Patricia A. Sherman v. Mississippi Employment Security Commission ( 2006 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2006-CC-01916-SCT
PATRICIA A. SHERMAN
v.
MISSISSIPPI EMPLOYMENT SECURITY
COMMISSION
DATE OF JUDGMENT: 10/03/2006
TRIAL JUDGE: HON. KATHY KING JACKSON
COURT FROM WHICH APPEALED: JACKSON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: JOHN C. JOPLING
JEREMY DAVID EISLER
ATTORNEY FOR APPELLEE: ALBERT B. WHITE
NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES
DISPOSITION: REVERSED AND RENDERED - 08/28/2008
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
RANDOLPH, JUSTICE, FOR THE COURT:
¶1. Following Hurricane Katrina, Patricia Sherman was, inter alia, instructed by her
employer to charge and collect room rates greater than room rates charged before the storm.
Soon thereafter, she quit her position as a motel desk clerk. Initially, Sherman was awarded
unemployment benefits, but later the Board of Review for the Mississippi Department of
Employment Security (“MDES”) denied Sherman’s claim. The Circuit Court of Jackson
County, Mississippi, affirmed. From that ruling proceeds this appeal.
FACTS AND PROCEDURAL HISTORY
¶2. On August 26, 2005, in anticipation of Hurricane Katrina making landfall, Governor
Haley Barbour declared a state of emergency. At and before that time, Sherman was
employed as a desk clerk at the Days Inn in Moss Point, Mississippi.1 Prior to Hurricane
Katrina, the room rate at the Days Inn was $45-50 per night. According to Mitesh Patel, the
Days Inn manager, immediately after Hurricane Katrina hit, “the owners called me and told
me to start charging the rack rate.” 2 The “rack rate” was $90 per night. When Sherman
voiced her concerns about this practice, Patel “told her we were charging our rack rate.”
Patel asserted that the “rack rate” was “set a year in advance” and that “there’s eleven motels
on the exit. They’ll all tell you, if they can get the rack rate, that’s what everybody’s going
to get is the rack rate.” Thereafter, Sherman voluntarily quit her position because “[t]here
was a lot going on there that I did not agree with.[3 ] . . . [I]n my opinion, I was breaking the
law. I was just not treating people right[,]” as the Days Inn was engaging in alleged “price-
1
Sherman had been in that position since March 2000.
2
According to the Administrative Appeals Officer (“AAO”), “[r]ack rates are
published maximum rates established annually by hotels and motels.”
3
Sherman also alleged that the motel double-rented its rooms, refused to honor Red
Cross vouchers, refused to accept credit cards, and rented rooms that were unsuitable for
habitation. However, the Days Inn disputed each of these fact issues, and the MDES found
for the Days Inn. On such findings, this Court deems deference appropriate. See Miss. Code
Ann. § 71-5-531 (reenacted under 2008 Miss. H.B. 1, Section 45) (“[i]n any judicial
proceeding 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”). Accordingly, we address only the
undisputed and case-dispositive question of law presented by the increased rates.
2
gouging.” According to Sherman, “I’m the one that’s down there breaking the law. I’m
doing it because . . . the manager, said do it. But, it’s my name on them folios. Not his.”
¶3. On October 16, 2005, Sherman filed a claim for unemployment benefits with the
MDES. On December 12, 2005, a claims examiner notified the Days Inn that Sherman was
eligible for benefits. Thereafter, the Days Inn appealed the determination of the claims
examiner.
¶4. On January 24, 2006, a telephonic hearing was held before an AAO. Following
examination of Sherman and Patel, the AAO concluded:
I don’t think that there’s any dispute of record as to whether or not that prices
prior to the hurricane are not the same prices that were charged for a room
after the hurricane. There’s no dispute about that. Both your testimony and
the employer’s testimony both state that that is the case.
