IN THE MISSOURI COURT OF APPEALS WESTERN DISTRICT MARIA-FERNANDA FAST, ) ) Appellant, ) v. ) WD85872 ) ) OPINION FILED: DIVISION OF EMPLOYMENT ) June 27, 2023 SECURITY, ) ) Respondent. )
Appeal from the Labor and Industrial Relations Commission
Before Division One: Mark D. Pfeiffer, Presiding Judge, and Karen King Mitchell and W. Douglas Thomson, Judges
Maria-Fernanda Fast appeals the decision of the Labor and Industrial Relations
Commission dismissing her claim for unemployment benefits. The Commission
determined that Fast’s appeal was untimely and dismissed it for lack of jurisdiction. Fast
raises one point on appeal; she argues that the Commission erred in dismissing her appeal
as untimely because the Commission’s finding was not supported by substantial
evidence. Because the record shows conclusively that Fast’s appeals below were
untimely, we must dismiss her appeal. Background
Fast was employed by Baretta, Inc., which operated Caleco’s Bar and Grill in
St. Louis, Missouri, as a server/bartender from sometime before March 2020 until
February 20, 2021, when she began full-time employment elsewhere. Fast applied for
unemployment benefits in March 2020, when mandatory pandemic requirements forced
Caleco’s Bar and Grill to close in-person dining and to accept only carry-out orders. In
March 2021, the Division of Employment Security, in its “Deputy’s Determination
Concerning Claim for Benefits,” found Fast ineligible for unemployment benefits
because Fast was “not making herself available for all the hours the employer has
available for her to work.” The Determination contained a statement that it was mailed to
Fast on March 19, 2021. The Determination also contained a notice of appeal rights,
which stated, “If you believe this determination is incorrect, you may file an appeal not
later than 04-19-2021. The appeal period may, for good cause, be extended.”
Fast claims that, sometime after she received the Determination (presumably in
March 2021), she spoke to her general manager, who told her he had never said she was
unavailable for work and promised to “call and reach out to unemployment to clear it
up.” Fast states that she spoke to representatives of the Division at various times about
the merits of her claim and her right to challenge the Determination, but she did not file
anything to appeal the Determination within the 30-day time period, nor does she provide
any reason she could not do so except to say she was unaware of the procedure and hoped
her general manager would contact the Division to set things straight. However, the
record shows that her general manager did not contact the Division until about a year
2 later. Attached to Fast’s amended brief is a letter dated March 31, 2022, signed by James
Costello, “Former General Manager, Caleco’s Bar and Grill,” which states that Fast
“never refused work [but] did miss a couple months with maternity leave (11/1/2021-
1/6/2022).”
Fast did not actually appeal the March 19, 2021 Determination until March 4,
2022. The Appeals Tribunal dismissed her appeal as untimely in an Order that indicated
it was mailed to Fast on March 30, 2022. The Order contained a notice of appeal rights,
stating that a written request for reconsideration must be filed within thirty days of the
date the Order was mailed, making Fast’s appeal of that Order due no later than April 29,
2022. In her brief, Fast argues that she was unable to “send an appeal” because she gave
birth to her second child on March 6, 2022, and was on maternity leave with “no physical
way to make it within 30 days.”
The Legal File contains no written response by Fast to the Tribunal’s Order until
September 15, 2022, over four months after the appeal deadline, when Fast faxed a
document entitled “Attention Appeals” and referred to as “Overpayment Waiver
Determination Response” on the fax cover sheet directed to the Division. Fast’s
document argued the merits of her claim, mentioned her various contacts with the
Division, but did not provide any explanation for her failure to timely appeal either the
Division’s original Determination or the Appeals Tribunal’s Order.
The Commission treated Fast’s September 15, 2022 document as an Application
for Review of the March 30, 2022 Order of the Appeals Tribunal; the Commission
dismissed Fast’s application for review on November 3, 2022. Because Fast’s document
3 was “neither postmarked nor received within thirty (30) days after the Appeals Tribunal
order was mailed,” the Commission stated that it had “no statutory authority to review the
record of proceedings.” Fast timely filed this appeal of the Commission’s dismissal.
Dismissal of Appeal
In her sole point on appeal, Fast argues that the Commission erred in dismissing
her appeal as untimely because, even though her appeal was not filed within the requisite
30-day deadline, the Commission’s dismissal “disregards [her] previous attempts of
appeals sent in a timely manner.” However, there is no evidence in the record of any
timely written appeal by Fast from either the original Determination or the Appeals
Tribunal’s Order; the only evidence of any “previous attempts” to appeal is her claim that
she spoke to Division representatives, on unspecified dates, about the merits of her claim
and possible alternatives to the appeal process. We understand that Fast disagreed with
the Determination and may have been confused about how to appeal. However, she filed
nothing in writing to even begin the process within the statutory deadlines. Because Fast
failed to timely appeal the Appeals Tribunal’s Order, which led to the dismissal by the
Commission, we have no choice but to dismiss her appeal.
