Cedric A. Jackson v. True Manufacturing Co., and Division of Employment Security

• Court: Missouri Court of Appeals
• Decided: May 6, 2025
• Docket: ED112938
• Status: Published

Opinion

In the Missouri Court of Appeals Eastern District DIVISION TWO

CEDRIC A. JACKSON, ) No. ED112938 ) Respondent, ) ) vs. ) ) TRUE MANUFACTURING CO., ) Appeal from The Labor and Industrial ) Relations Commission Appellant, ) ) and ) ) DIVISION OF EMPLOYMENT SECURITY ) ) Respondent. ) Filed: May 6, 2025

Before Lisa P. Page, P.J., Rebeca Navarro-McKelvey, J., and Virginia W. Lay, J.

True Manufacturing Co., Inc. (Employer) appeals from the decision of the Labor and

Industrial Relations Commission (Commission) finding Cedric A. Jackson (Claimant) was not

disqualified from receiving benefits because he was not discharged for misconduct connected

with his work. We reverse.

BACKGROUND

Claimant began working for Employer in October 2023. On February 8, 2024, an

incident was reported by two team members alleging they witnessed Claimant give a co-worker

(Co-Worker) a small, clear baggie. They observed Co-Worker put the baggie in his pocket. A

representative from human resources (Representative) investigated the incident and spoke with Co-Worker. Initially, Co-Worker said Claimant did give him a small baggie but he did not look

at it before putting it in his pocket and did not know what was in it. Co-Worker emptied his

pockets but did not have the baggie. Representative asked to search Co-Worker’s belongings,

and he admitted Claimant had handed him a baggie of marijuana. He gave the bag to

Representative. Claimant denied giving or selling Co-Worker marijuana. He claimed he gave

Co-Worker candy, but Representative’s investigation did not reveal Co-Worker possessed a clear

baggie of candy, just one containing marijuana.

Claimant filed a claim for unemployment benefits, which Employer protested. A deputy

for the Division of Employment Security (Division) determined he was not disqualified from

receiving benefits because his discharge was not for misconduct connected with his work.

Employer appealed, and following a telephone hearing, the Appeals Tribunal issued a decision

affirming the deputy’s determination. Employer filed a timely application for review with the

Commission, which affirmed and adopted the decision of the Appeals Tribunal. This appeal

follows.

DISCUSSION

In its first point on appeal, Employer contends the Commission erred in concluding

Claimant was not discharged for misconduct connected with work because the competent

evidence showed he brought marijuana onto Employer’s property in clear violation of the

company’s drug and alcohol policy, meeting the statutory definition of misconduct under Section

288.030.1(23)(e) RSMo (2016). 1 In its second point, Employer argues the Commission acted in

excess of its powers by failing to provide a fair and impartial hearing. Our review of Employer’s

second point is dispositive, and therefore, we do not consider point one.

1 All further statutory references are to RSMo (2016).

2 Standard of Review

We review the decision of the Commission pursuant to Section 288.210. Accordingly,

we may modify, reverse, remand, or set aside the Commission’s decision only on the grounds

that the Commission acted without or in excess of its power, the decision was procured by fraud,

the facts found by the Commission do not support its decision, or there was no sufficient

competent evidence in the record to support the decision. Id. We review the Commission’s

decision, and not that of the Appeals Tribunal; however, where, as here, the Commission adopts

the decision of the Appeals Tribunal as its own, we necessarily must review those findings.

Hubbell Mech. Supply Co. v. Lindley, 351 S.W.3d 799, 807 (Mo. App. S.D. 2011) (internal

citations omitted).

The Appeals Tribunal is required to render a decision after a reasonable opportunity for a

fair hearing and acts in excess of its authority when it fails to do so. Section 288.190.3;

Weinbaum v. Chick, 223 S.W.3d 911, 914 (Mo. App. S.D. 2007); see also O’Connor v. Bonzai

Express of St. Louis, 103 S.W.3d 882, 884 (Mo. App. E.D. 2003). Therefore, the Appeals

Tribunal must comply with the principles of due process, including to afford the parties to the

administrative proceeding the right to be fully heard, and to defend, enforce, and protect their

rights. Weinbaum, 223 S.W.3d at 913 (internal quotations omitted).

