IN THE MISSOURI COURT OF APPEALS

WESTERN DISTRICT

EMMANUEL KENNEDY,

Appellant,

v.

DIVISION OF EMPLOYMENT 

SECURITY,

Respondent.

)

)

)

)

)

)

)

)

)

)

)

WD77432

OPINION FILED:

November 25, 2014

Appeal from the Labor and Industrial Relations Commission

Before Division Three: Karen King Mitchell, Presiding Judge, and

Cynthia L. Martin and Gary D. Witt, Judges

Emmanuel Kennedy appeals from the Labor and Industrial Relations Commission‟s 

determination that he is not entitled to unemployment benefits after being terminated from 

employment when he missed work due to incarceration. Because Kennedy has preserved 

nothing for appellate review, we dismiss the appeal.

Factual Background

Kennedy worked for Kelly Services, which is an agency that sends people to work 

assignments at other businesses but remains the employer. Kennedy began working for Kelly 

Services in March 2012 and was assigned to work as a box maker and truck driver in another 
2

company‟s warehouse. Kennedy was successful in this employment until October 9, 2013, when 

he failed to show up for work because he had been arrested and incarcerated. Kennedy had a 

cousin call Kelly Services on his behalf and inform them that Kennedy could not come back to 

work for the next two weeks because he had to care for his sick aunt. When Kennedy was 

released on October 17, 2013, he attempted to contact Kelly Services, but received no response.

Kennedy filed for unemployment benefits with the Division of Employment Security 

(Division). In a “Pending Issue Questionnaire” filed with the Division, Kennedy stated that he 

was discharged because he “needed a couple of days off to help [a] sick relative.” A Division 

deputy determined that Kennedy was disqualified from receiving benefits because he left work 

voluntarily without good cause attributable to his work or the employer. Specifically, the deputy 

found that Kennedy “quit” in order to “care for family,” and thus, his reason was “personal.” 

Kennedy appealed that decision to the appeals tribunal within the Division. In his request for 

appeal, Kennedy claimed, for the first time, that he had not left work voluntarily because he had 

been incarcerated. Kennedy acknowledged that he had previously stated he had been caring for a 

sick aunt, but he claimed to have said this because a Kelly Services‟ employee had previously 

told him that incarceration would affect his ability to achieve permanent employment.

Following a hearing, the tribunal determined that Kennedy had not left work voluntarily, 

because, although a claimant whose employment ends because of incarceration has left his 

employment voluntarily without good cause attributable to work or the employer, Kennedy 

attempted to contact his employer about returning to work after his incarceration ended. Thus, 

Kennedy did not simply abandon his position, and Kelly Services‟ unwillingness to return 

Kennedy‟s call indicated that he had been discharged from his employment. However, the 

appeals tribunal determined Kennedy‟s failure to report the real reason for his absence showed 
3

“reckless or willful disregard for the employer‟s absence-reporting standards and his own 

obligations” and amounted to “misconduct.” The appeals tribunal modified the deputy‟s 

determination and found Kennedy to be disqualified from benefits because he was discharged for 

misconduct connected with his work. The Commission affirmed and adopted the appeals 

tribunal‟s decision.

Standard of Review

“[W]here, as here, the Commission adopts the decision of the Appeals Tribunal, we 

consider the Tribunal‟s decision to be the Commission‟s for purposes of our review.” Sheridan 

v. Div. of Emp’t Sec., 425 S.W.3d 193, 198-99 (Mo. App. W.D. 2014). “[T]he reviewing court 

defers to the factual determinations made by the Commission.” Dorris v. Stoddard Cnty., 436 

S.W.3d 586, 590 (Mo. App. S.D. 2014). “In conducting our review, „[w]e defer to the 

Commission on issues concerning credibility and weight to be given conflicting evidence.‟” 

Carver v. Delta Innovative Servs., 379 S.W.3d 865, 869 (Mo. App. W.D. 2012) (quoting Bailey 

v. Phelps Cnty. Reg’l Med. Ctr., 328 S.W.3d 770, 773 (Mo. App. S.D. 2010)). But we review 

questions of law de novo. Id.

Analysis

In Kennedy‟s sole point, he argues that the Commission committed “error . . . due to the 

facts [sic] that [Kennedy] did not quit [his] job.” Similarly, in the argument portion of his brief 

to this court, Kennedy argues only that he did not voluntarily leave his job. But the Commission

did not disqualify Kennedy from benefits for voluntarily leaving his employment. While a 

Division deputy initially determined that Kennedy voluntarily quit, that determination was 

modified by the appeals tribunal following a hearing. The appeals tribunal determined that 
4

Kennedy had been terminated from employment due to misconduct. The Commission affirmed 

the appeals tribunal‟s decision and adopted it as the decision of the Commission.

“Under section 288.050,[1]a claimant shall be disqualified from receiving unemployment 

benefits if the claimant: (1) „has left work voluntarily without good cause attributable to such 

work or to the claimant‟s employer[ ]‟; or (2) „has been discharged for misconduct connected 

with the claimant‟s work[.]‟” Waggoner v. Ozark Anesthesia Assocs., Inc., 364 S.W.3d 713, 718 

(Mo. App. S.D. 2012) (quoting §§ 288.050.1(1), .2) (emphasis added). The statute contains two 

independent bases, both mandating disqualification from benefits.

Kennedy has failed to challenge the basis for the Commission‟s decision below. “While 

it may not be stated explicitly in Rule 84.04, the fundamental requirement for an appellate 

argument is that it demonstrate the erroneousness of the basis upon which a lower court or 

agency issued an adverse ruling.” Rainey v. SSPS, Inc., 259 S.W.3d 603, 606 (Mo. App. W.D. 

2008). “Unless an appellant challenges the grounds on which an adverse ruling depends, he has 

shown no entitlement to appellate relief.” Id.

Having failed to challenge the ground upon which the Commission disqualified him, 

Kennedy has preserved nothing for this Court to review. Parker v. Action Contracting Corp., 

100 S.W.3d 168, 171 (Mo. App. W.D. 2003) (“Insufficient points relied on preserve nothing for 

appellate review and constitute grounds for dismissal.”); Dumproff v. Driskill, 376 S.W.3d 680, 

688 n.7 (Mo. App. S.D. 2012) (Arguments not raised “in the argument portion of the brief are 

deemed abandoned and present nothing for appellate review.” (Internal citation and quotation 

omitted.)). This failure is sufficient cause to dismiss Kennedy‟s appeal. See Parker, 100 S.W.3d 

 

1 All statutory references are to the Revised Statutes of Missouri 2000, as updated through the 2013 

Cumulative Supplement, unless otherwise noted.
5

at 171; Russell v. LM Servs. Corp., 250 S.W.3d 838, 839-40 (Mo. App. E.D. 2008); Chase v. 

Baumann Prop. Co., 169 S.W.3d 891, 892-93 (Mo. App. E.D. 2005).

Conclusion

This appeal is dismissed.

Karen King Mitchell, Presiding Judge

Cynthia L. Martin and Gary D. Witt, Judges, concur.