Southwood Door Co. v. Burton

• Decision Date: 05 June 2003
• Docket Number: No. 2002-CC-00893-SCT.,2002-CC-00893-SCT.
• Citation: 847 So.2d 833
• Parties: SOUTHWOOD DOOR COMPANY v. Raymond BURTON.
• Court: Mississippi Supreme Court

847 So.2d 833

SOUTHWOOD DOOR COMPANY v. Raymond BURTON.

No. 2002-CC-00893-SCT.

Supreme Court of Mississippi.

June 5, 2003.

Timothy W. Lindsay, Flowood, attorney for appellant.

Steven D. Slade, Meridian, attorney for appellee.

Before McRAE, P.J., WALLER and GRAVES, JJ.

WALLER, Justice, for the Court.

¶ 1. Raymond Burton, a truck driver, was terminated by his employer, Southwood Door Company, after testing positive on a random drug test. Burton thereafter sought unemployment compensation benefits which were denied by the Board of Review of the Mississippi Employment Security Commission (MESC). Burton appealed the denial of benefits to the Lauderdale County Circuit Court which reversed the denial and awarded Burton benefits. Southwood appeals the judgment of the circuit court. Finding the circuit court's resolution ultimately correct, we affirm the award of benefits.

FACTS AND PROCEDURAL HISTORY

¶ 2. Southwood Door Company manufactures and distributes doors nationwide. Since it employs over-the-road drivers, Southwood was subject to federal Department of Transportation regulations governing the drug and alcohol testing of its drivers. 49 U.S.C. § 31306 (2003); 49 C.F.R. Part 40 (1999). On July 6, 1999, Southwood employee Raymond Burton was randomly selected for drug testing and reported for testing on July 9, 1999. See 49 U.S.C. § 31306(b) (allowing preemployment, reasonable suspicion, random, and post-accident testing of operators of commercial motor vehicles). Burton underwent a "Breathalyzer" alcohol test and urine drug test at the MEA Drug Testing Consortium's satellite collection facility in Quitman, Mississippi.

¶ 3. Lori Hale, a representative of MEA, notified Burton by telephone on July 12, 1999, that he had tested positive for marijuana. Burton was subsequently terminated on July 13, 1999, pursuant to Southwood's policy which provides for termination in the event of any positive drug or alcohol test.

¶ 4. Burton underwent another urine test at his own expense on July 14, 1999, which yielded a negative result for marijuana. Pursuant to 49 C.F.R. § 382.605, Burton was referred to Patricia Sandusky, Ph.D., a Substance Abuse Professional. Dr. Sandusky concluded that Burton did not have a substance abuse problem and believed Burton's assertions that the methods employed in the collection of his specimen were faulty. She further recommended that Burton undergo a hair follicle drug test which would reveal drug use within the last 90 days. This test yielded a negative result as well.

¶ 5. Southwood denied Burton's request that he be reinstated to his position, and on September 12, 1999, he applied with the MESC for unemployment compensation benefits. The claims examiner found that Southwood did not show that it had terminated Burton for misconduct and deemed him eligible for benefits.

¶ 6. Southwood appealed, and a hearing was conducted before Appeals Referee Timothy Rush on November 18, 1999. The referee reversed the claims examiner and disqualified Burton from benefits, stating:

The Referee is of the opinion that the claimant was discharged for violation of the company's drug policy after he tested positive for use of marijuana. The Referee is of the opinion that the claimant's actions constituted misconduct connected with the work as that term is used in the Unemployment Insurance Law. The decision of the Claims Examiner will be cancelled.

¶ 7. As stated in the ruling and pursuant to Miss.Code Ann. § 71-5-519 (2000), the decision of the referee would become final unless an appeal was filed within fourteen days after the notification or mailing of the decision. The Board received Burton's notice of appeal on December 4, 1999, and dismissed the appeal as untimely.

¶ 8. Burton appealed the dismissal of his appeal to the Lauderdale County Circuit Court. According to the MESC, Burton's notice of appeal was received one day late at the wrong address. However, the court found good cause to remand Burton's case for a review on the merits. This decision was never appealed.

¶ 9. On remand, the Board of Review affirmed the decision of the Appeal Referee, stating:

The Board of Review agrees with the Findings of Fact as stated by the Appeal Referee in his decision of November 19, 1999. The facts also show that subsequent to the random drug test taken by the claimant on July 19, 1999, the claimant had other drug tests on his behalf, which test[s] proved to be negative.

The Board agrees with the Opinion of the Referee that the claimant was discharged for violation of the company's drug policy after he tested positive for use of marijuana. The test taken on July 19, 1999[,] was positive for marijuana and such was a violation of the company policy, which was known and understood by the claimant. The result of any subsequent test taken by the claimant does not alter the fact that the test on July 19, 1999[,] was positive. The decision of the Appeals Referee, therefore, will be affirmed.

