Opinion handed down May 10, 2016
Hank’s
Cheesecakes appeals from the Labor and Industrial Relations Commission’s (“Commission”)
decision granting unemployment benefits to its terminated employee, Robin
Stahl.[1]
Stahl was terminated from her position
following an incident in which she slapped the buttocks of a co-worker for
making an insensitive comment in front of her and another co-worker. [2] The Commission found that this conduct did
not rise to the level of misconduct that disqualified her from receiving unemployment
benefits. [3]
On appeal, and as a matter of first impression as to whether striking an
employee automatically constitutes misconduct, the Missouri Court of Appeals
for the Eastern District affirmed.[4]
I. Facts and Holding
On April 8, 2015, respondent Robin
Stahl was discharged from her employment as an assistant baker at Hank’s
Cheesecakes (“Hank’s”), a family business located in St. Louis County,
Missouri.[5] Stahl was discharged subsequent to an
altercation which took place at the restaurant the previous day.[6] On April 7, 2015, Stahl was talking with a
co-worker in her work space when a second co-worker walked by and said, “Are
you talking about getting sand in your vagina again?”[7] Stahl took offense to the comment and
immediately reacted by hitting the co-worker who made the remark with the back
of her hand on the co-worker’s buttocks.[8] The entire incident occurred in the frame of
approximately three to four seconds.[9]
After being terminated for
physically hitting her co-worker, Stahl timely applied for unemployment
benefits.[10] Hank’s protested Stahl’s claim for benefits,
arguing that Stahl was fired pursuant to her misconduct and was thus
disqualified from receiving benefits.[11] In deciding not to disqualify Stahl from
unemployment benefits, a deputy for the Missouri Division for Employment Security
(“Division”) determined that Stahl was not disqualified for “misconduct
connected with the work.”[12] Hank’s appealed this decision with the
Division’s Appeals Tribunal who subsequently affirmed the deputy’s
determination, also finding that “[t]he claimant [was] not disqualified for
benefits by reason of the claimant’s discharge from work.”[13]
Following the Appeals Tribunal’s decision, Hank’s appealed to the Labor and
Industrial Relations Commission, which affirmed.[14]
Once again Hank’s has appealed, this time to the Missouri Court of Appeals for
the Eastern District, which again affirmed the lower decisions, holding that,
“When reviewing the totality of the record before us, we find that the
Commission’s findings are supported by competent and substantial evidence.”[15]
II. Legal Background
Under
Missouri’s Constitution, the Commission’s decision will be reviewed to
determine if it is “supported by competent and substantial evidence.”[16] Further, on appeal, a court may reverse,
remand, or set aside the Commission’s decision on the following grounds:
(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. An appeal
shall not act as a supersedeas or stay unless the commission shall so order.[17]
Moreover, a claimant for
unemployment benefits will be disqualified if it is determined he or she was discharged
for misconduct in connection with work.[18]
Misconduct is further defined under the relevant statute[19]
and Missouri case law. Generally, however, “The determination of misconduct is
dependent on the facts and circumstances of each case.”[20]
On the issue of whether the act of any aggressive physical touching of a
con-worker constitutes disqualifying misconduct, “[T]here is no Missouri case
law directly on point . . . .”[21]
III. Instant Decision
In the instant case affirming the Commission’s
decision, the court noted that, “In the absence of express rules and policies,
the latitude employed by the employer, and this Court, must involve a healthy
dose of common sense when discerning whether an employee’s conduct runs afoul
of an employer’s expected standards.”[22] Here, the court’s “common sense” notions told
it that Stahl’s conduct wasn’t enough to “violate her employer’s expectations
of no workplace violence.”[23]
In reaching this conclusion, the court
stressed that Hank’s had no workplace rule or policy addressing physical
contact between employees, and Stahl’s actions would be reviewed for misconduct
by determining if there was “knowing disregard of the employer’s interest or a
knowing violation of the standards which the employer expects of his or her
employee.”[24] In analyzing an employer’s expectations under
this definition of misconduct, the court looked to the totality of the facts, circumstances,
and context in which the event took place.[25]
Here, the court identified several factors which led it to believe that this
event did not “rise to the level of disqualifying misconduct.”[26] First, the incident was very quick in that it
