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CCL Label (St. Louis), Inc. v. Pamela Ausley and Division of Employment Security

Court of Appeals of Missouri, Eastern District, Fourth Division

March 14, 2017

CCL LABEL (ST. LOUIS), INC., Appellant,

         Appeal from the Labor and Industrial Relations Commission


          James M. Dowd, Presiding Judge.

         This unemployment benefits case presents the question of when under the recently-amended Missouri Employment Security Law do work absences on the part of a terminated employee satisfy the definition of "misconduct" so as to disqualify the employee from receiving unemployment benefits.

         CCL Label (St. Louis), Inc. ("CCL"), appeals from the Labor and Industrial Relations Commission's grant of unemployment benefits to Pamela Ausley, a former employee CCL terminated because of work absences. CCL claims that Ausley's work absences constitute misconduct connected with work disqualifying her from receiving unemployment benefits. CCL argues that the Commission erroneously applied § 288.030.1(23)(c)[1] by requiring CCL to prove that Ausley was at fault for her absences because fault is irrelevant under that section. CCL also contends that the award was not supported by competent and substantial evidence.

         We affirm the award because regardless of whether § 288.030.l(23)(c) required CCL to prove that Ausley was at fault, under the facts as found by the Commission, CCL has failed to carry its burden of showing that Ausley committed misconduct, and the award is supported by competent and substantial evidence.

         Factual and Procedural Background

         Ausley's employment with CCL began on April 1, 2015. At orientation, Ausley received an employee handbook containing a "progressive disciplinary process" that factored into CCL's attendance policy. As part of this process, the handbook indicated that employees would receive "points" for missed work. The handbook stated that 3 points would result in a "verbal" warning, 3.25 to 4.75 points would result in a written warning, 5 points would result in a final written warning, and beyond 5 points "may result in termination." The handbook provided that CCL had discretion to review each case individually such that CCL could impose an enhanced penalty or no penalty at all for missed work, and could accelerate or waive the assessment of points.

         Ausley acknowledged that she read and understood the handbook. But the handbook did not explain how points were accumulated under CCL's attendance policy or how many absences an employee was allowed under the point system before reaching a punishable level. Nor did CCL explain to Ausley how, in her particular case, points were assessed for her missed time, or how the points assessed here were connected to the discipline CCL meted out.

         At Ausley's hearing in this case, CCL called Shana Allen, a CCL human resources manager, who testified concerning CCL's attendance policy. She stated that if employees notify CCL at least 10 hours before their shift that they will be absent or tardy, then no points will be assessed. Allen further testified that the point assessment system was designed to keep track of certain absences beyond an employee's accumulated paid time off[2] She stated that CCL's attendance policy uses the point assessment system to account for, inter alia, employee illness, by giving time off beyond the employee's accumulated paid time off for any reason the employee might be ill.

         Allen testified that points were assessed against Ausley for eight different absences or tardies over the course of her employment with CCL. Ausley received two written warnings relating to her attendance, but neither mentioned any point assessment or referred to the progressive disciplinary process.

         On May 4, 2015, after Ausley was absent due to illness on April 13, 2015, and was purportedly late to work on May 1, 2015, CCL issued her an initial written warning. The warning stated that additional absences beyond those already scheduled (as vacation time with CCL's express approval) for June 12 and 15, 2015, could result in Ausley's dismissal. Then, on September 3, 2015, CCL issued its "Final Warning" to Ausley, citing ten dates on which Ausley was purportedly absent, tardy, or left work early. Beyond the dates already mentioned, the "Final Warning" stated Ausley left work early on June 26, 2015, and was absent also on July 14 and 16, and August 12, 27, and 28, 2015. The July absences were for Ausley to euthanize her dog, and all the others were due to Ausley suffering various illnesses. The "Final Warning" concluded with the statement that "[a]ny occurrences of missed time from work including absences, tardies and/or early leaves will result in TERMINATION."

         After the September 3 "Final Warning, " Ausley was again absent due to illness on October 23 and 26, 2015. CCL terminated Ausley's employment on October 26 for absenteeism. Ausley filed for unemployment benefits. CCL protested, arguing that it terminated Ausley for misconduct connected with work. A deputy from the Missouri Division of Employment Security ruled that Ausley's absenteeism constituted misconduct that disqualified her from receiving unemployment benefits. The Division's Appeals Tribunal affirmed. Ausley appealed to the Commission.

         The Commission found in favor of Ausley, ruling that she did not commit misconduct as defined by § 288.030.1(23)(c). The Commission found specifically that Ausley was not sufficiently aware of CCL's attendance policy. The Commission determined that although the attendance policy informed Ausley that CCL could discipline her for missing work, the policy did not inform Ausley how and under what circumstances missed work would result in discipline. Further, the Commission found that Ausley was not late for work on May 1, that her early leave on June 26 was approved by CCL, and that she provided 10 hours' notice for all of her absences but one: the August 27 absence.

         Based on these factual findings, the Commission ruled that Ausley did not violate a known attendance policy of CCL. The Commission also ruled that Ausley did not have two or more unapproved absences after a written warning relating to a prior unapproved absence. The Commission reasoned that § 288.030. 1(23)(c) requires that the claimant be "at fault" for her absences to be disqualified from receiving benefits. Accounting for Ausley's substantial number of absences due to personal illness, the Commission found that Ausley has an auto-immune disorder that has compromised her immune system and causes her to frequently fall ill. Because Ausley was ill on both October 23 and 26, 2015, the Commission concluded that she was not at fault for her two absences following the September 3 "Final Warning." As a result the Commission found Ausley eligible to receive unemployment benefits. This appeal follows.


         The Missouri Constitution permits judicial review of administrative decisions concerning the substantive rights of individuals. Mo. Const, ait. V, § 18; Seek v. Mo. Dep't of Tramp., 434 S.W.3d 74, 78 (Mo.banc 2014). Section 288.210 outlines the parameters of our judicial review and sets forth the following standard:

The findings of the commission as to the facts, if supported by competent and substantial evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the appellate court shall be confined to questions of law. The court, on appeal, may modify, reverse, remand for rehearing, or set aside the decision of the commission on the following grounds and no other:
(1) That the commission acted without or in excess of its powers;
(2) That the decision was procured by fraud;
(3) That the facts found by the commission do not support the award; or
(4) That there was no sufficient competent evidence in the record to warrant the making of the award.

         We review questions of law de novo, and the issue whether the Commission's findings support the conclusions that a claimant engaged in misconduct connected with his or her work is a question of law. Fendler v. Hudson Servs., 370 S.W.3d 585, 588-89 (Mo.banc 2012) (quoting Tenge v. Washington Grp. Int'l, Inc.,333 S.W.3d 492, 496 (Mo.App.E.D. 2011)). We determine whether competent and substantial evidence supports the award 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). We do not view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the award. Id. We defer to the Commission on ...

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