Theresa L. Cummings v. Mississippi Employment Security Commission
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2006-CC-02030-COA
THERESA L. CUMMINGS
APPELLANT
v.
MISSISSIPPI DEPARTMENT OF EMPLOYMENT
SECURITY AND LUCKETT TYNER LAW FIRM
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEES:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEES
10/20/2006
HON. JOSEPH H. LOPER, JR.
CHOCTAW COUNTY CIRCUIT COURT
THERESA L. CUMMINGS (PRO SE)
ALBERT B. WHITE
EUGENE T. HOLMES
CIVIL - STATE BOARDS AND AGENCIES
CIRCUIT COURT DISMISSED CLAIMANT’S
APPEAL OF BOARD OF REVIEW DECISION
TO DENY CLAIMANT BENEFITS
AFFIRMED - 4/22/2008
BEFORE LEE, P.J., CHANDLER AND BARNES, JJ.
BARNES, J., FOR THE COURT:
¶1.
Theresa L. Cummings appeals the decision of the Circuit Court of Choctaw County, which
dismissed her appeal, as untimely, of the Board of Review’s decision of the Mississippi Department
of Employment Security (MDES) denying her unemployment benefits. The circuit court stated that
it also considered Cummings’s appeal on the merits and found the Board of Review’s decision
supported by substantial evidence and not arbitrary or capricious.
¶2.
Cummings, an associate attorney, resigned from her former employer, Luckett Tyner Law
Firm, giving the firm a 120-day notice as required in her employment contract. However, she
continued to work at the law firm during the notice period. Subsequently, she applied for
unemployment benefits when Luckett Tyner terminated their working relationship about one month
prior to the end of her 120-day notice date for “failure to meet [the firm’s] expectations [as] a
practicing attorney,” pursuant to her employment contract. Initially, a MDES claims examiner
disqualified Cummings for unemployment benefits. Cummings appealed, and an administrative
appeals officer reversed the claims examiner’s decision and awarded Cummings benefits. Luckett
Tyner then appealed, and the MDES’s Board of Review reversed the appeals officer’s decision and
denied Cummings benefits.
¶3.
Aggrieved by the circuit court’s decision to dismiss her appeal, Cummings raises three
issues: (1) whether the circuit court erred in ruling that her appeal was untimely; (2) whether the
decision of the Board of Review was arbitrary or capricious; and (3) whether the judgment of the
circuit court was arbitrary or capricious. Although we reject the circuit court’s finding that
Cummings’s appeal was untimely, we find that the circuit court’s conclusion regarding the merits
was correct. Accordingly, we affirm the judgment of the circuit court on such grounds.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
¶4.
Theresa L. Cummings was employed with Luckett Tyner in Clarksdale, Mississippi, as an
associate attorney pursuant to an employment contract from January 3, 2005, until November 30,
2005. Prior to joining Luckett Tyner, Cummings had been employed in a supervisory role with
North Mississippi Rural Legal Services, Inc., where she handled mainly chancery court matters.
Luckett Tyner primarily handles litigation matters. Having been employed with Luckett Tyner for
approximately nine months, on September 6, 2005, Cummings submitted a letter of resignation to
the law partners, effective January 2, 2006. In her letter, Cummings stated no reason for her
resignation. According to her employment contract, a 120-day written notification was required
2
before terminating her employment.
¶5.
On October 12, 2005, via a letter, the firm’s law partners, William O. Luckett, Jr. (Luckett)
and Robert M. Tyner, Jr. (Tyner) acknowledged receipt of Cummings’s resignation, offered that she
could depart from the firm prior to the full 120-days, and subsequently made Cummings resignation
effective October 31, 2005. Cummings responded in writing on October 17, 2005, declining the
early separation date and requesting the opportunity to discuss an amendable date. On November
30, 2005, the law partners of Luckett Tyner made Cummings resignation effective the same day,
writing that “we are continuing to lose money by your continued relationship with the firm . . . and
are not receiving the expected results in a timely manner.”1 The termination notice was both written
and oral.
¶6.
