In the Missouri Court of Appeals Eastern District DIVISION FIVE
CHRISTINE M. KOHLBERG, ) No. ED111989 ) Respondent, ) Appeal from the Labor and Industrial ) Relations Committee vs. ) Appeal No. 2256123 ) BIG BEND ORTHODONTICS, LLC, ) ) Appellant, ) ) and ) ) DIVISION OF EMPLOYMENT ) SECURITY, ) Respondent. ) FILED: June 11, 2024
Opinion
This unemployment benefits case arose in December 2022 after a disagreement between
Big Bend Orthodontics, LLC (Employer) and Christine M. Kohlberg (Kohlberg) resulted in the
demise of the parties’ employer/employee relationship. Employer appeals the decision of the
Labor and Industrial Relations Commission (Commission) awarding Kohlberg unemployment
benefits. In its sole point on appeal, Employer argues the Commission erred in awarding
Kohlberg unemployment benefits because Employer showed good cause for a rehearing after
failing to appear at the Appeals Tribunal hearing. Because the Division of Employment Security
(Division) provided proper notice to the Employer of the hearing, Employer’s failure to act on the notice was not good cause for its failure to appear. Thus, the Commission did not abuse its
discretion and, we affirm the Commission’s decision.
Background
Kohlberg worked for Employer as an orthodontic assistant from September 1, 2019 until
December 19, 2022. Kohlberg filed for unemployment benefits, and Employer protested her
claim. A Deputy of the Division initially found Kohlberg was disqualified from receiving
benefits. The Deputy’s findings were that Kohlberg had been discharged for misconduct in
connection with her leaving work early without prior approval in violation of company policy.
Kohlberg appealed from the Deputy’s decision, asserting that the Employer’s account of
her separation from work was false. On April 26, 2023, the Division mailed a Notice of
Telephone Hearing to the parties informing them that the Appeals Tribunal hearing would be
held on May 16, 2023. The record contains the address cover sheet with Employer’s address and
the Notice of Telephone Hearing. Employer retained Counsel on April 28, 2023. Counsel for
Employer entered his appearance on May 9, 2023. Neither Employer nor its Counsel attended
the hearing or otherwise provided evidence regarding Kohlberg’s separation from employment.
At the hearing, Kohlberg testified that she did not walk off the job in violation of
company policy, but instead she arrived late to work on December 19, 2022, and Employer
became angry with her during lunch and asked her to leave the premises, yelling at her to “get
the [expletive] out.” Employer later requested via text message that Kohlberg return her work
keys. The Appeals Tribunal determined that Employer did not meet its burden to prove
Kohlberg was discharged for misconduct connected with work. Subsequently, the Appeals
Tribunal issued a decision in Kohlberg’s favor, and the Employer filed an application for review
with the Commission.
2 The Commission affirmed the decision of the Appeals Tribunal. The Commission noted
that if an employer alleges good cause for missing an Appeals Tribunal hearing, the Division will
remand the matter for the employer to adduce evidence of good cause, after which the Division
may grant a rehearing. In this case, the Commission found the Employer failed to allege good
cause for its nonappearance at the hearing. This appeal follows.
Standard of Review
We review the Commission’s decision pursuant to § 288.210 1 and article V, § 18 of the
Missouri Constitution. Marx v. Div. of Emp. Sec., 666 S.W.3d 252, 255 (Mo. App. E.D. 2023)
(internal citations omitted).
The court, on appeal, may modify, reverse, remand for rehearing, or set aside the decision of the commission on the following grounds and no other: (1) That the commission acted without or in excess of its powers; (2) That the decision was procured by fraud; (3) That the facts found by the commission do not support the award; or (4) That there was no sufficient competent evidence in the record to warrant the making of the award.
§ 288.210; see also Marx, 666 S.W.3d at 255–56. In reviewing a claim that the Commission
erred in applying the standard for good cause, we assess whether the Commission abused its
discretion. Earth City Supply LLC v. Div. of Emp. Sec., 527 S.W.3d 92, 94 (Mo. App. W.D.
