Dаrwin Holly (“Appellant”) appeals a decision by the Labor and Industrial Relations Commission (“Commission”) denying him unemployment benefits. The Commission found that a comment by Appellant that he was eating “Obama fruit” while holding a slice of watermelon at thе company picnic of his employer, TAMKO Building Products, Inc. (“TAMKO”), violated TAMKO’s racial harassment policy; therefore, it amounted to misconduct related to work disqualifying him for unemployment benefits. We affirm the Commission’s decision.
*286 Factual and Procedural History
On September 3, 1993, Apрellant began his employment with TAMKO. On May 29, 2009, Appellant attended a company picnic at the company plant. He sat down by several co-workers with a slice of watermelon and said, “I’m going to sit down and eat my ‘Obama fruit.’ ” One co-workеr stated that he “shook [his] head and said something to the effect of, ‘That isn’t right.’ ” Appellant continued talking to the three co-workers for several minutes and then left.
On June 8, 2009, Appellant’s employment with TAMKO was terminated. According to TAMKO’s “Exit Interview” form, Appellant was terminated for “Misconduct/Rule Violation.” This form also indicated that Appellant acknowledged that the information contained in it was correct.
On June 10, 2009, Appellant filed a claim for unemployment benefits with the Missouri Division of Employment Security (“Division”). TAMKO filed an official protest to Appellant’s claim. TAMKO asserted that Appellant was “not eligible for unemployment benefits because he was discharged for misconduct connected with his work.” TAMKO filed with its protest a copy of its “PREVENTION OF HARASSMENT POLICY”, which stated that “no form of harassment should be present in the workplace.” The policy defined racial harassment to include “making racially derogatory jokes, comments or displaying or possessing racially derogatory or offensive symbols, emblems, writings or other documents on TAMKO property or while conducting TAMKO business where such conduct interferes with a person’s work performance or creates an intimidating, hostile or offensive working environment.” Also attached were forms signed by Appellant indicating that he completed refresher training on TAMKO’s policies in 1999, 2002, 2005 and 2006. The protest also contained a copy of the exit interview signed by Appellant, where he acknowledged that he was fired fоr violation of the harassment policy.
A deputy with the Division determined that Appellant was disqualified from receiving unemployment benefits because Appellant was discharged for violation of TAMKO’s harassment policy. Appellant filed a “REQUEST FOR APPEAL OR RECONSIDERATION” to the Division’s Appeals Tribunal. The Appeals Tribunal held a hearing. TAMKO submitted two exhibits which were written statements made by two other TAMKO employees who heard Appellant’s comment. The first statement, by Matt Parrish, recited that he was preparing fоod for a company picnic when Appellant asked if he could sit down by him. Parrish answered in the affirmative and then Appellant said, “I’m going to sit down and eat my ‘Obama fruit.’ ” Parrish asked Appellant if he had said “Obama fruit,” and Appellant answered in the affirmative. Parrish then “shook [his] head and said something to the effect of, ‘That isn’t right.’ ... [Appellant] then told a story regarding antique cars and left a few minutes later.” The second statement, by Larry W. Prewitt, Jr., also stated that Appellant sat down and said “Obamа fruit.” Prewitt stated further that “Mottling was mentioned about the comment until Monday when [Parrish] asked me if I heard any derogatory comments from [Appellant] on the previous Friday at which point I confirmed that I had heard the statement.” The Appeals Tribunаl also heard testimony from Appellant and Bennett Cole Williams, TAMKO’s Human Resources Manager. Williams testified that the term “Obama fruit” was a racially derogatory comment, and Appellant’s use of the term violated TAMKO’s policy against racial harassment. Appellant testified that *287 he did make the comment “Obama fruit,” but stated that “in my mind I was calling the president a melon head, no reference to racial whatsoever, I’m not a racist, but it was just a political statement in my mind.” The Appеals Tribunal upheld the Division’s ruling and reached the following conclusion:
The claimant made a comment that he was going to eat ‘Obama fruit.’ The term ‘Obama fruit’ taken alone is not a racially derogatory comment. But, the comment was made while the claimant was eating a slice of watermelon at a company sponsored cookout at the plant. In that setting, the claimant’s comment violated the employer’s policy. Therefore, the claimant committed misconduct which resulted with the termination of his employment.
Appellant then filed an Application for Review with the Commission. The Commission affirmed the decision of the Appeals Tribunal and “adopt[ed] the decision of the Appeals Tribunаl as the decision of the Commission in this matter.”
Appellant’s sole point relied on alleges that there was insufficient evidence to support the Commission’s decision that Appellant was disqualified from receiving unemployment benefits beсause he was terminated for misconduct.
Standard of Review
The Commission’s decision can only be modified, reversed, remanded or set aside on appeal on one of the following grounds:
(1) That the commission acted without or in excess of its powers;
(2) That the decision was procured by fraud;
(3) Thаt 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....
Section 288.210. 1 Appellant’s challenge confines our review to the ground set fоrth in section 288.210(4).
Analysis
Generally, a person claiming unemployment benefits is not eligible to receive those benefits “[i]f a deputy finds that a claimant has been discharged for misconduct connected with the claimant’s work-” Section 288.050.2.
Section 288.030.1(23) рrovides the following definition for “misconduct”:
[A]n act of wanton or willful disregard of the employer’s interest, a deliberate violation of the employer’s rules, a disregard of standards of behavior which the employer has the right to expect of his or her employee, or negligence in such degree or recurrence as to manifest culpability, wrongful intent or evil design, or show an intentional and substantial disregard of the employer’s interest or of the employee’s duties and оbligations to the employer.
“Where an employer alleges the employee was fired for misconduct, the employer bears the burden of demonstrating misconduct by a preponderance of the evidence.”
Ahearn v. Lewis Cafe, Inc.,
“The violation of a reasonable work rule can constitute misconduct.”
Rapid Roberts, Inc. v. Potter,
Appellant relies on
Dolgencorp, Inc. v. Zatorski,
In this case, unlike Zatorski, there was a copy of TAMKO’s harassment policy in the record, the Commission did not rest its conclusion solely on the perception that others concluded Appellant’s comment violated the rules, and there are no unresolved factual issues. Here, the Commission resolved the factual dispute regarding Appellant’s intent. The Commission found that he admitted to making the commеnt regarding “Obama fruit.” The Commission found that he did so while eating a slice of watermelon. Thus, the Commission concluded that the comment violated TAMKO’s racial harassment policy in the context in which it was made.
These facts are more closely akin to those recited in
Ernst v. Sumner Group, Inc.,
In
Acord,
Acord was called into her supervisor’s office and at some point “lost her temper and called her supervisor a motherfucker.”
Acord,
Like the employee in Ernst, Aрpellant signed several acknowledgements over the course of his employment that he was aware of TAMKO’s harassment policy and its restrictions. Appellant admits that on his own volition, he made the comment that he was eating “Obamа fruit” in reference to the slice of watermelon he was eating. Furthermore, he signed his exit interview form and acknowledged as correct the fact that he was being terminated for “Misconduct/Rule Violation” of TAM-KO’s harassment policy. Like the Commission’s role in Acord, here the Commission did not have to determine that the phrase “Obama fruit” would be racial harassment in all circumstances, but only had to determine if it constituted racial harassment in this situation and context. Appellant’s point is denied.
The judgment of the Commission is affirmed.
Notes
. All references to statutes are to RSMo 2000, unless otherwise indicated.