Kathi L. Acy v. Mississippi Employment Security Commission
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2005-CC-02019-COA
KATHI L. ACY
APPELLANT
v.
MISSISSIPPI EMPLOYMENT SECURITY
COMMISSION
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
APPELLEE
9/16/2005
HON. WILLIAM E. CHAPMAN, III
RANKIN COUNTY CIRCUIT COURT
DOUGLAS E. LEVANWAY
ALBERT B. WHITE
CIVIL - STATE BOARDS AND AGENCIES
DECISION OF THE BOARD OF REVIEW OF
THE MISSISSIPPI DEPARTMENT OF
EMPLOYMENT SECURITY, FINDING THAT
APPELLANT WAS DISQUALIFIED FROM
RECEIVING UNEMPLOYMENT BENEFITS,
WAS AFFIRMED.
REVERSED AND REMANDED – 02/06/2007
02/20/2007 – DENIED – REVERSED AND
REMANDED – 07/17/2007
MANDATE ISSUED:
CONSOLIDATED WITH
NO. 2005-CC-02378-COA
MISSISSIPPI DEPARTMENT OF EMPLOYMENT
SECURITY
APPELLANT
v.
KATHI L. ACY
DATE OF JUDGMENT:
TRIAL JUDGE:
APPELLEE
11/01/2005
WILLIAM E. CHAPMAN, III
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
RANKIN COUNTY CIRCUIT COURT
ALBERT B. WHITE
DOUGLAS E. LEVANWAY
CIVIL - STATE BOARDS AND AGENCIES
DECISION OF THE BOARD OF REVIEW OF
THE MISSISSIPPI DEPARTMENT OF
EMPLOYMENT SECURITY, FINDING THAT
APPELLANT WAS DISQUALIFIED FROM
RECEIVING UNEMPLOYMENT BENEFITS,
WAS AFFIRMED.
REVERSED AND REMANDED – 02/06/2007
02/20/2007 – DENIED – REVERSED AND
REMANDED – 07/17/2007
MANDATE ISSUED:
EN BANC.
IRVING, J., FOR THE COURT:
MODIFIED OPINION ON MOTION FOR REHEARING
¶1.
The motion for rehearing is denied. However, the previous opinion is withdrawn and this
opinion is substituted therefor.
¶2.
This appeal arises from a decision of the Circuit Court of Rankin County, affirming the
finding of the Board of Review of the Mississippi Department of Employment Security1 (the Board):
that Kathi L. Acy, a former Wal-Mart employee, committed disqualifying misconduct pursuant to
Mississippi Code Annotated section 71-5-513 (Supp. 2006), and is therefore not entitled to
unemployment compensation benefits. Aggrieved, Acy appeals and assigns as error the trial court’s
affirmance of the Board’s ruling.
¶3.
The Mississippi Department of Employment Security (the Department) also appeals the
decision of the circuit court directing the Department to reimburse Acy for benefits she received
during the appeal process.
1
The Mississippi Department of Employment Security was formerly known as the
Mississippi Employment Security Commission.
2
¶4.
Finding error, we reverse and remand.
FACTS
¶5.
For over five years Acy worked as a door-greeter at Wal-Mart in Flowood, Mississippi. As
a part of her job, she was required to stop any customer who set off the store’s security alarm as the
customer attempted to exit the store. She was also required to record information from the
customer’s receipt.
¶6.
On February 10, 2005, Acy was at her post when a customer’s digital versatile disc (DVD)
set off the security alarm. The customer showed her receipt as proof that she had in fact purchased
the DVD. However, the customer complained to management that Acy exhibited rude behavior
toward her during the incident. More specifically, the customer complained that Acy cursed in her
presence. As a result, Acy was fired for violating Wal-Mart’s policy which prohibits rude or abusive
conduct toward customers. After her termination, Acy filed for and was awarded $164 in weekly
unemployment benefits by the claims examiner. Wal-Mart appealed.
¶7.
During the hearing on Wal-Mart’s appeal, Acy testified that the customer became upset and
snatched the receipt from her before she could write down all of the pertinent information and that
the customer refused to return the receipt to her. Acy further testified that Acy cursed under her
breath as she walked to a nearby table. However, she insists that her comments were not rude nor
abusive and were not directed toward the customer. Nevertheless, the customer, her two daughters,
and the daughters’ eight-year-old friend heard Acy’s remarks. As a result, the customer demanded
to speak with the manager.
¶8.
Dwayne Allen Patterson was the manager at the Wal-Mart in Flowood at the time of the
incident. Patterson testified that Acy admitted using profanity in the presence of the customer but
claimed that she did not intend for the customer to hear her.