2017) (internal citation omitted). We will find the Commission abused its discretion only
“where the outcome is so arbitrary and unreasonable as to shock the sense of justice and indicate
a lack of careful consideration.” Id. (internal quotation omitted).
Discussion
Employer’s sole point on appeal argues it alleged good cause for not participating in the
Appeals Tribunal hearing sufficient to warrant remand for a rehearing. Employer contends that
1 All Section references are to RSMo (2016).
3 its Counsel’s failure to receive notice of the hearing date constitutes good cause. We find the
Commission did not abuse its discretion in denying Employer’s appeal, as Employer’s failure to
act on the notice of hearing it was sent was not good cause for its failure to appear.
In processing claims for unemployment benefits, the Division must provide the parties a
reasonable opportunity for a fair hearing, which “requires reasonable and substantial compliance
with principles of due process of law” such as notice. Brawley & Flowers, Inc. v. Gunter, 934
S.W.2d 557, 560 (Mo. App. S.D. 1996) (internal citation omitted). If a party determines it needs
more time to prepare for the hearing, the party may timely request a postponement of the
hearing. 8 C.S.R. 10-5.015(6)(A)(1); 2 Earth City Supply, 527 S.W.3d at 96 (internal citation
omitted). For parties who did not participate in the Appeals Tribunal hearing and seek a
rehearing for good cause, “good cause shall be those circumstances in which the party acted in
good faith and reasonably under all the circumstances[.]” 8 C.S.R. 10-5.010(2)(C). “Failure to
read the notice of hearing correctly is not reasonable under the circumstances and does not
constitute good cause for failure to appear at the hearing.” Guyton v. Div. of Emp. Sec., 375
S.W.3d 254, 256 (Mo. App. W.D. 2012) (internal citation omitted).
In Brawley & Flowers, the employee and the employer disputed whether the employee
voluntarily quit or was discharged. 934 S.W.2d at 559. The Deputy determined the employee
was disqualified from receiving unemployment benefits because he left work voluntarily, and the
employee appealed. Id. The Division mailed the parties a notice of the Appeals Tribunal
telephone hearing. Id. The employee attended the hearing, and the employer did not attend. Id.
at 560. After the hearing, the Appeals Tribunal reversed the Deputy’s determination based on
the employee’s testimony, finding the employee had not left work voluntarily. Id. The employer
2 All C.S.R. references are to the Mo. Code. Of State Regs., tit. 8, § 10 (June 30, 2018).
4 then filed an application for review with the Commission, which the Commission denied. Id.
Brawley & Flowers affirmed the Commission’s denial because the employer failed to follow the
clearly stated directions in the mailed notice that would have enabled it to present evidence and
otherwise defend against employee’s benefits claim. Id. at 560–61. Brawley & Flowers
Free access — add to your briefcase to read the full text and ask questions with AI
In the Missouri Court of Appeals Eastern District DIVISION FIVE
CHRISTINE M. KOHLBERG, ) No. ED111989 ) Respondent, ) Appeal from the Labor and Industrial ) Relations Committee vs. ) Appeal No. 2256123 ) BIG BEND ORTHODONTICS, LLC, ) ) Appellant, ) ) and ) ) DIVISION OF EMPLOYMENT ) SECURITY, ) Respondent. ) FILED: June 11, 2024
Opinion
This unemployment benefits case arose in December 2022 after a disagreement between
Big Bend Orthodontics, LLC (Employer) and Christine M. Kohlberg (Kohlberg) resulted in the
demise of the parties’ employer/employee relationship. Employer appeals the decision of the
Labor and Industrial Relations Commission (Commission) awarding Kohlberg unemployment
benefits. In its sole point on appeal, Employer argues the Commission erred in awarding
Kohlberg unemployment benefits because Employer showed good cause for a rehearing after
failing to appear at the Appeals Tribunal hearing. Because the Division of Employment Security
(Division) provided proper notice to the Employer of the hearing, Employer’s failure to act on the notice was not good cause for its failure to appear. Thus, the Commission did not abuse its
discretion and, we affirm the Commission’s decision.