On December 5, 2005, Cummings filed for unemployment benefits with the MDES. The
agency conducted an investigation to determine if she had voluntarily quit or was terminated. On
December 20, 2005, an MDES claims examiner sent Cummings a notice, stating that Cummings was
disqualified from receiving benefits from December 1, 2005, until her re-employment for
“misconduct connected with the work,” pursuant to Mississippi Code Annotated section 71-5-531
A(1)(b). The notice stated Cummings had fourteen days to protest the decision and request
reconsideration.
¶7.
Cummings appealed the claims examiner’s decision, and on January 31, 2006, she was
granted a telephonic hearing with an appeals officer to gather all relevant information about her job
1
Luckett Tyner’s employment contract stated that the contract may be terminated “[b]y
either party, for any reason or no reason” with 120 days written notice; or “[b]y the Firm without
notice if good cause exists (neglect, malfeasance, failure to follow policy, disbarment, suspension,
public or private reprimand, failure to meet expectations of a practicing attorney)”; or “[b]y the
parties’ mutual written and executed consent.” (Emphasis added.)
3
separation from Luckett Tyner. During the hearing, both Cummings and Luckett, who represented
the law firm, were allowed to give testimony and cross-examine the opposing party. The appeals
officer also questioned the parties. No other witnesses were called during this proceeding. Luckett
testified that even though Cummings had resigned, the firm’s expectations were not being met; so
the firm had to terminate the relationship one month short of her final resignation date. As a result
of the hearing, on February 21, 2006, the appeals officer reversed the claims examiner’s decision,
thereby granting benefits to Cummings. The appeals officer stated that Cummings was not guilty
of “misconduct,” as defined in Wheeler v. Arriola, 408 So. 2d 1381, 1383 (Miss. 1982).
¶8.
Subsequently, Luckett Tyner appealed the appeals officer’s decision to the MDES’s Board
of Review, citing the following errors: (1) there was no time-period limitation placed on the
unemployment benefits entitlement; (2) there was nothing that prevented the law firm from
accepting Cummings’s resignation at an earlier date than the 120-day notice date; and (3) there was
adequate proof of Cummings’s neglecting her duties. The Board of Review granted a second
telephonic hearing in order to gather additional testimony. Witnesses testified for both parties.
More specific instances were given of Cummings’s inadequate job performance by her employer
and its witnesses.
¶9.
On July 7, 2006, the Board of Review found Cummings was ineligible for benefits, stating
her “failure to perform the work constituted misconduct connected with work.” Shortly thereafter,
the MDES sent Cummings a “Notice of Overpayment” letter, stating that she was overpaid $3,150
for benefits received from December 17, 2005, through March 25, 2006. The Board of Review’s
decision stated an appeal to the circuit court should be filed within twenty days or “no later than July
27, 2006.”
4
¶10.
On July 26, 2006, the Choctaw County Circuit Court received from Cummings, via express
mail from Arlington, Texas a motion for extension of time and notice of appeal. Cummings
requested a thirty-day extension in order to complete her appeal of the Board of Review’s decision.
In her motion, Cummings stated she needed an extension because she was “on a temporary
assignment with the U.S. Government” and living in Texas. She stated that she “has had difficulty
securing legal counsel,” and her “assignment mandates an unusual work schedule and extensive
hours.” The certificate of service was signed by Cummings on July 24, 2006, and the envelope was
postmarked the same date. The circuit court clerk sent correspondence to Cummings regarding this
motion the same day it was received, explaining the filing requirements. Specifically, Cummings
was notified that “the Mississippi Rules of Civil Procedure require that prior to a circuit clerk filing
a case, the filing party must first prepare a Civil Cover filing sheet.” Additionally, the clerk
requested that Cummings file the original decision letter from the Board of Review. Specifically,
the clerk stated, “[u]ntil we receive both of these items, we will not begin to create a file for this
matter.”
¶11.
On August 7, 2006, the circuit court received Cummings’s civil cover sheet, and her motion
for extension of time and notice of appeal was filed. On August 11, 2006, the record indicates a
second civil cover sheet and the decision letter from the Board of Review was filed, having been
sent via first-class mail from Arlington, Texas on August 1, 2006. On August 21, 2006, the Choctaw
County Circuit Clerk wrote the MDES a letter notifying it of these actions.
¶12.
