Yuzi Mussa v. Division of Employment Security

• Court: Missouri Court of Appeals
• Decided: July 19, 2022
• Docket: WD84578
• Status: Published

Opinion

In the Missouri Court of Appeals Western District YUZI MUSSA, ) ) Appellant, ) WD84578 ) v. ) OPINION FILED: July 19, 2022 ) DIVISION OF EMPLOYMENT ) SECURITY, ) ) Respondent. )

APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

Before Division Three: Gary D. Witt, Presiding Judge, Anthony Rex Gabbert, Judge and W. Douglas Thomson, Judge

Yuzi Mussa ("Mussa") appeals the decision of the Labor and Industrial Relations

Commission ("Commission"), finding that Mussa was overpaid $2,240 in unemployment

compensation benefits from March 22, 2020 through May 9, 2020, on a finding that Mussa

was paid benefits for a period of disqualification. On appeal, Mussa claims that the

Commission's decision is not supported by substantial evidence. The Division of

Employment Security ("Division") moved this Court to dismiss Mussa's appellate brief for failure to comply with Rule 84.04.1 We deny the Division's motion to dismiss Mussa's

appellate brief, and we reverse the Commission's decision.

Factual and Procedural Background

Mussa is a dental hygienist. She worked for Myers Dental Clinic and Dr. Zavon F.

Kanion, D.D.S., P.C. ("Dental Clinic"). At the beginning of the Covid-19 epidemic, in

March of 2020, Dental Clinic did not have appropriate masks, face shields, or air purifiers.

Also, the dental hygiene room had two chairs that sat significantly less than six feet apart

in violation of Centers for Disease Control and Prevention recommended social distancing.

Eventually, due to the Covid-19 epidemic, the City of Kansas City declared a shutdown of

nonessential businesses, and Dental Clinic temporarily stopped performing elective dental

services, which utilized the dental hygienists, and performed only emergency services for

which dental hygienists were not necessary. Despite being a cancer survivor, Mussa was

the last remaining dental hygienist working at the clinic until she was no longer needed due

to the shutdown in March of 2020. While Mussa was not working, she applied for and

received unemployment benefits beginning the week of March 23, 2020.

During this time, Mussa maintained contact with Dental Clinic. On April 8, 2020,

Mussa received the following group text message from Dr. Kanion and his wife, who was

the office manager:

Hey Team Members! We are reaching out to see how you and your families are doing. We miss our team as it was and hope and pray this madness will be over soon. Please keep in touch and let us know how you're doing and if there is anything we can do to help you. We are considering a video chat or

1 All Rule references are to the Missouri Supreme Court Rules (2022).

2 zoom conference so we can see each other. Wish us luck with that technology. Take care!

Dr. Z. and Jackie

Mussa also had a visit at her home from Dr. Kanion and his wife to discuss the employees'

safe return to work during which Mussa told them she would resume her duties as soon as

the shutdown was lifted on May 11, 2020, and Mussa even reached out to Dental Clinic to

inform them that she would return to work as soon as May 5 if she was needed. Mussa did

not hear back from Dental Clinic before her return on May 11, 2020.

On June 12, 2020, the Division of Unemployment Security sent Mussa an

Overpayment Determination, informing her that she had been overpaid unemployment

benefits of $2,240 for the weeks of March 28, 2020, through May 9, 2020. The record does

not reflect the basis for the Overpayment Determination other than the language in the

notice stating that Mussa had received benefits during a period of disqualification. Mussa

appealed, and the appeals tribunal held a hearing at which Mussa testified on her own

behalf. Mussa also informed the appeals referee that she had three witnesses ready and

available to testify, but the appeals referee did not take testimony from her witnesses.

Mussa, who was proceeding pro se, also failed to call her own witnesses and at the close

of the hearing answered "No" when asked whether she had anything further to add

regarding the overpayment. No testimony or evidence was offered from Dental Clinic or

to establish any basis for a disqualification from receiving benefits. On May 4, 2021, the

Commission affirmed the decision of the Appeals Tribunal finding that Mussa had been

overpaid in that she was disqualified from receiving benefits. This appeal follows.

3 Standard of Review

Section 288.210 governs judicial review of Commission decisions of employment

security matters. "Upon appeal no additional evidence shall be heard." Section 288.210.

This Court may only modify, reverse, remand, or set aside the Commission's decision if:

1) the Commission acted without or in excess of its powers; 2) the decision was procured

by fraud; 3) the facts found by the Commission do not support the award; or 4) there was

no sufficient competent evidence in the record to warrant making the award. Id.; 417 Pet

Sitting, LLC v. Div. of Emp. Sec., 616 S.W.3d 350, 358 (Mo. App. W.D. 2020).

