JULIE N. MAY, Claimant-Respondent v. GOLDEN PARTNERS, INC., Employer-Appellant and MISSOURI DIVISION OF EMPLOYMENT SECURITY

JULIE N. MAY, )
)
Claimant-Respondent, )
)
vs. ) No. SD36638
)
GOLDEN PARTNERS, INC., ) Filed: October 13, 2020
)
Employer-Appellant, )
)
and MISSOURI DIVISION OF )
EMPLOYMENT SECURITY, )
)
Respondent. )
APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS COMMISSION
AFFIRMED
Julie N. May (“Respondent”) received unemployment benefits when the Labor
and Industrial Relations Commission (“the Commission”) found that she was
involuntarily terminated without misconduct from her employment with Golden
Partners, Inc. (“Appellant”). Appellant claims in Point I:
The Labor and Industrial Relations Commission erred in finding that
Claimant May was discharged by Golden Partners, because the facts found
by the Commission do not support the award pursuant to § 288.210, and
Claimant May twice did not comply with the requirements of §
288.050.1(1)(d), in that Claimant May was on medical leave relating to her
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pregnancy, was released by her doctor to return to work on March 12, 2019,
but failed to return to work as soon as she was physically able, and then
failed to provide competent medical proof that she was forced to leave work
on March 21, 2019.
In Point II, Appellant claims:
The Labor and Industrial Relations Commission erred in finding that
Claimant May was discharged by Golden Partners, because there was no
sufficient competent evidence in the record to warrant the making of the
award pursuant to § 288.210, in that the Commission’s factual findings are
against the overwhelming weight of the evidence as Claimant May sought
to take an extended maternity leave, did not comply with the Employee
Handbook, did not communicate with her General Manager or any of the
Assistant Managers, and did not follow the same procedure she and other
employees previously followed regarding maternity leave.
We disagree with both contentions and affirm the judgment.
For ease of discussion, we will begin with the second point. Point II appears to
challenge both the weight of the evidence and that there was not sufficient evidence to
warrant the making of the award. It is clear that this point does not comply with Rule
84.04 1 in that it raises two entirely separate judicial concepts. J.A.R. v. D.G.R., 426
S.W.3d 624, 630 n.10 (Mo. banc 2014). As admitted by Appellant, there is not a review
process in this type of case for an against the weight of the evidence challenge. Because
Appellant appears to argue in its second point and Respondent replied to the opening
argument as a challenge to whether there is sufficient competent evidence to support the
award, we will address that issue.
We review the findings of the Commission. McGuire v. Christian County, 442
S.W.3d 117, 122 (Mo.App. S.D. 2014). The Commission found:
[Respondent] worked for [Appellant] as a server for periods of time
since at least 2016. Her last day worked was March 12, 2019.
[Respondent’s] hours varied, and her last rate of pay was $4.30 per hour
plus gratuities. Sometime in June, [Appellant’s] manager decided to
1
All references to rules are to Missousri Court Rules (2020), unless otherwise specified.
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terminate [Respondent’s] employment status in the system. He chose the
date of April 17, 2019, and made the termination retroactive. When asked
why that date – he said “no rhyme or reason to that date.” . . . No one from
[Appellant] notified [Respondent] that she was terminated. [Appellant’s]
position was that [Respondent] voluntarily quit by abandoning the job.
[Respondent] indicated she did not intend to quit her job. [Respondent] had
informed her team lead, who was responsible for scheduling, that as of
March 21, 2019, after being off due to medical issues with her pregnancy,
that she was going to begin her pregnancy leave period. The team lead
indicated [Respondent] merely had to let her know when she was ready to
return.
[Appellant] had an informal approach regarding such leaves. The
team leader, who testified, indicated that she had made such informal
agreements, to take workers off the schedule indefinitely in the past; and
that she had personally take . . . six months off and informally notified the
manager she was ready to return. [Appellant] did not address details of any
policies or requirements that [Respondent] had failed to comply with before
announcing she was on pregnancy leave. [Respondent] had been put on
restriction by her doctor that she could not work any more than 3.5 hours
once a week. Based on the information in the record, we note that unless
[Respondent] earned gratuities during her shift duties, her rate of pay for
this short shift would have been $15.05.
The birth of [Respondent’s] child was on July 6, 2019.
[Respondent] continued to maintain contact during this time with the team
lead, whom she considered a friend. [Respondent] did not find out until
August, 2019, that she had been terminated in [Appellant’s] system.
Claimant renewed her unemployment claim effective August 11, 2019.
We note that the referee found [Appellant’s] version of events more
persuasive, citing support for its position in its business records. However,
we find the business records to be in conflict with the testimony provided
by [Appellant] and [Respondent] regarding how those policies were
implemented in practice. Therefore, we do not find [Appellant’s] version
of events more persuasive. The text messages between [Respondent] and
the team lead appear to be the most significant pieces of evidence between
[Appellant’s] representative and [Respondent] about her status. There is no
evidence that [Appellant] notified [Respondent] that there were any
additional requirements for her to fulfill in order to validly be considered on
pregnancy leave.
To summarize, the Commission found that Appellant had an informal leave policy
allowing for extended leave for pregnancy and a six-month leave was not uncommon.
Likewise, the Commission found that Respondent had testified she did not intend to quit,
that she had not abandoned the job. Further, Respondent continued to have contact with
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Appellant about obtaining hours though she was not put on the schedule. The
Commission noted she did not seek unemployment benefits until after she was told she
was discharged. No one notified Respondent that she was terminated until August of
2019, although Appellant predated the termination to April 2019 for “no rhyme or
reason.”
