In the
Missouri Court of Appeals
Western District
WILLIAM WUNDERLICH,
WD79209
Appellant, OPINION FILED:
v.
MAY 24, 2016
DEANNA JENSEN; DIVISION OF
EMPLOYMENT SECURITY,
Respondents.
Appeal from the Labor and Industrial Relations Commission
Before Division Three: James E. Welsh, J.J., Anthony Rex Gabbert, and Karen K.
Mitchell, P.J.
William Wunderlich appeals the Labor and Industrial Relations Commission’s
(Commission) order affirming the Appeals Tribunal’s dismissal of his appeal from a Division of
Employment Security (Division) deputy’s determination that Wunderlich’s former legal
secretary, Deanna Jensen, had not been discharged for misconduct connected with work and,
therefore, was not disqualified from unemployment benefits. The Commission affirmed the
Appeals Tribunal’s dismissal on the grounds that Wunderlich failed to show good cause for
failing to appear at the telephone hearing regarding his appeal. Wunderlich asserts three points
of error. First, he contends that the Commission’s decision lacked evidentiary support on the
whole record and the Commission abused its discretion in refusing to set aside the dismissal
because Wunderlich showed good cause for failing to appear at the telephone hearing by
demonstrating that he acted reasonably under all the circumstances and that he acted in good
faith. And, though the Commission’s ruling does not mention a “five minute wait” rule in its
ruling, Wunderlich contends in his final two points that the Commission both (1) erred in relying
upon a rule that is not contained within the Commission’s regulations and (2) erred in failing to
notify him of such a “five minute wait” rule until it was too late for him to participate in the
hearing. We affirm.
Factual and Procedural Background1
On May 19, 2015, Deanna Jensen filed an initial claim for unemployment benefits after
she was discharged from her position as a legal secretary at the law firm of William Wunderlich
and Associates. On May 29, 2015, Wunderlich protested the award of benefits, alleging that
Jensen had been discharged for misconduct connected with work. On June 8, 2015, a Division
deputy determined that Jensen had not been discharged for misconduct connected with work and,
therefore, Jensen was not disqualified from receiving benefits. On June 17, 2015, Wunderlich
filed his notice of appeal to the Appeals Tribunal.
On June 26, 2015, the Appeals Tribunal mailed notice of a telephone hearing to Jensen
and Wunderlich. The notice stated:
To Participate in the Telephone Hearing:
1
In reviewing unemployment compensation cases, we view the facts objectively, not in the light most
favorable to the Commission’s decision. Lucido v. Div. of Emp’t Sec., 441 S.W.3d 172, 174 (Mo. App. 2014) (citing
Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. banc 2003)). However, we defer to the
Commission’s factual findings and determinations of witness credibility. Id. (citing Seck v. Dep’t of Transp., 434
S.W.3d 74, 79 (Mo. banc 2014)). We review de novo conclusions of law and the application of the law to the facts.
Id.
1. YOU MUST CALL the toll-free number 800-471-7894 at the time of the
hearing.
2. When instructed, enter your PIN number 48980808 followed by the pound
key [#].
3. Wait for the Referee to join the hearing.
The notice stated the hearing date as “THURSDAY, JULY 09, 2015” and the hearing time as
“10:15 A.M. Central Time.” The notice stated that the Decision would determine if the claimant
left work voluntarily without good cause attributable to work or was discharged for misconduct
connected with work. The back of the notice provided additional telephone hearing information
and indicated, among other things, that “[i]f you filed the appeal and do not participate in the
hearing, your appeal will be dismissed” and “[i]f you have any problems, or if you have waited
on hold for more than 15 minutes and the referee (Host) has not joined the call, please contact
the referee’s office at the telephone number listed on the bottom front of this page.”
Wunderlich, a lawyer, at 10:10 a.m. on July 9, 2015, instead of being prepared for his
hearing and prepared to join the telephone conference hearing at the designated time in the next
five minutes, made a telephone call to a different telephone number at the Division, “at a phone
number provided to him in the Notice of Appeal to provide answers to Employer for any
questions he might have regarding such appeal.” Five minutes before his hearing, Wunderlich
reported that he was using that time to attempt to determine the meaning of words that were in
the “Employer Statement.” Wunderlich proceeded to speak with a Division employee after
making this telephone call and failed to call the telephone number provided in the telephone
hearing notice at 10:15 a.m., instead deciding to join the appeal conference call in excess of five
minutes later—at which point Wunderlich was notified that his appeal had been dismissed. The
Appeals Tribunal docket sheet for the hearing contained an entry “No appearance by 10:20.
Appeal dismissed,” and an entry “Call from Ron Miller: employer on the phone with Mr. Miller
at 10:20.”
