Mississippi Employment Security Commission v. Larry Danner
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2003-CC-00810-COA
MISSISSIPPI EMPLOYMENT SECURITY
COMMISSION AND SAM'S TOWN HOTEL
AND GAMBLING CASINO
v.
LARRY D. DANNER
DATE OF TRIAL COURT 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:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLANTS
APPELLEE
3/7/2003
HON. KENNETH L. THOMAS
COAHOMA COUNTY CIRCUIT COURT
ALBERT B. WHITE
LARRY DANNER (PRO SE)
CIVIL - STATE BOARDS AND AGENCIES
THE BOARD OF REVIEW'S DECISION WAS
REVERSED.
REVERSED: 03/16/2004
BEFORE MCMILLIN, C.J., BRIDGES AND GRIFFIS, JJ.
GRIFFIS, J., FOR THE COURT:
¶1.
Larry Danner was terminated from his job as a coin room attendant at Sam's Town Hotel and
Gambling Casino. Danner filed a claim with the Mississippi Employment Security Commission.
The claims examiner granted his claim for unemployment benefits. On appeal, the referee reversed
and denied benefits. The Board of Review affirmed. Danner then appealed to the Circuit Court of
Coahoma County, where the Commission's decision was reversed and Danner’s benefits were
reinstated. We find that the record contained substantial evidence to support the Commission's
findings. Accordingly, we reverse.
FACTS
¶2.
From May 15, 2001, until March 5, 2002, Larry Danner was employed as a coin room
attendant for Sam's Town Hotel and Gambling Casino. On March 1, 2002, Danner called his
employer and stated that he was ill and could not report to work. He was told to call if he would not
return on March 2nd. Danner did not report to work or call in on March 2nd, 3rd, 4th, or 5th.
¶3.
On March 5, 2002, Danner was discharged pursuant to Sam’s Town’s no-call, no-show
policy. This policy provided that an employee will be discharged after one instance of failing to
report to work or call in. Here, Sam’s Town gave Danner several extra days before termination.
The policy did not require that Sam's Town give Danner the extra days. Danner eventually reported
back to work, when he was advised he had been terminated on March 5th for violating the no-call,
no-show policy. Karen Davidson, Sam's Town's human resource specialist, testified that if Danner
had returned to work with a doctor's excuse he probably would not have been terminated, but Danner
had no such excuse.
¶4.
After his termination, Danner filed a claim for unemployment benefits with the Commission.
The claims examiner’s investigation concluded that Sam’s Town failed to prove misconduct. Sam’s
Town appealed, and a telephonic hearing was noticed. The notice instructed Danner to return the
telephone response form to advise the Commission of his telephone number so he could participate.
Danner failed to do so. As a result, Danner did not participate in the telephonic hearing conducted
on July 16, 2002. Based on the testimony and evidence submitted at the hearing, the referee
determined that Danner had been terminated for misconduct. On appeal, the Board of Review
adopted the referee's opinion denying benefits.
¶5.
Danner appealed to the Circuit Court of Coahoma County. Without the submission of briefs
or oral argument, the circuit court reversed the Board of Review and found that there was
insufficient evidence to support the Commission's decision. The Commission now appeals and
asserts that the circuit court exceeded its authority.
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STANDARD OF REVIEW
¶6.
“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.” Miss. Code Ann. § 71-5-531 (Rev. 2002). The
Mississippi Supreme Court explained this standard of review in Allen v. Mississippi Employment
Security Commission, 639 So. 2d 904, 906 (Miss. 1994):
This Court’s standard of review of an administrative agency’s findings and decisions
is well established. An agency’s conclusions 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. A rebuttable presumption exists in favor of the
administrative agency, and the challenging party has the burden of proving
otherwise. Lastly, this Court must not reweigh the facts of the case or insert its
judgment for that of the agency.
¶7.
As an appellate court, we give substantial deference to an administrative agency's decision.
