Rush v. Kimco Corp.
338 S.W.3d 407
| Mo. Ct. App. | 2011Background
- Rush was employed as a general cleaner for Kimco from Jan 26, 2007, to July 21, 2009.
- Rush received a June 26, 2009 written warning for falsifying work hours.
- On July 12, 2009 Rush discussed with a Kraft supervisor, revealing his warning and alleging a co‑worker had recording devices.
- Employer terminated Rush for violating the rule prohibiting discussing conflicts with customers.
- The employer’s handbook allegedly required awareness of this rule, of which Rush claims he was unaware during the second period of employment.
- The Tribunal found willful misconduct; the Commission later found Rush unaware of the rule and characterized the conduct as negligent to manifest culpability, leading to a denial of benefits which the court reverses.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether unawareness of a rule negates misconduct | Rush argues no misconduct since he did not know the rule. | Kimco contends the rule violation supports misconduct under the standards. | No; awareness is required for misconduct; negligence without awareness does not meet the standard. |
| Whether neglectful conduct can constitute misconduct under 288.030.1(23) | Rush contends isolated negligence without willfulness cannot be misconduct. | Kimco argues any violation of a significant rule could be misconduct. | Negligence to manifest culpability can qualify as misconduct; however, here Rush's conduct did not manifest culpability. |
| Whether the Commission's factual findings were supported | Rush asserts lack of knowledge about the rule undermines the findings. | Kimco asserts the facts support misconduct notwithstanding knowledge. | The Commission's findings of fact were supported; however, the legal conclusion of misconduct was reversed due to lack of manifest culpability. |
Key Cases Cited
- Wright v. Casey's Mktg. Co., 326 S.W.3d 884 (Mo.App. W.D. 2010) (negligence can meet misconduct if the rule is highly emphasized and the employee knew of it)
- Hoover v. Cmty. Blood Ctr., 153 S.W.3d 9 (Mo.App. W.D. 2005) (misconduct requires more than mere poor workmanship; willful or culpable conduct is needed)
- Pemiscot County Mem'l Hosp. v. Mo. Labor & Indus. Rel. Comm'n, 897 S.W.2d 222 (Mo.App. S.D. 1995) (violation of a reasonable work rule is relevant but not dispositive of misconduct)
- Scrivener Oil Co. v. Crider, 304 S.W.3d 261 (Mo.App. S.D. 2010) (commission findings of fact are conclusive if supported by substantial evidence)