Katherine Valley v. Division of Employment Security , 578 S.W.3d 865 ( 2019 )

MISSOURI COURT OF APPEALS
WESTERN DISTRICT
KATHERINE VALLEY, )
) WD82744
Appellant, )
v. ) OPINION FILED:
)
DIVISION OF EMPLOYMENT ) July 30, 2019
SECURITY, )
)
Respondent. )
Appeal from the Labor and Industrial Relations Commission
Before Division Two:
Lisa White Hardwick, P.J., Thomas H. Newton, and Mark D. Pfeiffer, JJ.
Ms. Katherine Valley challenges a divided ruling of the Labor and Industrial
Relations Commission reversing the Appeals Tribunal’s award of unemployment
compensation benefits following her termination from employment for alleged
misconduct by the Society of St. Vincent De Paul St. Louis Diocesan Council
(employer). She contends that competent and substantial evidence does not support
the Commission’s ruling. We reverse.
Ms. Valley began working for the employer in March 2017 as a cost accountant,
earning approximately $56,500 annually. She worked as a liaison between store
managers and the employer’s office and had been provided a handbook setting forth
the employer’s policies and rules. In January 2018, Ms. Valley received a 5% raise.
The following month, Ms. Debra Downey, Ms. Valley’s supervisor, issued Ms. Valley
a corrective action form warning that she had not treated co-workers with respect and
had created a conflict with co-workers. This warning was based on her reference to
the Human Resources director in January 2018 as a “black cloud,” which had been
overheard in Ms. Valley’s conversation with a co-worker. 1 During the appeal hearing
before a referee, Ms. Downey testified that this reference violated the non -harassment
policy, but this part of the action form shared with Ms. Valley was not checked as a
violation. According to Ms. Downey, the conduct constituted bullying as well as
harassment on the basis of a protected classification, i.e., that an authority figure was
similarly situated to those protected under classifications such as race, color, national
origin, disability, religion, marital status, pregnancy, veteran status, sexual orientation,
or age. 2
The employer conducted Ms. Valley’s mid-year review in March 2018, in which
a few areas were marked as needing improvement. 3 Still, the employer indicated on
1
The record reflects the supervisor’s recognition of tension between Ms. Valley and the HR director.
Ms. Valley wrote a response to the February 2018 corrective action report, stating that she had made a
mistake and had apologized to the HR director.
2
In this regard, Ms. Downey testified, “I think also being in a position of authority can make you a
target class, essentially.”
3
The areas flagged for improvement were the following:
Positive Attitude: Shares ideas and suggestions. Presents a professio nal clean
appearance. Promotes SVDP to donors, employees and volunteers for advancement of
our organization. Sets a positive example.
Teamwork: Work collaboratively with others in friendship to achieve together.
Leadership: Inspiring others to achieve overall SVDP mission with the face of Christ
in each other.
Communication: Embracing everyone person to person, sharing information
effectively internally and externally.
No areas had been marked for improvement during an evaluation that occurred in N ovember 2017.
2
the review form that “store managers and assistant managers frequently rely upon [Ms.
Valley] to assist with trouble-shooting and problem solving, and she makes a point to
be available to them throughout their work day, even after regular office hours.” Ms.
Valley was cautioned about being “resistant to taking on tasks outside of her role,” and
informed that colleagues sometime avoided “approaching her to help with projects . . .
because they anticipate being met with negativity.” Ms. Downey testified that this
statement about Ms. Valley’s negativity related to her gossipy behavior. Nothing in
this evaluation documents Ms. Downey’s testimony that Ms. Valley was disruptive in
the workplace or gossipy or that she had been subject to frequent complaints and
coaching. 4 Ms. Valley testified that the conversation during her mid-year review had
focused on how she was overwhelmed because she had been required to take on the
work of other employees, and Ms. Downey indicated that Ms. Valley’s resistance to
helping with other’s projects and tasks was discussed during the review. Ms. Valley
also testified that this telephone hearing was the first she had heard that multiple people
had complained about her on multiple occasions or that she was repeatedly coached
about getting into others’ personal business. The written record does not contradict
Ms. Valley’s testimony, and Ms. Downey acknowledged that she did not document
every complaint and coaching session, stating “that’s not really a good use of my time.”
