Mark Wayne v. Division of Employment Security

In the
Missouri Court of Appeals
Western District
MARK WAYNE, )
)
Appellant, ) WD83132
)
v. ) OPINION FILED: April 28, 2020
)
DIVISION OF EMPLOYMENT )
SECURITY, )
)
Respondent. )
Appeal from the Labor and Industrial Relations Commission
Before Division Two: Mark D. Pfeiffer, Presiding Judge, Alok Ahuja, Judge and
Gary D. Witt, Judge
Appellant Mark Wayne ("Wayne") appeals the decision of the Labor and Industrial
Relations Commission, Division of Employment Security ("Commission") denying him
unemployment benefits. Wayne raises three points on appeal suggesting that there was
insufficient evidence to support a finding that he was discharged for misconduct and
therefore ineligible for benefits. We reverse and remand.
Factual and Procedural Background
Wayne worked for Estes Express Lines Corporation ("Estes") for over seventeen
years as a loader and dock worker. He was terminated for poor job performance on May 17,
2019. At the time of his termination, he was working as a loader operating a forklift loading
freight onto trucks. In the three months preceding his termination, he received four Notices
of Written Warning:
 On March 27, 2019, Wayne received a written warning for stacking freight on
freight. Estes instructed him to follow proper loading procedures including to use
the tools and to block-brace, wrap, and strap the freight. He was suspended for two
days.
 On April 17, 2019, he received a written warning for failure to use captive beams
when loading freight and for standing on the end of the "arrowshed." He was again
instructed to follow the proper procedures and to block-brace, wrap, and strap the
freight.
 On April 17, 2019, he received a separate written warning for putting the forks of
his forklift into a 50-gallon drum of hazmat material. He was sent home for the day.
 On May 1, 2019, Wayne received a written warning for loading pallets on top of
skid bags causing damage to the bags. He failed to use the captive beams to load
the freight and it had to be reloaded.
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(collectively, "Written Warnings"). Approximately two weeks later he was terminated
when he "mixed up" some numbers and the freight was loaded "to [sic] high".1
Following his termination, Wayne sought unemployment benefits. Estes protested
Wayne's claim because Estes alleged Wayne violated the company's Code of Conduct
Policy ("Code of Conduct") against "Insubordination--or failure to follow a supervisor's
instructions, including the failure to observe supervisory rules, practices, failure to perform
jobs assigned and/or functions of your job" ("Protest Letter"). Specifically, the Protest
Letter outlined and attached the above Written Warnings. It also noted that Wayne had
received Estes's Code of Conduct and it is otherwise posted in the employee breakroom
and "throughout the terminal." Estes asserted that employees are aware that they may be
discharged for even one violation of the company rules.
A Deputy with the Division of Employment Security Division ("Division") issued
its denial of Wayne's claim, finding that he was discharged for "misconduct connected with
work." Specifically, that Wayne "incorrectly loaded pallets resulting in damage to the
product and loss for the customer. The claimant disregarded strict freight handling
procedures." Wayne appealed this decision. A telephone hearing was held before the
Appeals Tribunal of the Division ("Appeals Tribunal") on July 15, 2019 ("Hearing"). At
the Hearing, Estes representative testified regarding Wayne's prior Written Warnings and
stated the only reason given to Wayne at the time of his discharge was that he was being
dismissed for "poor performance." Wayne testified that immediately prior to his discharge
1
Nowhere in the record is there an explanation of how the mix up of the numbers impacted Wayne's job
performance that day.
3
he had incorrectly loaded a "gold medal" shipment--a shipment with a guaranteed delivery
date. He testified that he had "two (unintelligible) numbers off by one" and he "mixed . . .
up" the shipment. Wayne testified that he was told this was the reason for his dismissal.
On July 19, 2019, the Appeals Tribunal issued its decision finding that the testimony
of the witness for Estes was persuasive despite contradictory testimony from Wayne.
Specifically, the Appeals Tribunal found that Wayne was aware of the Code of Conduct
and that he could be discharged for poor job performance and failure to perform up to
acceptable standards. The Appeals Tribunal found that there was substantial evidence to
find that Wayne was discharged for "misconduct," as defined by section 288.030.1(23),
because he was aware of the company's policy regarding job performance and yet had
multiple incidents of poor work performance in which he admitted fault.
