Mississippi Employment Security Commission v. Andrew K. Nordstrom
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2002-CC-01522-COA
MISSISSIPPI EMPLOYMENT SECURITY
COMMISSION AND TYSON FARMS, INC.
v.
ANDREW K. NORDSTROM
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLANTS
APPELLEE
8/2/2002
HON. FRANK G. VOLLOR
WARREN COUNTY CIRCUIT COURT
AMY C. FELDER
LEWIS W. BELL
WALTER JAMES BRAND
FRANK J. CAMPBELL
CIVIL - STATE BOARDS AND AGENCIES
TRIAL COURT OVERTURNED THE DECISION
OF THE MISSISSIPPI EMPLOYMENT
SECURITY COMMISSION AND GRANTED
BENEFITS TO APPELLEE.
AFFIRMED: 11/04/2003
BEFORE MCMILLIN, C.J., MYERS AND GRIFFIS, JJ.
GRIFFIS, J., FOR THE COURT:
¶1.
Andrew Nordstrom filed a claim for unemployment benefits with the Mississippi Employment
Security Commission. The claims examiner held that Nordstrom was entitled to benefits because Tyson
had failed to show Nordstrom was discharged for misconduct. The appeals referee reversed the decision
of the claims examiner finding that Nordstrom failed to show good cause for leaving his employment. The
board of review affirmed this decision, and Nordstrom appealed to the Circuit Court of Warren County.
The circuit court reversed, finding that Nordstrom reasonably believed he was terminated, and therefore,
he was entitled to benefits. Tyson now appeals asserting that the MESC decision was based on substantial
evidence. Finding no error, we affirm.
FACTS
¶2.
Andrew Nordstrom was employed as a maintenance technician by Tyson Farms in Vicksburg,
Mississippi. In early August of 2001, Nordstrom hurt his shoulder. Tyson granted medical leave for
Nordstrom to have surgery to repair his rotator cuff. He returned to work in late August and worked
without incident until September 30, 2001. Nordstrom missed his scheduled work days on October 1,
2, 3, 8 and 9. On each of these days, Nordstrom called in and informed Tyson that he would be absent.
¶3.
Nordstrom returned to work on October 10th. Concerned about his absences, Nordstrom went
to the personnel office where he was given a “track sheet” that listed the total number of excused and
unexcused absences. The track sheet indicated the five days he had just missed plus a previous absence
equaled six unexcused absences. At the top of the track sheet, it stated that six unexcused absences meant
that an employee was terminated. Believing he was discharged, Nordstrom never returned to work.
¶4.
Nordstrom then filed a claim for benefits with the MESC. The claims examiner found that
Nordstrom was not terminated for misconduct and granted benefits. Tyson appealed, arguing that
Nordstrom had voluntarily quit his job. A telephonic hearing was set with the appeals referee.
¶5.
Nordstrom testified that he did not voluntarily leave his job, but was "discharged." He testified that
he called in every day he was absent and told them his shoulder was "giving him problems" and that he was
taking medication. Nordstrom testified that he understood that Tyson has a policy that if you are taking any
kind of medication you cannot work.
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¶6.
Nordstrom testified that he went in October 10th, "ready to work." When he went to the personnel
office to check his absences, the track sheet indicated that he was terminated. When he could not find the
plant manager, Nordstrom testified he asked the plant secretary if the track sheet "meant what he thought
it did." Nordstrom testified she told him "it meant exactly what it said. I was terminated."
¶7.
Nordstrom testified that he then went to his supervisor Jimmy Algood. Nordstrom testified that
he told Algood that he was terminated. According to Nordstrom, Algood told him a medical excuse
"might" remedy the problem. Nordstrom testified that he never brought in a doctor's excuse because he
did not actually go see a doctor during the time he was absent. Nordstrom also stated that he was not
aware that he had fifteen days to obtain a medical excuse, nor did the notice of termination inform him of
this policy. Nordstrom testified that he believed he was terminated on October 10th.
¶8.
Sharon Robinson, the plant personnel manager, was the only Tyson employee to testify. Robinson
testified that Tyson has a company policy that when an employee has six absences that are unexcused and
the employee does not have any type of documentation for it, the employee is terminated. However, if the
employee provides a medical excuse in fifteen days, the employee will not be terminated. Tyson also
considers a two days absence without calling in a voluntary termination. Robinson also testified that it was
company policy for an employee to bring in their medication and the plant nurse would make a
determination of whether they can work or not. A copy of Tyson's employment policies was not provided
in the record.
¶9.
