Gardner v. Division of Employment Security

369 S.W.3d 109, 2012 WL 2395189, 2012 Mo. App. LEXIS 859
CourtMissouri Court of Appeals
DecidedJune 26, 2012
DocketNo. ED 97740
StatusPublished
Cited by5 cases

This text of 369 S.W.3d 109 (Gardner 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
Gardner v. Division of Employment Security, 369 S.W.3d 109, 2012 WL 2395189, 2012 Mo. App. LEXIS 859 (Mo. Ct. App. 2012).

Opinion

OPINION

CLIFFORD H. AHRENS, Presiding Judge.

Claimant Brittani Gardner appeals from the decision of the Labor and Industrial [?]*?Relations Commission determining that she was ineligible to receive unemployment benefits because she was not unemployed. Claimant contends that the Commission erred in its application of the law as it relates to claimants working part-time while seeking full-time employment. We reverse and remand.

Background

Claimant began receiving unemployment benefits after she was discharged from her position with State Farm Insurance in February 2011. After two unsuccessful months searching for work, in early April Claimant accepted a commission-only position selling insurance for the Daniel Miller Agency. The Agency provided office space for its agents for up to 40 hours per week. On average, Claimant worked just over 30 hours per week for the first two weeks of training and approximately 22 hours per week over the next four months, all the while continuing to search for other employment. During that same period, there were some weeks when Claimant logged no hours at all while searching and interviewing for employment. During her last month with the Agency, she worked 16-18 hours per week and contacted five to eight potential employers per week.1 Her job search still fruitless, Claimant ultimately left the Agency in mid-August with intentions to relocate closer to family and pursue other avenues.

During this time, Claimant continued to receive the unemployment benefits ensuing from her discharge from State Farm, adjusted down to account for her limited earnings from the Agency. Claimant’s renewal application in July 2011 resulted in a declaration of retroactive ineligibility and the present appeal. In her application, she explained as follows:

I am currently selling property and casualty insurance as a 1099 employee through a placement agency with Daniel Miller Ins.22 hours up to 40 hours a week.... I am not required to work a certain number of hours.... I am looking for insurance administration/office work.... I consider this employment with Daniel Miller Insurance as just a fill-in until I can find a full time job.... If I were to find this kind of job I would leave work with Daniel Miller.

Based on the foregoing, a deputy for the Division determined that Claimant became ineligible for benefits when she began her position with the Agency, stating: “The claimant is not unemployed. She spends 22^0 hours a week selling insurance. Ineligible beginning 4-3-11.”

Claimant sought review in the Appeals Tribunal and was the sole witness before the hearing officer. In her testimony, she clarified that, although the Agency provided office space up to 40 hours per week, aside from the two weeks of training when she logged 32-33 hours, she only logged an average of 22-23 hours per week, with [112]*112weeks in between that she didn’t work at all, and down to 16-18 hours in the last month. Claimant reiterated that she only took the Agency job to “fill in” while she looked for full-time employment, stating, “I needed something, you know, anything in the meantime while I found something else.”

The Appeals Tribunal affirmed the deputy’s determination that Claimant was ineligible for unemployment benefits. In its decision, the Tribunal found the following facts: Claimant spent 22 to 40 hours per week selling insurance; Claimant contacted an average of four prospective employers each week in an effort to find work; and Claimant decided to leave the Agency because she found it unprofitable. In its conclusions of law, the Tribunal observed that, to be eligible for benefits, a claimant must be available for work, so any individual who spends substantially his full time in an attempt to produce income cannot be considered unemployed.2 The Tribunal then reasoned that Claimant could not be considered unemployed because she spent a substantial portion of her time selling insurance, which removed her from the labor market. While recognizing that Claimant was conducting an active and earnest job search, the Tribunal ultimately concluded that Claimant not available for work and therefore ineligible for benefits. Because the Tribunal found that Claimant’s work for the Agency was substantially full-time, it did not consider her eligibility for partial benefits.

The Commission affirmed and adopted the decision of the Tribunal without further findings or conclusions. Claimant appeals, asserting that the Commission erred in that § 288.060.3 RSMo provides for partial benefits while a claimant seeks full-time employment.

Standard of Review

This court may modify, reverse, remand for rehearing, or set aside the decision of the Commission when: (1) the Commission acted without or in excess of its powers; (2) the decision was procured by fraud; (3) the facts found by the Commission do not support the award; or (4) there was no sufficient competent evidence in the record to warrant the making of the award. § 288.210. Absent a showing of fraud, we view the factual findings of the Commission as conclusive so long as they are supported by competent and substantial evidence. § 288.210. In determining whether competent and substantial evidence was presented, we do not view the evidence and inferences therefrom in the light most favorable to the award; rather, we objectively review the entire record, including evidence and inferences contrary to the award. Hubbell Mechanical Supply Co. v. Lindley, 351 S.W.3d 799, 807 (Mo. App.2011) (quoting Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003)). We are not bound by the Commission’s conclusions of law or its application of the law to the facts. Id.

Discussion

Section 288.040 provides that a claimant who is unemployed shall be eligible for benefits only if she is able to work and available for work. § 288.040.1(2). To be deemed available, a claimant must be actively and earnestly seeking work. Id. Here, the Commission found that, although Claimant was actively and earnestly seeking work, she was spending substantially her full-time selling insurance for the [113]*113Agency, so she was not unemployed and thus not available for work as required by the statute.

In her sole point, Claimant asserts that the Commission erred as a matter of law by failing to apply section 288.060.3, which allows claimants working part-time to recover partial unemployment benefits while they seek full-time employment. By framing her point as an error of law, Claimant strategically seeks to invoke this court’s de novo review. However, Claimant’s point necessarily challenges the Commission’s underlying factual finding that she was employed essentially full-time. As stated supra, we defer to the Commission’s factual findings as conclusive so long as they are supported by substantial and competent evidence from the entire record. The Commission’s decision should not be overturned unless it is contrary to the overwhelming weight of the evidence. Hubbell, 351 S.W.3d at 807.

Here, the Commission’s finding that Claimant worked full-time, and that she was therefore unavailable for work, is indeed contrary to the overwhelming weight of the evidence.

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Related

Brunk v. State
540 S.W.3d 917 (Missouri Court of Appeals, 2018)
Lucia-Carma Greer v. Division of Employment Security
497 S.W.3d 900 (Missouri Court of Appeals, 2016)
Mary Reed v. Division of Employment Security
469 S.W.3d 853 (Missouri Court of Appeals, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
369 S.W.3d 109, 2012 WL 2395189, 2012 Mo. App. LEXIS 859, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gardner-v-division-of-employment-security-moctapp-2012.