Wunderlich filed a timely Application for Review to the Commission asking that the
order of dismissal be set aside on the grounds that he had good cause for failing to participate in
the scheduled telephone hearing. After review, the Commission affirmed the Appeals Tribunal
Order. The Commission made the factual finding that, by Wunderlich’s own admission, at the
time he should have been following the instructions for connecting to his hearing, he was on the
telephone speaking to someone else. Specifically, the Commission stated as follows in support
of its ruling:
We have considered employer’s arguments and conclude that they fail. We do not
believe the Division’s Notice suggests participants have flexibility about when to
connect to the hearing. The Notice is clear; participants are to take steps to
connect to the hearing “at the time of the hearing.” By his own admission,
employer did not do so.
Although employer alleges his timekeeping devices read 10:19 at the time he
connected to the teleconference, the teleconference printout confirms employer
connected at 10:20:39, more than five minutes after the hearing time.
Due process required the Appeals Tribunal to afford employer an opportunity to
be heard. The Appeals Tribunal did just that. Employer’s failure to take
advantage of the opportunity to be heard is not a due process failure.
Employer’s hearing was scheduled for 10:15 a.m. At 10:10 a.m.—a mere 5
minutes before he was to connect to the hearing—employer initiated a telephone
call to another telephone number to ask questions about material appearing in the
Division’s record. Employer made the decision to make another call just prior to
the start of his hearing and employer made the choice to remain on that call as the
time for the start of his hearing came and went. A reasonable person desiring to
participate in a hearing on his appeal would initiate his hearing call “at the time of
the hearing” as directed by the Notice of Telephone Hearing.
This appeal follows.
Standard of Review
We review decisions of the Commission pursuant to Section 288.210, RSMo 2000.
Consequently, we will set aside the decision of the Commission only where (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. § 288.210. 8 CSR 10-5.040(2)(A)2
provides that, if the appellant fails to appear at a hearing at the scheduled time or location, the
appeal shall be dismissed. 8 CSR 10-5.040(2)(B) provides that, if the dismissal is set aside, a
hearing shall be held to determine if the appellant had good cause for failing to appear. To
establish ‘good cause’ the appellant must show that he acted in good faith and reasonably under
all of the circumstances. Westbrook v. Division of Employment Security, 456 S.W.3d 116, 119
(Mo. App. 2015). “Good cause depends upon the evaluation of many subtle factors, and
therefore is subject to judicial review only for abuse of discretion.” Id. “When contemplating
good cause, we are bound by the Commission’s determination, absent an abuse of discretion,
even though we might have reached a different decision had we considered the matter initially.”
Id. (internal quotation marks and citation omitted). Further, we must give deference to the
Commission on factual issues. Hornbeck v. Spectra Painting, Inc., 370 S.W.3d 624, 629 (Mo.
banc 2012). We may not substitute our judgment on the evidence and when the evidence before
the Commission would warrant either of two opposed findings, we are bound by the
Commission’s determination. Id. “[I]t is irrelevant that that there is supportive evidence for the
contrary finding.” Id. (internal quotation marks and citations omitted).
Analysis
Point I
2
All regulatory references are to the Missouri Code of State Regulations (October 31, 2013).
In Wunderlich’s first point on appeal, he contends that the Commission’s decision lacked
evidentiary support on the whole record and the Commission abused its discretion in refusing to
set aside the dismissal, because he had shown good cause for failing to appear in the telephone
hearing by demonstrating that he acted reasonably under all the circumstances and he acted in
good faith. He argues that he had a good faith belief that there was some flexibility about when
to connect to the hearing and, while that belief may have been incorrect, he showed it was a good
faith belief and he acted reasonably under the circumstances. He argues that he made an
affirmative effort to participate in the telephone hearing and, therefore, the dismissal of his
appeal should have been set aside. We find no abuse of discretion.
Wunderlich does not dispute that he was aware of the date and time of his telephone
hearing. He also does not dispute that he chose to initiate another telephone call near the time
his hearing was scheduled and chose to remain on that call after his scheduled hearing time of
10:15. He has made no showing that the telephone call he initiated prior to the scheduled
hearing was a necessary prerequisite for the teleconference or that, even if it was, the call could
not have been initiated at a time that did not conflict with his hearing time. We find no
suggestion of flexibility with regard to the start time of the hearing within the telephone hearing
notice. The notice clearly states: “To Participate in the Telephone Hearing: 1. YOU MUST
CALL the toll free number 800-471-7894 at the time of the hearing.” The Notice also provides:
“Attendance: if you filed the appeal and do not participate in the hearing, your appeal will be
dismissed.” These instructions are unambiguous and the Notice’s statement regarding contacting
the referee’s office “[i]f you have any problems, or if you have waited on hold more than 15
minutes and the referee (Host) has not joined the call,” does not suggest flexibility with regard to
the time at which a participant must call into the hearing. Wunderlich does not contend that he
experienced any difficulties when he called into the number for the telephone hearing or that he
waited on hold and the referee never joined the call. Based on the hearing notice, Wunderlich
had no reasonable expectation that the appeals referee would wait for any given amount of time
prior to dismissing the appeal. Yet, Wunderlich made no effort to join the telephone conference
as instructed on the notice of hearing at the time of the hearing.