Wayne appealed the Appeals Tribunal's determination to the Commission. The
Appeals Tribunal's decision was affirmed and adopted by the Commission by a vote of two
commissioners to one ("Award"). Commissioner Chick filed a Dissenting Opinion
("Dissent"). The Dissent found that Wayne's testimony, that he did the best he could to
load the freight, was credible. Therefore, the Dissent found that Wayne's conduct was
merely a mistake that "demonstrated bad judgment" and, therefore, did not rise to the level
of statutory misconduct.
This appeal followed.
Standard of Review
We review the Commission's decision to determine whether it is "supported
by competent and substantial evidence upon the whole record." Mo. Const.
art. V, § 18. We must affirm the Commission's decision unless (1) the
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Commission acted without or in excess of its powers; (2) the decision was
procured by fraud; (3) the facts found by the Commission do not support the
award; or (4) the record lacks sufficient competent evidence to support the
award. § 288.210.
Norath v. Div. of Emp't Sec., 490 S.W.3d 792, 794 (Mo. App. E.D. 2016). "Whether the
award is supported by competent and substantial evidence is judged by examining the
evidence in the context of the whole record." Hampton v. Big Boy Steel Erection, 121
S.W.3d 220, 223 (Mo. banc 2003). "This Court defers to the Commission on issues
involving the credibility of witnesses and the weight given to testimony." Johnson v.
Denton Constr. Co., 911 S.W.2d 286, 288 (Mo. banc 1995). We need not view "the
evidence and all reasonable inferences drawn therefrom in the light most favorable to the
award." Hampton, 121 S.W.3d at 223. "Whether the Commission's findings support the
conclusion that a claimant engaged in misconduct connected with his or her work is a
question of law," to be reviewed de novo. Fendler v. Hudson Servs., 370 S.W.3d 585, 589
(Mo. banc 2012) (internal citation omitted).
Discussion
Wayne raises three points on appeal: (1) there was insufficient evidence to support
a finding that he received the 2010 version of the Code of Conduct relied on by the
Commission; (2) Estes contributed to his emotional distress that impeded his ability to
think clearly by assigning him different jobs, failing to have proper materials and tools,
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and putting him in fear of losing his job; and (3) the Commission's Award is not supported
by substantial evidence.2
As the Commission notes, "[a] claimant cannot litigate on appeal an issue that was
appropriate for, but not addressed by, the Commission." Adams v. Div. of Emp't Sec., 353
S.W.3d 668, 673 (Mo. App. E.D. 2011). "'This [c]ourt may only address issues that were
determined by the Commission and may not consider issues not before the Commission.'"
Id. (quoting Perry v. Tiersma, 148 S.W.3d 833, 835 (Mo. App. S.D. 2004)). The issues
raised by Wayne to the Commission were that there were "discrepancies" in the "job
performance, responsibilities, and available materials needed" to complete his position of
loader. Additionally, that his employer did not properly instruct him how to do his job
without proper tools or equipment and other employees who did not use the proper tools
or equipment were not given written warnings. He also contended that "the rules are not
fairly and consistently enforced" in that "[o]ther workers, dock workers and loaders have
to operate with absence of equipment and tools on a day to day basis loading as they can,
but they are spared write-ups." Wayne's first point on appeal, that there is no evidence he
received the Code of Conduct, was not raised before the Commission and thus is waived
on appeal. We find, however, that his second and third arguments, when taken together,
2
In its brief the Commission asks that Wayne's brief be stricken for failure to comply with Missouri
Supreme Court Rule 84.04(d)(2)(c) which provides the outline for how a Point Relied On must be drafted. The
requirements of Rule 84.04 are mandatory and failure to comply with the rule is grounds for dismissal. Hankins v.
Reliance Auto., Inc., 312 S.W.3d 491 (Mo. App. E.D. 2010). "This is to ensure that appellate courts do not become
advocates by speculating on facts and arguments that have not been asserted." Pearson v. Keystone Temp.
Assignment Grp., Inc., 588 S.W.3d 546, 550 (Mo. App. E.D. 2019). Although Wayne's points on appeal fail to
follow the "roadmap" established by Rule 84.04(d)(2)(c), they are clear as to the arguments raised. As such,
because we prefer to decide cases on the merits and we can sufficiently ascertain Wayne's argument to provide
meaningful review without becoming an advocate, we exercise such a review in our discretion.
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properly raise a claim that there was not substantial evidence to support a finding of
misconduct because he did not have proper tools or equipment and his poor performance
did not rise to the level of misconduct, was argued to the Commission and is proper for this
Court to consider on appeal.
