Booth v. Mississippi Employment Sec. Com'n
| Citation | 588 So.2d 422 |
| Decision Date | 11 September 1991 |
| Docket Number | No. 90-CC-0522,90-CC-0522 |
| Parties | Edward L. BOOTH v. MISSISSIPPI EMPLOYMENT SECURITY COMMISSION. |
| Court | Mississippi Supreme Court |
Jeremy Eisler, Biloxi, Stanley L. Taylor, Jr., Pascagoula, for appellant.
Jan Garrick, Jackson, for appellee.
Before ROY NOBLE LEE, C.J., and PRATHER and SULLIVAN, JJ.
The central question raised on this appeal is whether absence of notice to an attorney representing the claimant in an administrative proceeding affecting the claimant's substantial rights constitutes a denial of procedural due process. The claimant, Edward L. Booth, received notice of his employer's appeal before the Board of Review of the Mississippi Employment Security Commission, but his attorney of record did not receive notification.
After being fired in January 1989 by his employer, the City of Pascagoula, Edward L. Booth filed a claim for unemployment benefits. The appellate procedure is recounted by the Mississippi Employment Security Commission Board of Review (hereinafter Board):
On February 21, 1989, the Claims Examiner disqualified the above-named individual, hereinafter called Claimant, for benefits under the Mississippi Employment Security Law because the claimant was discharged for misconduct connected with the work. On appeal, the Referee reversed the determination of the Examiner and cancelled the disqualification. The employer, City of Pascagoula Mississippi, then filed further Notice of Appeal to the Board of Review. The case came on for review and decision by the Board of Review at Jackson, Mississippi, on June 12, 1989.
Claimant was last employed by the City of Pascagoula as an equipment operator for approximately seven years ending on January 16, 1989. The Claimant had previously been discharged by the City but through the efforts of the local union the claimant was reinstated effective October 10, 1988, and was placed on probation for three months. During this probationary period the claimant was absent on several occasions for various reasons. He exhibited threatening behavior on the job. He took one of the City's vehicles without permission and drove it home during his lunch break which was in violation of the rules of the employer. The Claimant was also late in returning from lunch. He also took other workers from the job in violation of the employer's rules. In view of these actions during his probationary period the claimant was discharged on January 16, 1989.
On the basis of these findings, the Board reversed the referee's decision and denied Booth's claim. Booth appealed to the Jackson County Circuit Court, and that court affirmed, finding that the Board's decision was supported by substantial evidence and the applicable law.
Booth appealed to this Court and presented two issues for disposition:
(1) Whether the Mississippi Employment Security Commission's Board of Review's Decision Was Supported by Substantial Evidence?
(2) Whether the Mississippi Employment Security Commission's Failure to Adequately Notify Claimant or Claimant's Counsel Of The Employer's Appeal Deprived Claimant of Due Process?
Through the first issue, Booth contends that the Board's denial of his claim is not supported by substantial evidence.
Well-settled law in Mississippi holds that judicial review of a Board of Review's ruling is limited. Piggly Wiggly of Bay Springs & Dixieland Food Stores, Inc. v. Miss. Employment Sec. Comm'n, 465 So.2d 1062, 1064-65 (Miss.1985). Pursuant to statutory law:
In any judicial proceeding ... the findings of the [B]oard ... as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of said [circuit] court shall be confined to questions of law.
Miss.Code Ann. Sec. 71-5-531 (1972); see Shannon Eng'g & Constr. Co. v. Miss. Employment Sec. Comm'n, 549 So.2d 446, 448 (Miss.1989); Miss. Employment Sec. Comm'n v. Blasingame, 237 Miss. 744, 747, 116 So.2d 213, 214 (1959) (), quoted in Wheeler v. Arriola, 408 So.2d 1381 at 1384 (Miss.1982); see also Miss. Employment Sec. Comm'n v. Pulphus, 538 So.2d 770, 772 (Miss.1989); Miss. Employment Sec. Comm'n v. Sellers, 505 So.2d 281, 283 (Miss.1987); Melody Manor, Inc. v. McLeod, 511 So.2d 1383, 1385 (Miss.1987). The word "evidence," as used in Sec. 71-5-531, has been interpreted to mean "substantial evidence." Williams v. Miss. Employment Sec. Comm'n, 395 So.2d 964 (Miss.1981).