Analysis

Motion to Dismiss Mussa's brief

The Commission moves this Court to dismiss Mussa's appellate brief for failure to

comply with Supreme Court Rule 84.04. Rule 84.04 sets forth mandatory requirements for

appellate briefs. Walker v. Div. of Emp. Sec., 592 S.W.3d 384, 388 (Mo. App. W.D. 2020).

Failure to comply with the rule is grounds for dismissal. Wayne v. Div. of Emp. Sec., 600

S.W.3d 29, 34 n.2 (Mo. App. W.D. 2020). "The function of points relied on is to give

notice to the opposing party of the precise matters which must be contended with and to

inform the court of the issues presented for review." Lexow v. Boeing, 643 S.W.3d 501,

505 (Mo. banc 2022) (internal quotation and alteration omitted). "A deficient point relied

on requires the respondent and appellate court to search the remainder of the brief to discern

the appellant's assertion and, beyond causing a waste of resources, risks the appellant's

argument being understood or framed in an unintended manner." Id. Requiring parties to

adhere to the briefing rules also "ensure[s] that appellate courts do not become advocates

4 by speculating on facts and arguments that have not been asserted." Id. (internal quotation

omitted). Although Mussa's point on appeal does not exactly follow the "roadmap"

established by Rule 84.04, it is clear as to the issue presented and argument raised, which

is that the Commission's award was not supported by sufficient evidence, or any evidence

at all. Even though the briefing rules are important, where possible, this Court's preference

is to dispose of a case on the merits rather than to dismiss an appeal for deficiencies in the

brief. Id.; Wayne, 600 S.W.3d at 34 n.2. For this reason, and because we can sufficiently

ascertain Mussa's argument to review this case without becoming her advocate, we exercise

our discretion to review her appeal and deny the Division's motion to dismiss her brief.

Evidence to Support the Commission's Decision

Mussa's point on appeal is that the Commission's award was not supported by

substantial evidence.2 We agree. When Mussa filed her application for unemployment

benefits, she was initially awarded benefits. An employer may dispute an award of benefits

to an employee for various reasons, section 288.070, or a Division deputy may, "for good

cause, reconsider any determination on any claim" within one year following the end of

the benefit year. Section 288.070.5. In this case, there is no evidence in the record that

Dental Clinic, Mussa's employer, disputed her award of benefits. However, the deputy

apparently reconsidered and determined that Mussa had been overpaid benefits by virtue

of her having been paid "during a period of disqualification." The overpayment

2 The Division points out that Mussa has offered "evidence" with her appellate brief that was not part of the record below. We do not consider this evidence, as it was not presented to the Commission. Our opinion is based only on our review of the record as it was before the Commission.

5 determinations do not state either the factual or legal basis for the determination of

disqualification.

One reason an employee claimant may be found disqualified to receive

unemployment benefits is when the employee "left work voluntarily without good cause

attributable to such work or to the claimant's employer." Section 288.050.1(1). Another

reason is when the employee has been discharged for misconduct. Section 288.050.2.

Again, Mussa's overpayment notice does not state any basis for the determination that she

was disqualified, and no factual findings that would support any such determination appear

anywhere in the record on appeal.

Where an employer "claims that the employee voluntarily left [her] employment

without good cause attributable to [her] employer, the employee has the burden of proving

that this is not the case, either by showing that [she] left work for good cause attributable

to [her] employer, or by showing that [she] did not voluntarily leave work but rather was

discharged." Sokol v. Labor & Indus. Relations Comm., 946 S.W.2d 20, 23 (Mo. App.

W.D. 1997); Worley v. Div. of Emp. Sec., 978 S.W.2d 480, 483 (Mo. App. W.D. 1998)

("Where an employer claims the employee voluntarily left work without good cause, the

employee/claimant has the burden of proving eligibility for unemployment benefits."). We

have found no cases where an employee has been found to have failed to meet her burden

where the employer has not first challenged the award of benefits. Section 288.070.5

permits a Division deputy to reconsider a benefits determination "for good cause," and

requires the deputy to promptly notify interested parties of the deputy's redetermination

"and the reasons therefore." This indicates that the party seeking reconsideration of the

6 award of benefits, in this case the Division, bears some burden to identify the factual

circumstances which purportedly justify reconsideration of a previous benefits

determination. Where the basis for the disqualification is misconduct, the burden is on the

employer to show that the employee committed misconduct associated with her work.

Wooden v. Div. of Emp. Sec., 364 S.W.3d 750, 753 (Mo. App. W.D. 2012).

