Duncan v. Accent Marketing, LLC
2010 Mo. App. LEXIS 1793
| Mo. Ct. App. | 2010Background
- Duncan was employed March 31, 2008 to September 9, 2009 as a customer service representative for Accent Marketing, using the Knowledge Management System (KMS).
- On September 1, 2009, Duncan received a verbal warning for failing to perform KMS troubleshooting and for periods of silence and lack of empathy during a Sprint call.
- On September 3, 2009, he received a written warning for failing to use KMS on a call; he met with two managers about this failure.
- On September 5, 2009, he received another written warning for failing to access the most relevant KMS document during a call.
- On September 9, 2009, Duncan was terminated for (1) failing to follow KMS steps before transferring to the technical department and (2) not calling a customer back after a disconnected call.
- The deputy denied unemployment benefits; the Tribunal found misconduct and the Commission affirmed; Duncan appealed arguing the conduct did not constitute misconduct; the court reversed and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Duncan's conduct was willful misconduct under 288.030.1(23) | Duncan contends the record shows negligence, not willful misconduct. | Employer argues repeated warnings show culpable negligence constituting misconduct. | No willful conduct shown; misconduct not proven. |
Key Cases Cited
- Frisella v. Deuster Elec. Inc., 269 S.W.3d 895 (Mo.App. E.D. 2008) (willful misconduct required; lack of willful acts defeats assertion)
- Scrivener Oil Co., Inc. v. Div. of Employment Sec., 184 S.W.3d 635 (Mo.App. S.D. 2006) (employer must show willful or deliberate policy violations)
- Wieland v. St. Anthony's Med. Ctr., 294 S.W.3d 77 (Mo.App. E.D. 2009) (negligence alone not enough; must be willful;)
- Comeaux v. Convergys Customer Mgmt. Group, Inc., 310 S.W.3d 759 (Mo.App. E.D. 2010) (lack of willfulness defeats misconduct finding despite policy violations)
- Williams v. Enterprise Rent-A-Car Shared Servs., LLC, 297 S.W.3d 139 (Mo.App. E.D. 2009) (multiple policy violations without willfulness do not equal misconduct)