On August 28, 2006, Luckett Tyner filed a motion to dismiss for lack of jurisdiction due to
Cummings’s missing the twenty-day deadline for filing a notice of appeal. MDES filed an answer
to Cummings’s motion for extension of time and notice of appeal on September 27, 2006, and
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subsequently filed a motion to dismiss Cummings’s appeal on October 19, 2006. On October 20,
2006, the circuit court dismissed with prejudice Cummings’s appeal of the Board of Review’s
decision for failure to file a timely appeal. The order also stated that the circuit court considered
Cummings’s appeal on the merits and found none. Aggrieved, Cummings filed a notice of appeal
to this Court on November 20, 2006.2
STANDARD OF REVIEW
¶13.
This Court’s standard of review regarding administrative agency decisions is well established
and limited by statute. “[T]he 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 (Supp. 2006). Furthermore, “[a]n
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.” Maxwell v. Miss. Employment Sec. Comm’n, 792
So. 2d 1031, 1032 (¶7) (Miss. Ct. App. 2001) (quoting Allen v. Miss. Employment Sec. Comm’n, 639
So. 2d 904, 906 (Miss. 1994)). A rebuttable presumption exists in favor of the administrative
agency’s decision and findings, and the challenging party has the burden of proving otherwise.
Waldrup v. Miss. Employment Sec. Comm’n, 951 So. 2d 597, 599 (¶7 ) (Miss. Ct. App. 2007) (citing
Miss. Employment Sec. Comm’n v. Parker, 911 So. 2d 611, 613 (¶5) (Miss. Ct. App. 2005)).
Finally, the purpose of the review by this Court is not to reweigh the evidence or substitute its
2
We note that Cummings’s notice of appeal was stamped “filed” by the circuit court on
November 21, 2006, but the court’s docket lists the notice as filed on November 20, 2006, which
would be the last day to file a timely notice of appeal pursuant to Mississippi Rules of Appellate
Procedure 4(a). Because of this discrepancy, we will assume the docket’s date November 20th is
correct, and thus, Cummings’s appeal is not untimely.
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judgment for that of the agency. Id.
ANALYSIS
I. Whether the circuit court erred in determining Cummings’s appeal to be untimely.
¶14.
Cummings argues that the circuit court erred in dismissing her appeal as untimely. She
asserts that pursuant to Mississippi Rule of Civil Procedure 5(e), “[f]iling may be accomplished by
delivering the pleadings or other papers to the clerk of the court or to the judge, or by transmitting
them by electronic means.” M.R.C.P. 5(e). Moreover, she argues that according to Rule 5.04 of the
Uniform Rules of Circuit and County Court, “[t]he party desiring to appeal a decision from a lower
court must file a written notice of appeal with the circuit court clerk. A copy of that notice must be
provided to all parties or their attorneys of record and the lower court or lower authority whose order
or judgment is being appealed.” Therefore, she argues that her failure to submit a civil cover sheet
does not preclude her from timely filing her motion for extension of time and notice of appeal.
¶15.
Mississippi Code Annotated section 71-5-531 requires a party aggrieved by a decision of the
Board of Review to commence an action in the circuit court “[w]ithin ten (10) days after the decision
of the Board of Review has become final.” With regard to this deadline, this Court has stated:
The deadlines set forth in Sections 71-5-529 and -531 were discussed by the
Mississippi Supreme Court, in MESC v. Powell, 787 So. 2d 1277 (Miss. 2001).
Observing the dearth of Mississippi cases specifically addressing these deadlines, the
court referred to its interpretation, in Wilkerson v. MESC, 630 So. 2d 1000 (Miss.
1994), of the similar statutory deadline found in Miss. Code Ann. § 71-5-517 (Supp.
2004). There, the court held that an appeal is untimely when filed one day after the
deadline, noting in dicta that the time period specified in statute “must be strictly
construed” and cannot be extended absent a showing of “good cause.” Powell, at
1281 (¶15) (citing Wilkerson, at 1002). The Powell court further explained that this
strict construction is exemplified in City of Tupelo v. MESC, 748 So. 2d 151 (Miss.
1999), in which the City's appeal was denied for being filed two days after expiration
of the deadline, despite claiming that said untimely filing was the product of
improper notice. Id. (citing Tupelo, at 152 (¶6)).