Under section 288.050.2, if the Division 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 . . . ." Section 288.030.1(23) defines "misconduct," in
relevant part, as:
conduct or failure to act in a manner that is connected with work, regardless
of whether such conduct or failure to act occurs at the workplace or during
work hours, which shall include:
(a) Conduct or a failure to act demonstrating knowing disregard of the
employer's interest or a knowing violation of the standards which the
employer expects of his or her employee;
(b) Conduct or a failure to act demonstrating carelessness or
negligence in such degree or recurrence as to manifest culpability, wrongful
intent, or a knowing disregard of the employer's interest or of the employee's
duties and obligations to the employer;
....
(e) A violation of an employer's rule, unless the employee can
demonstrate that:
a. He or she did not know, and could not reasonably know, of the rule's
requirements;
b. The rule is not lawful; or
c. The rule is not fairly or consistently enforced[.]
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In its Protest Letter, Estes asserted that Wayne had been terminated for violation of the
Code of Conduct prohibiting "insubordination," which included "failure to follow a
supervisor's instructions, including the failure to observe supervisory rules, practices,
failure to perform jobs assigned and/or functions of your job." The Deputy's determination
denied benefits finding that Wayne "disregarded strict freight handling procedures" when
he incorrectly loaded freight, resulting in damage to the customer's product.
The Commission, in adopting the decision of the Appeals Tribunal relied on Estes's
rule in its Code of Conduct prohibiting "poor performance" which is defined within the
Code as "failure to perform to acceptable standards." Although not specifically cited, it is
clear that the Commission found that Wayne was prohibited from receiving benefits
because he committed misconduct pursuant to section 288.030.1(23)(e).3 The Award
found that his poor performance constituted misconduct as a violation of the employer's
policy and that Wayne did not demonstrate that he fell within one of the exceptions to
section 288.030.1(23)(e)a-c.
Missouri courts have made clear that there is a distinction "between conduct that
justifies termination and misconduct that precludes benefits[.]" Valley v. Div. of Emp't
Sec., 578 S.W.3d 865, 871 (Mo. App. W.D. 2019). "[S]imple acts of negligence, accidents
and mistakes, bad judgment, or poor workmanship do not rise to the level of scienter
required to constitute disqualifying misconduct." Wilson v. Progressive Waste Sols. of
3
The Award notes that Wayne violated his "employer's policy" and states that: "Claimant admitted that he
knew of the rule. The rule is not unlawful. Claimant failed to allege or show that the rule was not fairly or
consistently enforced." Clearly indicating that Wayne did not fall within the exceptions of section
288.030.1(23)(e)a-c.
8
Mo., Inc., 515 S.W.3d 804, 808 (Mo. App. E.D. 2017). However, in 2014, the General
Assembly added section 288.030.1(23)(e) to the definition of "misconduct." Subsection
(e) is unique because "[u]nlike sections 288.030.1(23)(a) and (b), which require an
employer to establish either a knowing or deliberate disregard of an employer's interest or
standards, or carelessness or negligence of such a degree or recurrence as to manifest
culpability or wrongful intent, section 288.030.1(23)(e) is devoid of any such requirement."
Con-Way Truckload, Inc. v. Wood, 511 S.W.3d 478, 485 (Mo. App. W.D. 2017) (citing
Esquivel v. Hy-Vee, Inc., 498 S.W.3d 832, 836-37 (Mo. App. W.D. 2016)). It also differs
from sections 288.030.1(23)(a) and (b) in that, once an employer demonstrates that the
employee violated an employer's rule, "the burden shifts to the employee to demonstrate a
statutory excuse that operates to remove the rule violation from the definition of
misconduct." Esquivel, 498 S.W.3d at 836. Missouri courts have yet to address whether
an employer may make a rule against mistakes, accidents, poor workmanship or bad
judgment--acts otherwise not disqualifying under section 288.030.1(23)(a) and (b)--and
eliminate a substantial segment of employees who would be otherwise entitled to benefits.
Such is the question before this court when reviewing Estes's rule against "poor
performance."
The legislature created a clear guide by which Missouri courts are to interpret the
provisions of the Missouri Employment Security Law which provides unemployment
benefits to Missourians.
1. 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
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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.
2. This law shall be liberally construed to accomplish its purpose to promote
employment security both by increasing opportunities for jobs through the
maintenance of a system of public employment offices and by providing for
the payment of compensation to individuals in respect to their
unemployment.
Section 288.020 (emphasis added). "Disqualifying provisions of the unemployment
compensation law are to be construed against the disallowance of benefits to unemployed
but available workers." Scrivener Oil Co. v. Crider, 304 S.W.3d 261, 268 (Mo. App. S.D.
