Davis v. School of the Ozarks, Inc.

PHILLIP R. GARRISON, Judge,

dissenting.

I respectfully dissent. The decision of the appeals tribunal adopted by the Commission in its order stated, in pertinent part:

By March 2, 2004, the grievance had worked its way through the process and landed on the desk of the college president. The president wrote [C]laimant on March 2, 2004, and stated that under certain conditions he could remain an employee at his regular pay and benefits. The letter also informed [Claimant that his contract would be renewed for the upcoming school year. [CJlaim-ant rejected this offer. Since [Cjlaimant rejected the offer to remain employed, he voluntarily left work and his voluntary separation from work is deemed to have occurred effective March 4, 2004, same being the date upon which he was to respond to the president of the college.
The issue remaining is whether [Cjlaim-ant quit work with good cause attributable to his work or employer. [Cjlaim-ant testified that he did not accept the offer because his assignment would be altered. The referee finds no merit in this position. The president of the college indicates in his letter a reasonable necessity for the variance in duties. The school year had very little time left and obviously the courses which normally would have been taught by [Cjlaimant were already being taught by someone else. [Cjlaimant was offered other current duties at the college and would return to his regular teaching duties the following school year. The referee does not find that a reasonably prudent person would have quit work over this understandable variance in duties.
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It also must be stated that, while true, [Cjlaimant had disagreements with the president’s proposal he was given the opportunity to contact the president to try to resolve the differences and, under the Missouri Employment Security Law, he had the obligation to do so. The' Missouri Courts have consistently held that before good cause for quitting work can be established it must be shown that an employee acted in good faith in an attempt to reasonably resolve problems before they quit. As stated by the Court in, American Family Insurance Company v. Hilden, 936 S.W.2d 207 (Mo.App. W.D.1996)[,J “To demonstrate good faith, a claimant must show that before taking the ‘drastic’ measure of termination of employment, he or she attempted to remedy the situation or dispute.” [Cjlaimant had an avenue open to discuss the proposal with the college president and he did not avail himself of that opportunity, thus he did not act in good faith and good cause is not established. It is concluded that [CJlaimant’s voluntary separation from work effective March 4, 2004, was not with good cause attributable to his work or employer, (emphasis added).

Thus, the Commission’s order is premised on the conclusion that because Claimant rejected the opportunity to remain employed, he voluntarily left work as of *108March 4, 20041; that his quitting was not for good cause attributable to his work or employer; and he did not act in good faith by attempting to reasonably resolve the problems that led to his departure. Assuming that ■ Claimant’s failure to accept the conditions of the president’s letter amounted to his voluntary departure, I disagree with the remaining two conclusions.

The law concerning whether an employee is disqualified from unemployment benefits because of leaving work voluntarily was summarized in Department of Natural Resources v. Lossos, 960 S.W.2d 537 (Mo.App. S.D.1998). There, a worker received a probationary promotion which the employer later determined he had not successfully completed. Id. at 539. He was directed to work at another job location 150 miles from his home and, although the employer offered to reimburse him for travel expenses, he resigned and sought unemployment benefits. Id. In affirming the granting of those benefits, this court said:

An employee effectively disqualifies himself from receiving unemployment benefits if he leaves work voluntarily without good cause attributable to his work or his employer. § 288.050.1(1). Whether an employee has good cause to quit his job is a question of law, and the burden is on the employee to prove its existence. The phrase “good cause” has no precise meaning; it depends on the facts of each case. An employee has good cause to quit his employment if his conduct is consistent with what a reasonable person acting in good faith would do in a similar situation. The circumstances motivating an employee to quit must be caused by external pressures so compelling that reasonably prudent person would be justified in terminating his employment. Good faith is an essential element of good cause, and to establish it the employee must prove that he made an effort to resolve the troublesome situation before terminating his job. (citations omitted).

Id. at 540. There, we held that the employee had good cause to resign and affirmed the granting of benefits. Id. at 542. In doing so, we disagreed with the Commission as to the reason the employee was entitled to benefits, but noted that when the essential facts of the case are not in dispute and the parties disagree merely as to what legal conclusions may be drawn from them, such as whether the employee had good cause to quit within the meaning of Section 288.050.1(1), an interpretation or application of law is involved which is within our province to independently review and correct. Id.

In this case, the essential facts surrounding Claimant’s entitlement to benefits are not in dispute. Rather, one of the determinative issues is whether his failure to accept the conditions of the president’s letter amounted to a voluntary quit without good cause attributable to his work or employer. As in Lossos, this involves an interpretation or application of law.

It is true that Claimant did not accept the conditions set out by the president in his March 2, 2004, letter by which Claimant could have remained employed by College. I believe, however, that it is necessary to view the letter as a whole. Although the letter offered to have a probationary contract issued to Claimant for the next academic year in the usual man*109ner, it also contained other significant provisions. It said, “I propose the following nonnegotiable resolution of these matters.'” (emphasis added). It then said:

I will end your suspension effective the date you tell me you accept my proposal. Given the semester’s progress, your classes will need to continue as they are. However, I do have a project with which you could help. It might run into the summer, but arrangements could be made for that. We can discuss this later, but my intent is that you would spend the remainder of the semester doing needed work for the College, (emphasis added).

The letter also stated that the president needed Claimant’s “response to this proposal no later than Thursday, March 4th. If you agree, sign below and return to my office. If you do not agree, please let me also know that by Thursday, March 4th because, I plan to forward all three appeals to the Faculty Grievance Committee as provided in the Faculty Handbook.”