In June 2018, the employer issued another corrective action form based on an
incident involving a new employee whom Ms. Valley allegedly warned about
4
Ms. Downey testified, when asked to show where in the employer’s exhibits anything had been
documented about Ms. Valley’s “gossipy” behavior and multiple coaching sessions, pointed to the mid -
year review itself and said “this is a coaching session” and “all of this is a coaching session.” Ms.
Downey also stated, “[H]ere is the Semi -Annual Review which documents all those things. That’s my
answer to that.”
3
unspecified negative action by the HR director that could occur after her first month.
This action form noted a harassment policy violation and again checked boxes for not
treating co-workers with respect and creating conflict with co-workers. In the form’s
narrative, Ms. Downey stated, “The conversation is in direct violation of Section 1 -5
of the Employee Handbook, and creates a hostile work environment by creating an
intentional office division, and by the discomfort that it caused for the receptionist in
her office position.” 5 As to this corrective action, Ms. Downey testified that the new
employee “felt as though she was being targeted” and it was “an incredibly, um, kind
of a—aggressive conversation that had been had.” She also testified that this was her
own “spin” on the incident. 6 Ms. Downey linked the June 2018 incident to the January
2018 incident involving the HR director and reiterated that the non-harassment policy,
5
Section 1-5 of the Employee Handbook is the employer’s non-harassment policy. In addition to
addressing how harassment complaints will be handled, the policy states the following:
It is the Society’s policy to prohibit intentional and unintentional harassment of any
individual by another person on the basis of any protected classification including, but
not limited to, race, color, national origin, disability, religion, marital stat us,
pregnancy, veteran status, sexual orientation or age. The purpose of this policy is not
to regulate our employees’ personal morality, but to ensure that in the workplace no
one harasses another individual.
6
When questioned about the lack of anythi ng in the form indicating that Ms. Valley’s statements were
“aggressive,” Ms. Downey testified,
Um, it does not because I’m kinda going now, you, I’m kinda going on my memory on
the—in hindsight and kinda looking at it from that approach; the —the write-up talks
about it had made her quote, unquote, uncomfortable; that was exactly the —the words
that she had written when she had filed, um, this complaint, and, um, it —no, it’s okay;
and that she was alarmed, so that was—I guess that’s probably the better language to
use is that the, um—the employee felt as though, um she was—is abrasive; that it made
her completely uncomfortable; she was incredibly alarmed and taken aback by this —
by this relate—by this conversation. I’m kinda putting my own interpretation int o the
rest of that.
She responded to a question about none of this appearing in the form shared with Ms. Valley by
testifying, “I—I just clarified with you that that is my perspective as I’m looking back on hindsight,
so we can move off of that now.”
4
that is, Section 1-5 of the handbook, applied to this director. She did not indicate
whether or in what protected class the receptionist could be included.
The incident giving rise to Ms. Valley’s termination in August 2018 involved her
query to the marketing director about the employer’s policy regarding terminated
employees not receiving a vacation payout. The corrective action form checked the
violation boxes pertaining to treating co-workers with respect and creating conflict
with co-workers. According to Ms. Downey, Ms. Valley’s query was motivated by
concerns she had when she learned in a text message from a terminated employee that
he had not received a vacation payout. Ms. Valley did not mention him by name to the
marketing director nor did anyone other than Ms. Downey testify that Ms. Valley had
discussed this former employee’s circumstances with other co-workers. Ms. Downey
testified that she believed Ms. Valley was behind workplace “buzz” about the former
employee because Ms. Valley had communicated with the marketing director about the
policy when “there was a rumor going around the office that this former employee did
not get his vacation payout; it was not fair.” Ms. Downey admitted that no one h ad
come to her to state that Ms. Valley discussed the circumstances of the employee’s
termination with them nor did this appear in the email from Ms. Valley to the marketing
director. 7 The narrative on the form called Ms. Valley’s query “a follow -up to an in-
person conversation about what the Leadership Team discusses in its meetings and
7
According to Ms. Downey, when Ms. Valley was summoned to discuss the email, the rumors, and the
August 2018 corrective action form, the two had an extended discussion about why Ms. Valley had
sought information about the vacation buyout policy from a direct or; this discussion between
supervisor and employee included a specific reference to the terminated employee by name as Ms.
