The Missouri Court of Appeals Eastern District ruled June 7 that the state owes unemployment benefits to a fast-food worker whose hours were cut to zero during the pandemic but were never formally terminated.
In a 31-page ruling, the court reversed an appeals tribunal of the Missouri Division of Employment Security, which had denied benefits for claimant Suzanne Koenen after concluding that she had quit her job at a Burger King by failing to show up for scheduled shifts.
Judge Kelly C. Broniec, writing for the appeals court, said there was “not one shred of evidence in the record” to support that conclusion. Instead, she said, the only reasonable conclusion was that Koenen was simply laid off due to the pandemic.
“If there was ever a time in our history when individual workers needed the protection of employment security laws, it was certainly during the Pandemic that first struck our country in March of 2020, and continued for the better part of the following two years,” Broniec wrote. Judges Kurt S. Odenwald and John P. Torbitzky concurred.
According to the opinion, Koenen primarily worked in the dining room or at the front counter of the restaurant. As a result of the pandemic, the dining room was closed, and Koenen’s hours were gradually cut back before she was taken off the work schedule entirely. Koenen testified that she continually asked her manager for hours and also contacted other area Burger Kings for work, to no avail.
Koenen applied for unemployment benefits, but her employer had reported to the division that she had not shown up for work as scheduled. The Eastern District, however, said there was no substantial evidence in the record to support that conclusion.
An HR official who testified at the hearing had no direct knowledge of Koenen’s schedule or which shifts she was alleged to have missed, instead relying on what someone else in the company had told the official. Broniec called it “a law school textbook example of hearsay testimony.”
Broniec noted that Koenen had called that testimony “untrue,” and even if the claimant hadn’t objected, “there is not one shred of evidence in the record from which the Commission could have concluded that Koenen rejected — expressly, impliedly, or otherwise — her job or Employer.”
The court remanded the case to the division so Koenen’s benefits could be calculated. Kevin J. Kasper, an attorney for the claimant, couldn’t be reached for comment.
Also on June 7, a different Eastern District panel similarly held that the Division of Employment Security wrongly denied benefits to George Chavis, who started working in the lawn and garden section of a Walmart shortly after the pandemic began.
Chavis became ill with COVID-19 a few months later, and his direct supervisor told him to go home and contact the corporate headquarters and request paid leave. Instead, he testified, he was told he had voluntarily quit his job by failing to inform a more senior manager that he was going home. He sought to get back on the schedule without success.
But Judge Gary M. Gaertner Jr. wrote for the Eastern District there was no evidence of a company policy requiring a senior manager to be informed — and even if there was, that meant Chavis wasn’t entitled to sick leave pay, not that he voluntarily left his job.
And while the Labor and Industrial Relations Commission had found that Chavis made no effort to contact his employer to get back on the schedule, the judge added, the evidence in the case directly refuted that.
The rulings follow a similar decision from the court’s Western District earlier this year. In February, the appeals court ordered benefits be awarded to Fedra Ekres, a former call-center employee in St. Louis. During the pandemic, Ekres and her colleagues began working from home, and Ekres moved to New York state to stay with family. But after working there for a week without incident, she was terminated.
Ekres was denied benefits when the division determined she had quit voluntarily. But the Western District found no substantial evidence for that ruling. There was no employer policy in place during the pandemic that required workers such as Ekres to remain in-state, Chief Judge Cynthia L. Martin wrote.
Not every recent case has come out in the claimant’s favor, however. Also on June 7, the Western District dismissed an appeal from a woman who was denied benefits after losing her job at a restaurant when she moved to Illinois to care for her disabled-veteran husband after the restaurant shut down at the start of the pandemic.
In a pro se brief, she argued on appeal that she’s had good cause to leave the state to be with family because “What other GOOD CAUSE could there be[?]” The court, however, said violations of mandatory briefing rules prevented a review of her case.
The cases are Koenen v. BRG Liberty LLC, ED110045; Chavis v. Wal-Mart Associates Inc., ED110016; Ekres v. Division of Employment Security, WD84496; and Freeland v. Division of Employment Security, WD84955.