7
Miss. Employment Sec. Comm’n v. Gilbert Home Health Agency, 909 So. 2d 1142, 1144-45 (¶9)
(Miss. Ct. App. 2005). MDES relies on this language as support for its argument that the circuit
court properly dismissed Cummings’s appeal as untimely as the cover sheet and decision letter were
not filed until after the statutory deadline for an appeal had expired.
¶16.
We disagree. Although the twenty-day time period is to be strictly construed, the above
language indicates that the time period may be extended if good cause is shown, and we find that
Cummings has demonstrated good cause in this case. On July 26, 2006, prior to the expiration of
the twenty-day period, the circuit court clerk received Cummings’s document entitled “Motion for
Extension of Time and Notice of Appeal.” Although the body of the document did not state any
specific grounds for the appeal, but rather merely sought an extension of time to appeal, the title
clearly demonstrated Cummings’s intent to appeal the decision of the Board of Review. Moreover,
MDES has not contended that it was not sufficiently apprised of Cummings’s intent to appeal;
rather, its sole argument is that the notice of appeal was untimely filed.
¶17.
Neither section 71-5-531 nor Mississippi Rule of Civil Procedure 3 states specifically that
a civil cover sheet is a prerequisite to commencing an action. Uniform Rule of Circuit and Chancery
Court 5.04 does not mention the civil cover sheet requirement for filing a timely notice of appeal.
Moreover, although the Board of Review’s decision letter adequately informed Cummings of the
pertinent time limitations, it did not inform her that she was required to file a cover sheet or a copy
of the decision letter in order to perfect a timely appeal. However, pursuant to its statutory duty and
for the purpose of “improving the administration of justice,” the Administrative Office of Courts
“developed a uniform identification and numbering system and a procedure for collection of uniform
statistical data on civil matters filed in the Circuit, Chancery, and County Courts of this state.”
8
Uniform Procedures for Data Collection in Civil Matters in Circuit, Chancery, and County Courts,
Supreme Court Order, September 23, 1993. Pursuant to that procedure, and as ordered by the
Mississippi Supreme Court, circuit clerks must require that any pleading filed to initiate, re-open,
reinstate, or otherwise commence a civil action be accompanied by civil cover sheet which has been
completed by the filing party or his representative. Uniform Procedures for Data Collection in Civil
Matters in Circuit, Chancery, and County Court, Supreme Court Orders, September 23, 1993;
January 12, 1994; and October 25, 2000. In the present case, we do not find that justice would be
served by requiring Cummings’s case to be dismissed based on her failure to include a civil cover
sheet when the court clerk received Cummings’s notice of appeal within the requisite time period;
accordingly, we find that good cause for an extension of the filing deadline is therefore shown under
the facts of this case.
¶18.
The holding in South v. Icon Health & Fitness, 94-NC-135 B, 1995 U.S. Dist. LEXIS 3370
(C.D. Utah Jan. 31, 1995), although not controlling in Mississippi, is instructive on the current facts.
In that case, the plaintiff filed an action in federal court under the Americans with Disabilities Act,
which requires suit to be filed within ninety days of the Equal Employment Opportunity
Commission’s providing notice to the plaintiff of the right to sue. Id. at *1. The plaintiff’s
complaint was received in the clerk’s office within the ninety-day period; however, there was no
cover sheet accompanying the complaint as required by a Utah local rule, which stated that the cover
sheet requirement was for administrative purposes only. Id. at *2-3. The clerk did not stamp the
complaint as filed until the cover sheet was received, which was after the requisite time period had
run. Id. at *3-4. The court held that the local rule had “nothing to do with the commencement of
the action, but [was] solely for administrative purposes,” stating that “[t]he complaint may be held
9
up from assignment or further processing, and the person required to fill out the cover sheet, but the
complaint is ‘filed’ for the purposes of the commencement of the action when it is given to the clerk.
Id. at *5-6.
¶19.
