In the Matter of )
JENNA STAFFORD, )
)
Claimant/Respondent, )
)
vs. ) No. SD32658
) Filed: January 9, 2014
GREAT SOUTHERN BANK, )
)
Employer/Appellant, )
)
and MISSOURI DIVISION )
OF EMPLOYMENT SECURITY, )
)
Respondent. )
APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS COMMISSION
REVERSED AND REMANDED WITH DIRECTIONS.
Great Southern Bank (“Employer”) appeals the decision of the Labor and Industrial
Relations Commission (“Commission”) finding Jenna Stafford (“Stafford”) was not disqualified
for benefits by reason that she was discharged from work on October 17, 2012. We reverse the
Commission’s decision and direct the Commission to enter an order finding that Stafford is
disqualified from benefits for misconduct connected with work.1
1
This Court has determined that this cause has been fully briefed by the parties and has therefore placed it under
submission on the record and briefs without the necessity of oral argument.
Facts and Procedural History
Stafford worked as a full-time Customer Service Representative for Employer. Stafford
began working for Employer on February 14, 2012. The last day Stafford worked was October
16, 2012. Stafford was terminated for violating Employer’s absenteeism and tardiness policy,
which stated:
Absenteeism: Unexcused absences (without doctor’s excuse or supervisor’s pre-
approval) three occurrences in a six month period, or five in a twelve month
period, shall be deemed excessive and will receive a written warning on the third
or fifth absence. If another unexcused absence occurs within the six month
period, corrective action up to and leading to termination will occur.
....
Tardiness: If you are not here and ready to be on the phones by your scheduled
shift time any four times within a two month period is considered excessive and
will be written up. The fifth time will result in corrective action up to and leading
to termination.
Stafford signed the absenteeism and tardiness policy on February 18, 2012, after beginning work
for Employer. This document detailed Employer’s attendance policy and indicated Stafford was
made aware of the policy on this date.
Additionally, Employer had an “Attendance and Punctuality” policy that stated if an
employee was going to be absent or late, the employee must notify their supervisor “a minimum
of 15 minutes before the start of the scheduled shift.” The policy also stated that “[p]rolonged or
repeated absences and/or tardies will result in disciplinary action up to and including termination
of employment.”
On August 20, 2012, Kara Ibarra (“Ibarra”), a Customer Service Manager and Stafford’s
supervisor, met with Stafford to discuss concerns regarding her attendance and tardiness over the
previous six months of her employment and to remind her of the absenteeism and tardy policy.
Stafford had four unexcused absences within a six-month period which warranted a “write-up.”
2
Ibarra also had Stafford “re-sign” the absenteeism and tardiness policy. Stafford was made
aware that her next unexcused absence would result in “corrective action.”
On September 13, 2012, Stafford signed a “Corrective Action Notice” acknowledging
that she had “[e]xcessive absences-last [sic] occurrence she was off for 2 weeks and does not
qualify for FMLA at this time.” The disciplinary action, resulting from the September 13, 2012
corrective action, consisted of a written warning that Stafford’s next absence, excused or
unexcused, would result in termination. Stafford signed a second Corrective Action Notice on
September 14, 2012, regarding attendance and to “[b]e at work and be on time to work.” The
September 14, 2012 disciplinary action consisted of a final warning that Stafford’s next tardy or
absence, excused or unexcused, would result in termination.
Stafford was also absent from October 8 through 12, 2012, but the record does not state if
the absences were excused or unexcused. Ibarra was out of the office that entire week and due to
a miscommunication error with the acting manager, Stafford was not terminated. However,
when Ibarra returned to work, she met with Stafford and told her that due to the
miscommunication she would not be terminated, but she was still on formal probation and her
next tardy or absence, excused or unexcused, would result in termination.
On October 17, 2012, Stafford was scheduled to begin work at 8:00 a.m. At 8:05 a.m.,
Stafford called Ibarra to let her know she had overslept. Ibarra told Stafford that due to her
probation status, she was terminated. Ibarra told Stafford they would “box up her things and
bring them up to HR” and she “could come in that day to pick up her things.”