(Emphasis added). Nonetheless, the AAO reversed the claims examiner. Following
Sherman’s subsequent appeal, the Board of Review “adopted the Findings of Fact and
Opinion of the [AAO] and affirmed the decision.” Sherman appealed to the circuit court.4
4
Attached to Sherman’s notice of appeal was a June 30, 2006, letter opinion from
Linda Coston Davis, Special Attorney General - Consumer Protection Division, to Sherman
and MDES “regarding Mississippi’s [p]rice [g]ouging [s]tatute at Ms. Sherman’s request.”
According to Davis’s letter opinion, under Mississippi Code Annotated Section 75-24-25(2):
[o]nce a State of Emergency is declared, then prices shall not exceed the prices
ordinarily charged at or immediately before the State of Emergency. It is a
common misconception among some innkeepers that they can charge their
rack rate during a State of Emergency. This is an incorrect belief. The statute
states they must continue to charge the price they ordinarily charged in the
days immediately preceding the State of Emergency. The State of Emergency
was declared on 26 August 2005. The determining questions are: What price
did the motel/hotel charge on 25, 24, 23, 22 August 2005? Did it exceed the
price after 26 August 2005? If the answer to the second question is “Yes” then
price gouging likely occurred.
3
¶5. On August 25, 2006, the circuit court entered an “Order Affirming Decision.”
Specifically, the circuit court found that the Board of Review’s denial of Sherman’s claim
for unemployment benefits “is supported by substantial evidence, is not arbitrary or
capricious, comports with established law and that the actions of [Sherman] constituted
voluntarily leaving employment without good cause.” Sherman subsequently filed a “Motion
to Reconsider and/or Clarify Order” and a “Motion to Expunge Original Order; Motion to
Enter Order that Comports with the Facts and Laws of this Cause.” The motions were denied
by the circuit court. From that ruling proceeds Sherman’s appeal.
ISSUE
¶6. This Court will consider:
(1) Whether Sherman’s refusal to engage in price-gouging following Hurricane
Katrina constitutes good cause for voluntarily leaving her employment.
STANDARD OF REVIEW
¶7. “In any judicial proceeding 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.” Miss. Code Ann. § 71-5-
531 (reenacted under 2008 Miss. H.B. 1, Section 45). This reflects this Court’s:
obligation of deference to agency interpretation and practice in areas of
administration by law committed to their responsibility. This duty of
deference derives from our realization that the everyday experience of the
administrative agency gives it familiarity with the particularities and nuances
of the problems committed to its care which no court can hope to replicate.
There is no indication that this letter was considered by the circuit court, as it was never
before the MDES, and this Court will not consider it either. See Skrmetta v. Bayview Yacht
Club, Inc., 806 So. 2d 1120, 1127 (Miss. 2002).
4
Dunn v. Miss. Dep’t of Health, 708 So. 2d 67, 72 (Miss. 1998) (quoting Gill v. Miss. Dep’t
of Wildlife Conservation, 574 So. 2d 586, 593 (Miss. 1990)). However, “where an
administrative agency errs as a matter of law, courts of competent jurisdiction should not
hesitate to intervene.” Grant Ctr. Hosp., Inc. v. Health Group of Jackson, Inc., 528 So. 2d
804, 808 (Miss. 1998) (emphasis added).
ANALYSIS
¶8. “The underlying purpose of implementing employment security law in Mississippi
is to protect those workers not permitted to continue employment through no fault of their
own.” Broome v. Miss. Employment Sec. Comm’n, 921 So. 2d 334, 337 (Miss. 2006)
(quoting Allen v. Miss. Employment Sec. Comm’n, 639 So. 2d 904, 906 (Miss. 1994)).
Accordingly, an individual is disqualified from receiving unemployment benefits if they “left
work voluntarily without good cause . . . .” Miss. Code Ann. § 71-5-513(A)(1)(a) (reenacted
under 2008 Miss. H.B. 1, Section 39). “The burden of proof of good cause for leaving work
shall be on the claimant . . . .” Miss. Code Ann. § 71-5-513(A)(1)(c) (reenacted under 2008
Miss. H.B. 1, Section 39).