Background
Kohlberg worked for Employer as an orthodontic assistant from September 1, 2019 until
December 19, 2022. Kohlberg filed for unemployment benefits, and Employer protested her
claim. A Deputy of the Division initially found Kohlberg was disqualified from receiving
benefits. The Deputy’s findings were that Kohlberg had been discharged for misconduct in
connection with her leaving work early without prior approval in violation of company policy.
Kohlberg appealed from the Deputy’s decision, asserting that the Employer’s account of
her separation from work was false. On April 26, 2023, the Division mailed a Notice of
Telephone Hearing to the parties informing them that the Appeals Tribunal hearing would be
held on May 16, 2023. The record contains the address cover sheet with Employer’s address and
the Notice of Telephone Hearing. Employer retained Counsel on April 28, 2023. Counsel for
Employer entered his appearance on May 9, 2023. Neither Employer nor its Counsel attended
the hearing or otherwise provided evidence regarding Kohlberg’s separation from employment.
At the hearing, Kohlberg testified that she did not walk off the job in violation of
company policy, but instead she arrived late to work on December 19, 2022, and Employer
became angry with her during lunch and asked her to leave the premises, yelling at her to “get
the [expletive] out.” Employer later requested via text message that Kohlberg return her work
keys. The Appeals Tribunal determined that Employer did not meet its burden to prove
Kohlberg was discharged for misconduct connected with work. Subsequently, the Appeals
Tribunal issued a decision in Kohlberg’s favor, and the Employer filed an application for review
with the Commission.
2 The Commission affirmed the decision of the Appeals Tribunal. The Commission noted
that if an employer alleges good cause for missing an Appeals Tribunal hearing, the Division will
remand the matter for the employer to adduce evidence of good cause, after which the Division
may grant a rehearing. In this case, the Commission found the Employer failed to allege good
cause for its nonappearance at the hearing. This appeal follows.
Standard of Review
We review the Commission’s decision pursuant to § 288.210 1 and article V, § 18 of the
Missouri Constitution. Marx v. Div. of Emp. Sec., 666 S.W.3d 252, 255 (Mo. App. E.D. 2023)
(internal citations omitted).
The court, on appeal, may modify, reverse, remand for rehearing, or set aside the decision of the commission on the following grounds and no other: (1) That the commission acted without or in excess of its powers; (2) That the decision was procured by fraud; (3) That the facts found by the commission do not support the award; or (4) That there was no sufficient competent evidence in the record to warrant the making of the award.
§ 288.210; see also Marx, 666 S.W.3d at 255–56. In reviewing a claim that the Commission
erred in applying the standard for good cause, we assess whether the Commission abused its
discretion. Earth City Supply LLC v. Div. of Emp. Sec., 527 S.W.3d 92, 94 (Mo. App. W.D.
2017) (internal citation omitted). We will find the Commission abused its discretion only
“where the outcome is so arbitrary and unreasonable as to shock the sense of justice and indicate
a lack of careful consideration.” Id. (internal quotation omitted).
Discussion
Employer’s sole point on appeal argues it alleged good cause for not participating in the
Appeals Tribunal hearing sufficient to warrant remand for a rehearing. Employer contends that
1 All Section references are to RSMo (2016).
3 its Counsel’s failure to receive notice of the hearing date constitutes good cause. We find the
Commission did not abuse its discretion in denying Employer’s appeal, as Employer’s failure to
act on the notice of hearing it was sent was not good cause for its failure to appear.