It appears from the record that Stafford filed a “Renewal of Claim for Unemployment
Benefits” with a renewal effective date of October 21, 2012.2 The “Benefit Year Beginning
2
An “Initial Claim” was filed August 18, 2011. However, it is unclear how, or if this initial claim relates to
Employer.
3
Date” on this claim was August 14, 2011. A “Notice of Renewal” was sent to Employer as “a
Missouri employer who paid wages to [Stafford] during the base period of the claim[.]”
Employer filed its formal protest to Stafford’s unemployment claim on November 2, 2012,
stating Stafford’s “failure to comply with [Employer]’s attendance and punctuality policy
resulted in her involuntarily [sic] termination of employment.”
On November 9, 2012, the “Deputy’s Determination Concerning Claim for Benefits” was
filed finding Stafford was “disqualified from 10/1[7]/12 because [Stafford] was discharged by
. . . Employer on 10/1[7]/12 for misconduct connected with work.”3 The deputy also found that
Stafford “was absent on 10-1[7]-12” and “did not properly report her absence.” On November
13, 2012, Stafford filed her answers to Division of Employment Security’s (“Division”)
“‘Pending Issue’ Questionnaire” and stated she had called Ibarra on the morning of October 17
to tell her she “was walking to work since my ride did not show up” and she was going to be
“late five minutes.” Stafford also stated that prior to October 17, 2012, she had been
“extremely” sick, had been hospitalized, and had provided her supervisor with a note from her
doctor upon her return to work. On November 26, 2012, Stafford filed a “Notice of Appeal to
Appeals Tribunal” (“Appeals Tribunal”).
On December 21, 2012, the “Appeals Referee” held a hearing by telephone conference.
Matt Snyder (“Snyder”), the Vice President and Director of Human Resources for Employer,
testified that the reason for Stafford’s “separation” was due to violating “employer’s policy
relating to attendance and punctuality[.]” Snyder testified that it was “critical that . . . employees
. . . arrive to shifts as scheduled in order to be there to assist the customers when they start
calling in.” Snyder testified that prior to October 17, 2012, Stafford had been placed on “formal
3
As best we can discern from the record, the correct date should have been “10/17/12.” The confusion may stem
from Employer’s formal protest which stated Stafford’s date “last worked” was “10.16.12.” Her last full day of
work appears to be October 16, 2012, and her termination date was October 17, 2012.
4
probation for attendance and punctuality . . . following many conversations convening [sic] with
her regarding her failure to adhere to the attendance and punctuality policy.” Snyder stated that
Stafford was actually “under a corrective action, which stated specifically further absences
would result in termination.” He testified that Stafford had actually been absent from October 8
through October 12, 2012, but had basically been given “a free pass” because Ibarra had also
been out of the office that week. When Ibarra returned the following week, she spoke with
Stafford and advised Stafford she was being given “one final opportunity,” but Stafford called in
late to work on October 17, 2012.
Snyder stated that when Stafford called in at 8:05 a.m. on October 17, she told Ibarra that
she had “woke up late.” After receiving the packet of exhibits from the Division, Snyder learned
for the first time that Stafford was claiming her tardiness was due to her husband being unable to
give her a ride to work.
Stafford testified and acknowledged she had received a copy of Employer’s absenteeism
and tardiness policy. As to the events on the morning of October 17, Stafford testified that when
she called Ibarra, she advised Ibarra that she had arranged for a ride to work but that her ride did
not show up or return her phone calls. Stafford began to walk to work and while walking to
work—she lived five blocks from Employer—Stafford noticed it was already 8:05 a.m. and
called Ibarra on Ibarra’s cell phone. Stafford was aware that if she had another incident of
violating Employer’s policy, she would be terminated. Stafford testified she asked Ibarra if she
would be terminated even though she was walking to work, and Ibarra told her she would call
her back when she got to the office but that calling in late would probably lead to termination.
At that point, Stafford stopped walking to work and returned home. Stafford denied telling
5
Ibarra that she knew she was going to be terminated “so just box up my stuff[.]” Later that
morning, Ibarra called Stafford and terminated her employment.