Accordingly, this Court should review the record to determine whether, as a matter of law, the Board's fact-finding is supported by substantial evidence. If the evidence is sufficient, then this Court should determine whether, as a matter of law, Booth's actions constitute misconduct.
The record reveals that the City fired Booth in October of 1988 for excessive absenteeism. The local union president, however, helped Booth get his job back through the following agreement:
On agreement between the City of Pascagoula and Local 1944, that Eddie Booth will be on probation for a period of 3 months, without missing any time what-so-ever or he will be terminated.
Dianne Stevens, the City's personnel director, explained that the City did not intend to strictly enforce the agreement. In fact, the City overlooked Booth's absence from several days of work; however, the City could not tolerate twelve absences which occurred during a 60-day portion of the probation period. These absences, in addition to other factors, led to Booth's dismissal for the following reasons:
1. Excessive absenteeism.
2. Threatening to do bodily harm to three (3) crew Foremen.
3. Leaving the job during regular working hours without permission and during this time taking a DUI worker with [him].
Booth does not deny that he committed the acts described in the letter of dismissal; rather, he admits absences on "numerous occasions". 1 He contends that most (but not all) absences were excused. Whether the twelve absences were excused or not is irrelevant in view of the agreement's provision that he not be absent even one day during the 90-day probation period.
Booth also admits that he threatened others--including three supervisors--over a several-year period. But Booth minimizes the seriousness of such conduct. Contrary to Booth's contention, his threats were serious. They all involved threats of bodily harm, and, on at least one occasion, he told one of his supervisors that he would one day be waiting for him after work and "blow him away."
Finally, Booth admits that he borrowed one of the City's vehicles without authorization and while he had a suspended license. 2 However, he asks this Court to overlook this incident because no one told him that he could not borrow the vehicle and because he "did not [borrow] it again."
In sum, the record reveals substantial evidence to support the Board's fact-finding. Moreover, Booth's further contention that the evidence does not fall within the definitional parameters of "misconduct" is devoid of merit. This Court has defined "misconduct" as:
[C]onduct evincing such willful and wanton disregard of the employer's interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect from his employee. Also, carelessness and negligence of such degree, or recurrence thereof, as to manifest culpability, wrongful intent or evil design, and showing an intentional or substantial disregard of the employer's interest or of the employee's duties and obligations to his employer, came within the term. Mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, or inadvertences and ordinary negligence in isolated incidents, and good faith errors in judgment or discretion were not considered "misconduct" within the meaning of the [S]tatute.
Wheeler v. Arriola, 408 So.2d 1381, 1383 (Miss.1982) (citing Boynton Cab Co. v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941)); see also Miss. Employment Sec. Comm'n v. Borden, Inc., 451 So.2d 222, 225 (Miss.1984); Miss.Code Ann. Sec. 71-5-513(A)(1)(b) (Supp.1988) (). Clearly, the various incidents discussed above reflect "misconduct." Excessive absenteeism has been held to be "misconduct" so as to disqualify an employee from unemployment compensation benefits. Mississippi Employment Security Commission v. Martin, 568 So.2d 725, 726 (Miss.1990). This Court affirms on this issue.
On May 19, 1989, the Chairperson of the Board notified Booth by copy of the letter that the City had appealed the Referee's decision reinstating unemployment benefits.
Dear Sir:
In the matter of the claim for unemployment benefits for subject individual, please be advised that your appeal to the Board of Review has been received. The Board will consider your appeal based upon the record already made and no hearing will be scheduled unless the Board, in its discretion, shall direct that a further hearing be scheduled.
The decision by the Board on your appeal, or notice of further hearing if directed by the Board, will be forthcoming.
Very truly yours,
s/Ellie A. Fortner, Chairman
Board of Review
cc: EDWARD L. BOOTH
The Board did not mail a copy of the letter to Booth's attorney of record who represented him before the Referee. On June 13, 1989, the Board reversed the Referee's decision and denied benefits. 3 On June 19, 1989, Booth's attorney mailed a letter to the Board: (1) asking why he had not received a notice of the appeal and the Board's decision to review the Referee's decision; and (2) requesting the Board...
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