In the Missouri Court of Appeals Eastern District DIVISION THREE
MARTIN MCCABE, ) No. ED110169 ) Appellant, ) Appeal from the Labor and ) Industrial Relations Commission v. ) ) ADP TOTAL SOURCE FL XVIII, INC. ) Filed: September 27, 2022 and DIVISION OF EMPLOYMENT ) SECURITY, ) ) Respondents. )
Introduction
Appellant Martin McCabe (“McCabe”), acting pro se, appeals the decision of the Labor
and Industrial Relations Commission disqualifying him from unemployment benefits. McCabe
argues the Commission erred in that he had good cause to leave his job with ADP Total Source
FL XVIII, Inc. (“ADP Total Source”), and he left for a more remunerative job. We affirm the
decision of the Commission.
Background
McCabe filed for unemployment benefits on April 21, 2020. A deputy for the Division of
Employment Security determined that McCabe was disqualified from receiving benefits because he voluntarily resigned from ADP Total Source without good cause attributable to his work or
his employer under Section 288.050. 1
McCabe appealed the deputy’s determination to the Appeals Tribunal. On February 18,
2021, the Appeals Tribunal heard McCabe’s appeal by telephone conference, at which McCabe
testified.
McCabe testified that he began working for ADP Total Source on January 7, 2019. He
worked in the Hopewell division as a community service specialist offering mental health
services. As of January 3, 2020, McCabe voluntarily resigned from his position with ADP Total
Source. McCabe testified that, before he voluntarily resigned, he had been working part-time
with Uber and Lyft. He testified that his primary reason for resigning was that he “just chose
personally to start working full time for Uber and Lyft as a private contractor.” McCabe referred
to his position with Uber and Lyft as “private contractor work.”
McCabe testified that a secondary reason for his resignation was an ongoing conflict with
his direct supervisor regarding the time at which McCabe was required to arrive at work each
morning. Company policy required each employee to work five billable hours every day but
allowed for a flex schedule in which employees could determine the hours they would work
between 8 A.M. and 5 P.M. According to McCabe, his supervisor started requiring him to arrive
by 9 A.M. or earlier, contrary to company policy. McCabe was unable to meet this requirement
due to his need to deliver his son to school at 9 A.M.
Finally, McCabe also cited his inability to complete requirements for his master’s degree
program due to work as another factor in his decision to voluntarily resign.
1 All statutory references are to the Revised Statutes of Missouri (2016), as supplemented, unless otherwise indicated.
2 The Appeals Tribunal made findings of fact and conclusions of law and affirmed the
deputy’s decision that McCabe was disqualified from receiving unemployment benefits. The
Appeals Tribunal found that McCabe voluntarily left work at ADP Total Source. It concluded
that McCabe’s desire to deal with his childcare responsibilities and educational pursuits during
work hours did not provide him with good cause to voluntarily leave.
Consistent with McCabe’s testimony, the Appeals Tribunal also found:
Before claimant left his employment with the employer[,] he was working for Uber and Lyft on a part-time basis. Claimant voluntarily resigned so he could work fulltime with the other companies. The claimant performed services for Uber and Lyft as an independent contractor.
Based on those findings of fact, the Appeals Tribunal concluded that McCabe quit, first and
foremost, because he wanted to work as an independent contractor for Uber and Lyft full-time.
McCabe did not quit his job to take a more remunerative job, and his Uber and Lyft endeavors
were continuations of self-employment and not jobs.
On September 2, 2021, McCabe sought review by the Labor and Industrial Relations
Commission. A two-member majority of the Commission found the decision of the Appeals
Tribunal was supported by competent and substantial evidence. The Commission adopted the
findings of fact and conclusions of law of the Appeals Tribunal and affirmed its decision.
McCabe now appeals to this Court.
