In the Missouri Court of Appeals Eastern District DIVISION THREE
LEON THOMAS, JR., ) No. ED112703 ) Appellant, ) Appeal from the Labor and v. ) Industrial Relations Commission ) ) Appeal No: 2272735 ) DIVISION OF EMPLOYMENT ) SECURITY, ) ) Respondent. ) Filed: February 25, 2025
Introduction
Leon Thomas, Jr. (Claimant) appeals from the decision of the Labor and Industrial
Relations Commission (the Commission) finding that Claimant was overpaid on his claim
for unemployment benefits and ordering him to repay the benefits. We affirm.
Factual and Procedural Background
Claimant worked as a driver at TPS Parking Management, LLC (The Parking Spot),
until he was terminated on August 16, 2023. The record showed that Claimant applied for
unemployment benefits on August 20, 2023, and received benefits of $320 per week,
including for the weeks ending in September 2, 2023 and September 9, 2023. The Division
of Employment Security later determined that it had overpaid benefits to Claimant for these
two weeks because Claimant had failed to report that he also received vacation pay. The Division determined the overpayment was due to Claimant’s unintentional reporting error
or omission, and not fraud. Claimant appealed this determination to the Appeals Tribunal.
At a hearing before the Appeals Tribunal, a benefit program specialist for the
Division testified that Claimant earned $15.45 per hour and, when his employment was
terminated, The Parking Spot owed him 73.25 hours of vacation or paid time off (PTO),
for a total of $1,131.71. The Division submitted a pay-history statement from The Parking
Spot showing that on September 8, 2023 The Parking Spot issued a net payment of $988.97
(reflecting gross earnings of $1,131.71, less $141.74 in employee taxes) to Claimant. The
Division described this payment as a direct deposit. However, this Court notes the pay-
history statement indicates direct deposit was allowed, not that it was in fact issued by
direct deposit.
Claimant testified that he never received the vacation pay that The Parking Spot
owed him following his termination. He clarified he had always been paid by check, not
direct deposit. As this Court understands from reviewing the transcript, Claimant further
testified that, following his termination, he had filed a lawsuit against The Parking Spot for
injuries received at work, and that The Parking Spot had demanded that he sign a document
agreeing that, by accepting the payout for his unused vacation and PTO, he would waive
his claim against the company. Claimant testified that he refused to sign a document
waiving his rights to sue The Parking Spot.
After the hearing, the Appeals Tribunal found that the documentary evidence that
The Parking Spot paid Claimant for his unused vacation pay was more credible than
Claimant’s testimony that he was not paid for the same. The Appeals Tribunal determined
Claimant was overpaid $320 for the week ending in September 2, 2023 because Claimant
2 also received wages in the form of vacation pay, and was overpaid $320 for the week
ending on September 9, 2023, which was Claimant’s waiting week, for a total overpayment
of $640. Claimant appealed this determination to the Commission, which affirmed and
adopted the decision of the Appeals Tribunal, finding it was supported by competent and
substantial evidence. This appeal follows.
Standard of Review
Section 288.210 1 governs appellate review of the Commission’s decisions in
unemployment compensation cases. Coday v. Div. of Employment Sec., 423 S.W.3d 775,
778 (Mo. banc 2014). On review, an appellate court may modify, reverse, remand for
rehearing, or set aside the Commission’s decision only if it finds that: (1) the Commission
acted without or in excess of its powers; (2) the decision was procured by fraud; (3) the
decision is not supported by the facts; or (4) the decision is not supported by sufficient
competent evidence in the record. Section 288.210. This Court is not bound by the
Commission’s legal conclusions or application of law, which we review de novo, but we
defer to the Commission’s factual findings, so long as they are supported by competent and
substantial evidence in the record. Koenen v. BRG Liberty, LLC, 647 S.W.3d 47, 51 (Mo.
App. E.D. 2022).
Discussion
In his sole point on appeal, Claimant argues the Commission erred in affirming the
Appeal Tribunal’s order, arguing that the payment from The Parking Spot, which he refers
to as a severance check, does not qualify as income under Missouri law because he did not
cash or deposit the check and thus he did not realize any financial benefit. We disagree.
1 All statutory references are to RSMo. Cum. supp. 2023, unless otherwise indicated.
3 For the first time on appeal, Claimant clarifies that he did in fact receive a check
for $988.97 from The Parking Spot, but he explains he did not cash the check because he
believed that cashing the check would waive his right to proceed with a separate lawsuit
he was pursuing against The Parking Spot. Claimant attached three documents to his notice
of appeal that do not appear in the record below. First, he included a copy of the check for
$988.97 that he received from The Parking Spot, dated September 8, 2023. Second, he
included a copy of his letter of termination, dated August 16, 2023, stating The Parking
Spot would pay him for his unused accrued PTO and vacation balances in his final check.