2010); Mo. Div. of Emp't Sec. v. Labor & Indus. Relations Comm'n of Mo., 651 S.W.2d
145, 148 (Mo. banc 1983).
There has been very little case law interpreting the bounds of subsection (e). Con-
Way Truckload, Inc., 511 S.W.3d at 486. In Con-Way Truckload, Inc., the alleged rule
violation was a prohibition against "[o]verturning the assigned tractor or trailer." Id. at 481.
The Court found that the Commission properly found that overturning his trailer by taking
a highway entrance ramp at a greater rate of speed than was safe was an act of negligence
and poor judgment and not misconduct pursuant to sections 288.030.1(23)(a) and (b). Id.
at 484-85. The Court, however, remanded for the Commission to determine whether the
driver was disqualified from receiving benefits because he violated an employer's rule
under section 288.030.1(23)(e)—a determination the Commission had failed to make. Id.
at 487.
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In Esquivel, this Court considered a violation of the employer's rule against "[v]erbal
or physical abuse of a customer or employee, the use of vulgarity or any misconduct around
customers or employees." Esquivel, 498 S.W.3d at 834. The employee admitted to using
profanity in the workplace which was overheard by fellow employees and a customer. Id.
The employee was denied benefits and on appeal, alleged that her use of profanity was
merely a minor violation and that it was not knowing or deliberate. Id. at 836. This Court
found that the plain language of section 288.030.1(23)(e) does not allow for "minor"
violations to be treated differently nor does it allow for a consideration of intent. Id. at
836. The Court specifically noted that:
The 2014 amendment to section 288.030.1(23)'s definition of 'misconduct,'
which eliminated the requirement that a rule violation be deliberate, must be
given effect. "When the legislature amends a statute, it is presumed that its
intent was to bring about some change in the existing law." Kolar v. First
Student, Inc., 470 S.W.3d 770, 777 (Mo. App. E.D. 2015). It is thus
irrelevant whether [employee's] admitted violation of [employer's] rule was
deliberate, except insofar as such evidence might tend to establish that the
employee did not know of the rule.
Id. at 837.
Esquivel and Con-Way Truckload, Inc. are distinguishable from this case because
they involved company rules that were specific in nature. They barred particular and well-
defined acts. See also Jackson v. Walgreen Co., 516 S.W.3d 391, 392-93 (Mo. App. E.D.
2017) (employee terminated for violation of employer rule against "online harassment,
discrimination or bullying," including "sexual innuendos," for posting a pornographic
video to a male coworker's Facebook page and referencing fellow female coworkers in the
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post); Dortch v. Zoltek Corp., 493 S.W.3d 18, 19 (Mo. App. E.D. 2016) (employee
terminated for refusal to comply with employer's rule regarding drug testing).
In this case, Estes's rule merely barred "poor performance" defined as "failure to
perform to acceptable standards." This rule offers no guidance to employees as to what
actions or conduct to take or avoid. It merely informs employees that they must perform
their job to the subjective standards of the employer whether or not those standards are
clearly defined to an employee. By its very nature, such a broad rule acts as a virtual
absolute bar for recovery of benefits in contradiction to the declared purpose of the
Missouri Employment Security Law, as specifically stated by the legislature in section
288.020. Such a rule requires perfect performance by Missouri employees or they are
subject to total loss of benefits upon termination. Additionally, it does not adequately
inform employees of the conduct required to be in compliance. As noted by the court in
Esquivel, if the rule bars something as subjective as "poor performance" it is unclear that
an employee could ever understand the conduct required or barred by the rule. By the same
token, we doubt that such a rule could ever meet the requirement of being "fairly" and
"consistently enforced."
We will not interpret section 288.030.1(23)(e) in such a manner as to run contrary
to the General Assembly's stated purpose and against a clear mandate for liberal
construction to benefit displaced workers. Section 288.030.1(23)(e) has the purpose and
intent in allowing employers to promulgate clear rules that guide employees conduct and
to deny benefits to employees who violate such rules. At that point, the employee's conduct
is no longer "through no fault of their own." These rules, however, must prohibit or require
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specific and well-defined conduct such that an employee can conform to those rules. A
general rule merely prohibiting "poor performance" is too broad and would allow the denial
of benefits to an employee for a mistake or bad judgment that did not rise to the level of
"fault."