Standard of Review
Appellate review of the Commission’s decision in an unemployment case is governed by
Section 288.210, which reads in pertinent part:
The findings of the commission as to the facts, if supported by competent and substantial evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the appellate court shall be confined to questions of law. The court, on appeal, may modify, reverse, remand for rehearing, or set aside the decision of the commission on the following grounds and no other: (1) That the commission acted without or in excess of its powers;
3 (2) That the decision was procured by fraud; (3) That the facts found by the commission do not support the award; or (4) That there was no sufficient competent evidence in the record to warrant the making of the award.
This means that, in the absence of fraud, the Commission’s factual findings are
conclusive and binding if supported by competent and substantial evidence. Burns v. Lab. &
Indus. Rels Comm’n, 845 S.W.2d 553, 554–555 (Mo. banc 1993); Lashea v. Fin-Clair Corp., 30
S.W.3d 237, 240 (Mo. App. E.D. 2000). “We will affirm the Commission’s decision if we find,
upon a review of the whole record, that there is sufficient competent and substantial evidence to
support the Commission’s decision.” Smith v. Greyhound Bus Co., 477 S.W.3d 55, 59 (Mo. App.
E.D. 2015).
The Court is not bound by the Commission’s conclusions of law or its application of law
to the facts. Kimble v. Div. of Emp. Sec., 388 S.W.3d 634, 638 (Mo. App. W.D. 2013). We
review questions of law de novo. Difatta-Wheaton v. Dolphin Capital Corp., 271 S.W.3d 594,
596 (Mo. banc 2008).
Discussion
McCabe presents two points on appeal. In his first point, McCabe argues the Commission
erred in finding that he left work without good cause attributable to the work or his employer.
McCabe cites his legal obligations to deliver his son to school on time, in conjunction with what
he characterizes as unreasonable demands by his supervisor, as good cause to quit under Section
288.050.1. In his second point, McCabe contends the Commission erred by failing to recognize
his planned full-time work with Uber and Lyft as a more remunerative job than his position with
ADP Total Source under Section 288.050.1(1)(a). We address McCabe’s points seriatim.
4 Point I: Good Cause
The primary purpose of the Missouri Employment Security Law is to provide benefits to
persons “unemployed through no fault of their own.” RSMo § 288.020.1; Difatta-Wheaton, 271
S.W.3d at 596. Section 288.050.1 disqualifies a claimant from receiving certain unemployment
benefits if the claimant left work voluntarily and without good cause attributable to such work or
his employer. Smith, 477 S.W.3d at 60. “An employee is deemed to have left work voluntarily
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In the Missouri Court of Appeals Eastern District DIVISION THREE
MARTIN MCCABE, ) No. ED110169 ) Appellant, ) Appeal from the Labor and ) Industrial Relations Commission v. ) ) ADP TOTAL SOURCE FL XVIII, INC. ) Filed: September 27, 2022 and DIVISION OF EMPLOYMENT ) SECURITY, ) ) Respondents. )
Introduction
Appellant Martin McCabe (“McCabe”), acting pro se, appeals the decision of the Labor
and Industrial Relations Commission disqualifying him from unemployment benefits. McCabe
argues the Commission erred in that he had good cause to leave his job with ADP Total Source
FL XVIII, Inc. (“ADP Total Source”), and he left for a more remunerative job. We affirm the
decision of the Commission.
Background
McCabe filed for unemployment benefits on April 21, 2020. A deputy for the Division of
Employment Security determined that McCabe was disqualified from receiving benefits because he voluntarily resigned from ADP Total Source without good cause attributable to his work or
his employer under Section 288.050. 1
McCabe appealed the deputy’s determination to the Appeals Tribunal. On February 18,
2021, the Appeals Tribunal heard McCabe’s appeal by telephone conference, at which McCabe
testified.
McCabe testified that he began working for ADP Total Source on January 7, 2019. He
worked in the Hopewell division as a community service specialist offering mental health
services. As of January 3, 2020, McCabe voluntarily resigned from his position with ADP Total
Source. McCabe testified that, before he voluntarily resigned, he had been working part-time
with Uber and Lyft. He testified that his primary reason for resigning was that he “just chose
personally to start working full time for Uber and Lyft as a private contractor.” McCabe referred
to his position with Uber and Lyft as “private contractor work.”