Ibarra confirmed Stafford called her around 8:05 a.m. and told her she had just woken up.
Ibarra testified Stafford asked for her things to be boxed up because she knew she would be
terminated due to previous problems. Ibarra stated Stafford did not mention she was having car
trouble or trouble getting a ride to work, and Ibarra only learned this information that morning
when reviewing the exhibits for the hearing. Ibarra testified that when she called Stafford back
at around 9:14 a.m., she told Stafford she was terminated and her things would be boxed up and
she needed to make arrangements to pick them up.
On January 2, 2013, the Appeals Tribunal reversed the Division’s determination and
found that Stafford was not “disqualified for benefits by reason of [Stafford]’s discharge from
work on October 17, 2012.” The Appeals Tribunal made findings of fact that: (1) Employer’s
testimony regarding Stafford’s work separation was more persuasive; (2) the October 17, 2012
discharge occurred because Stafford was late to work and did not notify her supervisor
15 minutes prior to the start of her shift; (3) Stafford was running late because she did not wake
up on time; and (4) Stafford may have had a health problem, but likely did not qualify for FMLA
leave because she had not worked for Employer for twelve months.
The Appeals Tribunal concluded that “in spite of [Stafford]’s attendance issues, there was
no evidence that any of the prior occurrences were due to [Stafford] not waking up on time. The
fact that there was a single incident of oversleeping is not enough to show willfulness on the part
of [Stafford.]” The Appeals Tribunal also held that Employer had good cause to terminate
Stafford, but did not meet its burden to show work-related misconduct as defined by the statute.
6
On January 31, 2013, Employer filed its “Application for Review” to the Commission.
On March 4, 2013, the Commission affirmed and adopted the decision of the Appeals Tribunal
stating that the decision was fully supported by competent and substantial evidence on the whole
record. This appeal followed.
Employer sets forth one point on appeal. Employer argues the Commission erred in
concluding Stafford was not disqualified from unemployment compensation benefits because the
competent and substantial evidence supported the conclusion she was discharged for misconduct
connected with her work. Employer claims the Commission erred because: (1) Stafford
admitted to repeated violations of Employer’s known attendance and punctuality policy;
(2) Stafford claimed she did not oversleep on the day she was terminated, rather she was walking
to work and failed to call Employer within the required 15-minute notice period; and (3) the
Commission failed to place the burden of proof relating to attendance and tardiness on Stafford
as required by section 288.050.3.4
Stafford did not file a brief.5 However, the Division filed a brief claiming the
Commission’s decision should be affirmed because there was sufficient competent and
substantial evidence in the record to support the conclusion Stafford did not commit misconduct.
The Division also argued that the burden shifting to claimant provisions of section 288.050.3, did
not apply “because Employer failed to prove that [Stafford] violated its attendance policy[,] . . .
[nor] did the Employer explain its understanding of the reasons for [Stafford]’s absences or
tardiness.”
4
All references to statutes are to RSMo Cum.Supp. (2006), unless otherwise indicated. However, section 288.050
was amended in 2011, but no changes were made to section 288.050.3.
5
While there is no penalty to Stafford for not filing a brief, this Court is then forced to adjudicate Employer’s claims
of error without the benefit of whatever arguments Stafford might have raised. McClain v. Kelley, 247 S.W.3d 19,
23 n.4 (Mo.App. S.D. 2008).
7
The issue for our determination is whether Stafford was disqualified from unemployment
benefits because she was discharged for misconduct connected with her work with Employer.
Standard of Review
“The appellate court’s review of the Commission’s decision[6] in an unemployment
compensation case is governed by section 288.210, RSMo 2000.” Harris v. Division of
Employment Sec., 350 S.W.3d 35, 38 (Mo.App. W.D. 2011). Section 288.210 provides:
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;
(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.