¶9. At the hearing, the AAO stated, “I don’t think that there’s any dispute of record as to
whether or not that prices prior to the hurricane are not the same prices that were charged for
a room after the hurricanes. There’s no dispute about that.” (Emphasis added). As such,
the AAO correctly recognized the pertinent, undisputed facts. The AAO then determined
that Sherman:
initiated her separation when she tendered her resignation. The claimant failed
to do all she could do to protect her employment but chose to voluntarily leave
this employment. The claimant has not shown good cause within the meaning
5
of the law for voluntarily leaving employment. The claimant has not shown
continued employment with this employer would have been detrimental to her
health, safety or morals.
In so concluding, the AAO correctly stated that Mississippi Code Annotated Section 71-5-
513(A)(1)(a) “provides that an individual shall be disqualified for benefits if he left work
voluntarily without good cause.” (Emphasis added). The AAO erred, however, in
considering whether “continued employment with this employer would have been
detrimental to her health, safety or morals.” Thus, the AAO applied the wrong law. “Health,
safety and morals” is a factor to be considered in situations where an individual who is
presently receiving unemployment benefits fails to “apply for available suitable work . . . ,
to accept available suitable work when offered him, or to return to his customary self-
employment[,]” after being so directed by the employment office or MDES. Miss. Code
Ann. § 71-5-513(A)(3)(a) (reenacted under 2008 Miss. H.B. 1, Section 39). Such was
simply not the situation in the case sub judice, as Sherman was applying for unemployment
benefits.
¶10. Mississippi Code Annotated Section 75-24-25(2) provides:
[w]henever, under the Mississippi Emergency Management Law, Sections 33-
15-1 through 33-15-49, a state of emergency or a local emergency is declared
to exist in this state, then the value received for all goods and services sold
within the designated emergency impact area shall not exceed the prices
ordinarily charged for comparable goods or services in the market area at or
immediately before the declaration of a state of emergency or local
emergency. However, the value received may include: any expenses, the cost
of the goods and services which are necessarily incurred in procuring such
goods and services during a state of emergency or local emergency.[5]
5
The record is void of any claim by Days Inn that they incurred additional operating
expenses.
6
Miss. Code Ann. § 75-24-25(2) (Rev. 2002) (emphasis added). “Any person who knowingly
and willfully violates subsection (2)[,]” may be subject to substantial fine and/or
imprisonment. Miss. Code Ann. § 75-24-25(3) & (4) (Rev. 2002) (emphasis added).
Therefore, the AAO, affirmed by the Board of Review and circuit court, applied the wrong
law to undisputed facts. In short, there was no legal basis for the conclusion that Sherman
“has not shown good cause . . . for voluntarily leaving employment.” We find
unemployment benefit claimants satisfy their “burden of proof of good cause for leaving
work[,]” Miss. Code Ann. § 71-5-513(A)(1)(c) (reenacted under 2008 Miss. H.B. 1, Section
39), when they voluntarily leave employment rather than violate a statute, which is a question
of law. Here, Sherman rejected instructions to commit an act in violation of Mississippi
Code Annotated Section 75-24-25(2). Given these facts, and applying the correct law, this
Court finds that the AAO, the Board of Review, and the circuit court erred in rejecting the
determination of the claims examiner that Sherman was entitled to unemployment benefits.
An employee meets the “burden of proof of good cause for leaving work,” Miss. Code Ann.
§ 71-5-513(A)(1)(c) (reenacted under 2008 Miss. H.B. 1, Section 39), when he or she refuses
to engage in conduct that is illegal as a matter of law.6
¶11. The issue in this case is solved by answering the question of law, and should require
no further comment. Notwithstanding the narrowness of the issue before this Court, the
separate opinion falls into the wake of the inapplicable, tangential voyage taken by the AAO
6
The separate opinion errs in referring to this as a “new standard[.]” The statutorily-
enacted standard is that of “good cause.” See Miss. Code Ann. § 71-5-513(A)(1). This
Court merely applies the correct law to the present set of facts in reaching the above-
referenced conclusion.
