# In the Missouri Court of Appeals

Eastern District

DIVISION FOUR ROBIN STAHL, ) ) No. ED103466 Respondent, ) ) Appeal from the Labor and vs. ) Industrial Relations Commission ) HANK' S CHEE SECAKES, LLC, ) Filed: May 10, 2016 ) Appellant, ) ) and ) ) DIVISION OF EMPLOYMENT SECURITY, ) ) Respondent. )
DISSENT
I respectfully dissent and would reverse the decision of the Commission. For over sixty years, the explicit purpose of the Missouri Employment Security Law, Section 288.010, et seq ., has been to provide economic stability for the citizens of Missouri who have become unemployed " through no fault of their own ." Lindsey v. Univ. of Mo., Div. of Emp't Sec. , 254 S.W.3d 168, 171 (Mo. App. W.D. 2008) (emphasis added); see also Section
288.020.1 , RSMo 1951 . A claimant is ineligible and disqualified from receiving unemployment benefits if said claimant " caused his dismissal by his wrongful action or inaction or his choosing not to be employed." Ayers v. Sylvia Thompson Residenc e Ct r . , 211 S.W.3d 195, 198 (Mo.2

App. W.D. 2007) (emphasis in original)

. A claimant is ineligible for unemployment benefits if the claimant was "discharged for misconduct connected with claimant's work[.]" Section
288.050.2 , RSMo Cum. Supp. 2015

. Initia lly, the claimant bears th e burden of proving his or her r ight to receive unemployment benefits; however, when an employer asserts that the claimant was discharged for "misconduct," the burden shifts to the employer to prove , by a preponderance of the evidence, claimant is ineligible for "misconduct connected with work." Seck v. Dep't of Transp. , 434 S.W.3d 74, 82 (Mo. banc 2014). "The determination of whether an employee is discharged for misconduct connected with work is a question of law that we re view de novo." Williams v. Enter. Rent

- A

- Car Shared
Servs. , LLC , 297 S.W.3d 139, 142 (Mo. App. E.D. 2009); McClelland v. Hogan Pers. , LLC , 116 S.W.3d 660, 664 (Mo. App. W.D. 2003) ("Whether the Commission's findings support the conclusion that an employee was guilty of misconduct is a question of law."). The principal opinion correctly notes that Hank's allegation of employee misconduct must be examined under the auspices of Section 288.030.1(23)(a) , RSMo Cum. Supp. 2015 , which reads as follows: "Misco nduct" , only as the term is used in this chapter, conduct or failure to act in a manner that is connected with work, regardless of whether such conduct or failure to act occurs at the workplace or during work hours, which shall include: (a) Conduct or a failure to act demonstrating knowing disregard of the employer's interest or a knowing violation of the standards which the employer expects of his or her employee[.] (emphasis in original). I believe the Appeals Tribunal Determination , as adopted by the Commission, misconstrued this statutory language as follows: The claimant credibly testified that she did not mean to hit the co
- worker on the butt and had no malicious intent in striking him. The claimant merely smacked3

the coworker in the heat of the m oment and had no knowing intent. This innocuous act was certainly poor judgment, but the Tribunal would not find that it was a knowing violation of the standards which the employer expects. The claimant did not intend or realize she was violating those s tandards (emphasis added). As the principal opinion observes, there exists no Missouri case directly on point to answer the question whether Stahl's "deliberately striking a co

- employee" constituted "misconduct" under Section 288.030.1(23)(a) . I n the absence of precedent this court reverts to statutory interpretation