Valley sought to explain her concerns and the motivation behind her query to the marketing director
once she had learned that the employer’s policies do not provide for a vacation payout to a terminated
employee. This is the only evidence the employer produced that Ms. Valley had said something in the
workplace specifically raising the terminated employee’s name.
5
whether or not they were aware of policies enforced by another director [i.e., the HR
director] that were inconsistent with our mission.” Ms. Downey characterized the
behavior as Ms. Valley trying to “stir the pot” and to “create a hostile work environment
between various co-workers.” She further wrote, “Finally, and most concerning, is that
you appear to have inserted yourself into the details of another employee’s
termination.” Ms. Valley testified that she was not a member of the Leadership Team,
had never had a conversation about it, and was unaware of any policy that prevented
her from asking a director about a workplace policy. Ms. Downey testified that she did
not know whether Ms. Valley had released any confidential information to the
marketing director when asking about the vacation payout policy. Nevertheless, Ms.
Downey maintained that Ms. Valley violated a confidentiality policy that applied to
“organization finances, pricing, products and new product development, software and
computer programs, marketing strategies, supplies, customers and potential customers,
and knowledge, skills and abilities of personnel.” Ms. Downey testified that discussing
a terminated employee’s circumstances fit within the catch-all “not limited to” phrase
accompanying this list. Ms. Downey also indicated that questions about a workplace
policy such as a vacation payout should have been directed to the HR director.
Ms. Valley applied for unemployment compensation benefits, and a Division of
Employment Security deputy denied them, finding that she had been terminated for
misconduct. According to the deputy’s determination, “[t]he claimant was discharged
because she was discussing the details of a former employee’s discharge with co-
workers. This is a violation of the employer’s confidentiality policy.” Ms. Valley filed
an appeal, and a telephone hearing was conducted by an Appeals Tribunal referee in
6
November and December 2018. Stating that the employer’s testimony was not credible
“because the employer did not present any testimony from a witness with first -hand
knowledge of the events,” and that the employer did not meet its burden of proving
misconduct, the Appeals Tribunal reversed the deputy’s determination and awarded Ms.
Valley unemployment compensation.
The employer appealed to the Commission, which reversed in a 2-1 decision.
The Commission determined that the employer had met its burden, citing subsections
288.030.1(23) (a) & (e), which address that particular misconduct involving a knowing
disregard of an employer’s interests, knowing violation of expected standards, and
violations of known employer rules. The Commission concluded as follows:
Employer established misconduct in this matter. Employer specifically
warned claimant about the expectations and policies to treat coworkers
with respect and not to start conflict in the workplace. However, claimant
continued to violate employer’s policies and act in knowing dis regard of
employer’s interests and expected standards.
Ms. Valley timely filed this appeal in the Eastern District, and it was transferred here
because she does not reside in Missouri. § 288.210. 8
Legal Analysis
In the first point, Ms. Valley claims that the Commission erred in finding that
she had committed misconduct in connection with work as defined under the Missouri
Employment Security Law, § 288.030.1(23)(e), because “the competent and substantial
evidence demonstrated only that [Ms.] Valley had inquired about the application of the
8
Statutory references are to RSMo (2016), unless otherwise indicated.
7
vacation pay-out policy and [t]he [employer] has no rule that prohibited [Ms.] Valley
from making this inquiry.” 9
Our review of a Commission decision is delimited under section 288.210, which
provides that its findings “as to the facts, if supported by competent and substantial
evidence and in the absence of fraud, shall be conclusive.” Still, “[t]he Commission
may not arbitrarily ignore relevant evidence not shown to be disbelieved or
noncredible.” Geiler v. Mo. Labor & Indus. Relations Comm'n, 924 S.W.2d 606, 609
(Mo. App. E.D. 1996). We may set the decision aside on specified grounds including
“[t]hat there was no sufficient competent evidence in the record to warrant the making
of the award.” § 288.210(4). “When an administrative agency makes factual
determinations that affect private rights . . . the Missouri Constitution guarantees
greater judicial scrutiny” than we accord to a sufficiency review following a bench or
jury trial. Seck v. Dep't of Transp., 434 S.W.3d 74, 79 (Mo. banc 2014).
