Court of Appeals of Missouri, Eastern District, Second Division
from the Labor and Industrial Relations Commission No.
16-02111 R-A Filed: March 28, 2017
P. Page, Judge.
Jackson ("Claimant") appeals the decision of the
Labor and Industrial Relations Commission
("Commission") denying Claimant unemployment
benefits. We affirm.
was employed since January 22, 2009 as a customer service
associate, an hourly position, at Walgreen Co. in Troy,
Missouri ("Walgreens"). In July 2015, it is
uncontested that Walgreens communicated its "Social
Media and Personal Web Sites" policy ("Social Media
Policy") to Claimant. The Social Media Policy
established rules that prohibited certain behavior by
employees on social media and personal websites. Pertinently,
the Social Media Policy read:
Do not harass, threaten or bully. Team
members may not defame . . . other team members and should
not engage in online harassment, discrimination or bullying
which would be prevented in the workplace. This includes . .
. sexual innuendos . . . .
[Walgreens'] team members may not engage in conduct
through social media which would otherwise violate
[Walgreens'] policies and practices were they to engage
in the same conduct or make such statements in the workplace.
Team members who fail to follow the guidelines set forth in
this policy may be subject to disciplinary action, up to and
including termination of employment.
December 27, 2015, Claimant posted to a male coworker's
Facebook page, a pornographic video, entitled "Black
Mama White Mama (1973) Pam Grier 'Get 'em wet,
'" along with the statement "I call it the [M]
and [L] Expose." At the time of that post, Claimant worked
with two female coworkers named M and L, who did not appear
in the posted video.
discovering Claimant's Facebook post, M approached the
assistant store manager to express her concerns. M, who was
visibly upset and distraught while discussing the post,
requested Walgreens address the situation.
assistant store manager thereafter met with Claimant about
this post. When asked whether the posted video referred to M
and L, Claimant answered that those names could belong to
anyone. Following this meeting, Walgreens conducted an
investigation in the matter, concluding that Claimant's
Facebook post had violated the Social Media Policy and that
Claimant would be terminated for this violation. Walgreens
discharged Claimant on January 13, 2016.
that same day, Claimant applied for unemployment benefits
with the Missouri Division of Employment Security
("DES"). This request was eventually denied after a
DES deputy determined that Walgreens terminated Claimant for
appeal to the DES Appeals Tribunal, Claimant conceded he had
posted the pornographic video, but testified that his post
did not refer to his coworkers and that the post did not
violate Walgreens' Social Media Policy because it was not
a sexual innuendo. Claimant further testified that M and L
were the names of the women in the posted video, and only
coincidentally shared names with his former coworkers.
However, Claimant did state that he did not personally know
anyone else named M or L. Finding this testimony convincing,
the Appeals Tribunal, in a written opinion, reversed the
deputy's determination. The Appeals Tribunal concluded
Claimant did not commit misconduct, therefore Appellant was
not disqualified from receiving unemployment benefits.
appealed to the Commission, which reversed the Appeals
Tribunal decision. The Commission found Claimant's
Facebook post clearly violated the Social Media Policy. The
Commission concluded Walgreens had satisfied its burden of