Analysis

The “technical rules of evidence” do not control unemployment compensation hearings,

but each party is entitled to a fair hearing. Scrivener Oil Co., Inc. v. Crider, 304 S.W.3d 261,

272, 276 (Mo. App. S.D. 2010) (internal quotations omitted). Section 288.190.2 refers to

regulations prescribed by the Division to govern the manner in which disputed determinations

shall be presented and how hearings are to be conducted. The Missouri Code of State

3 Regulations, specifically 8 CSR 10-5.015(10)(B)(4) (2024), addresses hearings accordingly and

the evidence allowed in those proceedings as follows:

The hearing need not be conducted according to the common law or statutory rules of evidence or the technical rules of procedure. Hearsay evidence is generally admissible. Evidence is admissible if it is not irrelevant, immaterial, privileged or unduly repetitious. Hearsay which is timely objected to shall not constitute competent evidence which, by itself, will support a finding of fact. A party or his/her attorney may advise the hearing officer of a defect in the character of any evidence introduced by voicing an objection. The hearing officer shall rule on the admissibility of all evidence. Any evidence received without objection which has probative value shall be considered by the hearing officer . . . . (emphasis added).

As a result, if the only evidence of misconduct is hearsay, it must be “timely objected to,”

or its probative value “shall be considered.” Jenkins v. George Gipson Enterprises, LLC, 326

S.W.3d 839, 842 (Mo. App. E.D. 2010) (citing Hill v. Norton & Young, Inc., 305 S.W.3d 491,

495 (Mo. App. E.D. 2010) and 8 CSR 10-5.015(10)(B)(4)) (emphasis added).

Claimant made two objections during the hearing. The first was when Referee sought

admission of Division’s Exhibit 1 and Claimant objected to it as not being “accurate.” His

objection was overruled and the Referee admitted Exhibit 1 as a business record of the Division.

Employer then called Representative to testify regarding the incident resulting in Claimant’s

discharge. Claimant’s second and only subsequent objection was at the beginning of this

testimony. The following exchange occurred:

REFEREE: For what was he discharged?

REPRESENTATIVE: Uh, for, uh, possessing drugs on the premises, uh, and providing drugs to fellow employees, uh, and being dishonest about that situation.

CLAIMANT: I object that [sic].

REFEREE: You can’t object to that, sir.

CLAIMANT: He’s actually speaking on my character, ma’am. I can’t allow him to speak on my character of passing any pro – any type of pro – per me – any type

4 of marijuana that he’s stating on my character. So I really gonna have to object what he’s saying. That is not true.

REFEREE: Your objection is overruled. And speaking of somebody’s character is not something you can object over. Uh, uh, objection goes to the weight of the evidence.

CLAIMANT: I do apologize for cutting you off, but that’s what I was fired for. I was fired with his statement saying that I felt like that, uh, I was being dishonest.

REFEREE: Sir. Sir, I understand. The Employer can fire somebody for anything they want, sir.

CLAIMANT: And I get that as well. I do absolutely understand . . .

REFEREE: Sir, sir, sir, sir please, you will have a chance to testify after the Employer puts on their case. You will have a chance to ask the witnesses questions. You will have a chance to testify and tell me everything you would like to say about this separation but – and you have a legal right to make an objection, but you canot [sic] simply interrupt with all kinds of objections. Objection has to do with whether it’s relevant or, um, a hearsay or something like that, but disagreeing is not grounds for an objection. So, hold on to your thoughts and we – you will have plenty opportunity to put everything on the record. Okay? (emphasis added).

