Lombardo v. Brandt Investments, LLC

400 S.W.3d 890, 2013 WL 3009273, 2013 Mo. App. LEXIS 724
CourtMissouri Court of Appeals
DecidedJune 18, 2013
DocketNo. ED 98967
StatusPublished
Cited by2 cases

This text of 400 S.W.3d 890 (Lombardo v. Brandt Investments, LLC) 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
Lombardo v. Brandt Investments, LLC, 400 S.W.3d 890, 2013 WL 3009273, 2013 Mo. App. LEXIS 724 (Mo. Ct. App. 2013).

Opinion

SHERRI B. SULLIVAN, Judge.

Introduction

Earlean Lombardo (Employee) appeals from the decision of the Labor and Industrial Relations Commission (the Commission) denying her unemployment benefits. We affirm.

Factual and Procedural Background

Employee worked at Brandt Investments, LLC’s (Employer) franchise Ace Hardware Store (store) in Maryland Heights, Missouri from 2003 until her employment was terminated on February 27, 2012, at which time she was the Paint Department Manager at the store. On February 24, 2012, an Ace Hardware corporate headquarters district manager received an e-mail from a customer complaining that on that day, he was at the store being assisted by an “older blondish hair lady” employee with a name tag that said “Earl” and “manager,” who had said “she lived in St. Peters and she liked it. It wasn’t as congested and there aren’t as many blacks or foreigners.” The customer stated in the e-mail that he was deeply offended by Employee’s remark, would not return to the store, would take his business elsewhere and tell his friends and family to do the same.

The district manager contacted the store owner Jeffrey Brandt (Brandt) and forwarded the e-mail to him. Brandt then contacted the store manager Kenny Brans-cum (Branscum) with regard to this complaint. An investigation ensued in which Branscum interviewed Employee, who [892]*892stated she recalled having a conversation with two customers on that particular day but denied using the words specified in the e-mail. Branscum said Employee told him that she did say St. Peters “was not as dark of an area.” Branscum stated that he did not ask Employee what she meant by the remark, and she did not elucidate upon it, but he understood it as a euphemism meaning that there are not as many African-Americans there. After speaking with Branscum about the interview, Brandt told him to fire Employee, which he did on February 27, 2012.

On February 28, 2012, Employee filed a claim for unemployment benefits, which Employer protested. On March 19, 2012, a deputy (Deputy) with the Division of Employment Security (Division) denied unemployment benefits, finding that Employee was discharged for misconduct connected with work in that she “was discharged because she made a racial remark to a customer. Harassment of any type is not permitted in the workplace.”

On March 21, 2012, Employee appealed the Deputy’s decision to the Appeals Tribunal. On April 3, 2012, the Appeals Tribunal conducted a hearing. During the hearing, Employee testified that her “not as dark” remark concerned the lighting near her home in comparison to the poor lighting in the rest of the subdivision. Employee testified further that she provided this explanation to Branscum during the investigation. Branscum denied she provided him such an explanation.

The Appeals Tribunal affirmed the disqualification, making the following findings:

[Employee] was discharged February 27, 2012 after [Employee] admitted she told the complaining customer that where [Employee] lived “was not that dark.”
This essentially corroborated a customer complaint, which salient portions are as follows: “lady (with name badge “Earl” that said manager) said she lived in St. Peters and she liked it, it wasn’t as congested and there aren’t as many blacks or foreigners.”
[Employee]’s explanation offered weeks after separation that she merely was talking about street night lighting was contrived and not credible. She made no such reference at time of discharge despite ample opportunity to do so then. The Appeals Tribunal finds the offensive remarks were willfully uttered in conscious and intentional disregard of known employer rules and interests.

Employee appealed the Appeals Tribunal’s decision to the Commission. The Commission affirmed the decision as fully supported by the competent and substantial evidence on the whole record and in accordance with the relevant provisions of the Missouri Employment Security Law and adopted it as its own. This appeal follows.

Points on Appeal

In her first point, Employee maintains the Commission erred in finding her actions constituted misconduct connected with work because it impermissibly put the burden on Employee to prove her comment was not a conscious disregard of Employer’s interest or did not constitute behavior contrary to that which an employer has a right to expect; and that she did not willfully disregard Employer’s interests, she was unaware of the requirement and did not knowingly or consciously violate it.

In her second point, Employee maintains the Commission erred in finding she committed misconduct because its decision was not based on competent or substantial evidence, in that testimony was given that [893]*893Employee’s remark was referring to the lighting in her subdivision; there were no prior incidents of Employee making racist remarks; the customer may have misunderstood Employee’s remark; and no one else heard Employee make the remark, all of which supports a finding that Employee did not willfully disregard Employer’s interests. Employee also maintains she did not sign an acknowledgement that she received the employee handbook and was not aware of its requirements which she therefore could not knowingly or consciously violate.

Standard, of Review

We will uphold the award of the Commission if there is sufficient competent and substantial evidence to support the award. Berwin v. Lindenwood Female College, 205 S.W.3d 291, 294 (Mo.App. E.D.2006); Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222-23 (Mo.banc 2003). We defer to the Commission’s resolution of conflicting evidence regarding a factual issue, the weighing of evidence, and witness credibility. Guccione v. Ray’s Tree Serv., 302 S.W.3d 252, 256 (Mo.App. E.D.2010). However, whether an employee’s conduct constitutes misconduct connected with work is a question of law, which this Court reviews de novo. Id. We are not bound by the Commission’s conclusions of law or its application of the law to the facts. Difatta-Wheaton v. Dolphin Capital Corp., 271 S.W.3d 594, 595 (Mo. banc 2008). As such, whether the Commission’s findings support the conclusion that Employee was guilty of misconduct is a question of law by which we are not bound, and that we review de novo. Williams v. Enterprise Rent-A-Car Shared Svcs., LLC, 297 S.W.3d 139, 142 (Mo.App. E.D.2009).

Discussion

It is Missouri’s declared public policy to set aside unemployment reserves for the benefit of individuals unemployed through no fault of their own. Section 288.020.1.1 The provisions of Section 288.020 et seq. are intended to be construed liberally to accomplish the State’s public policy. Section 288.020.2. To execute this policy, “[disqualifying provisions are construed strictly against the disallowance of benefits.” St. John’s Mercy Health System v. Div.

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Bluebook (online)
400 S.W.3d 890, 2013 WL 3009273, 2013 Mo. App. LEXIS 724, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lombardo-v-brandt-investments-llc-moctapp-2013.