Mississippi Employment Security Commission v. Kim Powell
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IN THE SUPREME COURT OF MISSISSIPPI
NO. 2000-CC-00613-SCT
MISSISSIPPI EMPLOYMENT SECURITY COMMISSION
v.
KIM POWELL
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
03/21/2000
HON. LAMAR PICKARD
COPIAH COUNTY CIRCUIT COURT
ALBERT B. WHITE
PRO SE
CIVIL - STATE BOARDS AND AGENCIES
REVERSED AND RENDERED - 06/21/2001
7/12/2001
BEFORE PITTMAN, C.J., MILLS AND COBB, JJ.
COBB, JUSTICE, FOR THE COURT:
¶1. Kim Powell (Powell) filed for unemployment benefits but her claim was disqualified by the Mississippi
Employment Security Commission (MESC) claims examiner who concluded that Powell violated the
absenteeism policy of her employer, Tyson Foods (Tyson). Powell appealed the decision, and a hearing
was conducted by an MESC appeals referee on December 17, 1998. Both Powell and a representative of
Tyson testified. The referee concluded that Powell had violated the absenteeism policy after having been
given warnings and that her conduct constituted disqualifying misconduct. Powell appealed to the MESC
Board of Review, which adopted the Referee's Fact Findings and Opinion and affirmed the decision on
January 21, 1999.
¶2. On April 15, 1999, Powell appealed to the Copiah County Circuit Court, and her appeal was
dismissed as untimely. On June 18, 1999 she filed a motion to reopen the case. The circuit court granted
her motion on November 10, 1999, setting aside its dismissal and scheduling a hearing on the merits. Upon
learning that the court file contained no records or transcript from the MESC, the circuit court remanded the
case to the MESC to properly prepare the record. The MESC actually conducted another hearing and
forwarded the transcript of that second hearing and other documents to the circuit court. The circuit court
concluded Powell had not actually violated the absenteeism policy and reversed the Board of Review.
¶3. Aggrieved by the court's decision, the MESC appealed to this Court raising three issues:
I. WHETHER THE CIRCUIT COURT ERRED BY ENTERING ITS NOVEMBER 10,
1999 ORDER SETTING ASIDE ITS PREVIOUS ORDER DISMISSING POWELL'S
APPEAL AS UNTIMELY FILED, AND BY SCHEDULING THIS MATTER FOR A
HEARING ON JANUARY 21, 2000?
II. WHETHER THE CIRCUIT COURT ERRED BY DECIDING TO CONSIDER THIS
CASE ON ITS MERITS WHEN IT WAS UNTIMELY APPEALED FROM THE BOARD
OF REVIEW TO THE CIRCUIT COURT PURSUANT TO MISSISSIPPI CODE
ANNOTATED SECTIONS 71-5-529 AND 71-5-531 (REV. 1995)?
III. WHETHER POWELL FAILED TO PROVE GOOD CAUSE FOR UNTIMELY
FILING HER APPEAL FROM THE BOARD OF REVIEW TO THE CIRCUIT COURT?
¶4. Finding that the circuit court erred in reinstating Powell's untimely appeal, we reverse and render.
FACTS
¶5. Kim Powell was employed by Tyson as an assembly line worker from October 20, 1997, until her
discharge on November 10, 1998. She was discharged for violating Tyson's absenteeism policy, which
allowed nine days unexcused absences, and provided for an immediate discharge after nine and one-half
days unexcused absences. Tyson calculated that Powell had missed ten and one-half days, and she was
discharged.
¶6. The record reveals Powell was aware of the policy. She had received a copy of the policy and had
been specifically advised of it on September 28, 1998, when she was admonished that any further
unexcused absences might result in her discharge. Powell had another unexcused absence on November 2,
1998, and was terminated on November 10, 1998.
¶7. Powell filed for unemployment benefits and was disqualified by the claims examiner, who found that she
had violated Tyson's absenteeism policy. Powell appealed, and the MESC appeals referee found that
Powell was properly informed of the policy. He also found that she had exceeded the number of allowed
absences despite the two warnings she had been given earlier that year and ruled Powell's violation of the
absenteeism policy disqualified her from receiving unemployment benefits. The Board of Review affirmed
the Referee's Fact Findings and Opinion.
¶8. Notice of the Board's decision was mailed to Powell on January 22, 1999. Under Miss. Code Ann. §§
71-5-529 &-531 (2000), she had twenty days from the day the notice was mailed in which to file her
appeal in circuit court. Powell did not actually file her appeal(1) until April 15, 1999, two months past the
deadline. MESC filed a motion to dismiss Powell's appeal as untimely, and the circuit court granted the
motion on April 20, 1999.
¶9. Powell subsequently filed a pro se motion to reopen, which the circuit court granted. Her motion
consisted of one sentence, which basically said that she did not know she had to file in the circuit court
because she had "never file [d] for unemployment before...."
¶10. The circuit court scheduled a hearing on the merits but, upon discovering that the record did not
contain a transcript of the hearing before the referee, the circuit judge remanded the case to the referee. The
circuit court instructed MESC to properly prepare the record for review by the circuit court, and that "in the
event the tapes of the December 17, 1998, hearing are unavailable, the [c]ourt instructs the MESC to
conduct another Hearing in this matter, and forward the transcript thereof to the [c]ourt forthwith."
Apparently no transcript nor tapes were available, so a new hearing was held. Again, a Tyson manager and
Powell both testified and produced documents. The circuit court, based on the record of the new hearing,
found that Powell had only eight unexcused absences, and it reversed the Board of Review. MESC
appealed the circuit court's decision.
