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 CHEESECAKES, 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 Residence Ctr., 211 S.W.3d 195, 198 (Mo. 
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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. Initially, the claimant bears the burden of proving his or 

her right 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 review 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:

"Misconduct", 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 smacked 
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the coworker in the heat of the moment 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 standards (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). In the absence of precedent this court reverts to 

statutory interpretation. Pursuant 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 standards which 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 Missouri 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 employees." 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 because 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 "deliberately 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 expect 
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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 striking a co-employee" is similar misconduct.

Every kindergartener is taught that deliberately striking another individual is 

inappropriate and subjects one to a wide array of consequences. 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 

workplace.

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" struck 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 the 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 within the meaning of an unemployment compensation act excluding 
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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 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 the employee's obligations to 

the employer."). 

In 1997, without defining "misconduct," 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 may constitute misconduct regardless of whether the last incident alone 

which results in the discharge constitutes misconduct."). In 2004, the Missouri Legislature

definitively and statutorily defined "misconduct." See Mo. H.B. 1268 (2004). 

Initially 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, or 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" as 

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[,]" 
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Section 288.030.1(23), RSMo Cum. Supp. 2015 (emphasis 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 WILLFUL MISCONDUCT, Black's Law Dictionary (10th 

ed. 2014) ("Misconduct committed voluntarily and intentionally.") with KNOWING, 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. Grp. Intern., Inc., 333 S.W.3d 492, 497 (Mo. App. 

E.D. 2011). 

Although current jurisprudence is lacking—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.3d 670, 672 (Mo. banc 2009) ("This Court's primary rule of statutory 

interpretation is to give effect to the legislative 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 examination 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 as "good cause" or "hothead" exceptions. See, e.g., Potter v. N. Empire Pizza, 

Inc., 805 N.W.2d 872 (Minn. App. 2011) (tracing the history of Minnesota's judicially created 

"isolated hothead incident" and the ultimate statutory exclusion thereof). The Missouri 

Legislature is obviously adept at amending the statutory definition of "misconduct." If the 
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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. Walsh, 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 remedy by deliberately "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