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Westbrook v. Division of Empl. Sec.

Court of Appeals of Missouri, Western District, Third Division

March 10, 2015

EUGENE WESTBROOK, Appellant,
v.
DIVISION OF EMPLOYMENT SECURITY, Respondent

Appeal from the Labor and Industrial Relations Commission.

David A. Lunceford and Michael Rahmberg, Lee's Summit, MO, for appellant.

Ninion S. Riley, Jefferson City, MO, for respondent.

Before Division Three: Victor C. Howard, Presiding Judge, James E. Welsh, Judge and Gary D. Witt, Judge. All concur.

OPINION

Page 117

Gary D. Witt, Judge

Appellant Eugene Westbrook (" Westbrook" ) appeals from a denial of his claim for unemployment benefits. A Deputy with the Division of Employment Security (" Division" ), following a hearing, determined that Westbrook was disqualified from receiving unemployment benefits because he was discharged for misconduct connected with his work. Westbrook appealed to the Appeals Tribunal, but his appeal was filed nine days past the statutory deadline. The Appeals Tribunal, following a hearing, decided that the Deputy's determination became final due to the untimeliness of the appeal to the Appeals Tribunal and lack of good cause for extending the appeal period. The Labor and Industrial Relations Commission (" Commission" ) found the decision of the Appeals Tribunal to be fully supported by competent and substantial evidence on the whole record and affirmed and adopted the decision of the Appeals Tribunal as its own. We affirm the Commission's order.

FACTUAL AND PROCEDURAL HISTORY

Westbrook worked for 63rd Street Foods, LLC, a grocery store, for approximately five years. Westbrook's tasks included stocking shelves and " anything else they asked me to do." On December 12, 2013, Westbrook went to retrieve shopping carts from the parking lot of the store. While Westbrook was outside, he " took a couple puffs" of a cigarette and scratched a lottery ticket. Westbrook estimated this took three to five minutes. As Westbrook was returning into the store, the owner came outside and asked Westbrook if he had been scratching lottery tickets outside. Westbrook responded that he had. The owner asked if he was on a break and Westbrook admitted that he was not. The owner terminated Westbrook's employment immediately.

Westbrook filed a claim for unemployment benefits. A Deputy with the Division issued its denial of Westbrook's claim finding that he was " discharge[d] for misconduct connected with work" on January 16, 2014. Printed on the bottom of the determination, was a notice which read: " If you believe this determination is incorrect, you may file an appeal not later than 02/18/14. The appeal period may, for good cause, be extended." (Emphasis in original.) Westbrook read the determination and disagreed with its findings.

Westbrook visited the local unemployment office on February 27, 2014 and asked for assistance. An employee explained that Westbrook needed to file an appeal if he disagreed with the determination. Westbrook wrote an appeal and faxed it to the Division that same day.

The Appeals Tribunal held a telephone conference hearing with Westbrook on March 20, 2014 to hear testimony regarding the timeliness of Westbrook's appeal and the merits of his claim. Westbrook testified that he did not understand the appeals process and had " probably misread" the part explaining the deadline for an appeal of the Determination because he did not read or spell very well. The Appeals Tribunal issued its decision on March 27, 2014, declaring in pertinent part:

Good cause shall be allowed only if there is a showing that the party acted in good faith and reasonably under all the circumstances. Here, the claimant received and read the ...

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