We defer to the Commission’s findings of fact so long as they are supported by
substantial and competent evidence based on the whole record. Halkmon v. National Archives
& Records Admin., 406 S.W.3d 483, 486 (Mo.App. E.D. 2013). We also defer to the
Commission on matters of witness credibility and resolution of conflicting evidence. Harris,
350 S.W.3d at 39. However, “this Court does not defer to the Commission’s conclusions of law
or application of law to the facts.” Lindsey v. University of Missouri, Div. of Employment
Security, 254 S.W.3d 168, 170 (Mo.App. W.D. 2008). “Whether the Commission’s findings
support the conclusion that an employee was guilty of misconduct is a question of law.” Frisella
6
When the Commission adopts the decision of the Appeals Tribunal, we consider the Appeals Tribunal’s decision to
be the Commission’s for purposes of our review. Ashford v. Division of Employment Sec., 355 S.W.3d 538, 541
(Mo.App. W.D. 2011).
8
v. Deuster Elec., Inc., 269 S.W.3d 895, 898 (Mo.App. E.D. 2008) (internal quotation and
citation omitted). We review issues of law de novo. Comeaux v. Convergys Customer Mgmt.
Group, Inc., 310 S.W.3d 759, 762 (Mo.App. E.D. 2010).
Analysis
Unemployment compensation benefits are governed by chapter 288, the Missouri
Employment Security Law. Section 288.050.2 provides for the disqualification of an employee
from unemployment compensation benefits where there is “misconduct connected with the
claimant’s work[.]” “Misconduct” is defined in section 288.030.1(23) as
an act of wanton or willful disregard of the employer’s interest, a deliberate
violation of the employer’s rules, a disregard of standards of behavior which the
employer has the right to expect of his or her employee, or negligence in such
degree or recurrence as to manifest culpability, wrongful intent or evil design, or
show an intentional and substantial disregard of the employer’s interest or of the
employee’s duties and obligations to the employer[.]
“Work related misconduct” must involve a willful violation of the rules or standards of
the employer. Murphy v. Aaron’s Auto. Prods., 232 S.W.3d 616, 621 (Mo.App. S.D. 2007).
Without evidence that a claimant “deliberately or purposefully erred, he cannot properly be
found to have committed an act of misconduct.” Id.
The general rule under Missouri precedent is “the burden of proving eligibility for
unemployment compensation benefits initially lies with the claimant, but the burden shifts to the
employer if termination is premised upon an allegation of misconduct.” Hise v. PNK (River
City), LLC, 406 S.W.3d 59, 63 (Mo.App. E.D. 2013). However, section 288.050.3 specifically
provides:
Absenteeism or tardiness may constitute a rebuttable presumption of misconduct,
regardless of whether the last incident alone constitutes misconduct, if the
discharge was the result of a violation of the employer’s attendance policy,
provided the employee had received knowledge of such policy prior to the
occurrence of any absence or tardy upon which the discharge is based.
9
“Pursuant to this section, once [Employer] establishes the claimant violated a known attendance
policy, the burden shifts to the claimant to show she was not guilty of misconduct.” Wheeler v.
Pinnacle Automotive Protection, Inc., No. ED99928, 2013 WL 6070486, at *5 (Mo.App. E.D.
Nov. 19, 2013) (emphasis added); see also Johnson v. Div. of Empl. Sec., 318 S.W.3d 797, 803
(Mo.App. W.D. 2010) (noting “[t]he General Assembly has recognized the merit of reasonable
attendance policies in section 288.050.3 by amending that subsection to allow violation of
attendance policies to be considered to be ‘misconduct’ disqualifying the claimant when the
claimant fails to rebut the presumption of misconduct.”).
The Eastern District of this Court has found the “plain and unambiguous language of the
2006 amendment to Section 288.050.3 established a carve-out, or special provision[]” to the
general rule that the burden is on the employer if termination is based on an allegation of
misconduct. Hise, 406 S.W.3d at 64.7 Applying this “special provision” means that if the
misconduct of claimant is based upon the claimant’s absenteeism or tardiness, and the claimant
received knowledge of employer’s absentee and tardy policy prior to the occurrence upon which
the termination was based, “the burden of proving non-misconduct shifts back to the [claimant.]”
Id. The risk of non-persuasion then falls on the claimant. Id.; Wheeler, 2013 WL 6070486, at
*5; Johnson, 318 S.W.3d at 804.