If the basis for the conclusion that Mussa was disqualified was that she committed

misconduct, the conclusion is clearly not supported by substantial evidence, as the burden

to show misconduct would have been on the employer, who did not present any evidence

to the Division or the appeals referee. If the basis for the conclusion of disqualification

was that Mussa quit work voluntarily without good cause attributable to her work, we also

find that such determination is unsupported by substantial evidence.

Assuming that Mussa bore the burden of proving that she did not quit work

voluntarily without good cause, even absent her employer's assertion that she had, the

question of whether the employee left work voluntarily is generally a question of fact, on

which we defer to the Commission. Morris v. Glenridge Children's Ctr., Inc., 436 S.W.3d

732, 736 (Mo. App. E.D. 2014). "Whether [an employee's] reason for leaving employment

constituted good cause attributable to such work or to her employer is a legal issue on

which we do not defer to the Commission's determination." Rodriguez v. Osco Drug, 166

S.W.3d 138, 141 (Mo. App. W.D. 2005). In determining this issue, "we are guided by

Section 288.020. . . which directs that the unemployment security law be liberally

construed so as to further Missouri's public policy of 'promoting economic security,' in

setting aside unemployment reserves to benefit persons unemployed through no fault of

7 their own." Cooper v. Hy-Vee, Inc., 31 S.W.3d 497, 502 (Mo. App. W.D. 2000). Even on

the "factual" issue of voluntary-quit, however, there is some application of the facts to the

law, and we construe the voluntary-quit provision "strictly and narrowly in favor of finding

that an employee is entitled to compensation." Baby-Tenda Corp. v. Hedrick, 50 S.W.3d

369, 374 (Mo. App. W.D. 2001).

Mussa filed an appeal of the overpayment determination and testified on her own

behalf at the hearing. Mussa's written appeal and her appeal hearing testimony are the only

evidence that appears in the record. Mussa testified that she was a dental hygienist, and as

such did not provide "essential" or emergency services for Dental Clinic. She testified that

she was the last dental hygienist working in the office, even though she was a cancer

survivor, when the City of Kansas City declared a shutdown of nonessential businesses and

the dental practice became limited to emergency services only on March 18, 2020. No

dental hygienists were necessary for the emergency services being provided at that time.

The evidence was that Mussa was in contact with Dr. Kanion and Mrs. Kanion, the office

manager, during the shutdown, that the Kanions missed their "team" and "pray[ed] this

madness will be over soon," and that Mussa even offered to return to work on May 5, 2020,

a week earlier than the scheduled return date. Mussa returned to work on May 11, 2020,

after the office reopened for all services. Mussa provided the appeals referee conducting

her hearing with copies of the texts Dr. Kanion sent to her. Again, no one from Dental

Clinic testified in opposition to Mussa at her hearing, and there is no evidence that Dental

Clinic otherwise objected to Mussa's application for benefits or that she voluntarily quit

her employment. No evidence appears in the record to contradict Mussa's evidence that

8 she did not voluntarily leave her work but instead that there was no work available for her

during the government-imposed shutdown. If the Division based its determination that

Mussa had been overpaid benefits during a period of disqualification on the basis that she

had quit voluntarily without good cause attributable to her work, we find that conclusion

to be unsupported by substantial evidence in the record, particularly when the evidence is

considered through the framework of section 288.020. This record provides no basis for

even a bare legal conclusion that Mussa was disqualified from receiving benefits for any

reason.

The Division points to Vaughn v. Missouri CVS Pharmacy, LLC, 635 S.W.3d 378

(Mo. App. E.D. 2021). Vaughn is inapposite, however, because in Vaughn, it was clear

that the Commission had found that the employee left work voluntarily without good cause

attributable to her employment; there was evidence that the employer in Vaughn at all times

had work available for the employee to perform if she had been available. Mussa claimed

that such was not the case with Dental Clinic, because Dental Clinic was only performing

emergency services during the time in question, which Mussa, as a dental hygienist, did

not provide. No contradictory evidence appears in the record to support the Commission's

finding that Mussa could have worked if she had made herself available during this period.

The Overpayment Determination, the Decision of the Appeals Tribunal, and the

Commission's Decision state only the bare legal conclusion that Mussa was disqualified.

No legal or factual basis for the disqualification was ever given, and no factual findings

supporting any of the available legal bases for disqualification were ever set forth, nor were

any credibility determinations made. We conclude that the Commission's decision was not

9 supported by substantial evidence, or any evidence. Accordingly, we reverse the

Commission's decision.

Conclusion

For all of the above-stated reasons, we deny the Division's motion to dismiss

Mussa's appeal based on errors in her appellate brief, and we reverse the decision of the

Commission. Mussa was not disqualified from receiving benefits during the time period

relevant to the Commission's decision and is not required to repay the unemployment

benefits she received.

__________________________________ Gary D. Witt, Judge

All concur