7
in its decision, as well as the briefs filed on appeal, by unnecessarily addressing “health,
safety and morals.” Miss. Code Ann. § 71-5-513(A)(3)(a). Following this mistaken and
illusory path, the separate opinion offers an untenable solution fraught with unintended
consequences.
¶12. The separate opinion advocates an unnecessarily broad new standard that “as long as
an employee has a reasonable, objective belief that she is required to engage in conduct that
presents a risk to her health, safety or morals, she has ‘good cause’ voluntarily to leave her
employment under Mississippi’s employment security law.” (Emphasis added). The
advocacy of this standard is uncalled for as the increased-rate question of law is dispositive,
and the errant “health, safety and morals” provision does not apply in this case.
¶13. The application of a “belief” standard of what may be legal or illegal is fraught with
error and confusion, and is not necessary for the disposition of this controversy. The error
in such a standard is apparent in this case. Specifically, the Days Inn “believed” that it was
permissible to raise rates. The agency, however, is controlled by what “is” the law, not what
the law is “believed” to be. A “belief” as to legality cannot be the standard, tossed to the
four winds by the wishes and whims of employees or employers alike. Legality rests with
the Legislature to create and courts to interpret. For example, is gambling or the
consumption of alcoholic beverages illegal? It depends upon the county in which one lives.
How could this Court permit recovery of unemployment benefits on the basis of such a
transient concept as the employee’s opinion when, as a matter of law, there is no legal basis
in fact to support the opinion or “belief?”
8
¶14. Moreover, application of a “belief” or opinion standard interwoven into matters of
morality will create untold numbers of circumstances in which neither the employee or
employer will have a definitive standard to rely upon. MDES easily could be presented with
a case in the future involving an employee voluntarily leaving employment solely on the
basis of “risk . . . to his . . . morals[.]” Miss. Code Ann. § 71-5-513(A)(3)(a). Such
vagueness may justify legislative reconsideration in the interest of clarity and fairness to
employers and employees, but also clearly warrants avoidance by this Court of interpreting
a provision of law not properly before us and creating a “belief” standard. For instance, can
a server who believes that the consumption of alcohol is immoral be entitled to collect
benefits after voluntarily quitting a job at a restaurant which did not serve alcohol when the
server began employment, but now serves alcohol? Can power plant employees who conjure
that a company is “immorally” contributing to global warming be entitled to voluntarily quit
their jobs and collect benefits? Or what if thousands of shipyard workers suddenly decide
the wars in Iraq and Afghanistan are illegal and immoral? Will the agency be required to
assess whether such “beliefs” require the payment of unemployment benefits? Fortunately,
this is a voyage we are not required or inclined to take at this time.
CONCLUSION
¶15. Based upon the aforementioned analysis, the order of the Circuit Court of Jackson
County affirming the decision of the Board of Review is reversed and judgment is rendered
granting Sherman unemployment benefits.
¶16. REVERSED AND RENDERED.
9
SMITH, C.J., WALLER, P.J., EASLEY, CARLSON, DICKINSON AND
LAMAR, JJ., CONCUR. DIAZ, P.J., CONCURS IN RESULT ONLY WITH
SEPARATE WRITTEN OPINION JOINED BY GRAVES, J., AND IN PART BY
EASLEY, J.
DIAZ, PRESIDING JUSTICE, CONCURRING IN RESULT ONLY:
¶17. I must first note that the price gouging alleged in this case is particularly disturbing
in light of the horrific aftermath of the worst natural disaster in United States history. Entire
homes were reduced to slabs, leaving the citizens of the Gulf Coast scrambling for shelter.
For a business to take advantage of these persons for pure financial gain, while they were at
their most vulnerable, is deplorable.