The conditions of Claimant’s reinstatement and opportunity to accept another probationary contract were a part of one package.2 In order to be offered another probationary contract, it was necessary that Claimant accede to the other terms of the letter. That included performing an unidentified “project” for an undetermined period of time, possibly past May 31, 2004, the last date for which Claimant was to be compensated by College. Thus, the scope of the work to be performed by Claimant was undetermined as was the time requirements and whether he would be compensated for all of it.

Whether these uncertainties amounted to good cause is a legal issue on which we do not defer to the Commission. Sokol v. Labor and Indus. Relations, 946 S.W.2d 20, 26(Mo.App. W.D.1997). The phrase “good cause” has no fixed or precise meaning, but is judged by the facts of each case. Id. The standards by which it is judged can be summarized as an objective determination of what a reasonable person would do in the same or similar circumstances. Id. Absent discriminatory, unfair or arbitrary treatment, mere dissatisfaction with working conditions does not constitute good cause for quitting unless the dissatisfaction is based on a substantial change in wages or working conditions from those in force at the time a claimant’s employment began. Id. at 26-27 (quoting Charles v. Missouri Div. of Employment Sec., 760 S.W.2d 658, 661 (Mo.App. W.D.1988)).3

In my view, Claimant’s failure to accept the terms of the president’s letter, given its nebulous description of what he would be required to do, for how long, and whether he would be compensated for all of it, was compatible with what a reasonable person would do under the circumstances. Those circumstances included what was obviously a contentious standoff between the parties over whether Claimant should be punished, or perhaps termi*110nated, for his involvement in reporting to the Board of Trustees of the College rather than following a faculty grievance procedure, his belief that a Ph.D. held by one of its administrators was obtained from a “diploma mill.”

It is true that Claimant did not attempt to discuss the terms of the March 2, 2004, letter with the president, and that cases such as Lossos impose a duty on an employee who quits employment to prove that he made an effort to resolve the situation before leaving the job. In my opinion, that requirement is inapplicable here and does not disqualify Claimant.

The president’s letter specifically stated that he was proposing “the following nonnegotiable resolution of these matters.” While the president also said, “We can discuss this later,” with reference to the unspecified duties, time requirements, and compensation after May 31, 2004, it is clear that Claimant was being required to accept or reject the terms of the letter without the benefit of any such discussions. Not only did the letter say that the terms were nonnegotiable, it also required acceptance or rejection within two days. According to the letter, there were to be no discussions before Claimant had to decide whether to accept or reject its terms even though some of its terms were nebulous at best. There was also evidence that Claimant received the letter only one day before the deadline for accepting it. Under these circumstances, I do not believe we can classify Claimant as having failed to act in good faith by not availing himself of the opportunity to discuss the proposal with the president.

I do not agree that Shields v. Proctor & Gamble Paper Products, 164 S.W.3d 540(Mo.App. E.D.2005), is dispositive of issues in this case. As indicated by the majority, Shields stands for the proposition that, to be entitled to unemployment benefits, an employee must not have caused his dismissal by his wrongful action or inaction, or his choosing not to be employed, and that causation depends on whether the final act needed to effect separation was committed by the employee or the employer. Shields, however, involved the employee’s affirmative act of selecting the separation package offered by the employer, which the appellate court held was a voluntary separation. Id. at 545. Here, no such affirmative act is involved, and, in my view, Claimant’s failure to accept the terms of the letter was justified.

More importantly, there was an issue in Shields about whether, even if the separation was voluntary, it was for good cause attributable to the employer. Id. at 543. There, the employee claimed that the reason he chose to take the separation package was because he was told that if he did not, he would be assigned to work on a new production line for which he had no formal training. Id. at 542. The court held that under the facts there, the record contained no evidence that employee quit in good faith because he made no effort to resolve the dispute before resorting to the drastic remedy of quitting. Id. at 545. In direct conflict with the facts of the instant case, the Shields court held that the record did not support employee’s contention that he was not required to address his concerns about the lack of training because it was made clear to him by his employer that his only recourse was the separation package. Id. In the instant case, Claimant was clearly told that the offer contained in the letter from the president was “nonnegotiable.” In my view, the uncertain conditions contained in that letter, along with its nonnegotiable status, constituted good cause attributable to the College for Claimant’s decision not to accept its terms. In addition, I believe that his failure to attempt to resolve his concerns about the *111lack of clarity concerning what duties would be required, over what time, and for what compensation, were justified by the ultimate conditions of nonnegotiability and short response time. I would reverse the order of the Commission.

. I agree with the majority that Claimant became unemployed as of May 31, 2004, not March 4, 2004. This would be true whether Claimant was discharged or voluntarily quit. Although Claimant was under suspension as of March 4, 2004, his contract was in force and he was paid through May 31, 2004.

. No issue is raised in this appeal about whether the failure to renew a probationary contract is a circumstance which would qualify as a termination for unemployment compensation purposes.

. In his brief, Claimant argued the following, among other things:

Following the decision in Sokol, 946 S.W.2d at 27, for an employer to demand that an employee — or former employee— immediately accept a vague, "nonnegotiable resolution,” is the sort of behavior that justifies a voluntary quit. The timetable imposed by the College was completely arbitrary. That the letter was mailed at the earliest on March 2nd and demanded a response by March 4th suggests a lack of good faith — and such a lack of good faith as would justify an employee not responding within the hours-long time limit.