Jennifer Jacobson v. Syberg's Eating and Drinking Company, Inc., and Division of Employment Security

• Court: Missouri Court of Appeals
• Decided: September 6, 2022
• Docket: ED110118
• Status: Published

Opinion

In the Missouri Court of Appeals Eastern District DIVISION FOUR

JENNIFER A. JACOBSON, ) No. ED110118 ) Appellant, ) Appeal from the Labor and Industrial ) Relations Commission vs. ) ) SYBERG’S EATING AND DRINKING ) COMPANY, INC., and DIVISION OF ) EMPLOYMENT SECURITY, ) ) Respondents. ) Filed: September 6, 2022

OPINION

In this unemployment compensation case, Appellant Jennifer Jacobson appeals from an

order of the Labor and Industrial Relations Commission dismissing her application for review of

the Division of Employment Security’s Appeals Tribunal’s decision disqualifying her from

unemployment benefits upon its finding that she was discharged for misconduct connected to

work. Like the Commission, we are compelled to dismiss Jacobson’s appeal because she missed

the mandatory statutory deadline - albeit by one day - to apply to the Commission for review of

the Appeals Tribunal’s decision. Background

In 2019, Syberg’s Eating and Drinking Company (“Syberg’s”) hired Jacobson as a server

at two restaurants it owned in St. Louis County, Syberg’s Gravois and Helen Fitzgerald’s. At that

time, Syberg’s provided to Jacobson its written standards of conduct and Jacobson acknowledged

receipt of those standards by signing the employee handbook on two occasions. Those standards

provided that certain conduct, such as “insubordination,” “poor performance,” and “disrespectful

conduct towards visitors and customers,” may result in disciplinary action, including termination.

During a busy shift on February 14, 2020, Jacobson lost her temper and verbally attacked

her supervisor, an incident for which she received a verbal reprimand. On February 21 and 22,

2020, Syberg’s received multiple customer complaints regarding Jacobson’s behavior. Concerned

that Jacobson’s continued employment posed a risk to its business, Syberg’s terminated Jacobson

from both server positions on February 25, 2020.

In March 2020, Jacobson filed an unemployment benefits claim with the Division of

Employment Security. A deputy from the Division determined that Jacobson was disqualified for

unemployment benefits because she was discharged for misconduct connected with work.

Jacobson appealed to the Division’s Appeals Tribunal.

On August 17, 2021, the Appeals Tribunal affirmed the deputy’s determination. On

September 17, 2021, thirty-one days later, Jacobson filed her appeal to the Commission. Finding

her appeal untimely, the Commission dismissed it for lack of jurisdiction. This appeal follows.

Standard of Review

This Court is authorized by article V, section 18 of the Missouri Constitution to determine

if the Commission’s decision is “authorized by law” and “supported by competent and substantial

evidence upon the whole record.” Darr v. Roberts Marketing, 428 S.W.3d 717, 719 (citing

2 Pulitzer Publishing Co. v. Labor & Indus. Relations Comm'n, 596 S.W.2d 413, 417 (Mo. banc

1980)). Under section 288.210(4)1 of the Missouri Employment Security Law, this Court may

modify, reverse, remand for rehearing, or set aside the decision of the Commission if “there was

no sufficient competent evidence in the record to warrant the making of the award.” Ward v. Div.

of Emp’t Sec., 600 S.W.3d 283, 286 (Mo. App. W.D. 2020).

On appeal, we “may only address the issues that were determined by the Commission and

may not consider issues that were not before the Commission.” Boles v. Div. of Emp’t Sec., 353

S.W.3d 465, 467 (Mo. App. W.D. 2011) (quoting Chase v. Baumann Property Co., 169 S.W.3d

891, 892 (Mo. App. E.D. 2005)). Because the issue before the Commission was the timeliness of

Jacobson’s appeal of the Appeals Tribunal’s decision, our analysis is constrained to this issue

alone. Id.

Analysis

We have a duty to examine our jurisdiction sua sponte. Dorcis v. Division of Employment

Sec., 168 S.W.3d 728, 729 (Mo. App. E.D. 2005). The right to appeal is granted by statute, “and

where statutes do not give such a right, no appeal exists.” Mathis v. Louis County Health, 84

S.W.3d 524, 525 (Mo. App. E.D. 2002). Under section 288.200.1, any party to a decision of the

Appeals Tribunal may file an application for review with the Commission “within thirty days

following the date of notification or mailing of such decision.” Sanders v. Div. of Emp’t Sec., 392

S.W.3d 540, 543 (Mo. App. W.D. 2013). Here, Jacobson’s clock began to run on August 17, 2021,

the day that, according to our record, the Appeals Tribunal mailed its decision. By statute,

therefore, Jacobson had until September 16, 2021, to mail or fax her application to the Commission

for review of the Appeals Tribunal’s decision. Her faxed application was not received by the

1 All statutory references are to RSMo 2016 unless otherwise indicated.

3 Commission until September 17, 2021, one day after the deadline. 2 Thus, Jacobson’s appeal to

the Commission was untimely.

In an unemployment case, the statutory time limits for seeking review of the Appeals

Tribunal’s decision are mandatory and require strict compliance. Foster v. Div. of Emp’t Sec., 360

S.W.3d 851, 853 (Mo. App. W.D. 2011). An application for review filed outside of the thirty-day

window is untimely and the Commission has no statutory authority to accept it. See Mo. Code

Regs. Ann. tit. 8, § 20-4.010(6) (2022). In Foster, appellants received a decision of the Appeals

Tribunal on August 3, 2010, but did not file an application for review with the Commission until

September 3, 2010, thirty-one days later. 360 S.W.3d at 853. In that case, this Court found that

section 288.200 “does not provide for late filing and does not recognize any exceptions for filing

out of time.” Id. (quoting Phillips v. Clean-Tech, 34 S.W.3d 854, 855 (Mo. App. E.D. 2000)).

Furthermore, “[b]ecause employment benefits are solely a creature of statute, we cannot create

exceptions where none exist,” even where the appellant misses the deadline by a hair. Id. (citing

Nettles v. Barnes-Jewish Hosp., 336 S.W.3d 477, 478 (Mo. App. E.D. 2011)).3

Failure to file an application for review within the statutory time limit divests the

Commission of jurisdiction and results in the loss of the right to appeal, leaving the Commission

with no recourse but to dismiss. Garlock v. Global Products, Inc., 241 S.W.3d 855, 856 (Mo.

2 When an application for review is filed by fax and received by the Division on a regular workday, the application is considered filed on that day. See Mo. Code Regs. Ann. tit. 8, § 20-4.010(1)(C) (2022). Our records reflect that Jacobson’s application was faxed to the Division on Friday, September 17, 2021, at 4:50 P.M. 3 We recognize the stark and unforgiving nature of this result. However, when our review is governed by statute, and the language of the statute is clear, “we must give effect to the language as written.” Merriweather v. Chacon, 639 S.W.3d 494, 503 (Mo. App. E.D. 2021). While the legislature allows for late filing or deadline extensions in other contexts, there is nothing in section 288.200 that can be construed to allow for untimely appeals to the Commission.

4 App. E.D. 2007). Because our jurisdiction is derivative of the Commission’s, if it lacks

jurisdiction, then so do we. Id. Accordingly, we dismiss.

______________________________ James M. Dowd, Judge

Kelly C. Broniec, P.J., and Philip M. Hess, J. concur.