. P ursuant to the most recent amendment to the governing statute, I believe our analysis of misconduct is simply whether Stahl's conduct constituted "a knowing violation of the standar ds w hich the employer expects " and that Stahl's "deliberately striking a

co - employee" constitutes misconduct, as a matter of law, under Section 288.030.1(23)(a).
In Seck v. Department of Transportation , 434 S.W.3d 74 (Mo. banc 2014), the Supreme Court of Miss ouri determined "even in the absence of an oral or written rule, an employee commits misconduct . . . if (s) he disregards the 'standards of behavior which the employer has a right to expect' from its employee s ." Seck , 434 S.W.3d at 83 (quoting in part Section 288.030.1(23), RSMo Cum. Sum. 2004)). The Missouri Supreme Court went on to define "standards of behavior which the employer has a right to expect" as those standards "that apply universally in the workplace" and "which no such notice is needed be cause they are fairly understood by both the employer and the employee even where not included in the employer's
express rules." Seck , 434 S.W.3d at 83 (emphasis added). I believe " d eliberately striking a co

- employee , " especially in anger, as Stahl did in this

case, is universally and fairly understood by both employers and employees alike to be inappropriate work

- related conduct. Stahl's claim that she did not know "deliberately striking a

co - employee" in anger is without merit. In Missouri, we find employers are "entitled to expect4

that its employees will not falsify medical certificates[,]" Seck , 434 S.W.3d at 84, and we hold "the idea that sleeping on the job is anything other than misconduct is absurd[,]" Nickless v. Saint Gobain Containers, Inc. , 350 S.W.3d 871, 874 (Mo. App. E.D. 2011) . I believe "deliberately s triking a co

- employee" is similar misconduct.
E very kindergartener is taught that deliberately striking another individual is inappropriate and subjects one to a wide array of consequenc es. Furthermore, Stahl's conduct was of such a nature as to subject Stahl to criminal and /or civil penalties. See , e.g. , Section 565.070 (criminal statute for assault); Armoneit v. Ezell , 59 S.W.3d 628, 632 (Mo. App. E.D. 2001) ("A battery is the willful touching of the person of another, and has been said to be the consummation of the assault.") (citations omitted). Failure to understand the ramifications of such conduct is not a defense either in criminal or tort law and should not be tolerated in the

w orkplace. Specifically, Stahl should not be permitted to cloak her ignorance of universally and fairly understood standards of behavior which every employer has a right to expect of its employees under the guise of naiveté. When Stahl "deliberately" struc k a co

- employee, no matter her provocation, she performed "misconduct" as defined by Section 288.030.1(23)(a), and said "misconduct" should disqualify her from receiving unemployment benefits. Unlike t he principal opinion' s analysis , I believe a review of the legislative history requires a broader interpretation of misconduct. For decades Missouri law did not define "misconduct" by statute; rather the definition of "misconduct" was determined by the courts.
See , e.g. , Powell v. Div. of Emp't Sec ., Labor and Indus. Relations Comm'n of Mo. , 669 S.W.2d 47, 50 (Mo. App. W.D. 1984) (quoting 76 Am.Jur.2d Unemployment Compensation § 52 (1975)) ("[M]isconduct with in the meaning of an unemployment compensation act excluding5

from its benefits an employee discharged for misconduct must be an act of wanton or willful disregard of the employer's interest, a deliberate violation of the employer's rules, a disregard of standards of behavior which the employer has the right to expect of his employee, or negligen ce in such degree or recurrence as to manifest culpability, wrongful intent , or evil design, or show an intentional and substantial disregard of the employer's interest or the employee's o bligations to the employer."). In 1997, without defining "misconduc t," the Missouri Legislature began augmenting the common law definition by statutorily embracing "absenteeism" as a means to find misconduct.
See Mo. H.B. 472 (1997); see also Section 288.050, RSMo Cum. Supp. 1997 ("A pattern of absenteeism or tardiness m ay constitute misconduct regardless of whether the last incident alone which results in the discha rge constitutes misconduct."). I n 2004, the Missouri Legislature definitively and statutorily defined "misconduct." See Mo. H.B. 1268 (2004).
I nitially the statute defined "misconduct" as "an act of wanton or willful disregard of the employer's interest, a deliberate violation of the employer's rules, a disregard of standards of behavior which the employer has the right to expect of his or her employee, o r negligence in such degree or recurrence as to manifest culpability, wrongful intent or evil design, or show an intentional and substantial disregard of the employer's interest or of the employee's duties and obligations to the employer." Section 288.030 .1(24), RSMo Cum

