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Kennedy v. Division of Employment Security

Court of Appeals of Missouri, Western District, Third Division

November 25, 2014

EMMANUEL KENNEDY, Appellant,
v.
DIVISION OF EMPLOYMENT SECURITY, Respondent

Appeal from the Labor and Industrial Relations Commission.

Emmanuel Pradis Kennedy, Appellant, Pro se, Kansas City, MO.

For Respondent: Chris Miller, Jefferson City, MO.

Before Division Three: Karen King Mitchell, Presiding Judge, and Cynthia L. Martin and Gary D. Witt, Judges. Cynthia L. Martin and Gary D. Witt, Judges, concur.

OPINION

Karen King Mitchell, Presiding Judge.

Page 828

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.

Page 829

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 " 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) ...


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