In processing claims for unemployment benefits, the Division must provide the parties a
reasonable opportunity for a fair hearing, which “requires reasonable and substantial compliance
with principles of due process of law” such as notice. Brawley & Flowers, Inc. v. Gunter, 934
S.W.2d 557, 560 (Mo. App. S.D. 1996) (internal citation omitted). If a party determines it needs
more time to prepare for the hearing, the party may timely request a postponement of the
hearing. 8 C.S.R. 10-5.015(6)(A)(1); 2 Earth City Supply, 527 S.W.3d at 96 (internal citation
omitted). For parties who did not participate in the Appeals Tribunal hearing and seek a
rehearing for good cause, “good cause shall be those circumstances in which the party acted in
good faith and reasonably under all the circumstances[.]” 8 C.S.R. 10-5.010(2)(C). “Failure to
read the notice of hearing correctly is not reasonable under the circumstances and does not
constitute good cause for failure to appear at the hearing.” Guyton v. Div. of Emp. Sec., 375
S.W.3d 254, 256 (Mo. App. W.D. 2012) (internal citation omitted).
In Brawley & Flowers, the employee and the employer disputed whether the employee
voluntarily quit or was discharged. 934 S.W.2d at 559. The Deputy determined the employee
was disqualified from receiving unemployment benefits because he left work voluntarily, and the
employee appealed. Id. The Division mailed the parties a notice of the Appeals Tribunal
telephone hearing. Id. The employee attended the hearing, and the employer did not attend. Id.
at 560. After the hearing, the Appeals Tribunal reversed the Deputy’s determination based on
the employee’s testimony, finding the employee had not left work voluntarily. Id. The employer
2 All C.S.R. references are to the Mo. Code. Of State Regs., tit. 8, § 10 (June 30, 2018).
4 then filed an application for review with the Commission, which the Commission denied. Id.
Brawley & Flowers affirmed the Commission’s denial because the employer failed to follow the
clearly stated directions in the mailed notice that would have enabled it to present evidence and
otherwise defend against employee’s benefits claim. Id. at 560–61. Brawley & Flowers
concluded the employer was not deprived of due process in that the mailed notice meant the
employer was not in a position to say it was denied a reasonable opportunity for a fair hearing.
Id.
The facts here are analogous to those in Brawley & Flowers. See id. As in that case,
Kohlberg and Employer disputed whether Kohlberg voluntarily quit or was discharged. The
Deputy determined Kohlberg was disqualified from receiving unemployment benefits because
she left work voluntarily, and Kohlberg appealed. The Division mailed Employer a Notice of
Telephone Hearing on April 26, 2023, notifying it that Kohlberg’s appeal from the Deputy’s
determination would be heard by means of a telephone conference on May 16, 2023. Employer
did not request a postponement of the hearing and did not call into the hearing. Based on
Kohlberg’s testimony at the hearing, the Appeals Tribunal reversed the Deputy’s determination
and found Kohlberg eligible for unemployment benefits.
In response to the Employer’s application for review, the Commission found Employer
failed to allege good cause for not participating in the hearing. On appeal, Employer does not
argue that the Division failed to notify or insufficiently notified the Employer of the hearing.
Indeed, that argument would fail on the same grounds as Brawley & Flowers, because the record
shows the Division mailed Employer a Notice of Telephone Hearing to be held on May 16, 2023.
See id. Instead, Employer argues Counsel failed to receive notice of the hearing. Employer
complains that Counsel received no notice of the Appeals Tribunal hearing after entering his
5 appearance on May 9, 2023, and requesting via fax that the Appeals Tribunal forward all
relevant information to him. However, Employer identifies no obligation of the Division to do
more than send the required Notice of Telephone Hearing, which it mailed to the parties,
including Employer, on April 26, 2023, prior to Counsel’s entry.
Missouri courts have held the Division meets it burden by notifying the parties of record
of the hearing, and that a party’s failure to read and act on that notice of hearing does not
constitute good cause. Guyton, 375 S.W.3d at 256 (internal citation omitted). Therefore, we
find the Commission did not abuse its discretion in finding Employer failed to allege good cause
for a rehearing. See Earth City Supply, 527 S.W.3d at 94 (internal citation omitted). The point is
denied.
Conclusion
The judgment of the Commission is affirmed.
Rebeca Navarro-McKelvey, J.
Thomas C. Clark, II., C.J., and Ellen Ribaudo, Sp. J., concur.