3
¶9.
At the close of the hearing, the appeals referee concluded that Acy’s conduct disqualified
her from receiving unemployment benefits. Acy appealed to the Board of Review. However, after
receiving a notice of overpayment from the Department, which requested immediate restitution, Acy
repaid the amount that she was initially awarded, as well as the interest which had accrued. In the
meantime, the Board affirmed the decision of the appeals referee. Acy then appealed to the circuit
court which affirmed the Board’s denial of benefits but held that Acy was not obligated to pay
restitution to the Department for benefits that she received while ineligible, because the benefits
were not awarded due to any fraud or misrepresentation on her part. In addition, the court ordered
the Department to reimburse Acy $1,003.68 which she had paid pursuant to the notice of
overpayment.
¶10.
Additional facts, as necessary, will be related during our analysis and discussion of the
issues.
ANALYSIS AND DISCUSSION OF THE ISSUES
¶11.
Appellate courts have limited review of decisions of the Mississippi Department of
Employment Security. Hodge v. Miss. Empl. Sec. Comm’n, 757 So. 2d 268, 270 (¶5) (Miss. 2000).
The Mississippi Supreme Court has stated, “[w]hen reviewing a decision of the MESC, [an appellate
court] must affirm when the decision is supported by substantial evidence.” Reeves v. Miss. Empl.
Sec. Comm’n, 806 So. 2d 1178, 1179 (¶5) (Miss. Ct. App. 2002) (citing Richardson v. Miss. Empl.
Sec. Comm’n, 593 So. 2d 31, 34 (Miss. 1992)).
¶12.
It is well settled in Mississippi law that the findings of an agency must remain undisturbed
unless the agency’s order “(1) is not supported by substantial evidence, (2) is arbitrary or capricious,
(3) is beyond the scope or power granted to the agency, or (4) violates one’s constitutional rights.”
Allen v. Miss. Empl. Sec. Comm’n, 639 So. 2d 904, 906 (Miss. 1994) (citing Miss. Comm’n on Envtl.
4
Quality v. Chickasaw County Bd. of Supervisors, 621 So. 2d 1211, 1215 (Miss. 1993)). An appellate
court, “must not reweigh the facts of the case or insert its judgment for that of the agency.” Id.
Mississippi Code Annotated section 71-5-531 (Supp. 2006) provides in part that, “[i]n 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 the court shall be
confined to questions of law.”
1. Misconduct
¶13.
The question for review here is whether there is substantial evidence to support the agency
finding that Wal-Mart met its burden of showing by substantial evidence that Acy committed
disqualifying misconduct. In Wheeler v. Arriola, 408 So. 2d 1381, 1383 (Miss. 1982) (citing
Boynton Cab Co. v. Neubeck, 237 Wis. 249, 296 N. W. 636 (1941)), the court defined “misconduct”
as:
conduct 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 statute.
¶14.
“The conduct may be harmful to [the] employer’s interests and justify the employee’s
discharge; nevertheless, it evokes the disqualification for unemployment insurance benefits only if
it is wilful, wanton or equally culpable.” Id. (quoting Jacobs v. California Unemployment Appeals
Bd., 25 Cal. App.3d 1035, 1037, 102 Cal. Rptr. 364, 366 (1972)).
¶15.
Acy recognizes that her conduct may have justified her termination; however, she contends
that one incident of cursing under her breath in the presence of a customer does not rise to the level
5
of disqualifying misconduct as defined by Mississippi case law. In support of her argument, Acy
relies on Gordon v. Miss. Empl. Sec. Comm’n, 864 So. 2d 1013 (Miss. Ct. App. 2004).
¶16.
In Gordon, an employee was terminated for violating company policy and for using profanity
toward his supervisor. This Court stated,
[u]nder these circumstances, although it is perhaps understandable why he was
miffed, there still was no justification for using profanity toward his supervisor. But
by the same token, it is more than a stretch to say that what he did in this one single
incident was the equivalent of a ‘willful and wanton disregard of [his] 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.’
Id. at 1020 (¶30) (quoting Wheeler, 408 So. 2d 1383).
¶17.
Acy also argues that Wal-Mart failed to prove that she had been informed that she could be
terminated for one instance of being rude to a customer or for using profanity. Acy further contends
that Wal-Mart failed to show that the rule was fairly and consistently enforced.
¶18.
Patterson, the manager, testified at the hearing that, although he does not recall specifically
stating in an employee meeting that one instance of cursing was grounds for immediate termination,
the policies and procedures, which were given to Acy, provide a list of actions of misconduct which
may result in immediate termination. Rude and abusive conduct toward a customer is included in
the list.
