Sanders v. Div. of Emp't Sec.

1

TRACY L. SANDERS, Appellant, v. DIVISION OF EMPLOYMENT SECURITY, Respondent.

Nos. WD 85554, WD 85555

Court of Appeals of Missouri, Western District, First Division

January 31, 2023

Appeal from the Labor and Industrial Relations Commission

Before Anthony Rex Gabbert, Presiding Judge, W. Douglas Thomson Judge and Janet Sutton, Judge

Janet Sutton, Judge

Tracy Sanders (Sanders) appeals two decisions of the Labor and Industrial Relations Commission (the Commission) affirming two separate determinations by the Division of Employment Security (the Division), which were consolidated on appeal before this Court. In August 2020, the Division determined that Sanders was ineligible for unemployment benefits after Sanders was furloughed from her job at Macy's Inc. (Employer). In November 2020, the Division determined that Sanders was overpaid unemployment benefits. Sanders appealed both determinations with the Division's Appeals Tribunal (the Tribunal) on February 3, 2021, more than thirty days after the Division allegedly mailed her its determinations. The Tribunal denied both appeals as untimely, also finding that Sanders lacked good cause for extending the appeals period as to the ineligibility determination. The Commission affirmed both decisions. Sanders appeals. We reverse and remand.

Factual and Procedural Background

We have thoroughly reviewed the briefs, record on appeal, and appendices, and we convey the following facts that are capable of discovery. See, e.g., Biswas v. Div. of Emp Sec., 496 S.W.3d 587, 588 (Mo. App. E.D. 2016). Employer furloughed Sanders in March 2020 due to the COVID-19 pandemic. Employer intended this furlough as "a temporary layoff from ALL work activity." After Employer furloughed Sanders, Employer advised that Sanders could apply for unemployment benefits through the Division, which she did in April 2020.

In June 2020, Sanders' Employer notified her that it was restructuring. Employer told Sanders that she would be "part of [Employer's] go-forward team," but Sanders' "return date h[ad] not been finalized." Shortly thereafter, Sanders returned to work with Employer in early July 2020.

The Ineligibility Determination

Less than two months after Sanders returned to work, on August 24 2020, the Division determined that Sanders was "ineligible from 04/12/2020 because [Sanders] [wa] s not unemployed," since Sanders was "on a leave of absence with an expectation to return to work," citing "personal medical" leave as the reason. Employer incorrectly stated medical leave, rather than furlough, as Sanders' reason for leaving work. The ineligibility determination then stated that Sanders could "file an appeal not later than 09-23-2020."

The Division stated that it mailed Sanders the first determination letter of ineligibility on August 24, 2020, and listed this August date as the "determination date" on its appeals documentation including on the initial determination and Tribunal orders. The Tribunal, however, later found in its decision issued on the appeal that Sanders "did not receive the initial determination that was sent to her." It also appears from Sanders' hearing testimony that Sanders was not "able to go online to [her] UInteract account and check correspondence during this time," and only gained access to UInteract starting the next year. ^[1]

The Overpayment of Benefits Determination

On November 18, 2020, about three months after the Division claims it mailed Sanders the initial ineligibility determination, the Division determined that because Sanders was ineligible for unemployment benefits, she was overpaid unemployment benefits under section 288.380.13. The determination stated that Sanders could appeal "no later than 12-18-2020." The Division assessed that Sanders was overpaid $1,199.00 in state benefits. The Division stated it mailed Sanders the second determination letter on November 18, 2020, listing this November date as the "determination date" on the second determination and on Tribunal orders. But the Tribunal also found in its decision issued on appeal that Sanders did not receive this November determination, writing, Sanders "did not receive the notice of determination as originally mailed ...." Again, Sanders did not have access to her UInteract unemployment portal during this time to otherwise discover this determination.

The Appeals Tribunal Hearings

On February 3, 2021, Sanders filed one appeal challenging both the ineligibility determination and the overpayment determination. Upon receiving this appeal, the Division duplicated the appeal document and opened two cases, bifurcating the appeal despite the single filing. The record is devoid of any evidence that Sanders received notice that the Division bifurcated her appeal.