(emphasis in original).

¶ 10. Burton again appealed to the Lauderdale County Circuit Court. Faced with the question of whether Burton's positive test result could be considered "misconduct" under Mississippi law, the court analyzed the Drug and Alcohol Testing of Employees Law, Miss.Code Ann. §§ 71-7-1 to -33 (2000), as it applied to employment security cases. The court found that since a confirmation test on Burton's specimen had not been conducted, Southwood failed to prove misconduct by clear and convincing evidence. The court also refused to address the timeliness issue, holding that the failure to appeal the circuit court's prior decision to remand barred subsequent review. The decision of the Board of Review was reversed.

¶ 11. Southwood appeals and raises three assignments of error, arguing the circuit court erred in finding good cause to relax Burton's time to appeal, the circuit court applied an improper legal standard to determine that Burton had committed misconduct, and the circuit court erred in applying Mississippi's drug testing statutes to Southwood.

STANDARD OF REVIEW

¶ 12. Miss.Code Ann. § 71-5-531 (2000) provides the appropriate standard of review in cases reviewing decisions of the Board of Review: "In any judicial proceedings under this section, the findings of the board of review as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of said court shall be confined to questions of law." See also Johnson v. Miss. Employment Sec. Comm'n, 761 So.2d 861, 863 (Miss.2000); Coahoma County v. Miss. Employment Sec. Comm'n, 761 So.2d 846, 848-49 (Miss. 2000); Miss. Employment Sec. Comm'n v. Lee, 580 So.2d 1227, 1229 (Miss.1991); Wheeler v. Arriola, 408 So.2d 1381, 1384 (Miss.1982); Brandon v. Miss. Employment Sec. Comm'n, 768 So.2d 341, 344 (Miss.Ct.App.2000).

DISCUSSION

I. WHETHER THE CIRCUIT COURT ERRED IN REVERSING THE BOARD OF REVIEW'S DISMISSAL OF BURTON'S APPEAL AS UNTIMELY.

¶ 13. The Appeals Referee entered his decision on November 19, 1999, and indicated that a request for review had to be filed within fourteen days and addressed to Mississippi Employment Security Commission, Board of Review, P.O. Box 1699, Jackson, MS XXXXX-XXXX. Burton was also mailed a Notice of Overpayment of Benefits dated November 29, 1999, which indicated that an appeal had to be filed within fourteen days and addressed to Mississippi Employment Security Commission, P.O. Box 23088, Jackson, MS XXXXX-XXXX The MESC received Burton's request for review dated December 2, 1999, addressed to Mississippi Employment Security Commission, Board of Review, P.O. Box 23088, Jackson, MS XXXXX-XXXX, on December 4, 1999, apparently one day late and at the wrong address.

¶ 14. The Board of Review dismissed Burton's appeal as untimely. Burton appealed to the Lauderdale County Circuit Court which reversed the Board of Review's dismissal as untimely and remanded for a decision on the merits. According to Burton, he mailed his request for review to both P.O. Box 1699 and P.O. Box 23088. However, there is no record of the MESC ever receiving or acknowledging receipt of the P.O. Box 1699 request for review. Southwood never appealed the circuit court's decision to reverse and remand Burton's case back to the Board of Review.

¶ 15. Southwood argues that the circuit court's decision to remand Burton's claim was interlocutory and thus not appealable and cites in support our decision in Wilson v. Miss. Employment Security Comm'n, 643 So.2d 538 (Miss.1994). In Wilson, the Lauderdale County Circuit Court remanded a case back to the MESC after finding the record insufficient to support the employer's discharge of its employee. Id. at 539. We dismissed the appeal on the grounds that it was interlocutory. Id. at 540. The circuit court in Wilson did not explicitly affirm or reverse the decision of the MESC. Rather, it reversed and remanded for more information.

¶ 16. In J.R. Logging v. Halford, 765 So.2d 580 (Miss.Ct.App.2000), a workers' compensation case, Presiding Judge Southwick of the Court of Appeals, in a concurring opinion, aptly explained the fine distinction to be drawn between an appeal from a final order and an interlocutory appeal in administrative agency cases. The employee, Halford, was injured and entered into a settlement with his employer. 765 So.2d at 582. Halford later attempted to reopen his claim alleging a mistake of fact, but the administrative law judge denied the petition. Id. After the commission affirmed, Halford appealed to circuit court which reversed, finding the commission's finding was clearly erroneous. Id. The Court of Appeals subsequently reversed the circuit court and affirmed the denial of Halford's petition to reopen his claim. Id.

¶ 17. Presiding Judge Southwick's separate opinion addressed the procedural aspects of the case. His analysis began with our 1991 opinion in Bickham v. Dep't of Mental Health, 592 So.2d 96 (Miss.1991), a consolidation of two...