Robinson testified that Tyson’s records indicated that Nordstrom had called in for the days of
October 1, 2, 3, 8, 9, and 101; however, Tyson’s records disclosed the reason for the absence was
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While Tyson's records may indicate that Nordstrom called in sick on October 10th, the trial
record clearly disputes this. The track sheet given to Nordstrom is dated October 10th, so there is no
doubt he was at work on this date.
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personal. Robinson also testified that calling in would not have excused the absences and that Nordstrom
was required to provide medical excuses for such absences. Robinson testified that Tyson believed
Nordstrom resigned from his employment as a “two day no report” and that he was not discharged. She
admitted that she had not personally spoken with Nordstrom nor was she "thoroughly aware" of his case
because she had only "arrived [at Tyson] in July."
¶10.
The appeals referee determined that Nordstrom had failed to show "good cause for leaving his
employment and benefits were terminated." Nordstrom filed a notice of appeal with the board of review,
which affirmed the ruling of the appeals referee. Nordstrom then appealed to the circuit court which
reversed the opinion of the Commission and awarded benefits to Nordstrom. The circuit court based this
ruling on Huckabee v. Miss. Employment. Sec. Comm'n, 735 So. 2d 390, 396 (¶22) (Miss. 1998),
which held that when an employee reasonably believes he is terminated, then the employee is entitled to
benefits. Tyson has perfected this appeal asserting the circuit court exceeded its authority in reversing the
MESC.
STANDARD OF REVIEW
¶11.
Mississippi Code Annotated section 71-5-531(Rev. 2000) governs the standard of review for
appealing a MESC decision. Section 71-5-531, in pertinent part, provides: "[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 said court shall be confined to questions of
law." Miss. Code Ann. §71-5-531 (Rev. 2000). "The Board's findings of fact are conclusive if supported
by substantial evidence and without fraud." Hoerner Boxes, Inc. v. Miss. Employment Sec. Comm'n,
693 So.2d 1343, 1346-47 (Miss.1997) (citing Richardson v. Miss. Employment Sec. Comm'n, 593
So.2d 31, 34 (Miss.1992)).
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ANALYSIS
1. Whether the circuit court exceeded its authority in reversing the Mississippi
Employment Security Commission's decision to deny unemployment benefits to
Andrew Nordstrom.
¶12.
Tyson asserts that the decision of the MESC was based upon substantial evidence, and under the
applicable standard of review, it was improper for the circuit court to overturn the decision. Tyson claims
the circuit court exceeded its authority, and substituted its own judgment for that of the MESC.
¶13.
To support this claim, Tyson relies on NCI Bldg. Components v. Berry, 811 So. 2d 321 (Miss.
Ct. App. 2001). In Berry, Calvin Berry committed a costly error to the company and was disciplined for
it. Id. at 324 (¶4). On the same day, Berry asked his supervisor, Jimmy Thigpen, how many paid days
of sick leave he had. Id. Berry learned he had two days available and told his supervisor he planned to
used those days and would be out the next two days of work. Id. NCI's company policy required all
employees to call in to work if they are going to be out. Id. at 324 (¶5). When Berry returned to work
two days later, he asserted that a supervisor, Scottie Williams, fired him from his employment. Id. at 325
(¶ 7). When Williams testified, he denied this, and claimed Berry told him he wanted to quit. Id. Williams
testified he told Berry that if he wanted to leave, he needed to speak to his immediate supervisor, Thigpen,
and arranged a meeting between them for 3:00 the same afternoon. Id. Several other NCI supervisors
corroborated this testimony. Id.
¶14.
Berry testified that he chose not to attend the meeting with Thigpen. Id. at 325 (¶8). He also
admitted that later the same day, another supervisor, Billy Taylor, spoke with him on the phone and
assured Berry that he had not been terminated because Williams did not have the authority to take such
action. Id. Berry testified that Taylor told him to come in and meet with Taylor and Thigpen in order to
"iron everything out." Id. Berry testified that Taylor told him they had no intention of letting him go. Id.
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Berry admitted he ignored this request and did not go in that afternoon to straighten things out with his
immediate supervisors. Id.
¶15.
Berry never reported back to work. Id. at 325 (¶9). NCI 's termination papers stated that Berry
had voluntarily quit his position without notice to his employer. Id. at 326 (¶9). The MESC agreed with
NCI and found Berry had abandoned his job without notice and was therefore not entitled to
unemployment benefits. Id. Berry appealed and the circuit court reversed, finding that Berry was fired
from his employment with NCI. Id. This Court reinstated the decision of the MESC finding that no direct
evidence supported Berry's claim other than his own testimony. Id. at 327 (¶ 15). Furthermore, NCI
provided multiple witnesses to corroborate that Berry was not fired from his position at NCI, but rather,
he quit his job by not returning to work. Id.