. Supp. 2004. Finally, in 2014, the definition of "misconduct" was, again, amended. See Mo. S.B. 510 (2014). The principal opinion sets forth, in toto , the statutory definition of "misconduct" a s amended and as it currently reads

. See Section 288.030.1(23). This legislative history strongly suggests an intent to expand those acts which fall under the umbrella of "misconduct." For example, a " knowing disregard of the employer's interest[,]"6

Section 288.030.1(23) , RSMo Cum. Supp. 2015 (e mphasis added), is broader than "an act of wanton or willful disregard of the employer's interest[,]" Section 288.030.1(23), RSMo Cum. Supp. 2004 (emphasis added). Compare W ILLFUL M ISCONDUCT , Black's Law Dictionary (10th ed. 2014) ("Misconduct committed voluntarily and intentionally.") with K NOWING , Black's Law Dictionary (10th ed. 2014) ("Having or showing awareness or understanding; well

- informed . . . ."). Expanding this specific example , under the 2004 amendment, the employer was required to demonstrate both that claimant was "[1] aware of the requirement and [2] knowingly or consciously violate[d] it." Tenge v. Wash. Gr p . Intern., Inc. , 333 S.W.3d 492, 497 (Mo. App. E.D. 2011)

. Although current jurisprudence is lackin g

— possibly caused by the recent 2014 amendment

— the legislative intent of the statute is clear. Parktown Imp., Inc. v. Audi of Am.,
Inc. , 278 S.W.3 d 670, 672 (Mo. banc 2009) (" This Court's primary rule of statutory interpretation is to give effect to the le gislative intent as reflected in the plain language of the
statue at issue .") (emphasis added). Section 288.030.1(23)(a) merely requires the employer to evidence "a knowing violation of the standards which the employer expects " and does not permit

an exam ination of the innocuousness of the smack, whether the smack caused injury, whether the smack was violent, or the length of time of the "episode." Cf . Section 288.030.1(23)(e) (prescribing exceptions to employee's violation of employer's express rules). Moreover, our Missouri statute does not provide for any exceptions found in other jurisdictions, such a s "good cause" or "hothead" exceptions. See , e.g. , Potter v. N. Empire Pizza,
Inc. , 805 N.W.2 d 872 (Minn. App. 2011) (tracing the history of Minnesota's judicially created "isolated hothead incident" and the ultima te statutory exclusion thereof). The Missouri Legislature is obviously adept at amending the statutory definition of "misconduct." If the7

Legislature intended for courts to examine that which has been examined by the Commission and the principal opinion, the Legislature would have explicitly so prescribed ; however, in electing

not to prescribe, it can only be inferred that said omissions were purposeful. State ex rel. Nothum v. Wals h , 380 S.W.3d 557, 567 (Mo. banc 2012) ("It is cardinal rule of statutory interpretation that the legislature is presumed to know the existing law when enacting a new piece of legislation.") (internal citations omitted)

. Finally, I acknowledge that the obnoxious comment that provoked Stahl was completely inappropriate in the workplace. In fact, had Stahl properly reported the comment, the employer would have been greatly remiss in not disciplining that employee. However, Stahl implemented her own remed y by deli berately "smacking" the speaker. If Stahl had been a male employee "smacking" a female co

- worker, I am highly skeptical the Commission would have awarded him unemployment benefits

. For the foregoing reasons, I would find the Commission erred in determining Stahl was eligible for unemployment benefits, and I would reverse the decision of the Commission and remand for further proceeding consistent with this opinion.

________ ____________________________ Lisa P. Page, Judge