Court of Appeals of Missouri, Western District, Third Division
Appeal from the Labor and Industrial Relations Commission.
Peter F. Rottgers, Kansas City, MO, for appellant.
Sara H. Harrison, Jefferson City, MO, for respondent.
Before: Karen King Mitchell, Presiding Judge, Cynthia L. Martin, Judge and Gary D. Witt, Judge. All concur.
Cynthia L. Martin, Judge
Rhiannon Zukowski (" Zukowski" ) appeals the decision of the Labor and Industrial Relations Commission (" Commission" ) denying her unemployment benefits because it found that Zukowski was discharged for misconduct connected with work. Zukowski argues that the Commission erred because Kelly Services, Inc., (" Employer" ) failed to prove that her actions rose to the level of willful misconduct. Because Zukowski does not challenge the Commission's conclusion that her actions
disregarded the standards the Employer had the right to expect, and because the statutory definition of " misconduct" in effect at the time of the Commission's decision did not require such conduct to be willful, we affirm.
Factual and Procedural History
Zukowski was hired by Employer, a temporary help firm, in August 2012. She was assigned to do full time work for third-party customers. When she was hired by Employer, Zukowski signed a Release and Consent to Drug Screening form in which she agreed to submit to drug testing and acknowledged that her refusal to submit to drug testing requested by Employer could result in her termination.
On June 11, 2013, Zukowski began a new assignment in a warehouse with Ted Cycles. At about 1 p.m. the same day, a representative from Ted Cycles called Employer and requested that Zukowski be removed from the workplace because she smelled of alcohol. Employer sent Denise Harris (" Supervisor" ) to Ted Cycles to inform Zukowski of the complaint and to remove her from the workplace.
Supervisor testified that after she informed Zukowski of the complaint, she told Zukowski that she would have to take a drug test. Zukowski testified that she told the Supervisor that she uses a strong mouthwash to clean her dentures and that the mouthwash was the cause of the alcohol smell. Both Supervisor and Zukowski testified that Zukowski told the Supervisor she would be willing to drive herself to the drug testing facility to take a drug test. Both Supervisor and Zukowski testified that the Supervisor told Zukowski that she could not drive herself to the drug testing facility but would need to ask someone to give her a ride. Both Supervisor and Zukowski testified that Zukowski told the Supervisor no one could take her because everyone she knew was at work.
Supervisor and Zukowski dispute what occurred next. Supervisor testified that Zukowski became upset, sad she was done with Employer, then walked to her car and left. Supervisor said that Zukowski left before Supervisor had the opportunity to offer her a taxi. Zukowski testified that she left because she thought she was in a ...