¶19.
The undisputed testimony establishes that Acy did not direct her comments toward the
customer. However, accepting that Acy’s conduct was a violation of Wal-Mart’s policies and
procedures, thus justifying her termination, it is the opinion of this Court that her actions do not
amount to disqualifying misconduct as defined by Mississippi case law, as “an isolated incident of
misconduct by [an] employee does not generally disqualify [the employee] from receiving the
benefit of unemployment compensation.” Daniels v. Miss. Empl. Sec. Comm’n, 904 So. 2d 1195,
1197 (¶9) (Miss. Ct. App. 2004) (citing Gore v. Miss. Empl. Sec. Comm’n, 592 So. 2d 1008, 1011
6
(Miss. 1992)). Thus, we reverse the circuit court’s finding that Acy committed disqualifying
conduct within the meaning of Mississippi Code Annotated section 71-5-513A.(1)(b) (Supp. 2006),
as construed by the court in Wheeler.
¶20.
The dissent seeks to distinguish Gordon on the basis that Gordon involved profanity toward
a supervisor, while this case involves profanity uttered in the presence of a customer. Respectfully,
we say that the dissent misreads our holding in Gordon. We reversed the denial of benefits to
Gordon not because Gordon’s profanity was directed toward a supervisor, as opposed to a patient
of the hospital, but because “it is more than a stretch to say that . . . one single incident [is] the
equivalent of a ‘willful and wanton disregard of [his] 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.’” Gordon, 864 So. 2d at 1020 (¶30) (quoting Wheeler, 408 So. 2d at 1383). Paraphrasing
what we said in Gordon, we do not question that Wal-Mart had a legitimate reason for terminating
Acy, but a legitimate basis for terminating an employee does not necessarily equate to a justification
for denying unemployment benefits. Id. at 1019 (¶29).
2. Overpayment
¶21.
This issue is moot based on our finding that Acy’s conduct did not disqualify her from
receiving unemployment benefits. She will receive, as a part of her weekly benefits, the amount
which she repaid to the Department.
¶22. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY IS
REVERSED AND REMANDED TO THE MISSISSIPPI DEPARTMENT OF
EMPLOYMENT SECURITY FOR A DETERMINATION OF THE AMOUNT OF
BENEFITS DUE APPELLANT. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLEE.
LEE, P.J., CHANDLER AND ISHEE, JJ., CONCUR. GRIFFIS, J., DISSENTS WITH
SEPARATE WRITTEN OPINION JOINED BY MYERS, P.J., AND ROBERTS, J. KING,
C.J., BARNES AND CARLTON, JJ., NOT PARTICIPATING.
7
GRIFFIS, J., DISSENTING:
¶23.
I respectfully dissent. As the author of the dissenting opinion in Gordon v. Miss. Empl. Sec.
Comm’n, 864 So. 2d 1013 (Miss. Ct. App. 2004), I maintain my opinion that the majority incorrectly
reweighs the evidence and substitutes its judgment for that of the administrative agency, the
Mississippi Department of Employment Security (the “Department”).
¶24.
When examined under the definition of misconduct established in Wheeler, Acy’s actions,
comments and conduct, clearly constituted “conduct evincing such . . . disregard of standards of
behavior which the employer has the right to expect from his employee . . . .” Wheeler v. Arriola,
408 So. 2d 1381, 1383 (Miss. 1982). There is a substantial difference between this case and
Gordon. Here, Ms. Acy’s profanity was not heard by an employee but instead by a customer.
Certainly, Wal-Mart has a right to expect that its greeters will not use profanity in the presence of
its customers. Ms. Acy admits that she made profane statements in the presence of a customer and
that she was aware that profanity was not allowed.
¶25.
This is not an insubordination case, like Gordon. It is one for violation of a policy. Wal-
Mart had a policy that prohibited employee’s rudeness to customers. The utterance of a profanity
in the presence of a customer is certainly rude behavior, regardless of whether she intended the
customer to hear it.
¶26.
In my opinion, Ms. Acy’s behavior and use of profanity in the presence of a customer was
“conduct evincing such . . . disregard of standards of behavior which the employer has the right to
expect from his employee. . . .” Id. I conclude that the Department correctly determined that Ms.
Acy’s actions, comments and conduct constituted misconduct, which disqualified her from
unemployment compensation benefits. Accordingly, I would affirm the decisions of the Department
and the circuit court.
8
MYERS, P.J. AND ROBERTS, J., JOIN THIS OPINION.
9
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