Dugene Westbrook v. Division of Employment Security , 2015 Mo. App. LEXIS 273 ( 2015 )

In the
Missouri Court of Appeals
Western District
EUGENE WESTBROOK, )
)
Appellant, ) WD77570
)
v. ) OPINION FILED: March 10, 2015
)
DIVISION OF EMPLOYMENT )
SECURITY, )
)
Respondent. )
Appeal from the Labor and Industrial Relations Commission
Before Division Three: Victor C. Howard, Presiding Judge, James E. Welsh, Judge and
Gary D. Witt, Judge
Appellant Eugene Westbrook ("Westbrook") appeals from a denial of his claim for
unemployment benefits. A Deputy with the Division of Employment Security
("Division"), following a hearing, determined that Westbrook was disqualified from
receiving unemployment benefits because he was discharged for misconduct connected
with his work. Westbrook appealed to the Appeals Tribunal, but his appeal was filed
nine days past the statutory deadline. The Appeals Tribunal, following a hearing, decided
that the Deputy's determination became final due to the untimeliness of the appeal to the
Appeals Tribunal and lack of good cause for extending the appeal period. The Labor and
Industrial Relations Commission ("Commission") found the decision of the Appeals
Tribunal to be fully supported by competent and substantial evidence on the whole record
and affirmed and adopted the decision of the Appeals Tribunal as its own. We affirm the
Commission's order.
FACTUAL AND PROCEDURAL HISTORY
Westbrook worked for 63rd Street Foods, LLC, a grocery store, for approximately
five years. Westbrook's tasks included stocking shelves and "anything else they asked
me to do." On December 12, 2013, Westbrook went to retrieve shopping carts from the
parking lot of the store. While Westbrook was outside, he "took a couple puffs" of a
cigarette and scratched a lottery ticket. Westbrook estimated this took three to five
minutes. As Westbrook was returning into the store, the owner came outside and asked
Westbrook if he had been scratching lottery tickets outside. Westbrook responded that he
had. The owner asked if he was on a break and Westbrook admitted that he was not. The
owner terminated Westbrook's employment immediately.
Westbrook filed a claim for unemployment benefits. A Deputy with the Division
issued its denial of Westbrook's claim finding that he was "discharge[d] for misconduct
connected with work" on January 16, 2014. Printed on the bottom of the determination,
was a notice which read: "If you believe this determination is incorrect, you may file an
appeal not later than 02/18/14. The appeal period may, for good cause, be extended."
(Emphasis in original.) Westbrook read the determination and disagreed with its
findings.
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Westbrook visited the local unemployment office on February 27, 2014 and asked
for assistance. An employee explained that Westbrook needed to file an appeal if he
disagreed with the determination. Westbrook wrote an appeal and faxed it to the
Division that same day.
The Appeals Tribunal held a telephone conference hearing with Westbrook on
March 20, 2014 to hear testimony regarding the timeliness of Westbrook's appeal and the
merits of his claim. Westbrook testified that he did not understand the appeals process
and had "probably misread" the part explaining the deadline for an appeal of the
Determination because he did not read or spell very well. The Appeals Tribunal issued
its decision on March 27, 2014, declaring in pertinent part:
Good cause shall be allowed only if there is a showing that the party
acted in good faith and reasonably under all the circumstances. Here, the
claimant received and read the determination, and although he further
contends that he did not fully understand the determination, the
determination states if you do not understand the determination to contact
the office for assistance, but he failed to do so. The claimant also knew he
disagreed with the determination when he read it, but yet, he chose to do
nothing until after the appeals period had passed. Therefore, it cannot be
concluded that the claimant has met his burden to show good cause, as he
has not shown he acted reasonably under all the circumstances.
Consequently, the Appeals Tribunal is without jurisdiction to address the
merits of the Appeal.
Westbrook submitted an application for review of the decision to the Commission
on April 2, 2014. The Commission's Order affirmed the decision of the Appeals Tribunal
on May 5, 2014, finding that it was supported by competent and substantial evidence.
Westbrook timely filed an appeal to this court, alleging that the Commission erred
in adopting the decision of the Appeals Tribunal because its conclusion that Westbrook
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did not establish good cause for an extension of the deadline was not supported by
competent and substantial evidence on the whole record.
ANALYSIS
Westbrook raises two points on appeal: (1) that the Commission erroneously
affirmed the Appeals Tribunal's decision that Westbrook failed to meet his burden to
establish good cause for the late filing of his appeal because the decision was not
supported by competent and substantial evidence on the whole record, and (2) that
Missouri should liberally interpret the statutory meaning of "good cause" in favor of the
discharged employee. For reasons explained herein, we affirm.
Point I
In Point I, Westbrook argues that the Commission erred in affirming the Tribunal's
decision that he did not have good cause for failing to meet the deadline for filing his
appeal.