On appeal before the Appeals Tribunal, the issue was whether Stafford was discharged
for misconduct connected with her work. The Commission determined Stafford “was discharged
7
The Western District of this Court opined the “recent amendments suggest that the General Assembly has been
attempting to direct the analysis away from the unrealistic use of the concept of ‘voluntary quit’ and is seeking to
show a preference for ‘misconduct’ analysis in cases in which the employee purports to want to remain employed
but is absent.” Johnson, 318 S.W.3d at 804. The consequence of the 2006 amendment was to abrogate prior case
law holding violation of an employer’s absence policy standing alone, is not a finding of misconduct connected with
work so as to deny unemployment benefits. See Hise, 406 S.W.3d at 65-66.
10
as a consequence of the violation of [Employer’s] attendance policy.” Therefore, section
288.050.3 applies to the determination of this matter.
Under section 288.050.3, the first determination we must make is whether the rebuttable
presumption applies. Here, Employer presented evidence to raise the rebuttable presumption
under section 288.050.3 because the Employer established that notice of the attendance policy
was provided to Stafford and when the notice was provided. Johnson, 318 S.W.3d at 807. First,
Stafford herself testified she received a copy of Employer’s absenteeism and tardiness policy.
Further evidence Stafford was aware of Employer’s policy is her February 18, 2012 signature on
the document entitled “ABSENTEEISM AND TARDINESS” detailing Employer’s attendance
policy. This took place before any absence or tardy was at issue (the first such absence taking
place six months prior to August 20, 2012). It is obvious that Employer created a “rebuttable
presumption” of misconduct.
Furthermore, Employer presented evidence that as of August 20, 2012, Stafford had four
unexcused absences within the previous six months of her employment, which warranted a
“write-up.”8 As part of her write-up, Stafford was made aware that her next unexcused absence
would be a “corrective action.” Stafford was given additional notice on two occasions in
September 2012.9 Stafford was given more than adequate notice of Employer’s attendance
policy.
8
At this point, Ibarra had Stafford “re-sign” the absenteeism and tardiness policy, which was further evidence
Stafford had knowledge of Employer’s policy prior to the absence or tardy upon which the discharge was based.
See Hise, 406 S.W.3d at 66.
9
Stafford was off for two weeks and as a result, Stafford signed a Corrective Action Notice on September 13, 2012,
acknowledging that she had “excessive absences.” Stafford was again given a written warning that her next
absence, excused or unexcused, would result in termination. She also signed a second Corrective Action Notice on
September 14, 2012, regarding attendance and to “[b]e at work and be on time to work,” and was given a final
warning that her next tardy or absence, excused or unexcused, would result in termination.
11
Under section 288.050.3, this is sufficient to raise the rebuttable presumption. Hise, 406
S.W.3d at 65.10 The burden then should have shifted to Stafford to prove her attendance
infractions did not constitute misconduct. Id. Rather than shift the burden, the Commission
improperly held the Employer had the burden of proving misconduct. This was an erroneous
application of law by the Commission.
Since the presumption was raised, Stafford had the risk of non-persuasion in seeking to
rebut the presumption. Johnson, 318 S.W.3d at 807-08. Stafford then had to rebut the
presumption that she violated Employer’s attendance policy, and then a determination would be
made whether her absences were a “willful violation.” See Hise, 406 S.W.3d at 68. However,
Stafford did not rebut the presumption that she violated Employer’s attendance policy. Stafford
and the Commission both acknowledged that she violated Employer’s policy and Stafford
testified she was aware that if she had another incident violating the policy, she would be
terminated. Stafford’s termination was a consequence of her violation of Employer’s
absenteeism and tardiness policy.
As already noted, the Commission’s determination of whether Stafford’s actions
constituted misconduct associated with her work is a question of law we review de novo.
Wheeler, 2013 WL 6070486, at *6. “[I]f the employer creates the presumption of misconduct,
the success of [Stafford] will then obviously depend on the ability of [Stafford] to persuade the
hearing officer that the absences were not due to [her] fault.” Johnson, 318 S.W.3d at 808 n.10.