“This court ‘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. Sec., 353 S.W.3d 465, 467 (Mo. App. W.D. 2011) (quoting Chase v. Baumann
Prop. Co., 169 S.W.3d 891, 892 (Mo. App. E.D. 2005)). The only issue before the
Commission was the timeliness of Fast’s appeal from the Appeals Tribunal’s Order.
Consequently, the timeliness of her appeal—not the merits of her claim—is the “only
4 issue[] we are permitted to review.” Ireland v. Div. of Emp. Sec., 390 S.W.3d 895, 899
(Mo. App. W.D. 2013).
Section 288.200 1 provides a strict 30-day deadline for appealing a decision of the
Appeals Tribunal: “Any of the parties (including the division) to any decision of an
appeals tribunal, may file with the commission within thirty days following the date of
notification or mailing of such decision, an application to have such decision reviewed by
the commission.” § 288.200.1 (emphasis added). An application filed after the deadline
is untimely, and “[t]he commission does not have statutory authority to accept untimely
applications for review.” 2 8 C.S.R. § 20-4.010(6). 3
Here, the Commission dismissed Fast’s application for review as untimely, as Fast
did not file it until September 15, 2022, well after the deadline of April 29, 2022. She
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IN THE MISSOURI COURT OF APPEALS WESTERN DISTRICT MARIA-FERNANDA FAST, ) ) Appellant, ) v. ) WD85872 ) ) OPINION FILED: DIVISION OF EMPLOYMENT ) June 27, 2023 SECURITY, ) ) Respondent. )
Appeal from the Labor and Industrial Relations Commission
Before Division One: Mark D. Pfeiffer, Presiding Judge, and Karen King Mitchell and W. Douglas Thomson, Judges
Maria-Fernanda Fast appeals the decision of the Labor and Industrial Relations
Commission dismissing her claim for unemployment benefits. The Commission
determined that Fast’s appeal was untimely and dismissed it for lack of jurisdiction. Fast
raises one point on appeal; she argues that the Commission erred in dismissing her appeal
as untimely because the Commission’s finding was not supported by substantial
evidence. Because the record shows conclusively that Fast’s appeals below were
untimely, we must dismiss her appeal. Background
Fast was employed by Baretta, Inc., which operated Caleco’s Bar and Grill in
St. Louis, Missouri, as a server/bartender from sometime before March 2020 until
February 20, 2021, when she began full-time employment elsewhere. Fast applied for
unemployment benefits in March 2020, when mandatory pandemic requirements forced
Caleco’s Bar and Grill to close in-person dining and to accept only carry-out orders. In
March 2021, the Division of Employment Security, in its “Deputy’s Determination
Concerning Claim for Benefits,” found Fast ineligible for unemployment benefits
because Fast was “not making herself available for all the hours the employer has
available for her to work.” The Determination contained a statement that it was mailed to
Fast on March 19, 2021. The Determination also contained a notice of appeal rights,
which stated, “If you believe this determination is incorrect, you may file an appeal not
later than 04-19-2021. The appeal period may, for good cause, be extended.”
Fast claims that, sometime after she received the Determination (presumably in
March 2021), she spoke to her general manager, who told her he had never said she was
unavailable for work and promised to “call and reach out to unemployment to clear it
up.” Fast states that she spoke to representatives of the Division at various times about
the merits of her claim and her right to challenge the Determination, but she did not file
anything to appeal the Determination within the 30-day time period, nor does she provide
any reason she could not do so except to say she was unaware of the procedure and hoped
her general manager would contact the Division to set things straight. However, the
record shows that her general manager did not contact the Division until about a year
2 later. Attached to Fast’s amended brief is a letter dated March 31, 2022, signed by James
Costello, “Former General Manager, Caleco’s Bar and Grill,” which states that Fast
“never refused work [but] did miss a couple months with maternity leave (11/1/2021-
1/6/2022).”
Fast did not actually appeal the March 19, 2021 Determination until March 4,
2022. The Appeals Tribunal dismissed her appeal as untimely in an Order that indicated
it was mailed to Fast on March 30, 2022. The Order contained a notice of appeal rights,
stating that a written request for reconsideration must be filed within thirty days of the
date the Order was mailed, making Fast’s appeal of that Order due no later than April 29,
2022. In her brief, Fast argues that she was unable to “send an appeal” because she gave
birth to her second child on March 6, 2022, and was on maternity leave with “no physical
way to make it within 30 days.”