¶16.
Tyson claims the facts in Berry are substantially similar. Tyson argues that Nordstrom's assertion
that he believed he was terminated is unsupported by the record. Tyson claims Nordstrom's belief is based
on the information given to him by the plant secretary who, like the supervisor in Berry, did not have the
authority to fire Nordstrom. They also argue that Nordstrom's supervisor, Algood, told him the problem
could be remedied by providing medical documentation of his absences. Tyson claims this is analogous
to the supervisors in Berry informing Berry that he was not terminated.
¶17.
This Court finds that the facts surrounding Nordstrom's case are substantially different from the
facts in Berry. First, by his own testimony, Nordstrom's belief that he was terminated was based on the
wording of a Tyson document. The plant secretary thereafter reinforced what Nordstrom already
believed, that he was terminated. Second, when Nordstrom told his immediate supervisor, Algood, that
he was terminated, Algood did nothing. Algood's only response was to tell Nordstrom that a medical
excuse "might" clear up the problem. Algood never informed Nordstrom that he would not be terminated
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if he provided medical documentation. Finally, in Berry, this Court based its decision on the fact that NCI
provided several corroborating witnesses to support its position. Tyson's only witness was the plant
personnel manager, Robinson, who had no first hand knowledge of the events nor was she employed by
Tyson when the incident took place.
¶18.
This case is more in line with Huckabee v. Miss. Employment Sec. Comm'n, 735 So. 2d 390
(Miss. 1999). In Huckabee, Barbara Huckabee was employed as a cashier at Lyman's. Id. at 392 (¶ 4).
According to Huckabee, on September 28, 1995, approximately five minutes before her shift ended, she
spoke with her manager at Lyman's, Judy Saucier, about her employment conditions. Id. at 392 (¶5).
Huckabee was concerned about being scheduled to work as a cook full-time, which she felt was a twoperson job. Id. Saucier asked Huckabee if she was looking for another job. Id. Huckabee responded
that she would be looking for another job because of the burden that had been placed on her, but she
would continue working as long as she possibly could. Id. Saucier then stated that Lyman's would have
to find someone else, and Huckabee assured Saucier that she would give her two weeks' notice if she did
leave. Id. Huckabee asked if Saucier was trying to get rid of her. Id. Huckabee stated that Saucier
giggled, threw her hands in the air, and stated, "I'm hiring someone else." Id. Huckabee interpreted this
to mean that she had been terminated. Id.
¶19.
The president of Lyman's, Robert Dean Hyde, testified as the employer's representative. Id. at 393
(¶ 6). He stated that he was "basically" in charge of all the hiring and the firing at Lyman's. Id. He testified
that Saucier had no authority to hire and fire employees. Id. Hyde testified that he had no knowledge of
what transpired between Huckabee and Saucier, but Huckabee was under no threat of discharge at
anytime. Id.
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¶20.
The MESC found that Huckabee was not discharged, but that she left her employment voluntarily
and had failed to show good cause for leaving her employment. The circuit court affirmed this decision.
The Mississippi Supreme Court determined that the proper question for the court was whether it was
reasonable for Huckabee to interpret her supervisor's statement to mean her employment had been
terminated. Id. at 396 (¶22). The court held that the statement, "I'm hiring someone else," is language a
reasonable person would interpret as a discharge. Id. The supreme court reversed and remanded for a
determination of the amount of compensation owed Huckabee. Id.
¶21.
This Court, therefore, must ask whether it was reasonable for Nordstrom to believe he had been
terminated on October 10th. We find that it was. Nordstrom was given a Tyson document – the track
sheet – which documented all his absences. He was aware of Tyson's policy that after six unexcused
absences, an employee is terminated. The track sheet documented six unexcused absences and clearly
indicated that “[t]ermination occurs when you have attained six occurrences.” Nordstrom believed he was
terminated. The plant secretary confirmed Nordstrom's belief. Algood, his supervisor, did nothing to
assuage Nordstrom's belief, and only suggested that a medical excuse "might" straighten out the problem.
¶22.
Under these circumstances, we find that a reasonable person would believe they were terminated
on October 10th. Nordstrom's subsequent failure to report to work on October 13th and 14th, cannot be
classified as “misconduct” in view of the prior notice of termination he received on October 10th. See
Wheeler v. Arriola, 408 So. 2d 1381, 1383 (Miss. 1982).
¶23.
Accordingly, we find that the ruling of the circuit court was without error, and we affirm.
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¶24. THE JUDGMENT OF THE CIRCUIT COURT OF WARREN COUNTY IS
AFFIRMED.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE,
IRVING, MYERS AND CHANDLER, JJ., CONCUR.
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