Article V, section 18, guarantees the right of judicial review and requires
that agency findings be supported by competent and substantial evidence
upon the whole record. As a result, a court reviewing factual findings by
an administrative agency must consider all of the evidence that was before
the agency and all of the reasonable inferences that may be drawn from
that evidence, including the evidence and inferences that the agency
rejected in making its findings.
Even though the constitution requires courts to give greater scrutiny to
administrative fact findings than it does to facts found by a jury or judge,
it does not authorize a reviewing court to substitute its judgment for that
of [the] administrative agency being reviewed. Section 288.210
reinforces this point, . . .
9
Section 288.030.1(23)(e) defines “misconduct” as “conduct or failure to act in a manner that is
connected with work . . . which shall include:”
(e) A violation of an employer’s rule, unless the employee can demonstrate that:
a. He or she did not know, and could not reasonably know, of the rule’s
requirements;
b. The rule is not lawful; or
c. The rule is not fairly or consistently enforced; . . .
8
Id. at 79 (citations omitted); see also Miller v. Help At Home, Inc., 186 S.W.3d 801,
805 (Mo. App. W.D. 2006) (“A factual determination by the Commission will be
disturbed on appeal, on the basis that it is against the weight of the evidence, only when
there is a firm belief that the judgment is wrong.”). While we defer to the Commission
as to witness credibility and the weight given to testimony, we do “not view the
evidence and all reasonable inferences drawn therefrom in the light most favorable to
the award.” Fendler v. Hudson Servs., 370 S.W.3d 585, 588 (Mo. banc 2012) (citations
omitted). We review questions of law de novo, and “whether the Commission’s
findings support the conclusion that a claimant engaged in misconduct connected with
his or her work is a question of law.” Id. at 588-89 (citations omitted).
“[W]hen the employer claims that the applicant was discharged for misconduct,
the burden shifts to the employer to prove misconduct connected to work . . . by a
preponderance of the evidence.” Id. at 589 (citations omitted). We distinguish between
conduct that justifies termination and misconduct that precludes benefits because
“[m]isconduct, in this context, is to be construed least favorably to a forfeiture of
benefits.” Scott v. Div. of Emp't Sec., 377 S.W.3d 603, 606 (Mo. App. W.D. 2012)
(citation omitted); see also Walker v. Div. of Emp't Sec., 333 S.W.3d 517, 520 (Mo.
App. W.D. 2011) (“[A]pplying the relevant statutory provisions, we are mindful that
the purpose of Missouri’s unemployment compensation act is to provide benefits to
persons who are unemployed through no fault of their own.” (citation omitted)).
Further, “the employer must establish that the employee’s actions were not simply the
result of poor workmanship, lack of judgment, or an inability to do the job.” Walker,
333 S.W.3d at 520 (citation omitted).
9
The Commission based its conclusion on a number of facts that it found credible,
but our review of the record does not find competent and substantial evidence to
support many of these findings, which are set forth below.
 Employer discharged claimant on August 28, 2018, because claimant
repeatedly treated her coworkers with disrespect and created conflict in
the workplace in violation of employer’s policies.
The employer’s witness struggled to point to specific workplace policies purportedly
violated by Ms. Valley’s conduct and repeatedly asserted that the behavior was included
in the “not limited to” parts of the rules in the employee handbook addressing
harassment on the basis of protected status, and general standards o f conduct. The
Commission’s use of the term “repeatedly,” if intended to indicate conduct beyond the
incidents subject to formal corrective action, is not supported by evidence other than
Ms. Downey’s telephone hearing testimony, which focused on unspecif ied gossipy and
disruptive behavior that Ms. Downey did not personally observe or document.
 Employer gave claimant written warnings, or corrective actions, on
February 7, 2018[,] and June 27, 2018[,] for treating coworkers with
disrespect, such as referring to the human resources director as a “black
cloud,” and creating conflict in the workplace by telling a new employee
that the human resources director would “turn on her” after her first
month.
To the extent that the Commission’s use of “such as” could connote that these were just
two of many incidents, we note that these were the only incidents before August 2018
subject to formal corrective action and thus documented in the record. Any implication
that other purported misconduct occurred is unsupporte d by any evidence other than
Ms. Downey’s testimony, which was inconsistent, contradicted by the written record,
and, for the most part, non-specific as to time, place, or individuals allegedly involved.