¶18. With this in mind, the circumstances of the present case are, at the very least,
unsettling, and I wholeheartedly agree that Ms. Sherman has demonstrated “good cause” for
voluntarily leaving her employment. However, I cannot join today’s opinion. First, the new
legal standard announced in today’s opinion places too heavy of a burden on the claimant and
one that has not been met in this case. Second, in contrast to the majority’s holding to the
contrary, the unemployment statute does require us to consider the risk to the employee’s
“health, safety, or morals.” Third, although the majority fails to address Ms. Sherman’s
argument that she had “good cause” to quit because her employer engaged in other morally
questionable behavior, I find that her moral objections also entitle her to benefits.
I.
¶19. The new standard announced by the majority requires an employee to demonstrate
refusal “to engage in conduct that is illegal as a matter of law” (emphasis supplied).
Interestingly, this is the same standard that the MDES used to argue that Sherman was
10
not entitled to benefits. I agree with Sherman’s response that requiring the employee to show
actual wrongdoing places too heavy of a burden on the employee, for unless the State were
to successfully convict the employer, the employee could never prove that the activity was
indeed illegal.
¶20. Despite the lack of a criminal conviction, or even a criminal indictment, the Court
finds that the Days Inn engaged in criminal activity “as a matter of law.” In other words, this
Court has determined that every element of the crime of price gouging has been proven
beyond a reasonable doubt, without a trial, and without allowing the Days Inn an opportunity
to put on evidence in its defense. All that is left for this Court is to impose a sentence. Such
a finding is unequivocally outside the jurisdiction of this Court – this is an appellate court,
not one of original jurisdiction. White v. State, 159 Miss. 207, 131 So. 96 (1930). See also
Miss. Const. Art. 6 § 146 (“The Supreme Court shall have such jurisdiction as properly
belongs to a court of appeals and shall exercise no jurisdiction on matters other than those
specifically provided by this Constitution or by general law.”) Criminal charges are brought
by the State, tried in the appropriate trial court, in front of a trial judge, with guilt or
innocence determined by the finder of fact.
II.
¶21. The majority spends much of its opinion attempting to explain how “health, safety and
morals” is irrelevant to finding good cause. The proposed justifications misconstrue the
“reasonable person standard,” and by refusing to acknowledge that this Court has employed
this same standard in previous unemployment cases regarding denial of benefits, the majority
creates a new standard. Hoerner Boxes, Inc. v. Miss. Employment Sec. Comm’n, 693 So.
112d 1343 (Miss. 1997) and Huckabee v. Miss. Employment Sec. Comm’n, 735 So. 2d 390,
397 (Miss. 1999). The majority simply concludes that Sherman has demonstrated “good
cause” without any discussion of what the term means, and I cannot accept this
oversimplified analysis.
¶22. Though it appears that the majority finds otherwise, there is simply no “plain
meaning” to the phrase “good cause.” When we are faced with such ambiguous and vague
terms, this Court must attempt to determine the legislative intent and cannot apply whatever
interpretation it wishes. By refusing to look to the entire statute, today’s approach is contrary
to our “constitutional mandate of deference to the Legislature.” City of Ellisville v.
Richardson, 913 So. 2d 973, 983 (Miss. 2005).
¶23. As we have repeatedly held, when the meaning of a statute is not readily apparent
from the text, this Court turns to the rules of statutory interpretation. Davis v. State, 806 So.
2d 1098, 1101 (Miss. 2001). “The primary rule of construction is to ascertain the intent of
the legislature from the statute as a whole and from the language used therein.” Clark v.
State, 381 So. 2d 1046, 1048 (Miss. 1980)).
¶24. Mississippi Code Section 71-5-513 does not define “good cause.” However, the same
statute includes provisions for determining the suitability of work. Miss. Code Ann. § 71-5-
513(A)(1)(c) and (A)(3)(a)(Rev. 2000). These factors include “the degree of risk involved
to [the employee’s] health, safety and morals.” Miss. Code Ann. § 71-5-513(A)(3)(a). The
suitability of available work and an employee’s reasons for voluntarily leaving her job are
undeniably analogous. Thus, by looking at a corresponding subsection, we can determine
12
that “good cause” would include those situations where an employee voluntarily leaves
because the job poses a significant risk to her “health, safety and morals.”