Third, he included a copy of pages 1-2 and 4-5 of what appears to be a separate Severance
and General Release Agreement (severance offer), dated August 16, 2023, in which The
Parking Spot appears to offer Claimant a severance payment of $2,224.80 in settlement for
any claims related to his employment, the acceptance of which would release The Parking
Spot from any claims by Claimant. The severance offer declared it was an extra benefit in
exchange for signing the agreement, and was not compensation to which Claimant was
entitled as part of his employment. To the extent that Claimant argues the net vacation
payout of $988.97 he received from The Parking Spot was the same as the $2,224.80
severance offer, this argument is contradicted by his own documents, which show that the
two are unconnected.
Initially, we note that the general rule is that an appeals court will not set aside an
administrative action unless the agency has been given a prior opportunity to consider and
rule on the issue being raised on appeal. Mills v. Fed. Soldiers Home, 549 S.W.2d 862,
868 (Mo. banc 1977). Here, Claimant asserted to the Appeals Tribunal and the
Commission that he did not receive the $988.97 check The Parking Spot reported to have
4 issued for the value of Claimant’s unused PTO and vacation hours. He did not assert until
this appeal that he did in fact receive the $988.97 check but opted not to deposit it, further
arguing that, because he did not deposit the check, the Commission erred in finding he
received these wages. Claimant cannot now claim error from the Commission’s failure to
consider that he did not cash or deposit the $988.97 check, when he did not assert these
facts or arguments below. See id.
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In the Missouri Court of Appeals Eastern District DIVISION THREE
LEON THOMAS, JR., ) No. ED112703 ) Appellant, ) Appeal from the Labor and v. ) Industrial Relations Commission ) ) Appeal No: 2272735 ) DIVISION OF EMPLOYMENT ) SECURITY, ) ) Respondent. ) Filed: February 25, 2025
Introduction
Leon Thomas, Jr. (Claimant) appeals from the decision of the Labor and Industrial
Relations Commission (the Commission) finding that Claimant was overpaid on his claim
for unemployment benefits and ordering him to repay the benefits. We affirm.
Factual and Procedural Background
Claimant worked as a driver at TPS Parking Management, LLC (The Parking Spot),
until he was terminated on August 16, 2023. The record showed that Claimant applied for
unemployment benefits on August 20, 2023, and received benefits of $320 per week,
including for the weeks ending in September 2, 2023 and September 9, 2023. The Division
of Employment Security later determined that it had overpaid benefits to Claimant for these
two weeks because Claimant had failed to report that he also received vacation pay. The Division determined the overpayment was due to Claimant’s unintentional reporting error
or omission, and not fraud. Claimant appealed this determination to the Appeals Tribunal.
At a hearing before the Appeals Tribunal, a benefit program specialist for the
Division testified that Claimant earned $15.45 per hour and, when his employment was
terminated, The Parking Spot owed him 73.25 hours of vacation or paid time off (PTO),
for a total of $1,131.71. The Division submitted a pay-history statement from The Parking
Spot showing that on September 8, 2023 The Parking Spot issued a net payment of $988.97
(reflecting gross earnings of $1,131.71, less $141.74 in employee taxes) to Claimant. The
Division described this payment as a direct deposit. However, this Court notes the pay-
history statement indicates direct deposit was allowed, not that it was in fact issued by
direct deposit.
Claimant testified that he never received the vacation pay that The Parking Spot
owed him following his termination. He clarified he had always been paid by check, not
direct deposit. As this Court understands from reviewing the transcript, Claimant further
testified that, following his termination, he had filed a lawsuit against The Parking Spot for
injuries received at work, and that The Parking Spot had demanded that he sign a document
agreeing that, by accepting the payout for his unused vacation and PTO, he would waive
his claim against the company. Claimant testified that he refused to sign a document
waiving his rights to sue The Parking Spot.
After the hearing, the Appeals Tribunal found that the documentary evidence that
The Parking Spot paid Claimant for his unused vacation pay was more credible than
Claimant’s testimony that he was not paid for the same. The Appeals Tribunal determined
Claimant was overpaid $320 for the week ending in September 2, 2023 because Claimant
2 also received wages in the form of vacation pay, and was overpaid $320 for the week
ending on September 9, 2023, which was Claimant’s waiting week, for a total overpayment
of $640. Claimant appealed this determination to the Commission, which affirmed and
adopted the decision of the Appeals Tribunal, finding it was supported by competent and
substantial evidence. This appeal follows.
Standard of Review
Section 288.210 1 governs appellate review of the Commission’s decisions in
unemployment compensation cases. Coday v. Div. of Employment Sec., 423 S.W.3d 775,
778 (Mo. banc 2014). On review, an appellate court may modify, reverse, remand for
rehearing, or set aside the Commission’s decision only if it finds that: (1) the Commission
acted without or in excess of its powers; (2) the decision was procured by fraud; (3) the
decision is not supported by the facts; or (4) the decision is not supported by sufficient
competent evidence in the record. Section 288.210. This Court is not bound by the
Commission’s legal conclusions or application of law, which we review de novo, but we
defer to the Commission’s factual findings, so long as they are supported by competent and
substantial evidence in the record. Koenen v. BRG Liberty, LLC, 647 S.W.3d 47, 51 (Mo.