After receiving Sanders' appeal, the Division then issued an order on April 16, 2021, dismissing Sanders' benefits overpayment appeal as untimely. The record, however, lacks any order or other document showing that the Division dismissed Sanders' ineligibility appeal.^[2] Five days later, Sanders then requested the Division reconsider its benefits overpayment order of dismissal, and the Division then scheduled two phone hearings for November 18, 2021, apparently setting aside both dismissals.

The Division scheduled an 8:15 am hearing for the initial ineligibility determination, considering the issues of (1) whether Sanders was unemployed and (2) whether the appeal was timely. The Division also scheduled a 9:15 am hearing for the benefits overpayment determination, considering the issues of (1) whether Sanders was overpaid benefits due to a period of ineligibility and (2) whether the appeal was timely.

Sanders attended only the 9:15 am hearing for the benefits overpayment determination.^[3]

At first, the Division entered a dismissal against Sanders for her failure to attend the 8:15 am hearing. But, upon Sanders' request for reconsideration, the Division agreed to hear the issue of whether Sanders' ineligibility appeal was timely on the condition that Sanders showed good cause for failing to attend the 8:15 am hearing. The Division then rescheduled the phone hearing for the ineligibility appeal, which was held on January 12, 2022, at 10:15 am. This meant the Tribunal held the ineligibility hearing after the benefits overpayment hearing.

Sanders' Timeliness Testimony

In her brief, Sanders states that she did not receive notice of the Division's determinations that she was ineligible for unemployment benefits and that she was overpaid in benefits. True, the first determination-that Sanders was ineligible for unemployment benefits-states that it was mailed to her on "08-24-2020" and the second determination-that Sanders was overpaid unemployment benefits-states it was mailed to her on "11-18-20." Sanders contends she did not receive these letters, but only received notice of these determinations on January 20, 2021, through the overpayment assessments. Sanders also says that when she finally received two Order Assessment of Overpaid Benefits notices via certified mail, the assessments stated that the appeal deadline was "02-19-2021."^[4] During both phone hearings, Sanders reiterated that she first became aware of an issue with her unemployment eligibility and benefits when she received a certified letter in January 2021. In Sanders' November 18, 2021, hearing for the benefits overpayment, Sanders likewise stated that she did not receive the November determination and became aware that she needed to appeal it when she received a certified letter "around the first part of the year."

Indeed, during the January 2022 phone hearing for her ineligibility determination, Sanders repeated that she received a "certified letter" permitting her to "file an appeal by February the 19th." Sanders also stated that she first learned that she was ineligible for unemployment benefits "sometime around November, December of 2020" after receiving a certified letter, what we discern to be the Order Assessment of Overpaid Benefits. Sanders further testified that she contacted the Division around "the first of January" after receiving this letter.^[5] Both overpayment determinations Sanders received via certified mail state that they were mailed on January 20, 2021, and the record does not contain any other certified letters except the hearing packets mailed to Sanders.

The Appeals Tribunal and Commission's Decisions

Despite Sanders' testimony that she did not receive either determination letter and the Tribunal agreeing she did not receive either, the Tribunal made its decisions in reverse order. First, on March 7, 2022, the Tribunal denied Sanders' benefits overpayment appeal despite Sanders' ineligibility appeal still pending. The Tribunal determined that the Division mailed Sanders the overpayment determination on November 18, 2020, and that Sanders "filed her appeal on February 3, 2021." Therefore the Tribunal concluded, "The deputy's determination has become final" and that Sanders "did not submit her appeal prior to the stated deadline contained in the notice" even though Sanders "did not receive the notice of determination as originally mailed." Sanders' ineligibility appeal remained outstanding.

The Tribunal's contradictory decision compounded this procedural confusion. Notably, in the decision's "Conclusions of Law" section, the Tribunal stated "The first issue in this matter is whether [Sanders] had good cause for her untimely appeal." Then, in the same section, the Tribunal declared that good cause determinations do not apply to appeals of benefits overpayments like Sanders'. The decision stated that "[t]he statute does not address good cause for determinations of overpayments such as this one, pursuant to Section 288.380.13, RSMo," ...