Court of Appeals of Missouri, Western District, Second Division
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.
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.
and Procedural Background
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."
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
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.
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
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.
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.
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
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.
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). "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 ...