Circuit Court of Jackson County v. Division of Employment Security

936 S.W.2d 611, 1997 Mo. App. LEXIS 27, 1997 WL 10326
CourtMissouri Court of Appeals
DecidedJanuary 14, 1997
DocketNo. WD 52648
StatusPublished
Cited by7 cases

This text of 936 S.W.2d 611 (Circuit Court of Jackson County v. Division of Employment Security) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Circuit Court of Jackson County v. Division of Employment Security, 936 S.W.2d 611, 1997 Mo. App. LEXIS 27, 1997 WL 10326 (Mo. Ct. App. 1997).

Opinion

SPINDEN, Judge.

The circuit court of Jackson County fired one of its employees, Wendell Whittaker, for using a firearm to threaten a woman and for misusing his court identification card. Whittaker filed a claim for unemployment compensation. The Labor and Industrial Relations Commission ruled that Whittaker’s firing had not resulted from misconduct “connected with his work,” so he still was eligible for unemployment benefits. The circuit court appeals. We reverse.

The circuit court’s family division employed Whittaker for more than five months as a youth worker at a school for juvenile boys. He simultaneously operated a private business as an independent process server. The court’s dissatisfaction with Whittaker emerged from his dealings with Patricia Coonfield as part of the process server business he operated during his off-duty hours. The circuit court became aware of the problem when Coonfield told the court that Whit-taker was harassing her and asked the court to issue an order prohibiting Whittaker’s harassment.

At an August 10, 1995, hearing, Coonfield told the circuit court that after she hired Whittaker to serve a pleading for her, he began harassing her:

He came out to my home and I paid him. Once he’d said that he’d received the money and it was on the 21st; then he came back on the 22nd, and said he wanted his money. He took his gun, or he took and put his hand on his gun and told me that he wanted his money or else, and that he would not serve my papers on my party. I ask [sic] him to show some identification in [sic] his badge. He refused to do that Sir, so then I game him the cashiers check. I have a copy of that Your Honor.
He tore my screen door, and tore my property....
And he does carry a gun, and he has been driving around several times. He is not here. And I wouldn’t come out of my house, because of the fact that he was carrying a gun, and he had threatened me with the gun, and he tore my screen door open trying to get in, and my dogs barked and went after the door.
He’s come to my house several different times. He hasn’t come up on the porch, but he’s come by driving in his car, and taking his gun out and pointing it toward the house. When I called the police, by [613]*613the time the police get there he’s done gone.

Yeow, he tells me that he’s going to get me, and he’s going to blow my head off. The circuit court responded by issuing a Full Order of Protection which ordered Whittaker “not to abuse, threaten to abuse, molest, stalk or disturb the peace of [Coonfield] wherever [she] may be [.] The Court also orders ... THAT WENDELL C. WHITAKER [sic] IS PROHIBITED FROM SERVING SUMMONS ON ANY CASE IN DIVISION 107 UNTIL FURTHER ORDER OF THE COURT.”1

The day after the hearing, Whittaker met with David Durbin, the circuit court’s assistant court administrator and legal counsel, to protest his not being able to serve summonses. Durbin told him that he could not overturn the protection order and advised Whit-taker to seek private counsel. The next day, Durbin told David Kierst, director of services and juvenile officer for the family court division, of the protection order and gave him a copy.

The circuit court fired Whittaker a few days later. A letter dated August 14, 1995, to Whittaker, signed by Kierst and Michael Barnett, assistant director of operations for the family court, said:

After reviewing the information available to the Family Court, it has been determined that your behavior in the community is not in keeping with the standards that are desired and found acceptable for Court employees. Your intimidation toward a citizen, including using a weapon (handgun) to demand payment for services you allegedly rendered, is totally unacceptable behavior from a court employee either on or off the job. Your use of your Family Court identification card in connection with your “bounty hunter” badge is inappropriate and reflects adversely on the Family Court.
Based on your violation of Administrative Rule # 7, major violation # 14: “Behavior that adversely affects the Court or the employee’s ability to perform assigned duties (Supreme Court Administrative Rule 7)”, and major violation # 17, “Using work time or equipment for personal or unauthorized use”, we are terminating your employment with the Family Court.

Because Whittaker was still a probationary employee, he had no right to appeal the termination.

He filed a claim for unemployment benefits with the Missouri Division of Employment Security. On September 18, 1995, S.M. Smith, a division deputy, decided that Whit-taker was not qualified for unemployment benefits because he had been discharged for misconduct connected with work. Smith explained, “[Whittaker] was discharged because he used both aggressive and disruptive behavior while attempting to collect fees for the processing of papers. In addition he used his county identification in his attempt to show he was an officer of the court when in fact he was not working, at the time, for the court but as a private citizen.”

Whittaker appealed the determination. J.W. Allen, an appeals referee, convened a healing by telephone conference on November 20, 1995. Allen reversed Smith’s decision:

The evidence shows that [Whittaker] was discharged ... because the [circuit court] believed that [Whittaker] conducted himself improperly while running his own business. [Whittaker’s] action in conduet-ing his own business is not misconduct unless the [circuit court] shows that the action constituted misconduct connected with work. The only evidence to connect any action with [Whittaker’s] work was the allegation that [Whittaker] misused his ID. An assumption on behalf of [Durbin] does not constitute misconduct associated with [Whittaker’s] actions.

The circuit court appealed to the commission on the ground that Allen’s decision “fails to reach the main issues of the case.” On March 25, 1996, the commission, in a 2-1 vote, adopted Allen’s decision as its decision.

[614]*614Our review of the commission’s decision is governed by § 288.2102 which says, “In any judicial proceeding under this section, the findings of the commission as to the facts, if supported by competent and substantial evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of said court shall be confined to questions of law.” We view the evidence in the light most favorable to the commission’s findings and all reasonable inferences which support its decision. Stanton v. Missouri Division of Employment Security, 799 S.W.2d 202, 203 (Mo.App.1990). We do not substitute our judgment for the commission’s, and we set aside the commission’s decision only if it is clearly contrary to the overwhelming weight of the evidence. Bitch v. Industrial Commission of Missouri, 271 S.W.2d 791, 793 (Mo.App. 1954).

The issue we must resolve is whether the commission erred in determining that Whittaker’s actions did not constitute “misconduct connected with work” within the meaning of the employment security laws.

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936 S.W.2d 611, 1997 Mo. App. LEXIS 27, 1997 WL 10326, Counsel Stack Legal Research, https://law.counselstack.com/opinion/circuit-court-of-jackson-county-v-division-of-employment-security-moctapp-1997.