only took place over the course of a few seconds.[27] Second, Stahl was reacting to a “vulgar,
obscene[,] and sexist” remark and did not make a fist or hit in an area that
would cause damage to her coworker.[28]
And finally, there was no record of extreme roughness or intense display of
force.[29]
The
opinion was not unanimous, however, as Judge Lisa Page noted she would have
reversed the decision of the Commissioner in her dissenting opinion.[30]
Judge Page emphasized that the purpose of the Missouri Employment Security Law
is to “provide economic stability for the citizens of Missouri who have become
unemployed through no fault of their own.”[31] Judge Page further believes it is commonly
understood by employers and employees that striking a co-worker is
inappropriate work conduct,[32]
and had Stahl been a male employee striking a female employee, “[She was] highly
skeptical the Commission would have awarded him unemployment benefits.”[33]
IV. Comment
As a case
of first impression regarding whether an employee’s physical act toward a
co-worker constitutes misconduct, a totality-of-the-circumstances approach
appears to be appropriate. One does not have to strain to quickly think of many
situations in which misconduct could occur within the workplace. While
bright-line rules are valuable for many aspects of the law, they may not be so
desirable in situations where they may bring about the same result for entirely
different conduct. For example, the bright-line rule, as proposed by Hank’s
here, would have made any deliberate touching of a co-worker per se misconduct under Missouri law.[34]
Surely a rule that would analogize a friendly pat on the back or playful
gesture to punching a co-worker in the face is overreaching and not an
appropriate means of gauging misconduct. Instead, when determining workplace
misconduct, the more appropriate course, as was applied here, is looking to the
totality of the circumstances and applying “a healthy dose of common sense.”[35]
All in all, the court here appears to
have appropriately applied that “healthy dose of common sense” to the facts of
this case. While most physical acts of aggression within the workplace should
be treated with a no-tolerance policy, we should not be so unwavering as to look
beyond the context surrounding such. Here, Stahl’s co-worker made a vulgar and
clearly inflammatory remark directed at two of his female peers and was met
with an instinctive slap on the rear. While not a condonable reaction, it seems
the majority of our community, as well as common sense, would tell us this was
not so far out of line as to be clearly disqualifying misconduct.
-
E.C. Duckworth
[1] Stahl v. Hank’s
Cheesecakes, LLC, No. ED 103466, 2016 WL 2731968, at *1 (Mo. Ct. App. May 10,
2016).
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id. (there is some debate as to whether the back of Stahl’s hand
was used or whether a pan was used).
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] Id. (first alteration in original).
[14] Id. at *2.
[15] Id. at *6.
[16] Mo. Const. art. V,
§ 18.
[17] Mo. Rev. Stat. § 288.210 (2012).
[18] Mo. Ann. Stat. § 288.050.2 (West
2015).
[C]onduct
or failure to act in a manner that is connected with work, regardless of
whether such
conduct
or failure to act occurs at the workplace or during work hours, which shall
include:
(a) Conduct
or a failure to act demonstrating knowing disregard of the employer's interest
or a
knowing violation of the standards which the
employer expects of his or her employee;
(b)
Conduct or a failure to act demonstrating carelessness or negligence in such
degree or recurrence as to manifest culpability, wrongful intent, or a knowing
disregard of the employer's interest or of the employee's duties and obligations
to the employer;
(c) A
violation of an employer's no-call, no-show policy; chronic absenteeism or
tardiness in violation of a known policy of the employer; or two or more
unapproved absences following a written reprimand or warning relating to an
unapproved absence unless such absences are protected by law;
(d) A
knowing violation of a state standard or regulation by an employee of an
employer licensed or certified by the state, which would cause the employer to
be sanctioned or have its license or certification suspended or revoked; or
(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.
Mo. Ann.
Stat. § 288.030.1(23) (West 2014).
[20] Stahl, 2016 WL 2731968, at *4 (quoting Richardson v. Div. of Emp’t Sec., 361 S.W.3d 425, 430
(Mo. Ct. App. 2011)).
[21] Id. at *4.
[22] Id. at *5.
[23] Id.
[24] Id. at *4 (quoting § 288.030.1(23)(a)).
[25] Id. at *3.
[26] Id. at *6.
[27] Id. at *5.
[28] Id.
[29] Id.
[30] Id. at *6 (Page, J., dissenting).
[31] Id.
[32] Id. at *7.
[33] Id. at *9.
[34] Id. at *3 (majority opinion).
[35] Id. at *5.