10
 On August 27, 2018, claimant learned from a recently discharged store
manager that he did not receive any vacation pay upon discharge.
While the record supports this finding, to the extent that Ms. Downey testified, and the
deputy found, that this information violated the employer’s confidentiality policy, we
would observe that Ms. Valley learned about the termination not through her
employment, but rather directly from the employee after he was terminated. The
Commission did not refer to the confidentiality policy, perhaps recognizing that
nothing in the final corrective action form leading to Ms. Valley’s termination
addressed or involved the employer’s confidentiality policy.
 Claimant started asking store managers if they knew about employer’s
policy and practice of not paying vacation pay with discharge s.
While the record supports this finding, no employer rule has been cited to suggest that
employees are not permitted to discuss workplace policies with co -workers.
 As a result of claimant’s questioning, a rumor went around the office that
the discharged store manager did not receive his vacation pay.
The Commission’s cause-and-effect assertion is purely speculative and is not based on
any evidence in the record. That the discharged employee had texted Ms. Valley about
the circumstances of his termination raises a fair inference that this employee also
communicated with others who were equally likely to have initiated workplace
discussions about the terminated employee’s circumstances.
 Claimant also tried to talk to the marketing director to ask why the
discharged store manager did not receive his vacation pay.
No evidence supports the Commission’s conclusion that Ms. Valley sought to discuss
the employer’s termination policy for any reason other than that she was concerned,
after she learned that such a policy existed, whether it was compatible with the
11
organization’s mission. Ms. Downey testified that the marketing director did not know
why Ms. Valley had asked her about the employer’s policy of not paying out vacation
when an employee is terminated. She also testified that Ms. Valley discussed with her
how this policy fit within the employer’s values and framework.
 Claimant did not go to human resources to discuss this issue privately.
This fact is supported by the evidence, but any implication that Ms. Valley instead
publicly discussed the circumstances of the discharged employee’s termination is not,
as discussed above, supported by the record. As well, on this record, it is clear that
Ms. Valley would not have gone to the HR director to discuss t he termination policy
because they did not have a positive relationship. Nor was there any rule of which Ms.
Valley was aware, or that Ms. Downey could refer to, mandating this procedure for this
type of inquiry.
 We find credible employer’s witness’s testmony that claimant was trying
to meddle in affairs that did not pertain to her. 1
1
Claimant admitted to employer that she asked the marketing
director about the discharged store manager and the fact that he
did not get his vacation pay. Therefore, employer’s evidence
did not consist solely of hearsay. [Commission’s footnote]
This statement is not supported by any evidence. Ms. Valley never spoke with the
marketing director about the discharged manager; rather, according to Ms. Downey,
she sought to discuss with the marketing director a workplace policy that Ms. Valley
believed did not reflect the employer’s mission of compassion. The statement about
hearsay appears to respond to the dissenting commissioner who opined that the
“[e]mployer’s evidence of misconduct consisted solely of hearsay. Employer chose not
12
to present witnesses who actually heard claimant’s comments and questions, such as
the human resources director, the marketing director, or the new employee.” 10
It was clear during the appeal hearing that Ms. Downey could point to no specific
policy in the employee handbook that addressed treating coworkers with respect and
not starting conflict in the workplace, which was the basis of the Commission’s ruling. 11
Section five covers general workplace conduct and does not include either of these
matters. So Ms. Downey claimed that the conduct rule was an evolving concept and
included matters such as bullying despite not mentioning or listing it. Ms. Downey
also testified at length about what she referred to as gossipy behavior and many
employee complaints about Ms. Valley getting into their business. According to Ms.
