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Greer v. Division of Employment Security

Court of Appeals of Missouri, Eastern District, Fourth Division

September 6, 2016


          Appeal from the Labor and Industrial Relations Commission


          Jame M. Dowd, Presiding Judge

         Lucia-Carma Greer appeals from the Labor and Industrial Relations Commission's decision which found her ineligible to receive unemployment benefits during the period from November 30, 2014 to December 6, 2014-when she was in New York for Air National Guard training-because the Commission concluded that she was therefore not "available for work." Greer contends that the Commission's decision was erroneous because the record shows that throughout the relevant period she remained ready, willing, and able to accept a suitable job and thus was "available for work" as that phrase is defined under Missouri law. We agree, and we reverse and remand.

         Factual and Procedural Background

         During Master Sergeant Greer's 35-year military career in the United States Air Force, she has served several periods of active duty. Following her most recent period of active duty (August 18, 2008 - September 29, 2013), she was released from active duty, and due to medical issues she has remained on inactive duty status. As a result, Greer faced an unanticipated period of unemployment while her medical fitness for active duty was determined. Aided by the Air Force's transition assistance program and the Missouri Division of Employment Security, Greer filed her claim for unemployment benefits on September 29, 2014, and began drawing weekly benefits.

         As a member of the New York Air National Guard, Greer was required to complete annually 48 units of inactive duty training--which, if distributed evenly throughout the year, equates to about one weekend of training per month-and she had to travel to New York to participate in the training. For the week at issue in this case, Greer had the opportunity to combine three weekends' worth of this mandatory training into one week-long period in New York. This training plan allowed her to save on out-of-pocket travel costs and significantly reduced the amount of potential job-search or work time she may otherwise have lost due to travel.

         While in New York, she did not place on hold her pursuit of employment; she engaged in online evening job searches, contacting and submitting applications to over two dozen employers. Greer had good reason to continue her search while at training: her commanding officer indicated in a subsequent letter to the Division's Appeals Tribunal that it was the New York Air National Guard's common practice-and his particular unit's procedure-to allow its members to reschedule their training when necessary for civilian employment purposes, including to act on an offer of employment received while participating in training in New York.

         Nevertheless, the Division took the position that Greer's week-long stay in New York made her ineligible for benefits during that week because she was not "available for work." Greer appealed the Division's determination and on April 6, 2015, the Division's Appeals Tribunal issued its decision affirming the determination of ineligibility. On May 5, 2015, Greer appealed the opinion of the Appeals Tribunal to the Commission, and on July 17, 2015, the Commission affirmed because "[s]he was not 'ready' to accept work while she was in New York[-][e]ven assuming that [Greer's] commanders were willing to accommodate [her] needs, the reality was that it would have taken [her] time to seek and gain written approval to leave her service in New York[, ] .. . [and] [s]he would have then had to change her existing return flight arrangements and catch a flight from New York to Missouri, " which "would have all taken the better part of a day." This appeal follows.

         Standard of Review

         We review the Commission's decision to determine whether it is "supported by competent and substantial evidence upon the whole record." MO. CONST, art. V, section 18. This Court may modify, reverse, remand for rehearing, or set aside the decision of the Commission when: (1) the Commission acted without or in excess of its powers; (2) the decision was procured by fraud; (3) the facts found by the Commission do not support the decision; or (4) there was no sufficient competent evidence in the record to warrant making the decision. Gardner v. Div. of Emp 7. Sec., 369 S.W.3d 109, 112 (Mo.App.E.D. 2012) (citing § 288.210[1]). Absent a showing of fraud, we view the factual findings of the Commission as conclusive so long as they are supported by competent and substantial evidence. Id. (citing § 288.210). In determining whether competent and substantial evidence was presented-i.e., whether the decision is supported by the overwhelming weight of the evidence as determined by the Commission-we do not view solely the evidence favorable to the decision and the Commission's inferences drawn therefrom; rather, we objectively review the entire record, including any unfavorable evidence or any such inferences drawn therefrom. Id. (citing Hubbell Mechanical Supply Co, v. Lindley, 351 S.W.3d 799, 807 (Mo.App.S.D. 2011)). We are not bound by the Commission's conclusions of law or its application of the law to the facts. Id.


         Section 288.040 provides that a claimant who is unemployed shall be eligible for benefits only if she is able to work and available for M>ork.[2] § 288.040.1(2). To be deemed available, a claimant must be actively and earnestly seeking work. Id. The claimant also "must be closely attached to the labor market and be ready, willing, and able to accept a suitable job." Rives v. Labor and Indus. Relations Comm % 592 S.W.2d 252, 253 (Mo.App.E.D. 1979).

         Here, the Commission found that Greer was actively and earnestly seeking work throughout the period for which she seeks benefits in this case. However, the Commission deemed Greer ineligible to receive benefits since her participation in Air National Guard training in New York meant that she was not "ready to accept a suitable job" and therefore was not "available for work."

         Greer asserts that the Commission incorrectly interpreted the phrase "available for work, " but in substance it appears that her argument challenges the Commission's underlying factual finding that she was not ready to accept a suitable job while she was in New York participating in Air National Guard training. As stated above, we defer to the Commission's factual findings as conclusive so long as they are supported by substantial and competent evidence from the entire record. The ...

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