McCabe testified that a secondary reason for his resignation was an ongoing conflict with
his direct supervisor regarding the time at which McCabe was required to arrive at work each
morning. Company policy required each employee to work five billable hours every day but
allowed for a flex schedule in which employees could determine the hours they would work
between 8 A.M. and 5 P.M. According to McCabe, his supervisor started requiring him to arrive
by 9 A.M. or earlier, contrary to company policy. McCabe was unable to meet this requirement
due to his need to deliver his son to school at 9 A.M.
Finally, McCabe also cited his inability to complete requirements for his master’s degree
program due to work as another factor in his decision to voluntarily resign.
1 All statutory references are to the Revised Statutes of Missouri (2016), as supplemented, unless otherwise indicated.
2 The Appeals Tribunal made findings of fact and conclusions of law and affirmed the
deputy’s decision that McCabe was disqualified from receiving unemployment benefits. The
Appeals Tribunal found that McCabe voluntarily left work at ADP Total Source. It concluded
that McCabe’s desire to deal with his childcare responsibilities and educational pursuits during
work hours did not provide him with good cause to voluntarily leave.
Consistent with McCabe’s testimony, the Appeals Tribunal also found:
Before claimant left his employment with the employer[,] he was working for Uber and Lyft on a part-time basis. Claimant voluntarily resigned so he could work fulltime with the other companies. The claimant performed services for Uber and Lyft as an independent contractor.
Based on those findings of fact, the Appeals Tribunal concluded that McCabe quit, first and
foremost, because he wanted to work as an independent contractor for Uber and Lyft full-time.
McCabe did not quit his job to take a more remunerative job, and his Uber and Lyft endeavors
were continuations of self-employment and not jobs.
On September 2, 2021, McCabe sought review by the Labor and Industrial Relations
Commission. A two-member majority of the Commission found the decision of the Appeals
Tribunal was supported by competent and substantial evidence. The Commission adopted the
findings of fact and conclusions of law of the Appeals Tribunal and affirmed its decision.
McCabe now appeals to this Court.
Standard of Review
Appellate review of the Commission’s decision in an unemployment case is governed by
Section 288.210, which reads in pertinent part:
The findings of the commission as to the facts, if supported by competent and substantial evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the appellate court shall be confined to questions of law. The court, on appeal, may modify, reverse, remand for rehearing, or set aside the decision of the commission on the following grounds and no other: (1) That the commission acted without or in excess of its powers;
3 (2) That the decision was procured by fraud; (3) That the facts found by the commission do not support the award; or (4) That there was no sufficient competent evidence in the record to warrant the making of the award.
This means that, in the absence of fraud, the Commission’s factual findings are
conclusive and binding if supported by competent and substantial evidence. Burns v. Lab. &
Indus. Rels Comm’n, 845 S.W.2d 553, 554–555 (Mo. banc 1993); Lashea v. Fin-Clair Corp., 30
S.W.3d 237, 240 (Mo. App. E.D. 2000). “We will affirm the Commission’s decision if we find,
upon a review of the whole record, that there is sufficient competent and substantial evidence to
support the Commission’s decision.” Smith v. Greyhound Bus Co., 477 S.W.3d 55, 59 (Mo. App.
E.D. 2015).
The Court is not bound by the Commission’s conclusions of law or its application of law
to the facts. Kimble v. Div. of Emp. Sec., 388 S.W.3d 634, 638 (Mo. App. W.D. 2013). We
review questions of law de novo. Difatta-Wheaton v. Dolphin Capital Corp., 271 S.W.3d 594,
596 (Mo. banc 2008).
Discussion
McCabe presents two points on appeal. In his first point, McCabe argues the Commission
erred in finding that he left work without good cause attributable to the work or his employer.
McCabe cites his legal obligations to deliver his son to school on time, in conjunction with what
he characterizes as unreasonable demands by his supervisor, as good cause to quit under Section
288.050.1. In his second point, McCabe contends the Commission erred by failing to recognize
his planned full-time work with Uber and Lyft as a more remunerative job than his position with
ADP Total Source under Section 288.050.1(1)(a). We address McCabe’s points seriatim.