After Claimant’s objection was overruled, Representative continued with his hearsay

testimony. He described his conversations with Co-Worker, Claimant, the witnesses, and other

employees. On rebuttal, Employer presented more hearsay evidence, specifically regarding

Representative’s conversation with Co-Worker. He stated Co-Worker did not say Claimant gave

him any candy, nor did Co-Worker produce any candy or wrappers. The only baggie in his

possession contained marijuana. Claimant did not object to either direct or rebuttal testimony.

In fact, after his two initial objections, which were overruled, Claimant did not object again on

any basis.

We find it significant that Claimant demonstrated his ability to voice an objection and

was admonished by Referee concerning the propriety of his objection, which merely claimed the

5 statements were false assertions against his character. Referee further advised Claimant to object

to evidence as hearsay. But he did not do so throughout the rest of the hearing.

After Referee clearly overruled Claimant’s objection to Representative’s testimony and

proceeded to hear Employer’s case, the Appeals Tribunal inexplicably made the following

conclusion of law:

The employer has not met its burden of proof. The only competent evidence presented was from the claimant. He testified he did not possess drugs or give drugs to a coworker. The employer’s testimony to the contrary is hearsay. (emphasis added).

Thus, the Appeals Tribunal held, as adopted by the Commission, that Claimant was not

discharged for misconduct connected with work.

We hold this is error because there was no timely objection to Representative’s testimony

as hearsay. Without just such an objection, Employer’s otherwise relevant and material

probative evidence “shall be considered by the hearing officer . . . .” 8 CSR 10-5.015(10)(B)(4).

Let this court be absolutely clear, the Referee erred by changing her ruling on Claimant’s

objection at the hearing which allowed Employer’s hearsay testimony that was otherwise

relevant and admissible. Claimant could have made a timely hearsay objection, as he was so

advised by the Referee upon overruling his improper objection, at any time.

Here, the Appeals Tribunal concluded that although Claimant did not object to the

evidence as hearsay, by denying Employer’s hearsay allegations, “the claimant was objecting to

the hearsay evidence.” We agree under certain circumstances, it is possible to infer an objection

to testimony as hearsay from an unrepresented claimant’s statements where none is made, 2 but

2 Parties to an administrative proceeding should be mindful that if timely objected to, hearsay “shall not constitute competent evidence which, by itself, will support a finding of fact,” especially when an unrepresented claimant’s objection may be inferred. 8 CSR 10-5.015(10)(B)(4).

6 that is not the case in this matter. See Hill, 305 S.W.3d at 495; Jenkins, 326 S.W.3d at 843; and

Koenen v. BRG Liberty, LLC, 647 S.W.3d 47, 62 (Mo. App. E.D. 2022). Here, Referee

considered Claimant’s objection and unequivocally stated: “Your objection is overruled.”

Employer then relied on Referee’s ruling and proceeded with hearsay testimony, ultimately to its

detriment as demonstrated by the legal conclusions adopted by the Commission. This conduct

failed to afford Employer the right to be fully heard, and to defend, enforce, and protect their

rights. Weinbaum, 223 S.W.3d at 913 (internal quotations omitted).

If the Commission had properly considered Employer’s evidence as permissible hearsay,

then it would have been free to resolve the conflicting evidence presented at the hearing and

believe Claimant’s contention that he was simply giving a Co-Worker candy. Hubbell Mech.

Supply Co., 351 S.W.3d at 812. However, in light of the record before us, the Commission’s

decision to ultimately affirm the Referee’s decision to overrule Claimant’s objections at the

hearing and then subsequently rule that Employer’s hearsay evidence did not constitute

competent evidence of misconduct failed to afford Employer a fair hearing and, as such, was in

excess of its powers. See Justice-Mall, LLC v. Boland, 508 S.W.3d 153, 158 (Mo. App. S.D.

2016); Weinbaum, 223 S.W.3d at 914; O’Connor, 103 S.W.3d at 885. Thus, the Commission

erred, and the decision must be reversed. Employer’s point two is granted.

CONCLUSION

The Commission’s decision is reversed.

______________________________ Lisa P. Page, Presiding Judge Rebeca Navarro-McKelvey, J., and Virginia W. Lay, J., concur.