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GEMAYNE CARTER, ) 

 ) 

 Claimant-Appellant, ) 

 ) 

v. ) No. SD33800 

 ) 

COTT BEVERAGES, INC., ) Filed: July 13, 2015 

 ) 

 Employer, ) 

 ) 

and ) 

 ) 

DIVISION OF EMPLOYMENT ) 

SECURITY, ) 

 ) 

 Respondent. ) 

APPEAL FROM THE LABOR 

AND INDUSTRIAL RELATIONS COMMISSION 

APPEAL DISMISSED

 Gemayne Carter ("Claimant"), self-represented, is attempting to appeal a decision of 

the Missouri Labor and Industrial Relations Commission ("the Commission") that left him 

ineligible for unemployment benefits. Because Claimant fails to address the reason for the 

Commission's decision, his appeal must be dismissed. 

Background 

A review of the legal file reveals the following. A deputy with the Missouri Division 

of Employment Security ("the Division") found Claimant ineligible for certain 
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unemployment benefits on the ground that Claimant's employer, Cott Beverages, Inc. 

("Employer") discharged Claimant in November 2014 for misconduct connected with his 

work.1 According to the deputy, Claimant "was observed in the parking lot for thirty 

minutes instead of performing his job duties. [Claimant] was not on a scheduled break at the 

time and had work he needed to be doing." 

Claimant appealed that decision to an appeals tribunal, which scheduled a telephone 

hearing and provided Claimant with a written notice of that hearing. The notice included 

instructions on how to participate that began with, "To participate in the Telephone 

Hearing: 1. YOU MUST CALL the toll-free number [number stated] at the time of the 

hearing." 

When Claimant did not call in at the appointed time, the referee assigned to conduct 

the hearing dismissed Claimant's appeal on the ground that Claimant had failed to pursue his 

appeal by failing to call in as scheduled for the hearing. Claimant then appealed that 

decision to the Commission, claiming that he had failed to call in as scheduled because he 

thought that the referee would be initiating the call. 

The Commission affirmed the referee's decision to dismiss Claimant's appeal, ruling 

that Claimant had failed to establish good cause for his failure to participate in the hearing 

because a "claimant acting reasonably and in good faith would have read carefully the 

Appeals Tribunal Notice of Telephone Hearing to ensure he knew how to participate in the 

hearing." (Case citation omitted.) 

Analysis & Decision

 The fatal flaw in the "brief" Claimant submitted to this court is that it does not 

address the reason the Commission gave for its decision. Instead, it presents three 

 

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 Employer did not file a brief. 
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"[q]uestions" that challenge the basis of the deputy's initial determination that Claimant had 

been discharged for misconduct connected with his work.2

 We review the decision of the 

Commission, not the decision of the deputy, and the relevant question here is whether the 

Commission's refusal to set aside the referee's dismissal of Claimant's appeal constituted an 

abuse of discretion. Peavy v. Div. of Emp't Sec., 440 S.W.3d 569, 571 (Mo. App. W.D. 

2014). 

In conducting our review, we cannot "consider any issues that were not before the 

Commission." Hampton v. Aerotek, Inc., 427 S.W.3d 841, 841-42 (Mo. App. E.D. 2014) 

(quotation omitted). The actual basis for the Commission's decision -- that Claimant had 

failed to demonstrate good cause for missing his scheduled hearing -- is simply not 

addressed in Claimant's brief. As a result, Claimant presents nothing for us to review, and 

we must deem his appeal abandoned. Id. at 842. 

 Appeal dismissed. 

DON E. BURRELL, P.J. - OPINION AUTHOR 

GARY W. LYNCH, J. - CONCURS 

WILLIAM W. FRANCIS, JR., J. - CONCURS 

 

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 In doing so, Claimant makes unsupported factual allegations that could not have been before the 

Commission due to Claimant's failure to call in as directed for the hearing that would have generated such a 

record.