We acknowledge that this case is somewhat distinguishable from the one at bar given the fact
that the court relied on Federal Rule of Civil Procedure 5(e), which prohibits the clerk from refusing
to accept a filing solely based on the fact that it was not presented in proper form, Id. at *5, while
the Mississippi Supreme Court’s order instructs that the clerk shall not accept a filing without an
accompanying civil cover sheet. However, we find the reasoning in South regarding the local rule’s
administrative purpose to be instructive. Although the Mississippi Supreme Court’s order requires
a civil cover sheet, by our interpretation, this requirement is meant to serve an administrative
purpose, not to bar an otherwise timely notice of appeal.
¶20.
By analogy, we note that Mississippi Rule of Appellate Procedure 2(a)(2) requires the clerk,
in the event that it is found that a party has failed to comply substantially with the rules, to give the
party notice of the deficiency and fourteen days to correct such deficiency prior to dismissing the
appeal. M.R.A.P. 2(a)(2). Moreover, Mississippi Rule of Appellate Procedure 3(a) states that
“[f]ailure of an appellant to take any step other than the timely filing of a notice of appeal does not
affect the perfection of the appeal, but is ground for only such action as the Supreme Court deems
appropriate . . . .” M.R.A.P. 3(a). Therefore, at the supreme court level, a deficiency in the form
of the notice of appeal does not affect the timeliness of the appeal.
¶21.
MDES, relying on Helmert v. Biffany, 842 So. 2d 1287, 1289 (Miss. 2003), contends that the
circuit court properly dismissed Cummings’s appeal. However, by our reading, Helmert is
inapposite to this case. Helmert concerned the Mississippi Supreme Court’s abolishment of the
10
state’s family courts and order that “[a]ll matters pending in any Family Court abolished shall be
transferred to the County Court of the County wherein the Family Court was located without the
necessity for any Motion or Order of the Court for such transfer.” Id. at 1289 (¶8) (citation omitted).
While the court noted the requirement that a new cover sheet be filed in order to reopen cases
subject to modification, we can discern nothing in the court’s holding supporting the contention that
the lack of a cover sheet may be grounds for the dismissal of an appeal as untimely when the notice
of appeal was received by the clerk prior to the deadline. See id. at (¶10).
¶22.
Here, although Cummings’s notice of appeal was not in the correct form, it was sufficient
to demonstrate her intention to appeal, and it was received in the clerk’s office prior to the filing
deadline. While the court clerk was certainly within her authority to require Cummings to file a
cover sheet prior to her appeal progressing any further, we do not find that in instituting the civil
cover sheet requirement, the supreme court intended to affect the outcome of cases. Accordingly,
we find that there was good cause for allowing the deadline to be extended so that Cummings could
complete the filing of her notice of appeal.3 Had Cummings failed to supply the required materials
in a timely manner after being notified of the deficiency in her notice, this fact would certainly
weigh against a finding of good cause and would have justified Cummings’s appeal being dismissed
as abandoned. However, when the court clerk notified Cummings of the deficiency, she submitted
the required materials shortly thereafter.
¶23.
Thus, we find that Cummings’s failure to include a cover sheet did not result in her notice
3
We also note that, had Cummings’s notice of appeal been hand-delivered to the clerk’s
office, Cummings could have been informed of the cover sheet requirement and the deficiency could
have been corrected at that time. However, the notice of appeal was delivered by mail since
Cummings had moved to Texas; therefore, by the time notification was made of the lack of a cover
letter and the cover letter was returned by mail, the time period had lapsed.
11
of appeal being subject to dismissal on the ground that it was untimely under the circumstances of
this case. Accordingly, we reject the circuit court’s finding that Cummings’s appeal was untimely,
and we proceed to review the decision on its merits.
II. Whether the Board of Review’s decision was arbitrary or capricious.
¶24.
Cummings argues that there was insufficient evidence to support the Board of Review’s
denial of unemployment benefits due to misconduct connected with work, and therefore, its decision
was arbitrary and capricious. Cummings states that the Board of Review erroneously decided that
her failure to meet the expectations or standards required by the employer as an associate attorney
constituted misconduct. Moreover, Cummings contends that the Board of Review did not base its
decision on the evidence, but on opinions and information outside of the testimony given at the two
hearings before the appeals officer. She argues neither the law firm nor its witnesses provided any
evidence of misconduct. Cummings asserts that Luckett Tyner never confronted her regarding
complaints being made by other employees as to her work production, or lack thereof. Instead,
Cummings states that her testimony proves she attempted in good faith to perform her work
satisfactorily.