The Commission erred in finding that Wayne was disqualified from receiving
unemployment benefits because he violated Estes's rule against poor performance. This
case, however, is also unusual because the basis for the Appeals Tribunal's decision, which
was later adopted by the Commission, was not the basis Estes gave for Wayne's
termination. In its Protest Letter, Estes stated that Wayne was terminated for violation of
the company's rule against "insubordination" defined as "failure to follow company rules,
policies, procedures or supervisor's instructions." The Protest Letter then outlined Wayne's
four Written Warnings in which he was reprimanded for failure to follow company
procedure regarding the loading of freight by failing to use proper tools and equipment or
stacking freight.
A similar discrepancy occurred in Evans v. Division of Employment Security, 354
S.W.3d 220 (Mo. App. W.D. 2011). In Evans, the Commission found that the "[employee]
had been discharged for misconduct for failing to timely call his supervisor concerning the
difficulties he was experiencing at the [apartment he was managing for employer.]" Id. at
226. This was not, however, the employer's given reason for termination and thus the
Commission's finding was "wholly unsupported by the record" and was reversed. Id. at
226-27. Yet, in Evans this Court went on to consider the basis the employer actually gave
for dismissal and found that the Commission had made sufficient factual findings to
13
consider the stated reason for dismissal; the Court ultimately determined that the employee
was not excluded from benefits on the basis which the employer asserted for dismissal. Id.
at 227.
In this case, the Appeals Tribunal and the Commission denied Wayne benefits on
the basis of his violation of Estes's rule against "poor performance" rather than Estes's
stated reason for termination, "insubordination." Like Evans, we have before us sufficient
factual findings upon which we can make a determination as to Wayne's eligibility for
benefits.
Estes's stated reason for termination due to insubordination is also premised on a
violation of a rule pursuant to of section 288.030.1(23)(e), but "insubordination" is more a
defined and concrete rule under the employer's Code than the rule against "poor
performance." Estes's rule against insubordination requires that the employee follow all
"supervisory rules" and "practices" as well as "perform jobs assigned and/or functions of
your job." Wayne's alleged insubordination stems from his failure to follow his
supervisor's instructions as to how to properly load the freight. The only evidence of these
instructions were the Written Warnings given to Wayne. In them, he was told to use
"captive beams" and reminded to block, brace, wrap and strap the freight he was loading.
Estes presented no evidence regarding why Wayne was discharged except that it
was for "poor performance." Wayne testified that he was discharged following an incident
in which he "mixed up" a gold medal shipment. According to Wayne's testimony, he mixed
up the shipment because of a numerical error. He admitted that he could have done "a
better job" and his only admitted error in loading was that the freight was "to [sic] high."
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To be a violation of Estes's rule against insubordination, there must be evidence that
Wayne disregarded specific supervisory rules or practices or failed to perform his job as
assigned.4 Consistent with our discussion above, it is not sufficient that he was instructed
to perform a job and he did so poorly. Wayne testified that he was discharged after he
"mixed up" a gold medal shipment. Although he testified that he should have done "a
better job" and that the freight was "to [sic] high," there is no evidence to suggest that any
of the actions taken on this final shipment were a failure to follow "supervisory rules" and
"practices" or a failure to perform the job assigned. The only evidence regarding specific
instructions that Wayne received from his supervisor were the Written Warnings and there
is no evidence supporting a finding that he failed to follow those directives or any
correlation between the instructions given to him within those prior violations and the poor
performance on the load for which he was terminated.
Although Wayne may have been discharged for cause because he performed his job
poorly, there was insufficient evidence that his actions rose to the level of insubordination
or misconduct which would support a finding of a denial of benefits. Therefore, we find
that even under the reason stated by Estes for Wayne's dismissal, he was not ineligible from
receiving unemployment benefits.
4
The company rules provided by Estes are devoid of direct references to the use of captive beams or
bracing for which Wayne was previously warned or the loading of the "gold medal" shipment which lead to his
dismissal. Although the April 17 and May 1 written warnings both mention that Wayne failed to use captive beams
when loading freight, there is nothing in the record which indicates that Wayne engaged in such conduct after he
received the last written warning on May 1.
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Conclusion
The Commission erred in determining that Wayne was dismissed for violation of
Estes's general rule against poor performance. Further, there was insufficient evidence to
support a finding that Wayne violated Estes's rule against insubordination. As such, we
reverse the Order of the Commission and this case is remanded for the Commission to enter
an Order finding Wayne eligible for unemployment benefits.
__________________________________
Gary D. Witt, Judge
All concur
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