STANDARD OF REVIEW
¶11. Judicial review of a Board of Review's ruling is limited. City of Tupelo v. Mississippi Employment
Sec. Comm'n, 748 So. 2d 151, 155 (Miss. 1999); Booth v. Mississippi Employment Sec. Comm'n,
588 So. 2d 422, 424 (Miss. 1991); Piggly Wiggly v. Mississippi Employment Sec. Comm'n, 465 So.
2d 1062, 1064-65 (Miss. 1985). This Court has noted that the nature of this review is governed by statute:
Judicial review of an Employment Security Commission ruling is limited to determination of whether
there is substantial evidence supported by substantial evidence. This Court must review the record to
determine whether there is substantial evidence to support the Board of Review's findings of fact...
Further, with supporting evidence and in the absence of fraud, the factual findings of the Board of
Review are conclusive and our review is limited to questions of law. Miss. Code Ann. § 71-5-531
(1995).
City of Tupelo, 748 So. 2d at 156 (quoting Halbert v. City of Columbus, 722 So. 2d 522, 524 (Miss.
1998)).
DISCUSSION
¶12. MESC's three issues are all related to the propriety of the circuit court's decision to reopen the time
for Powell to file her appeal and are combined for purposes of discussion.
¶13. Powell did not file an appellee's brief on appeal to this Court. "Failure of an appellee to file a brief is
tantamount to confession of error and will be accepted as such unless the reviewing court can say with
confidence, after considering the record and brief of appealing party, that there was no error." Dethlefs v.
Beau Maison Dev. Corp., 458 So. 2d 714, 717 (Miss. 1984) (citing State v. Maples, 402 So. 2d 350
(Miss. 1981)). "Where the appellant's brief makes out an apparent case of error . . . we do not regard it as
our obligation to look to the record to find a way to avoid the force of the appellants' argument." Dethlefs,
458 So.2d at 717 (citing Westinghouse Credit Corp. v. Deposit Guar. Nat'l Bank, 304 So. 2d 636
(Miss. 1974)).
¶14. The Board's decision affirming the Referee's denial of benefits was mailed to Powell on January 22,
1999. The notice of the Board's decision states in pertinent part the following:
This decision will become final ten (10) days after the date entered below. You may petition the
Circuit Court for a review of this decision within ten (10) days after it becomes final (that is, within
twenty (20) days after the date entered below.) An appeal to the Circuit Court should be filed with
the Circuit Clerk's office in the county in which you reside . . . .
MESC argues that Powell had sufficient notice of the time requirement and that the circuit court exceeded
its authority when it set aside its order dismissing Powell's appeal as untimely filed and ordered that a new
hearing be held by MESC. We agree.
¶15. An appeal of a decision by the MESC Board of Review regarding unemployment benefits is governed
by Miss. Code Ann. § § 71-5-529 &-531 (2000). "Any decision of the board of review, in the absence of
an appeal therefrom as herein provided, shall become final ten (10) days after the date of notification or
mailing thereof . . . ." Id § 71-5-529. Powell did not file her appeal until over two months after the statutory
deadline. She offered no showing of good cause, claiming only that she did not know she had to file. MESC
argues that the circuit court properly dismissed Powell's appeal as untimely filed and was statutorily
prohibited from setting aside the dismissal. While there are no cases specifically addressing the deadlines set
forth in Sections 71-5-529 and- 531, this Court dealt with a similar statutory deadline in Wilkerson v.
Mississippi Employment Sec. Comm'n, 630 So. 2d 1000 (Miss. 1994). This Court applied Miss. Code
Ann. § 71-5-517 (1995) and held that an appeal filed one day late was untimely and stated the specified
time period "must be strictly construed." Wilkerson, 630 So. 2d at 1002. This Court held that the statutory
time limit for appeal cannot be extended absent some event, not caused by a party, affecting that party's
substantial rights. Id. This Court also strictly construed the statutory deadline in City of Tupelo v.
Mississippi Employment Sec. Comm'n, 748 So. 2d 151 (Miss. 1999). The City of Tupelo missed the
deadline to appeal a decision by two days, claiming its failure to meet the deadline was the result of
improper notice. Id. at 152. The Board of Review rejected the City's claim that the notice had been mailed
to the wrong address and that decision was affirmed by both the Circuit Court of Lee County and this
Court. Id.
¶16. MESC also contends that the circuit court erred in reviewing its earlier decision based on unspecified
"unforeseen circumstances." Upon review, this Court cannot ascertain which portion of the statement in
Powell's motion to reopen was regarded by the circuit court as sufficient basis for its reversal. The thrust of
the motion was that Powell was unaware she needed to appeal the decision to the circuit court. The record
does not indicate what the "unforeseen circumstances" might have been and why they might justify such an
untimely filing. However, the record clearly demonstrates that the letter Powell received was specific as to
the requirements of her appeal and was sufficient to put her on notice.
CONCLUSION
¶17. The circuit court exceeded its authority in reopening Powell's appeal after earlier dismissing the appeal
as untimely. The circuit court's decision was inconsistent with both the relevant statutory and case law.
Therefore, we reverse both the Copiah County Circuit Court's order reopening this case and its judgment
on the merits, and we render judgment here reinstating the circuit court's order dismissing Powell's appeal
as untimely.
¶18. REVERSED AND RENDERED.
PITTMAN, C.J., BANKS, P.J., SMITH, MILLS, WALLER, DIAZ AND EASLEY, JJ.,
CONCUR. McRAE, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.
1. Powell's appeal consisted simply of her filing a copy of the MESC decision letter by which she had been
notified that her claim had been denied. This letter was not accompanied by any other documents.
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