The Legal File contains no written response by Fast to the Tribunal’s Order until
September 15, 2022, over four months after the appeal deadline, when Fast faxed a
document entitled “Attention Appeals” and referred to as “Overpayment Waiver
Determination Response” on the fax cover sheet directed to the Division. Fast’s
document argued the merits of her claim, mentioned her various contacts with the
Division, but did not provide any explanation for her failure to timely appeal either the
Division’s original Determination or the Appeals Tribunal’s Order.
The Commission treated Fast’s September 15, 2022 document as an Application
for Review of the March 30, 2022 Order of the Appeals Tribunal; the Commission
dismissed Fast’s application for review on November 3, 2022. Because Fast’s document
3 was “neither postmarked nor received within thirty (30) days after the Appeals Tribunal
order was mailed,” the Commission stated that it had “no statutory authority to review the
record of proceedings.” Fast timely filed this appeal of the Commission’s dismissal.
Dismissal of Appeal
In her sole point on appeal, Fast argues that the Commission erred in dismissing
her appeal as untimely because, even though her appeal was not filed within the requisite
30-day deadline, the Commission’s dismissal “disregards [her] previous attempts of
appeals sent in a timely manner.” However, there is no evidence in the record of any
timely written appeal by Fast from either the original Determination or the Appeals
Tribunal’s Order; the only evidence of any “previous attempts” to appeal is her claim that
she spoke to Division representatives, on unspecified dates, about the merits of her claim
and possible alternatives to the appeal process. We understand that Fast disagreed with
the Determination and may have been confused about how to appeal. However, she filed
nothing in writing to even begin the process within the statutory deadlines. Because Fast
failed to timely appeal the Appeals Tribunal’s Order, which led to the dismissal by the
Commission, we have no choice but to dismiss her appeal.
“This court ‘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. Sec., 353 S.W.3d 465, 467 (Mo. App. W.D. 2011) (quoting Chase v. Baumann
Prop. Co., 169 S.W.3d 891, 892 (Mo. App. E.D. 2005)). The only issue before the
Commission was the timeliness of Fast’s appeal from the Appeals Tribunal’s Order.
Consequently, the timeliness of her appeal—not the merits of her claim—is the “only
4 issue[] we are permitted to review.” Ireland v. Div. of Emp. Sec., 390 S.W.3d 895, 899
(Mo. App. W.D. 2013).
Section 288.200 1 provides a strict 30-day deadline for appealing a decision of the
Appeals Tribunal: “Any of the parties (including the division) to any decision of an
appeals tribunal, may file with the commission within thirty days following the date of
notification or mailing of such decision, an application to have such decision reviewed by
the commission.” § 288.200.1 (emphasis added). An application filed after the deadline
is untimely, and “[t]he commission does not have statutory authority to accept untimely
applications for review.” 2 8 C.S.R. § 20-4.010(6). 3
Here, the Commission dismissed Fast’s application for review as untimely, as Fast
did not file it until September 15, 2022, well after the deadline of April 29, 2022. She
mainly argues here, as she did below, the merits of her claim for benefits, which was not
the issue before the Commission and which we cannot review on this appeal. At best, her
argument on appeal “could be construed to be a challenge to the sufficiency of the
evidence of a decision on the merits of [her] claim, a decision that the Commission did
1 All statutory references are to the Revised Statutes of Missouri (2022), unless otherwise noted. 2 Unlike the 30-day deadline to appeal a deputy’s determination of benefits, which “may, for good cause, be extended” pursuant to § 288.070.10, there is no such provision in § 288.200 for extension of the deadline for appeals from a decision of the Appeals Tribunal. Even if good cause applied to extend the deadline here, the “[f]ailure to timely follow clear instructions provided in a notice due to simple oversight is not reasonable and does not constitute good cause for missing a procedural deadline.” Byers v. Hum. Res. Staffing, LLC, 402 S.W.3d 605, 608 (Mo. App. E.D. 2013). 3 All references to regulations are to the Missouri Code of State Regulations (2022), unless otherwise noted.
5 not make.” Walker v. Div. of Emp. Sec., 592 S.W.3d 384, 387 n.1 (Mo. App. W.D.
2020). Because Fast presents no evidence or argument as to why the Commission erred
in finding her application for review untimely, her appeal must be dismissed.
Conclusion
Because Fast failed to timely appeal the dismissal of her application for review to
the Commission, she has not presented an appealable issue for our review, and her appeal
is dismissed.
___________________________________ Karen King Mitchell, Judge
Mark D. Pfeiffer, Presiding Judge, and W. Douglas Thomson, Judge, concur.