¶25.
MDES contends that its decision to disqualify Cummings from receiving unemployment
benefits was based on several factors: (1) Cummings’s refusal to meet with a client to answer
questions in reference to a complaint that she had drafted; (2) Cummings’s refusal to take a
telephone call from opposing counsel in reference to a case that she had worked on; (3) Cummings’s
failure to appropriately organize medical records after having been instructed more than once; (4)
Cummings’s failure to complete other requested projects in general; (5) Cummings’s request of
other employees, such as paralegals, to complete her assignments; and (6) Cummings’s lack of
12
interest in efficiently performing her duties, such as always listening to baseball games on her
computer and skipping lunch to leave early, even when assignments had not been completed or not
completed to the satisfaction of her employer.
¶26.
“An individual shall be disqualified for benefits: . . . [f]or 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 department, and for each week thereafter until he has earned remuneration
for personal services performed for an employer . . . equal to not less than eight (8) times his weekly
benefit amount, as determined in each case.” Miss. Code Ann. §71-5-513 A(1)(b). Our supreme
court has defined “misconduct” within the meaning of the statute, as conduct “evincing such willful
and wanton disregard of the employer’s interest as is found in deliberate violations or disregard or
standards of behavior which the employer has the right to expect from his employee.” Coahoma
County v. Miss. Employment Sec. Comm’n, 761 So. 2d 846, 849 (¶7) (Miss. 2000) (quoting Young
v. Miss. Employment Sec. Comm’n, 754 So. 2d 464, 466 (¶6) (Miss. 1999)); Wheeler, 408 So. 2d at
1383. However, “[m]ere 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 [are] not considered ‘misconduct’ within the meaning
of the statute” Id. (citation omitted). Additionally, the burden of proving misconduct resides with
the employer. Miss. Code Ann. § 71-5-513 A(1)(c) (Supp. 2006).
¶27.
We find that the Board of Review considered all documents and testimony presented by both
parties in making its ruling. At the first hearing before the appeals officer, Luckett testified that
toward the end of her employment, “we were spending far more money on Ms. Cummings than she
was generating in income . . . [t]he expectations weren’t met, the work wasn’t getting done either
13
at all or timely or properly . . . so, in effect, we had to terminate the relationship . . . one month short
of when Theresa was already going to leave on her own volition.” Luckett proceeded to provide
examples of projects Cummings did not complete adequately.
¶28.
Cummings testified that she resigned because “her expectations were not being met,”
meaning that she “was not learning as [she] thought [she] should.” As far as her work, she stated
“the majority of the time I understood what I was required to do. Being able to provide that proved
difficult.” She admitted in the first hearing that in early November the other law partner had spoken
to her, stating she was “not meeting expectations” pursuant to her employment contract. During the
examination by the appeals officer, Luckett complained that Cummings did not put in the hours
necessary to complete her tasks adequately. However, Cummings contradicted this testimony,
stating she gave it her “best effort.”
¶29.
We note at the outset this Court’s deference to the Board of Review’s findings. We find the
evidence sufficient to support a finding of misconduct by the Board of Review. Evidence sufficient
to draw a reasonable finding of misconduct by the Board of Review includes the following: the
November billing records; Cummings’s failure to attain the expected two to three month learning
curve after having been employed at the firm for approximately nine months, in spite of the fact she
demonstrated the ability to perform such work; Cummings’s inability to complete common tasks that
were usually assigned to paralegals, even though she had previously managed other attorneys at her
previous job and holds a Ph.D. and several other degrees; Cummings’s failure to work on weekends
to complete assignments although it had been implied that she should do so; the considerable
number of verbal warnings and constructive criticism by partners Luckett and Tyner, couched in the
nature of counseling, as to the length of time it was taking Cummings to complete assignments; and
14
Cummings’s own disinterest in protecting her job, especially after she gave notice of her resignation.
Cummings had been given the opportunity to leave before the 120-day notice expired, but refused.
Moreover, Cummings had been given adequate verbal warnings prior to the termination that she was
not meeting the expectations of the law firm. Miss. Employment Sec. Comm’n v. Claiborne, 872 So.