Downey, one of those complaints included the terminated employee who was at the
center of Ms. Valley’s termination; this employee purportedly complained in January
2018 about Ms. Valley asking him about his marital status. If this were accurate, one
has to ask why this employee would have texted Ms. Valley a few months later to
discuss the circumstances of his termination. Yet, no corroborating evidence was
10
Because Ms. Valley has not raised hearsay as an issue, we do not address it, although we acknowledge
that unobjected-to hearsay can be considered competent and substantial evidence in an unemployment
compensation proceeding. Mark Twain Homes, Inc. v. Labor & Indus. Relations Comm’n , 616 S.W.2d
145, 147 (Mo. App. E.D. 1981); see also Snider v. Mo. Highways & Transp. Comm’n , 356 S.W.3d 323,
324 (Mo. App. W.D. 2011). The dissenting commissioner opined that Ms. Valley’s contrary testimony
constituted an objection to the hearsay evidence Ms. Downey presented, bu t Ms. Valley was
represented by counsel during the telephone hearing, and such an implied objection appears to be
recognized by our courts only in cases where the claimant appears pro se. See, e.g., Helfrich v. Labor
& Indus. Relations Comm’n, 756 S.W.2d 663, 666 (Mo. App. E.D. 1988) (finding no waiver of
objection to hearsay evidence when pro se claimant testified that non-testifying witness was lying if
he told the employer something that differed from what he told the claimant).
11
Ms. Downey made a passing reference to Ms. Valley’s violation of the “Society principle of
Vincentian Spirituality and Friendship,” which is mentioned in the February 2018 corrective action
form, but spent most of her time, when testifying about this incident, trying to shoeho rn it into the
employer’s non-harassment policy. Accordingly, it strikes us as somewhat disingenuous for the
Commission to rely on “not treating co-workers with respect” and “creating conflict with co -workers”
as the basis for Ms. Valley’s purported misconduct and termination.
13
introduced that showed Ms. Valley had been disciplined for engaging in such behavior
or that anything more than two corrective action forms, not involving “gossipy”
behavior, were in her personnel file before August 2018.
Ms. Downey also shifted the focus of Ms. Valley’s purported January violation
during the hearing to the non-harassment policy and linked Ms. Valley’s behavior to
harassment on the basis of a protected classification—that is, an authority figure’s
protected status. In light of the questionable legal basis for including an “authority
figure” among those more traditionally recognized protected classifications, it would
have been prudent for the employer to put this in writing in the workplace policy, if it
were a concern. Without a specific reference, we find it unlikely that Ms. Valley would
have reasonably known that the non-harassment policy included authority figures. §
288.030(23)(e)a. And even where the employer warns an employee about conduct that
will not be acceptable going forward, as occurred here, the final incident, while
characterized as not treating co-workers with respect and starting conflict with co-
workers, did not actually involve either category. Ms. Valley asked the marketing
director whether terminated employees should receive a vacation payout. There is no
policy forbidding an employee from asking a director about a workplace policy. Nor
is there any evidence in the record, other than Ms. Downey’s testimony, that Ms. Valley
had spoken with store managers about the discharged employee and the circumstances
14
of his termination, specifically his failure to receive a vacation payout. 12 Ms. Downey
also conceded that the marketing director had no idea why Ms. Valley would ask her
about the vacation payout, because the terminated store manager’s circumstances were
not part of the query. In this regard, Ms. Downey testified as follows:
Q. Okay. Are you saying that [Ms. Valley] was discussing with—are
you saying that the director told you that [Ms. Valley] was discussing the
compensation that the terminated employee had received?
A. The director didn’t know why she was asking this question.
Q. Okay, but that’s not my question. My question is was it reported
to you that the director said [Ms. Valley] is telling me what the
compensation arrangement was for the terminated employee?
A. No, the director did not know why [Ms. Valley] was asking this.
Q. Okay. So all you knew was [Ms. Valley] was asking a question
about what is our policy about paying vacation pay when employees are
terminated?
A. That was what I knew that she had asked the Marketing Director.
When asked about information she had to show that Ms. Valley had been talking in the
workplace about the circumstances of the store manager’s termination, Ms. Downey
12
Note also that the written description of the violation leading to Ms. Valley’s termination does not
include any discussion about anyone other than the director with whom Ms. Valley had communicated
regarding the employer’s policy on vacation payouts. That description is as follows:
At the time noted above, [Ms. Valley] sent an email message to a Director as a follow -
up to an in-person conversation about what the Leadership Team discusses in its
meetings and whether or not they were aware of policies enf orced by another director
that were inconsistent with our mission. The discussion was instigated following the
termination of another employee.
The nature of this discussion concerns us, especially after previous warnings that [Ms.