To counter the evidence as cited by the Commission, Appellant dwells upon the
requirements of subsection 288.050.1(1)(d), that a person is disqualified from receiving
benefits if they voluntarily leave work without good cause. As just stated, the
Commission found Respondent did not leave work until she was discharged. Appellant
appears to be laboring under the assumption that taking an extended period of time for a
pregnancy or birth is forbidden under section 288.050.1(1)(d), that employers may not
allow employees extended pregnancy leave. Such is not the case and such is not the
finding of the Commission.
In determining whether the facts as found by the Commission are sufficient, we
start with Appellant’s informal approach to its leave policy. There was evidence that
although Respondent did not provide any documented medical proof that she was forced
to leave work due to pregnancy, “there was nothing in the actions of [Appellant] that
would have prompted [Respondent] to seek any additional medical documentation to
support her leave.” Respondent was not put on the schedule nor did she fail to show up
for a shift. Respondent was in contact with Appellant’s representative about her work
schedule. Even the predating of the discharge notice indicates Respondent was not
discharged in response to any failure of Respondent to perform her job. As such, the
Commission found that she was discharged in June and did not voluntarily quit her job in
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March, that she intended to return, and there was no allegation of misconduct. There was
sufficient competent evidence to support the finding that Respondent was discharged
rather than quit her job. The statute that Appellant relies on did not come into play.
Point II is denied. 2
Turning to Point I, Appellant claims the facts as found by the Commission do not
support a finding that Respondent was discharged. Appellant arrives at that conclusion
by providing other facts that would support a finding that Respondent voluntarily left her
employment and again focuses on section 288.050.1(1)(d) to claim that the failure to
provide documented medical proof that she was forced to leave work due to pregnancy
prohibits any relief to Respondent. Again, Appellant does not show how the facts as
found by the Commission do not support the award. Appellant does not provide facts that
“identify a challenged factual proposition,” “identify all of the favorable evidence in the
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Point II would fail anyway. “Review of the Commission’s decision under the Employment Security Law
is the same as review of a decision under the Workers’ Compensation Law.” Reno v. Tyson Poultry, Inc.,
204 S.W.3d 347, 350 (Mo.App. W.D. 2006). Therefore, as in workers’ compensation, our standard of
review required Appellant to assert evidentiary-based challenges via the Houston v. Crider protocol. See
Parvin v. Camcorp Environmental, LLC, 597 S.W.3d 357, 360-61 & n.3 (Mo.App. S.D. 2020) (citing
Houston v. Crider, 317 S.W.3d 178, 186-87 (Mo.App. S.D. 2010) and collecting ten workers’
compensation cases so holding). “Any suggestion that [Houston’s] formula does not apply in cases
challenging the Commission’s award as not supported by sufficient competent evidence is incorrect as a
matter of law.” Id. (internal citation and quotation marks omitted).
Houston’s application generally – not to Industrial Commission appeals alone – is no secret. See,
e.g., Taney Co. Title & Escrow v. Jensen, 600 S.W.3d 16, 28 (Mo.App. S.D. 2020) (real estate contract);
Biggs by Next Friend Biggs v. Brinneman, 598 S.W.3d 697, 702 n.8 (Mo.App. S.D. 2020) (paternity);
Missouri Ozarks Radio, Network, Inc. v. Baugh, 598 S.W.3d 154, 170 (Mo.App. S.D. 2020) (conversion);
Lazarus v. Jacob, 597 S.W.3d 389, 395 (Mo.App. S.D. 2020) (fraudulent transfer); Interest of S.S., 595
S.W.3d 584, 587 (Mo.App. S.D. 2020) (termination of parental rights); Taylor v. Taylor, 585 S.W.3d 390,
394 (Mo.App. S.D. 2019) (partnership); Estate of Elder v. Estate of Pageler, 564 S.W.3d 742, 748
(Mo.App. S.D. 2018) (probate); Ward v. Dennis Oil Co., 560 S.W.3d 38, 41-42 (Mo.App. S.D. 2018)
(sales commissions); Kim v. Mercy Clinic Springfield Communities, 556 S.W.3d 613, 617 & n.2
(Mo.App. S.D. 2018) (constructive discharge and unjust enrichment); Parker v. Doe Run Co., 553 S.W.3d
356, 359-60 (Mo.App. S.D. 2018) (tax assessment); Deutsche Bank Nat’l Trust Co. v. Pyle, 518 S.W.3d
805, 820 (Mo.App. S.D. 2017) (quiet title); Massey v. Massey, 464 S.W.3d 577, 580, 587-93 (Mo.App.
S.D. 2015) (trust amendment); In re Estate of L.G.T., 442 S.W.3d 96, 116 (Mo.App. S.D. 2014)
(guardianship); Welman v. Parker, 391 S.W.3d 477, 484-85 (Mo.App. S.D. 2013) (accounting). As in
those situations, ignoring Houston’s framework robs Appellant’s Point II arguments of any analytical or
persuasive value. Doe Run Co. v. Fenwick, 599 S.W.3d 906, 908 (Mo.App. S.D. 2020).
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record supporting the existence of that proposition,” and “demonstrate why that favorable
evidence, when considered along with the reasonable inferences drawn from that
evidence, does not have probative force upon the proposition such that the trier of fact
could not reasonably decide the existence of the proposition.” Houston, 317 S.W.3d at
186-87. As we have stated in our analysis of Point II, there was sufficient competent
evidence to support a finding of a discharge instead of a voluntary leaving of work.
Appellant has not demonstrated why the evidence favorable to the Commission does not
have probative force upon the proposition that the trier of fact could not reasonably
decide the existence of the proposition that Respondent was discharged without
misconduct. Point I is denied.
The judgment is affirmed.
Nancy Steffen Rahmeyer, P.J. – Opinion Author
Daniel E. Scott, J. – Concurs
William W. Francis, Jr., J. – Concurs
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