2d 698, 700 (¶6) (Miss. Ct. App. 2004) (employee was disqualified from receiving unemployment
benefits after the employee’s persistent failure to perform routine duties that the employee was
capable of performing despite repeated warnings of those failures).
¶30.
Cummings also contends that the Board of Review’s actions were arbitrary and capricious
in remanding the case to the appeals officer in order to have a second hearing and obtain additional
testimony from both parties. Cummings states that the subsequent hearing “gave the employer a
second opportunity to present evidence which should have and could have been presented initially.”
During the initial telephonic interview on January 31, 2006, the Board of Review heard testimony
from Luckett and Cummings. As a result of that hearing, Cummings was granted unemployment
benefits. Cummings argues that a second hearing was superfluous, as the testimonies of employees
of the law firm could have been given at the initial hearing, but were not. We find no error in this
regard, as both parties were given the opportunity to provide additional testimony and witnesses.
¶31.
We find the decision of the Board of Review to deny Cummings unemployment benefits was
supported by substantial evidence and was neither arbitrary nor capricious. Likewise, we do not find
error in the Board of Review’s remanding the case for further testimony. Therefore, we affirm the
decision of the circuit court to accept the Board of Review’s decision to deny benefits. Accordingly,
this issue is without merit.
III.
Whether the circuit court’s decision was arbitrary or capricious.
15
¶32.
Cummings contends that the circuit court’s dismissal of her appeal was arbitrary and
capricious, pursuant to Mississippi Rule of Civil Procedure 5(b) regarding service of pleadings, as
Cummings never received the MDES’s motion to dismiss her appeal, nor did she have an adequate
opportunity to respond. Thus, she claims she was denied due process.
¶33.
Both Luckett Tyner and MDES filed a motion to dismiss Cummings’s appeal in the circuit
court on August 30, 2006, and October 19, 2006, respectively. The record indicates, and Cummings
contends, that the MDES’s motion to dismiss was incorrectly mailed to Cummings at an Ackerman,
Mississippi address. At the second hearing before the appeals officer on June 12, 2006, Cummings
noted her address as being in Arlington, Texas; thus, we find the MDES should have had adequate
notice of her change of address. However, we note the MDES’s motion to dismiss was filed one day
before the circuit court’s dismissal of her appeal as untimely; thus, Cummings’s argument that she
should have been afforded an opportunity to respond is moot. We find no indication in the record
that the MDES’s failure to send its motion to dismiss to the correct address was in any way
attributable to Cummings’s failure to timely file her notice for appeal as the Board of Review’s
decision was sent to Cummings’s correct address. Further, Cummings was given notice of Luckett
Tyner’s motion to dismiss, which had her proper address on its certificate of service and was filed
in the circuit court on August 30, 2006. However, we note Cummings failed to respond to the law
firm’s motion to dismiss, which was filed nearly two months before MDES’s motion to dismiss and
the circuit court’s order to dismiss her appeal. We find that based on the record, Cummings was
given sufficient notification as to the employer’s motion to dismiss, and she failed to respond.
Given that the record indicates that the judgment by the circuit court to dismiss the appeal is based
on an untimely appeal, we find no error by the circuit court. This issue is without merit.
16
CONCLUSION
¶34.
In summary, while we reject the circuit court’s finding that the appeal was untimely, we
nevertheless conclude, on the merits, that there was substantial evidence that Cummings committed
misconduct, pursuant to the controlling statute, by failing to perform in accordance with the
expectations of her employer as a practicing attorney. Therefore, the Board of Review’s decision
was not arbitrary or capricious in disqualifying Cummings from receiving unemployment benefits.
Accordingly, we affirm the judgment of the Circuit Court of Choctaw County for the reasons stated
above.
¶35. THE JUDGMENT OF THE CIRCUIT COURT OF CHOCTAW COUNTY IS
AFFIRMED.
KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, ISHEE AND
CARLTON, JJ., CONCUR. ROBERTS, J., CONCURS IN PART AND IN RESULT
WITHOUT SEPARATE WRITTEN OPINION. IRVING, J., DISSENTS WITHOUT
SEPARATE WRITTEN OPINION.
17
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