Here, the Commission found Employer “had a written policy that required employees to contact
10
The Division argues that the burden shifting to claimant provisions of section 288.050.3, do not apply “because
Employer failed to prove that [Stafford] violated its attendance policy[,] . . . [nor] did the Employer explain its
understanding of the reasons for [Stafford]’s absences or tardiness.” We disagree. Employer presented two
corrective action notices signed by Stafford in September 2012 noting “excessive absences” by Stafford. In
addition, there was testimony and written evidence that Stafford was put on probation and warned her next tardy or
absence would result in termination prior to this incident. This was confirmed by Stafford’s testimony at the hearing
that she was on probation at the time of her termination, and was aware that if she had another violation of the policy
she would be terminated. There is no evidence contradicting the fact that Stafford violated the attendance policy.
12
a supervisor fifteen minutes prior to the start of a shift in the case of an exigency that prevent the
employee from reporting as scheduled,” the policy was reasonable, and Stafford was aware of
the policy. The Commission found there was competent and substantial evidence that Stafford
was late for a shift and failed to notify her supervisor until five minutes after her shift started.
However, the Commission then improperly applied the law in holding the Employer “has not
met its burden to show work-related misconduct as defined by statute.” Because the burden
shifted to Stafford, she had to prove her attendance infractions did not constitute misconduct.
Hise, 406 S.W.3d at 65. Stafford failed to meet her burden to prove non-misconduct related to
her attendance.
Once the burden shifted to Stafford under section 288.050.3, the circumstances of her
absences could then be considered in a misconduct analysis. Id.; see also Johnson, 318 S.W.3d
at 805. The circumstances surrounding Stafford’s absences included the fact that Employer had
a written attendance and tardiness policy, and Stafford signed the policy when hired; both of
these facts were noted by the Commission. The Commission found Stafford received a final
warning concerning her attendance the same week she was discharged, along with written
warnings concerning her attendance on September 11 and 14, 2012. The Commission further
found Employer’s version of the circumstances surrounding Stafford’s absence resulting in
termination to be more persuasive, and determined she was late because she overslept and failed
to notify her supervisor.
The Commission then improperly applied the law to the facts in determining misconduct.
Citing White v. Wackenhut Corporation, 208 S.W.3d 916 (Mo.App. E.D. 2006), the
Commission found Stafford was late because she overslept, none of her prior occurrences were
shown to be due to Stafford not waking up on time, and “a single incident of oversleeping is not
13
enough to show willfulness on the part of [Stafford].” However, this case is of no assistance
since the 2006 amendment to section 288.050.3. Under the 2006 amendment, a violation of an
employer’s absence policy now raises a presumption of misconduct connected with work so as to
deny unemployment benefits. Whether Stafford’s other incidents involved oversleeping or not,
are irrelevant because the issue now is whether Stafford violated Employer’s absenteeism and
tardiness policy. Cases such as White, holding otherwise were implicitly abrogated by the 2006
amendment. See Hise, 406 S.W.3d at 65-66 (“the 2006 amendment to Section 288.050.3
implicitly abrogated prior case law.”).
Under the 2006 amendment, Stafford may attempt to show her absences were not
misconduct, a question we review de novo. However, we look at what qualifies as “misconduct”
under section 288.030.1(23). Misconduct involves willful disregard of employer’s interest, a
deliberate violation of an employer’s rules, or an intentional and substantial disregard of the
employer’s interest or employee’s duties to employer. “The General Assembly has recognized
the merit of reasonable attendance policies in section 288.050.3 by amending that subsection to
allow violation of attendance policies to be considered to be ‘misconduct.’” Johnson, 318
S.W.3d at 803. If an employee frequently violates an employer’s policy, that fact may be
evidence of employee’s willful disregard of employer’s interest, deliberate violation of rules, and
disregard of employee’s duties to employer. Id. at 804.
Here, Stafford’s misconduct was evident in her complete and willful disregard of
Employer’s interest, her duties to Employer, and deliberate violation of Employer’s rules.
