Emmanuel Kennedy v. Division of Employment Security

IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
EMMANUEL KENNEDY, )
)
Appellant, )
)
WD77432
v. )
)
OPINION FILED:
)
November 25, 2014
DIVISION OF EMPLOYMENT )
SECURITY, )
)
Respondent. )
Appeal from the Labor and Industrial Relations Commission
Before Division Three: Karen King Mitchell, Presiding Judge, and
Cynthia L. Martin and Gary D. Witt, Judges
Emmanuel Kennedy appeals from the Labor and Industrial Relations Commission‟s
determination that he is not entitled to unemployment benefits after being terminated from
employment when he missed work due to incarceration. Because Kennedy has preserved
nothing for appellate review, we dismiss the appeal.
Factual Background
Kennedy worked for Kelly Services, which is an agency that sends people to work
assignments at other businesses but remains the employer. Kennedy began working for Kelly
Services in March 2012 and was assigned to work as a box maker and truck driver in another
company‟s warehouse. Kennedy was successful in this employment until October 9, 2013, when
he failed to show up for work because he had been arrested and incarcerated. Kennedy had a
cousin call Kelly Services on his behalf and inform them that Kennedy could not come back to
work for the next two weeks because he had to care for his sick aunt. When Kennedy was
released on October 17, 2013, he attempted to contact Kelly Services, but received no response.
Kennedy filed for unemployment benefits with the Division of Employment Security
(Division). In a “Pending Issue Questionnaire” filed with the Division, Kennedy stated that he
was discharged because he “needed a couple of days off to help [a] sick relative.” A Division
deputy determined that Kennedy was disqualified from receiving benefits because he left work
voluntarily without good cause attributable to his work or the employer. Specifically, the deputy
found that Kennedy “quit” in order to “care for family,” and thus, his reason was “personal.”
Kennedy appealed that decision to the appeals tribunal within the Division. In his request for
appeal, Kennedy claimed, for the first time, that he had not left work voluntarily because he had
been incarcerated. Kennedy acknowledged that he had previously stated he had been caring for a
sick aunt, but he claimed to have said this because a Kelly Services‟ employee had previously
told him that incarceration would affect his ability to achieve permanent employment.
Following a hearing, the tribunal determined that Kennedy had not left work voluntarily,
because, although a claimant whose employment ends because of incarceration has left his
employment voluntarily without good cause attributable to work or the employer, Kennedy
attempted to contact his employer about returning to work after his incarceration ended. Thus,
Kennedy did not simply abandon his position, and Kelly Services‟ unwillingness to return
Kennedy‟s call indicated that he had been discharged from his employment. However, the
appeals tribunal determined Kennedy‟s failure to report the real reason for his absence showed
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“reckless or willful disregard for the employer‟s absence-reporting standards and his own
obligations” and amounted to “misconduct.” The appeals tribunal modified the deputy‟s
determination and found Kennedy to be disqualified from benefits because he was discharged for
misconduct connected with his work. The Commission affirmed and adopted the appeals
tribunal‟s decision.
Standard of Review
“[W]here, 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.” Sheridan
v. Div. of Emp’t Sec., 425 S.W.3d 193, 198-99 (Mo. App. W.D. 2014). “[T]he reviewing court
defers to the factual determinations made by the Commission.” Dorris v. Stoddard Cnty., 436
S.W.3d 586, 590 (Mo. App. S.D. 2014). “In conducting our review, „[w]e defer to the
Commission on issues concerning credibility and weight to be given conflicting evidence.‟”
Carver v. Delta Innovative Servs., 379 S.W.3d 865, 869 (Mo. App. W.D. 2012) (quoting Bailey
v. Phelps Cnty. Reg’l Med. Ctr., 328 S.W.3d 770, 773 (Mo. App. S.D. 2010)). But we review
questions of law de novo. Id.
Analysis
In Kennedy‟s sole point, he argues that the Commission committed “error . . . due to the
facts [sic] that [Kennedy] did not quit [his] job.” Similarly, in the argument portion of his brief
to this court, Kennedy argues only that he did not voluntarily leave his job. But the Commission
did not disqualify Kennedy from benefits for voluntarily leaving his employment. While a
Division deputy initially determined that Kennedy voluntarily quit, that determination was
modified by the appeals tribunal following a hearing. The appeals tribunal determined that
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Kennedy had been terminated from employment due to misconduct. The Commission affirmed
the appeals tribunal‟s decision and adopted it as the decision of the Commission.
“Under section 288.050,[1] a claimant shall be disqualified from receiving unemployment
benefits if the claimant: (1) „has left work voluntarily without good cause attributable to such
work or to the claimant‟s employer[ ]‟; or (2) „has been discharged for misconduct connected
with the claimant‟s work[.]‟” Waggoner v. Ozark Anesthesia Assocs., Inc., 364 S.W.3d 713, 718
(Mo. App. S.D. 2012) (quoting §§ 288.050.1(1), .2) (emphasis added). The statute contains two
independent bases, both mandating disqualification from benefits.
Kennedy has failed to challenge the basis for the Commission‟s decision below. “While
it may not be stated explicitly in Rule 84.04, the fundamental requirement for an appellate
argument is that it demonstrate the erroneousness of the basis upon which a lower court or
agency issued an adverse ruling.” Rainey v. SSPS, Inc., 259 S.W.3d 603, 606 (Mo. App. W.D.
2008). “Unless an appellant challenges the grounds on which an adverse ruling depends, he has
shown no entitlement to appellate relief.” Id.
Having failed to challenge the ground upon which the Commission disqualified him,
Kennedy has preserved nothing for this Court to review. Parker v. Action Contracting Corp.,
100 S.W.3d 168, 171 (Mo. App. W.D. 2003) (“Insufficient points relied on preserve nothing for
appellate review and constitute grounds for dismissal.”); Dumproff v. Driskill, 376 S.W.3d 680,
688 n.7 (Mo. App. S.D. 2012) (Arguments not raised “in the argument portion of the brief are
deemed abandoned and present nothing for appellate review.” (Internal citation and quotation
omitted.)). This failure is sufficient cause to dismiss Kennedy‟s appeal. See Parker, 100 S.W.3d
1
All statutory references are to the Revised Statutes of Missouri 2000, as updated through the 2013
Cumulative Supplement, unless otherwise noted.
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at 171; Russell v. LM Servs. Corp., 250 S.W.3d 838, 839-40 (Mo. App. E.D. 2008); Chase v.
Baumann Prop. Co., 169 S.W.3d 891, 892-93 (Mo. App. E.D. 2005).
Conclusion
This appeal is dismissed.
Karen King Mitchell, Presiding Judge
Cynthia L. Martin and Gary D. Witt, Judges, concur.
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