We find the Commission’s decision supported by competent and substantial evidence and
find that the Commission did not abuse its discretion in refusing to set aside the dismissal of
Wunderlich’s appeal on the grounds that Wunderlich’s failure to appear at the telephone hearing
was without good cause. Point one is denied.
Points II and III
In his second point on appeal, Wunderlich contends that the Commission abused its
discretion in refusing to set aside the dismissal and acted without or in excess of its powers
because the Commission imposed an obligation upon him with respect to his appearance at the
telephone hearing that was inconsistent with the Commission’s regulations adopted pursuant to
the Missouri Administrative Procedures Act. Wunderlich argues that the Commission applied a
“five minute wait” rule that was not a valid rule or regulation because the Commission failed to
follow the required course of rule promulgation under the APA for its implementation. And, in
his third point on appeal, Wunderlich contends since he was not notified of the supposed “five
minute rule” until after five minutes had elapsed from the start time of his teleconference appeal,
he has been denied due process in the appeal proceeding. Because these issues are interrelated,
we discuss them together.
While we agree with Wunderlich that the Division abuses its discretion when it chooses
to conduct proceedings with operating procedures that are outside of the clearly delineated
parameters of its own regulations, Wilson v. Div. of Emp’t Sec., 359 S.W.3d 133, 136 (Mo. App.
2012), we note that the Commission’s ruling does not impose or even mention a “five minute
rule” as the basis for its decision. Instead, the Commission plainly faulted Wunderlich, a lawyer,
for failing to follow the expressly delineated instructions for the start time of his hearing.
Frankly, Wunderlich does not dispute that he ignored the expressly delineated time for the start
of his teleconference appeal and that he did not even attempt to participate in the hearing until
some five and a half minutes later. The burden is not on the Division to show that it reasonably
terminated a hearing when a participant fails to appear; the burden is on the participant to show
reasonable and good faith actions in making an affirmative effort to appear at the appointed time.
“The Appeals Tribunal is not required to accommodate a party that does not follow the clearly
stated directions in the notice of hearing.” Robinson v. Div. of Emp’t Sec., 274 S.W.3d 505, 508
(Mo. App. 2008).
Here, Wunderlich attempts to shift the focus of his failure to attempt to participate in his
hearing at the clearly stated appointed time and claims that there is a “five minute rule” that is
unpublished and that he was not notified of it until it was too late. The Commission did not,
however, base its ruling upon any supposed unpublished “five minute rule” and, simply put,
Wunderlich’s appeal complaints relating to such a “five minute rule” raises issues on appeal that
were not before the Commission nor decided by the Commission’s ruling.
“We may only address the issues that were determined by the Commission and may not
consider issues that were not before the Commission.” Chase v. Baumann Property Co., 169
S.W. 3d 891, 892 (Mo. App. 2005). Because the Commission did not base its ruling upon an
invalid regulation not properly promulgated under the APA, Wunderlich’s contention to the
contrary must fail.
Similarly, Wunderlich’s due process claim is without merit. “In an administrative
proceeding, due process is provided by affording parties the opportunity to be heard in a
meaningful manner. The parties must have knowledge of the claims of his or her opponent, have
a full opportunity to be heard, and to defend, enforce and protect his or her rights.” Scrivener Oil
Co., Inc. v. Crider, 304 S.W.3d 261, 271-72 (Mo. App. 2010) (internal quotation marks and
citations omitted). Here, Wunderlich had knowledge of the claims of his opponent and had a full
opportunity to be heard, to defend, and to enforce and protect his rights. He was provided notice
of the exact date and time of his hearing and was made aware that his appeal would be dismissed
if he failed to appear at the hearing. Wunderlich had no reasonable expectation that the Division
would wait any given amount of time before terminating the hearing after he failed to appear.
However, after failing to appear at the hearing at the scheduled time, Wunderlich was still given
an opportunity to prove that he had good cause to excuse his failure to appear. We find that
Wunderlich was afforded the opportunity to be heard in a meaningful manner and find no due
process violations.
Points II and III are denied.
We conclude, therefore, that the Commission did not abuse its discretion in refusing to set
aside the dismissal of Wunderlich’s appeal. Wunderlich failed to show good cause to excuse his
failure to appear at the telephone hearing regarding his appeal and, therefore, his appeal was
properly dismissed. We affirm the Commission’s decision.
Anthony Rex Gabbert, Judge
All concur.