App. E.D. 2022).
Discussion
In his sole point on appeal, Claimant argues the Commission erred in affirming the
Appeal Tribunal’s order, arguing that the payment from The Parking Spot, which he refers
to as a severance check, does not qualify as income under Missouri law because he did not
cash or deposit the check and thus he did not realize any financial benefit. We disagree.
1 All statutory references are to RSMo. Cum. supp. 2023, unless otherwise indicated.
3 For the first time on appeal, Claimant clarifies that he did in fact receive a check
for $988.97 from The Parking Spot, but he explains he did not cash the check because he
believed that cashing the check would waive his right to proceed with a separate lawsuit
he was pursuing against The Parking Spot. Claimant attached three documents to his notice
of appeal that do not appear in the record below. First, he included a copy of the check for
$988.97 that he received from The Parking Spot, dated September 8, 2023. Second, he
included a copy of his letter of termination, dated August 16, 2023, stating The Parking
Spot would pay him for his unused accrued PTO and vacation balances in his final check.
Third, he included a copy of pages 1-2 and 4-5 of what appears to be a separate Severance
and General Release Agreement (severance offer), dated August 16, 2023, in which The
Parking Spot appears to offer Claimant a severance payment of $2,224.80 in settlement for
any claims related to his employment, the acceptance of which would release The Parking
Spot from any claims by Claimant. The severance offer declared it was an extra benefit in
exchange for signing the agreement, and was not compensation to which Claimant was
entitled as part of his employment. To the extent that Claimant argues the net vacation
payout of $988.97 he received from The Parking Spot was the same as the $2,224.80
severance offer, this argument is contradicted by his own documents, which show that the
two are unconnected.
Initially, we note that the general rule is that an appeals court will not set aside an
administrative action unless the agency has been given a prior opportunity to consider and
rule on the issue being raised on appeal. Mills v. Fed. Soldiers Home, 549 S.W.2d 862,
868 (Mo. banc 1977). Here, Claimant asserted to the Appeals Tribunal and the
Commission that he did not receive the $988.97 check The Parking Spot reported to have
4 issued for the value of Claimant’s unused PTO and vacation hours. He did not assert until
this appeal that he did in fact receive the $988.97 check but opted not to deposit it, further
arguing that, because he did not deposit the check, the Commission erred in finding he
received these wages. Claimant cannot now claim error from the Commission’s failure to
consider that he did not cash or deposit the $988.97 check, when he did not assert these
facts or arguments below. See id.
The only evidence before the Commission was that The Parking Spot had issued
Claimant a net payment of $988.97, and this assertion was supported by a pay-history
statement. The Commission found the Division’s evidence more credible than Claimant’s
contrary testimony denying that he received the payment. This Court defers to the
Commission’s credibility determinations, and when there is conflicting evidence in the
record that could support two possible conclusions, we will not substitute our judgment for
that of the Commission or reweigh the evidence. O’Brien v. Dep’t of Pub. Safety, 589
S.W.3d 560, 565 (Mo. banc 2019); Nickless v. Saint Gobain Containers, Inc., 350 S.W.3d
871, 873 (Mo. App. E.D. 2011). There was sufficient competent evidence supporting the
Commission’s finding that The Parking Spot issued payment to Claimant for his unused
PTO and vacation hours. See Nickless, 350 S.W.3d at 874 (in light of contrary evidence,
this Court is bound by Commission’s findings on credibility and weight of evidence).
For Claimant’s clarification, we briefly address, ex gratia, his argument on appeal
that because he did not cash or deposit the check for $988.97 representing the value of his
unused PTO and vacation hours that it should not be considered as income. The purpose
of the employment security law is to provide minimal basic support to wage earners who
have lost their income due to unemployment. General Motors, Corp. v. Buckner, 49
5 S.W.3d 753, 756 (Mo. App. E.D. 2001). Unemployment compensation is not intended to
provide supplemental income to persons who continue to receive wages or benefits. See
id. Wages are defined as “all renumeration, payable or paid, for personal services,”
including vacation or holiday pay. Section 288.036.1; Buckner, 49 S.W.3d at 756. This
definition explicitly includes “payable” income as well as income actually paid. “Payable”
is defined as “to be paid.” BLACK’S LAW DICTIONARY 1363 (11th ed. 2019). Following his
termination, The Parking Spot owed Claimant the value of his unused PTO and vacation
hours (the net value of which was $988.97), which are considered wages, and they issued
him a check accordingly. Regardless of what Claimant chose to do with the check once he
received it, the amount was owed to him, and thus it was a “payable” wage for purposes of
calculating unemployment benefits under the statute. See Section 288.036.1. It is further
undisputed on appeal that The Parking Spot in fact issued a check to Claimant for the
amount that was payable to him.
There was substantial and competent evidence in the record supporting the
Commission’s decision. Point denied.
Conclusion
We affirm the judgment of the Commission.
Gary M. Gaertner, Jr., J.
Philip M. Hess, P.J., and Renee D. Hardin-Tammons, J., concur.