Typically, our review is on whether the agency's decision was supported by substantial evidence or
was arbitrary or capricious. Here, unfortunately, Danner failed to provide this Court with a brief
setting forth his argument and authorities. In W. T. Raleigh Co. v. Armstrong, 165 Miss. 380, 380,
140 So. 527, 527-28 (1932), the Mississippi Supreme Court recognized that there is no uniform rule
or procedure to guide the reviewing court when an appellee fails to file a brief. The court discussed
the two schools of thought on the appropriate procedure. First, the appellee's failure could be
considered a default and as a confession of the errors assigned by the appellant, requiring automatic
reversal. Id. Second, the reviewing court could disregard the appellee's failure to file a brief, but
would not be obligated to undertake an exhaustive search to substantiate the appellee's positions.
Id. The court concluded:
when the record is in such condition that we can conveniently examine it, and when
upon such an examination we can readily perceive a sound and unmistakable basis
or ground upon which the judgment may be safely affirmed, we will take that course
and affirm, thereby to that extent disregarding the default of appellee. But when,
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taking into view the argument presented by appellant, the basis or grounds of the
judgment, and the facts in support of it are not apparent, or are not such that the court
could with entire confidence and safety proceed to affirmance, the judgment will be
reversed without prejudice.
Id. at 527-28.
Here, the record is such that we can conveniently examine it. With this in mind, we proceed with
a discussion of the merits of the case and examine this appeal according to the applicable standard
of review.
ANALYSIS
¶8.
The Commission asserts that the circuit court abused its discretion by reversing the Board
of Review's decision, which found that Sam’s Town proved Danner had committed disqualifying
misconduct by violating its attendance policy. Mississippi Code Annotated Section 71-5-513(A)
(1)(b) (Rev.2003) provides that:
An individual shall be disqualified for benefits:
(b) For the week, or fraction thereof, which immediately follows the day on which
he was discharged for misconduct connected with his work, if so found by the
commission, and for each week thereafter until he has earned remuneration for
personal services performed for an employer, as in this chapter defined, equal to not
less than eight (8) times his weekly benefit amount, as determined in each case.
¶9.
In Wheeler v. Arriola, 408 So.2d 1381, 1383 (Miss. 1982), the Mississippi Supreme Court
defined the meaning of misconduct:
The term "misconduct," as used in the unemployment compensation statute, was
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.
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¶10.
The question we must now consider is whether Danner's actions rose to the level of
misconduct defined in the statute. We find that there was substantial evidence to support the
Commission's finding of misconduct.
¶11.
In Barnett v. Mississippi Employment Security Commission, 583 So.2d 193, 194 (Miss.
1991), the employee was fired for excessive absenteeism and being warned about failing to show
up for work without calling. In finding misconduct, the supreme court noted that although a tree fell
on the employee's house, the employee nevertheless could have called the employer. Id. at 196. The
court contrasted these facts with other cases where the employee's failure to show up or call was
outside the employee's control. Id.
¶12.
Here, Danner was terminated for no-call, no-show policy violation after failing to call Sam's
Town or report to work for four consecutive days. Sam’s Town’s policy provided that one no-call,
no-show was grounds for termination. Danner's four consecutive absences were sufficient to
establish a willful and wanton disregard of the employer's attendance policy, particularly when the
policy allowed for termination after one such absence.
¶13.
Just as in Barnett, Danner's failure to call his employer was not outside his control. He
called in sick on March 1st and was told by his supervisor to call again if he would not return to work
the next day. Danner never called again. Danner presented no evidence to mitigate this finding or
to imply that Sam’s Town had consented to his absence without requiring that he adhere to the
attendance policy.
¶14.
Here, the Commission found that Danner failed to take the appropriate steps while absent
to protect his employment. The circuit court correctly found that Danner failed to comply with his
employer's no-call, no-show policy; however, the court erred in finding that there was not substantial
evidence to disqualify him for misconduct. Danner's four consecutive no-call, no-show absences
were sufficient to establish a willful and wanton disregard of the employer's attendance policy.
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Accordingly, we find that there was substantial evidence to support the Commission's decision that
Danner is not eligible to receive unemployment benefits. Therefore, the judgment of the circuit
court is reversed and the Commission’s decision is reinstated.
¶15. THE JUDGMENT OF THE CIRCUIT COURT OF COAHOMA COUNTY IS
REVERSED.
McMILLIN, C.J., SOUTHWICK, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS
AND CHANDLER, JJ., CONCUR. KING, P.J., CONCURS IN RESULT ONLY.
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