor, who was upset by comments that the employee made to her
while discussing the donor’s upcoming knee-replacement surgery. Id. The employee
was subsequently terminated and was denied unemployment benefits because she was
discharged for misconduct connected with her work. Id. at 12. The Commission
specifically found the employee “disregarded the employer’s interest and expected
standards of behavior by causing units of blood to be destroyed and by making
inappropriate remarks to a donor about the donor’s surgery.” Id. at 14.
In Hoover, the employee appealed and our colleagues on the Western District
found the mistakes made by the employee constituted acts of negligence and/or poor
workmanship and were reasonable grounds for firing the employee, but concluded poor
workmanship and mere negligence do not rise to the level of misconduct for purposes of
the unemployment compensation law. Id. With respect to the comments the employee
made to the donor, the court specifically examined whether the employee intended to
disregard the standard of behavior her employer had the right to expect from her in
making those statements. Id. The court found the Division of Employment Security
never asserted the employee’s comments were the result of anything more than a lack of
judgment. Thus, in reversing the Commission’s decision, they concluded “the evidence
simply does not support a determination that [the employee’s] comments were the result
of anything more than simple lack of judgment and, therefore, does not establish that [the
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employee] intentionally disregarded the standards of behavior that her employer had the
right to expect of its employees. Id. at 15.
Similarly, there is no evidence in this case that Claimant’s action in removing the
sutures prematurely was meant to be an “intentional slight” to Employer. Instead, all of
the evidence indicates it was an isolated act of negligence. We note, unlike in Hoover,
the Claimant had no other violations. As such, Claimant’s isolated act of prematurely
removing the sutures will not support a finding that Claimant was guilty of misconduct
connected with her work.
Therefore, we find the Commission erred in finding Claimant engaged in
misconduct connected with her work. Point granted.
The decision of the Commission is reversed.
ROBERT G. DOWD, JR., Judge
Kurt S. Odenwald, P.J. and
Gary M. Gaertner, Jr., J., concur.
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