Valley] was trying to “stir the pot” and create a hostile work environment between
various co-workers. If there was a question about a policy, it should have been directed
to HR. If there was a concern about a director’s behavior, it should have been addressed
with your supervisor. Finally, and most concerning, is that you appear to have inserted
yourself into the details of another employee’s termination.
15
stated, “I had had many people coming to me and telling me; I’m hearing around the
office and I think that we’re hearing—and we—we don’t know where this is coming
from, all right. . . .” Ms. Downey further stated that other people in the office were not
coming to her to say that Ms. Valley was discussing with them the circumstances of the
employee’s termination: “I wouldn’t put it coming to me; I would say there was rumors
going around the office; we were hearing a lot of buzz.” On further questioning about
whether Ms. Valley had ever received a written policy stating that she could not talk to
a director about HR policies, Ms. Downey indicated that Ms. Valley should have spoken
with the HR director about HR policies, but admitted that no policy required this action.
Without providing any evidence, Ms. Downey stated that this was a matter of office
procedure.
On this record, we agree with Ms. Valley that evidence of misconduct —seeking
to engage the marketing director in a conversation about the employer’s termination
policy—under section 288.030.1(23)(e) was not competent and substantial. No rule of
which Ms. Valley would have been aware appears to be implicated, and no evidence
showed that Ms. Valley discussed a terminated employee’s circumstances with the
marketing director. Even if Ms. Valley’s questions about the termination policy did
violate some rule or can somehow be construed to constitute conduct about which she
had previously been warned—not treating co-workers with respect or creating conflict
with co-workers—we do not believe that her discussion of or questions concerning this
policy constituted a violation of a workplace rule or that it rises to the level of conduct
that justifies the forfeiture of benefits. At most, Ms. Valley’s conduct reflected poor
judgment in not fully appreciating that a question about the employer’s HR policy
16
would be misinterpreted as a personal challenge to the HR director and hence not
treating co-workers with respect and starting conflict in the workplace. In light of the
variable, shifting, and undocumented bases on which the employer sought to prove
misconduct connected to the workplace involving violation of a workplace rule about
which the employee knew, the employer failed to meet its burden. This point is granted.
The second point relied on addresses whether competent and substantial
evidence supported the Commission’s ruling under section 288.030.1(23)(a), which
defines misconduct as “conduct or a failure to act demonstrating knowing disregard of
an employer’s interest or a knowing violation of the standards which the employer
expects of his or her employees.” According to Ms. Valley, the employer “failed to
produce competent and substantial evidence that discussions about the vacation pay -
out policy or it[s] application would violate the standards that universally apply in the
work force or would in any way subvert the interests of [the employer].” We apply the
same standard of review that we applied to the previous point.
Standards expected of employees are those “basic standards of behavior that
apply universally in the work force.” Seck, 434 S.W.3d at 84. 13 The employer cites
cases from Minnesota to support its claim that it met its burden of showing that Ms.
Valley was discharged for misconduct connected to work in light of fact situations in
those cases involving rumor-spreading, gossipy, and confrontational behavior. As we
discussed at length above, however, no evidence of such behavior was documented in
the record, nor did competent and substantial evidence show that such behavior
13
This case construed a prior version of section 288.030, which separated the “employer’s interest”
from the “standards of behavior which the employer has the right to expect of his or her employee,”
but involved a similar willfulness component.
17
precipitated Ms. Valley’s termination. The employer failed to show that asking the
marketing director about the employer’s policy regarding vacation payout on
termination constituted a knowing disregard of the employer’s interest or a knowing
violation of the standards which the employer expects of its employees. A concern
about employee welfare would not appear to run counter to the employer’s Christian
mission. And, even if questioning a workplace policy somehow constitutes a disregard
of the employer’s interest, the employer did not demonstrate that this disregard was
knowing. Accordingly, the employer failed to carry its burden. This point is granted.
Conclusion
On this record, the employer did not meet its burden of proving either that Ms.
Valley had violated a workplace rule or had knowingly disregarded the employer’s
interest or violated expected standards by asking the marketing director about the
employer’s vacation payout policy. Accordingly, we reverse and remand for the
calculation and award of unemployment compensation benefits to Ms. Valley.
/s/ Thomas H. Newton
Thomas H. Newton, Judge
Lisa White Hardwick, P.J., and Mark D. Pfeiffer, J. concur.
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