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Esquivel v. Hy-Vee, Inc.

Court of Appeals of Missouri, Western District, Second Division

July 26, 2016


         Appeal from the Labor and Industrial Relations Commission

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

          Cynthia L. Martin, Judge.

         Michele Esquivel ("Esquivel") appeals from the Labor and Industrial Relations Commission's ("Commission") order denying her claim for unemployment benefits following her termination from Hy-Vee, Inc. ("Hy-Vee"). Esquivel argues that the Commission erred in concluding that she committed misconduct and in denying her claim for unemployment benefits, because the decision was not supported by sufficient competent evidence. We affirm the Commission's decision.

         Factual and Procedural Background

         Hy-Vee operates a supermarket where Esquivel worked as a florist. When she was hired, Esquivel signed a receipt for the Hy-Vee's Employee Handbook and for written Hy-Vee policies. The written policies included a prohibition against "[v]erbal or physical abuse of a customer or employee, the use of vulgarity or any misconduct around customers or employees." The written policies provided that "[v]iolation of any policies may result in disciplinary action up to and including termination."

         On April 8, 2015, Esquivel received a call from the manager of another area Hy-Vee store regarding a problem with a floral order Esquivel had sent to that store for completion. Esquivel's former supervisor heard her become angry during the call and use words such as "stupid bh" and "lazy a*s." A fellow employee was at the floral counter at the time and heard Esquivel say, "it's not my damn fault that you can't write the number down right." These comments also occurred in the presence of customers.

         The next day Esquivel met with the perishables department manager and the human resources manager. The managers went over everything that Esquivel was accused of saying, while Esquivel lowered her head and nodded. On April 9, 2015, Esquivel was discharged.

         After her termination, Esquivel applied for unemployment benefits. Esquivel's application was denied because it was determined she was ineligible for benefits because she was discharged for misconduct. Specifically, a Division of Employment Security deputy determined that Esquivel used profanity while at work in violation of Hy-Vee's code of conduct policy.

         Esquivel appealed the deputy's decision to the Appeals Tribunal ("Tribunal"). During a telephone hearing, Esquivel testified on her own behalf, while her former supervisor, the employee that was present during the incident, the perishables department manager, and the human resources manager, all testified on behalf of Hy-Vee. Esquivel testified that she did not use vulgarity on April 8, 2015, while Hy-Vee's witnesses testified that she did. The Tribunal found Hy-Vee's witnesses to be more credible.

         Esquivel's former supervisor also testified about an incident that occurred on March 25, 2015, where Esquivel was in a bad mood and began cursing under her breath. Esquivel denied that she engaged in this conduct. The Tribunal found Esquivel's testimony about the March 25, 2015 incident to be more credible than the employer's. However, the Tribunal found that Esquivel was warned in writing at the time of the March 25, 2015 incident that any further violations of the conduct policy could result in her discharge.

         The Tribunal concluded that Esquivel knowingly disregarded her employer's interests on April 8, 2015 because it is reasonable for an employer to expect that an employee will not become upset and swear at co-workers or customers during the normal course of business, Hy-Vee had a policy against such behavior, and Esquivel had received a warning about the use of foul language. The Tribunal also found that Esquivel had violated one of Hy-Vee's rules, and that Esquivel did not demonstrate either that she was unaware of the rule's requirements, that the rule was unlawful, or that the rule was not fairly or consistently enforced. Accordingly, the Tribunal found that Esquivel was not eligible for benefits because she was discharged for misconduct connected with her work.

         Esquivel filed an application for review with the Commission. On November 10, 2015, the Commission affirmed the Tribunal's decision by a 2-1 vote, and adopted the Tribunal's findings. Esquivel appealed.

         Standard of Review

         This Court may modify, reverse, remand for rehearing, or set aside the decision of the Commission if we find "that there was no sufficient competent evidence in the record to warrant the making of the award." Section 288.210(4).[1] "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). "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" and reviewed de novo. Fendler v. Hudson Servs., 370 S.W.3d 585, 588-89 (Mo. banc 2012). Where the Commission adopts the findings of the Tribunal, "we ...

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