4 Point I: Good Cause
The primary purpose of the Missouri Employment Security Law is to provide benefits to
persons “unemployed through no fault of their own.” RSMo § 288.020.1; Difatta-Wheaton, 271
S.W.3d at 596. Section 288.050.1 disqualifies a claimant from receiving certain unemployment
benefits if the claimant left work voluntarily and without good cause attributable to such work or
his employer. Smith, 477 S.W.3d at 60. “An employee is deemed to have left work voluntarily
when he leaves of his own accord, as opposed to being discharged, dismissed, or subjected to
layoff.” Darr v. Roberts Mktg. Grp., LLC, 428 S.W.3d 717, 724 (Mo. App. E.D. 2014).
If a claimant is deemed to have left voluntarily, then the question becomes whether the
claimant had good cause attributable to his work or employer. Id. The burden is on the claimant
to show good cause for leaving his employment. Id. Whether a claimant’s reason for resigning
constitutes good cause is a question of law that is reviewed de novo. Smith, 477 S.W.3d at 60.
Here, McCabe repeatedly testified that he voluntarily resigned, and that fact is undisputed
on appeal. The Commission’s finding of fact that McCabe voluntarily resigned is supported by
competent and substantial evidence and is conclusive on appeal. See Turner v. Proffer Transp.,
Inc., 310 S.W.3d 769, 774 (Mo. App. E.D. 2010). Accordingly, our analysis shifts to the legal
issue of whether McCabe had good cause attributable to his work or employer to voluntarily
leave under Section 288.050.1.
Missouri courts have long interpreted “good cause” as circumstances that would cause an
average, able-bodied, qualified, and reasonable person in a similar situation to leave the
employment rather than continue working. Darr, 428 S.W.3d at 724; Hessler v. Lab. & Indus.
Rels Comm’n, 851 S.W.2d 516, 518 (Mo. banc 1993); Belle State Bank v. Indus. Comm’n Div. of
Emp. Sec., 547 S.W.2d 841, 846 (Mo. App. 1977). This is an objective standard asking what a
5 reasonable, average person would do in the same or similar circumstances. Partee v. Winco Mfg.,
Inc., 141 S.W.3d 34, 38 (Mo. App. E.D. 2004).
“Conditions that motivate the employee to voluntarily leave must be real, not imaginary,
substantial, not trifling, and reasonable, not whimsical, and good faith is an essential
element.” Cooper v. Hy-Vee, Inc., 31 S.W.3d 497, 503 (Mo. App. W.D. 2000). Good cause is
limited to circumstances in which external pressures attributable to the work or the employer are
so compelling that a reasonable person would be justified in terminating employment. Smith, 477
S.W.3d at 60.
Missouri precedent consistently holds that parental obligations during working hours do
not constitute good cause attributable to the work or the employer under Section 288.050.1.
Lashea, 30 S.W.3d at 241; Price v. Lab. & Indus. Rels. Comm’n of Missouri, 811 S.W.2d 457,
460 (Mo. App. W.D. 1991); Rothschild v. Lab. & Indus. Rels. Comm’n, 728 S.W.2d 720 (Mo.
App. E.D. 1987); Lyell v. Lab, & Indus. Rels. Comm’n Div. of Emp. Sec., 553 S.W.2d 899, 902
(Mo. App. 1977). “A worker who leaves his employment under compulsion of marital or
parental obligation has left his work voluntarily without good cause because his reasons for
termination lack the causal connection with his employment which is required by the
statute.” Lashea, 30 S.W.3d at 241 (quoting Lyell, 553 S.W.2d at 901).