Despite repeated written and verbal warnings over a three-month period, Stafford continued to
violate Employer’s attendance policy. On the day of the incident resulting in her termination,
Stafford failed to notify her supervisor fifteen minutes before the start of her scheduled shift, per
14
Employer’s policy. Stafford acknowledged this failure and provided no explanation as to why
she did not call her supervisor per the policy. In fact, Stafford testified that on that morning, she
was awake and up more than fifteen minutes prior to her scheduled shift, but did not call until
8:05, five minutes after the start of her shift.11
The fact there was no evidence that Stafford’s prior occurrences were due to her not
waking up on time, does not make her absences something other than misconduct. Stafford was
aware she had excessive absences and that one more absence, excused or unexcused, would
result in termination. Yet, Stafford overslept, failed to notify her supervisor per the policy, and
was absent. The circumstances surrounding her absences and her behavior are both a classic
example of disregard for an employer’s rules and policies.
Moreover, we find that excessive absences and tardies in violation of an employer’s
policy may, and in this case do, meet the definition of “misconduct” as “negligence in such
degree or recurrence as to manifest culpability, wrongful intent . . . or show an intentional and
substantial disregard of the employer’s interest or of the employee’s duties and obligations to the
employer.” § 288.030.1(23); see Johnson, 318 S.W.3d at 803 (holding “[w]e suppose that the
kind of misconduct that occurs in the case of excessive absence is conduct that can ordinarily be
described as ‘negligence in such degree or recurrence as to manifest culpability.’ In some cases,
perhaps, one could also call it ‘wanton disregard [for] the employer’s interests.’”) (quoting
§ 288.030.1(23)) (emphasis in original). Stafford’s attendance history with Employer could
easily be described as including “excessive absences.” Within her first six months of
employment, Stafford had four unexcused absences which warranted a “write-up” and a warning
11
The Commission found Stafford was running late because she overslept, despite Stafford’s testimony that she was
late because her ride did not show up. This finding was based on the Commission’s conclusion that Employer’s
testimony was more credible. Ibarra testified Stafford called her around 8:05 on the morning in issue and told her
she had just woken up.
15
that her next unexcused absence would involve a “corrective action.” On September 13, 2012,
Stafford signed a Corrective Action Notice acknowledging she had “excessive absences.” She
was again given a written warning that her next absence, excused or unexcused, would result in
termination. She signed a second Corrective Action Notice on September 14, 2012, regarding
attendance and to “[b]e at work and be on time to work[,]” and was given a final warning that her
next tardy or absence, excused or unexcused, would result in termination.
Despite all of these warnings, Stafford was absent from October 8 through 12, 2012,
while her supervisor was out of the office, and only avoided termination due to a
miscommunication with the acting manager. The very next week, Stafford was told she only
avoided termination due to the miscommunication, she was still on formal probation, and her
next tardy or absence, excused or unexcused, would result in termination. In spite of this
warning that her next tardy or absence would result in termination, along with the many other
warnings, Stafford again violated Employer’s policy. This violation occurred within two days of
her last warning that her next tardy or absence, excused or unexcused, would result in
termination.
Conclusion
The Commission erred in failing to shift the burden of proof to Stafford and as a result,
reversible error resulted in the Commission’s finding that Stafford was not discharged for
misconduct. Stafford’s absenteeism raised the rebuttable presumption of misconduct under
section 288.050.3, and Stafford failed to rebut said presumption. Stafford willfully violated
Employer’s attendance policy and rules, and her excessive absences amounted to negligence in
such degree or recurrence as to manifest culpability, wrongful intent, and show an intentional
and substantial disregard of Employer’s interest and Stafford’s duties and obligations to
16
Employer. See § 288.030.1(23). Therefore, Stafford is disqualified from unemployment
compensation benefits because she was discharged for misconduct connected with her work with
Employer.
Accordingly, we grant Employer’s Point I. We reverse the Commission’s finding that
Stafford is not disqualified for benefits, and direct the Commission to enter an Order finding that
Stafford is disqualified from benefits for misconduct connected with work in accordance with
this opinion.
WILLIAM W. FRANCIS, JR., J. - OPINION AUTHOR
NANCY STEFFEN RAHMEYER, P.J. - Concurs
DANIEL E. SCOTT, J. - Concurs
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