Standard of Review
Review is governed by section 288.210,1 which provides in pertinent part:
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. The court, on appeal, may modify, reverse, remand for rehearing, or
set aside the decision of the commission on the following grounds and no
other:
(1) That the commission acted without or in excess of its powers;
(2) That the award was procured by fraud;
1
All statutory references are to RSMo (2000) as currently supplemented unless otherwise indicated.
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(3) That the facts found by the commission do not support the award;
(4) That there was not sufficient competent evidence in the record to
warrant the making of the award.
An examination of the entire record is required to determine if the award is
contrary to the overwhelming weight of the evidence. Hampton v. Big Boy Steel
Erection, 121 S.W.3d 220, 223 (Mo. banc 2003). "When, as here, the Commission
adopts the decision of the Appeals Tribunal, we consider the Tribunal's decision to be the
Commission's for purposes of our review." Ashford v. Div. of Employment Sec., 355
S.W.3d 538, 541 (Mo. App. W.D. 2011). Although we review the record of
unemployment cases objectively rather than in the light most favorable to the decision
below, we still defer to the Commission for matters regarding witness credibility. Lucido
v. Div. of Employment Sec., 441 S.W.3d 172, 174 (Mo. App. W.D. 2014) (citation
omitted).
Discussion
Pursuant to Section 288.070.6, "[u]nless the claimant or any interested party
within thirty calendar days after notice of such determination is either delivered in person
or mailed to the last known address of such claimant or interested party files an appeal
from such determination, it shall be final." The statute further provides, "the thirty-day
period mentioned in subsection 6 of this section may, for good cause, be extended."
§ 288.070.10. There is no dispute that Westbrook filed his appeal past the statutorily
mandated thirty-day period; therefore, we need only consider whether the Commission's
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finding that Westbrook lacked good cause for missing that deadline was supported by
substantial and competent evidence.
"[T]he legislature intended to leave the initial determination as to the existence of
good cause with the administrative agency." Todaro v. Labor and Indus. Comm’n of
Mo., 660 S.W.2d 763, 765 (Mo. App. E.D. 1983). Good cause depends upon the
evaluation of many subtle factors, and therefore is subject to judicial review only for
abuse of discretion. Id. When contemplating good cause, "we are bound by the
Commission's determination, absent an abuse of discretion, even though we might have
reached a different decision had we considered the matter initially." Id.
"To establish 'good cause,' [Westbrook] must show that he acted in good faith 'and
reasonably under all the circumstances.'" Byers v. Human Resource Staffing, LLC, 402
S.W.3d 605, 608 (Mo. App. E.D. 2013) (citing 8 CSR 10-5.010(2)(C)). Here, Westbrook
testified that he received and read the letter. He further testified that he was able to read
the determination and understand that he disagreed with its conclusions. He argues only
that he failed to properly comprehend the notice of his rights to appeal. In support, the
only evidence regarding good cause for the late filing was Westbrook's own testimony,
and we defer to the Commission regarding witness credibility. Lucido, 441 S.W.3d at
174 (citation omitted). Although Westbrook broadly argues that it is "illogical" for the
Appeals Tribunal to make assumptions based on "facts that are . . . not in the record," we
find nothing in the decision that is illogical or based on facts absent from the record.
Further, it was Westbrook who bore the burden of proof on this issue and who was
responsible for making a record to support his position on this issue. As noted above,
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even though Westbrook testified as to his limited reading skills, the Commission's order
was based on Westbrook's failure to seek assistance even though he knew he disagreed
with the determination. The record reflects that Westbrook waited more than five weeks
after a Deputy with the Division denied Westbrook's claim before he went to the
unemployment office to check his status, which was nine days past the deadline for filing
his appeal. The totality of this evidence supports the Commission's order.
The Commission's order is consistent with a number of decisions. See Todaro,
660 S.W.2d 763 (holding that claimant did not establish good cause by showing he was
unable to comprehend the determination); Byers, 402 S.W.3d 605 (holding that claimant
did not establish good cause by showing he misplaced the document); Taylor v. St. Louis
Arc, Inc., 285 S.W.3d 775 (Mo. App. E.D. 2009) (holding that claimant did not establish
good cause because she erroneously thought the determination was not final).
Because competent and substantial evidence supports the order, Westbrook's first
point on appeal is denied.
Point II
In Point II, Westbrook argues that Missouri courts should interpret regulations
regarding employment security more liberally to protect individuals from being
arbitrarily denied benefits. As we have affirmed the Commission's order finding the
appeal to be untimely, we decline to reach the merits of Westbrook's second point as it is
not properly before us. Westbrook's second point is denied.
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CONCLUSION
Because we find the Commission's decision to be based on competent and
substantial evidence, we affirm.
__________________________________
Gary D. Witt, Judge
All concur
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