In Lyell, the claimant left her job voluntarily after being unable to obtain a consistent
babysitter during her required shift times. 553 S.W.2d at 900. The Lyell court held that parental
obligations did not constitute good cause attributable to the claimant’s work or employer, and the
claimant was disqualified from receiving benefits. Id. at 902. Similarly, in Lashea, the claimant
voluntarily resigned after the company altered set shift times, which interfered with the
claimant’s pickup time of his child from childcare. 30 S.W.3d at 239. The Lashea court held that
6 the conflict between the claimant’s scheduled working hours and his need to pick up his child
from arranged childcare did not constitute good cause attributable to his work or employer. Id. at
241.
Here, McCabe likewise argues that his legal duty to deliver his son to school constitutes
good cause for his voluntary resignation. While we are sympathetic to McCabe’s duties as a
father, it is well settled that those duties “lack the causal connection with his employment which
is required by the statute.” Lashea, 30 S.W.3d at 241; Lyell, 553 S.W.2d at 901.
We observe also that McCabe repeatedly testified that his primary motivation for
resigning was not his parental duties, but to work full-time with Uber and Lyft. McCabe also
testified that he quit because his work inhibited his educational requirements. Thus, not even
McCabe contends that the conflict between his parental duties and his work hours amounts,
alone or even primarily, to good cause, that is, pressure so compelling that a reasonable person
would be justified in terminating employment. See Smith, 477 S.W.3d at 60. McCabe has failed
in his burden to show that he had good cause attributable to his work or employer to voluntarily
resign from his position at ADP Total Source.
We conclude, as did the Commission, that McCabe left work voluntarily without good
cause attributable to such work or to his employer and therefore is disqualified from
unemployment benefits under Section 288.050.1. Point I is denied.
Point II: More Remunerative Job
In his second point, McCabe argues the Commission erred when it failed to recognize his
intent to pursue full-time work with Uber and Lyft as a more remunerative job under Section
288.050.1(1)(a). Whether or not driving with Uber and Lyft is more remunerative, it is not a
“job” under the statute.
7 Notwithstanding the disqualification under Section 288.050.1 for leaving work without
good cause, Section 288.050.1(1)(a) provides that a claimant is not disqualified if he quit work
for the purpose of accepting a more remunerative job, accepted that job, and earned wages from
that job. See Landis v. Div. of Emp. Sec., 959 S.W.2d 474, 475 (Mo. App. S.D. 1997); Missouri
Div. of Emp. Sec. v. Lab. & Indus. Rels. Comm’n of Missouri, 739 S.W.2d 747, 749 (Mo. App.
W.D. 1987).
McCabe testified and maintains in his appellate brief that he voluntarily resigned to work
full-time with Uber and Lyft as an independent or “private” contractor. The Commission found
as much, those findings are supported by competent and substantial evidence, and they are
conclusive on appeal. See Smith, 477 S.W.3d at 59; Turner, 310 S.W.3d at 774. The Commission
thus concluded that McCabe’s primary reason for quitting his job was to work as an independent
contractor for Uber and Lyft full-time. He did not quit for a more remunerative job, and his
endeavors at Uber and Lyft were not a job.
Section 288.034, defining “employment” in this context, states, “Service performed by an
individual for remuneration shall be deemed to be employment subject to this law unless it is
shown to the satisfaction of the division that such services were performed by an independent
contractor.” RSMo § 288.034.5. Pursuant to Section 387.414, drivers for transportation network
companies, such as Uber and Lyft, generally are independent contractors and not employees.
Likewise, pursuant to Section 387.432, transportation network companies are not considered
employers for the purpose of unemployment benefits under Chapter 288.
The conclusive fact here is that McCabe performed services for Uber and Lyft as an
independent contractor and not as an employee. Accordingly, McCabe’s resignation to pursue
full-time work with Uber and Lyft was not for the purpose of accepting a job, more remunerative
8 or otherwise, as required under Section 288.050.1(1)(a); it was to engage full-time as an
independent contractor. Therefore, McCabe is disqualified from unemployment benefits under
Section 288.050.1(1)(a). Point II is denied.
Conclusion
For these reasons, we affirm the Commission’s decision that McCabe was disqualified
from receiving unemployment benefits.
Cristian M. Stevens, J.
Gary M. Gaertner, Jr., P.J., and John P. Torbitzky, J., concur.