Kirk Wilson v. Progressive Waste Solutions of MO, Inc., and Division of Employment Security
2017 Mo. App. LEXIS 38
Mo. Ct. App.2017Background
- Wilson worked as a commercial driver for Progressive Waste from June 2015 until discharge on January 4, 2016; he had two vehicle accidents while performing route pickups.
- Nov. 18, 2015: while driving ~10 mph in a parking lot later than usual and watching for daycare children, Wilson struck a light pole; vehicle damage was $12,000; employer issued a final written warning.
- Dec. 28, 2015: in a tight, rainy enclosure with an improperly parked vehicle and no spotter, Wilson swiped a short concrete wall, tearing air lines; supervisor sent him home that day but did not terminate him immediately.
- Progressive Waste terminated Wilson about one week later for "preventable accidents;" no written accident/disciplinary policy showing notice is in the record.
- Division deputy and Appeals Tribunal found Wilson’s recurrent negligence (two strikes of stationary objects within six weeks) constituted misconduct disqualifying him from unemployment benefits; the Commission adopted that decision.
- The Court of Appeals reviewed whether the accidents rose to "misconduct" under § 288.030.1(23)(b) and reversed, holding the incidents were ordinary negligence, not disqualifying misconduct, and remanded to award benefits.
Issues
| Issue | Plaintiff's Argument (Wilson) | Defendant's Argument (Progressive Waste) | Held |
|---|---|---|---|
| Whether two accidents six weeks apart constitute "misconduct" under § 288.030.1(23)(b) | Two accidents caused by carelessness do not amount to misconduct; mere negligence, mistakes, or poor judgment are insufficient | Recurrent negligence (striking stationary objects twice in <2 months) manifests culpability and meets the statute’s negligence/recurrence standard | Held for Wilson: accidents were ordinary negligence, not misconduct; benefits must be awarded |
| Whether the record supports a finding of culpability/knowing disregard | Record lacks proof of culpability or intentional disregard; no policies or notice of standards were in the record | Employer contends prior successful pickups and driver capability show culpability for repeated negligence | Held for Wilson: record does not show culpability, intent, or knowing disregard; facts and context show cautious driving and adverse conditions |
| Effect of 2014 amendment to misconduct definition on prior case law | Amendment does not eliminate requirement of culpability; prior holdings that mere negligence is not misconduct remain applicable | Employer argues amendment lowered scienter threshold so prior cases no longer control | Held for Wilson: amendment still requires manifest culpability/wrongful intent/knowing disregard; prior cases remain substantively applicable |
| Standard of review: whether appellate court must defer to Commission’s factual findings | Wilson notes court reviews legal question of misconduct de novo and Commission made no credibility findings supporting misconduct | Employer relies on deference to Commission and Appeals Tribunal adoption | Held: factual deference applies, but whether facts constitute misconduct is a legal question reviewed de novo; here Commission’s legal conclusion was incorrect |
Key Cases Cited
- Yellow Freight Sys. v. Thomas, 987 S.W.2d 1 (Mo. App. 1998) (isolated negligence in striking a parked vehicle is not disqualifying misconduct)
- Wieland v. St. Anthony’s Med. Ctr., 294 S.W.3d 77 (Mo. App. 2009) (mistakes in job performance not misconduct)
- Tolliver v. Friend Tire Co., 342 S.W.3d 428 (Mo. App. 2011) (misjudging vehicle clearance is poor judgment, not misconduct)
- McClelland v. Hogan Pers., LLC, 116 S.W.3d 660 (Mo. App. 2003) (poor workmanship/lack of judgment do not disqualify for benefits)
- Stahl v. Hank’s Cheesecakes, LLC, 489 S.W.3d 338 (Mo. App. 2016) (misconduct analysis requires review of totality of facts and circumstances)
- Richardson v. Div. of Emp’t Sec., 361 S.W.3d 425 (Mo. App. 2012) (employer may have grounds to terminate without that equating to disqualifying misconduct)
- Fendler v. Hudson Servs., 370 S.W.3d 585 (Mo. banc 2012) (whether findings support misconduct is a legal question reviewed de novo)
- Akins v. Dir. of Revenue, 303 S.W.3d 563 (Mo. banc 2010) (statutory interpretation gives effect to plain language of statute)