¶25. Our society has determined what is acceptable behavior, and we have set parameters
in the form of criminal statutes. Conduct contrary to law certainly can be considered contrary
to a person’s morals. With this in mind, the ultimate question in this case is whether
Sherman had “good cause” to quit when she was asked to engage in behavior that presented
a significant risk to her morals.
¶26. Very few jurisdictions have considered this particular issue, but the majority of these
states have concluded that an employee need only have a reasonable belief that her job
requires conduct contrary to law or morality in order to have “good cause” to quit. See
Roderick D. Eves, Eligibility for Unemployment Compensation as Affected by Claimant’s
Voluntary Separation or Refusal to Work Alleging that the Work is Illegal or Immoral, 41
A.L.R. 5th 123 (1996).
¶27. In O’Brien v. Employment Appeal Board, 494 N.W.2d 660 (Iowa 1993), an employee
voluntarily left his job because his employer required him to engage in activities which he
considered illegal and unethical. These activities included fraudulent sales, internal thefts,
and various violations of the Environmental Protection Agency’s regulations. Id. at 661.
The state’s Employment Appeal Board rejected the employee’s claims for benefits because
he had not proven that his employer had violated the law. Id. at 662. The Iowa Supreme
Court held that the proper inquiry was “whether a person of reasonable prudence would
believe, under the circumstances faced by [the employee], that improper or illegal activities
were occurring at [the workplace] that necessitated his quitting.” Id. The court reversed and
13
remanded the case with directions to make findings of fact using the proper legal standard.
Id.
¶28. In Pascarelli v. Unemployment Appeals Commission, 664 So. 2d 1089 (Fla. 5th Dist.
App. 1995), a truck driver refused to drive a wide-load on a particular highway during rush
hour believing that the conduct was illegal. Id. at 1090. Although the employer testified that
the activity was permitted, the court held that “the dispositive question is whether it was
unreasonable for [the employee] to refuse to make the trip even though it actually may have
been legal to do so.” Id. at 1093. The court found that it was not unreasonable for the
employee to conclude that his route was illegal, and therefore, he was entitled to
unemployment benefits. Id.
¶29. In Tom Tobin Wholesale v. Unemployment Compensation Board of Review, 600
A.2d 680 (Pa. Cmmw. 1991), a computer analyst quit his job after he was asked to alter a
computer program for illegal purposes. The court found that the employee had good cause
to quit even though no illegal activity had taken place. Id. at 682. The court held that “the
actual performance of the act is not required for an employee to sever the employment
relationship.” Id. (citing Zinman v. Unempl. Compen. Bd. of Rev., 305 A.2d 380 (Pa.
Cmmw. 1973)). The opinion went on to say that “[i]f Claimant had a reasonable belief that
he was participating in an illegal activity or if his personal and professional integrity were
so jeopardized by the circumstances, there can be a necessitous and compelling cause to
terminate his employment.” Id. at 683 (citing Richner v. Unempl. Compen. Bd. of Rev., 505
A.2d 1375 (Pa. Cmmw. 1986)).
14
¶30. The Supreme Court of Kentucky also found that an objective belief in the illegality
of the conduct satisfies the requirement of “good cause.” In Cobb v. King Kwik Minit
Market, Inc., 675 S.W.2d 386 (Ky. 1984), the employee voluntarily left his job after he was
asked to implement a “fast cash” game to promote sales. Id. at 387. The employee was
advised by the state’s Alcoholic Beverage Control office that the game would be illegal, but
the employer assured him that the store could participate legally in the game. Id. at 387-88.
The court found that because “the claimants obeyed what they perceived to be a lawful
command by a state agency,” they were entitled to unemployment benefits. Id. at 388. The
court also noted, “[i]t is fundamentally unsound to hold that the ordinary citizen elects to
follow the directives of a state agency at his own risk and forfeits statutory rights to
unemployment benefits if the acts in question are not subsequently found illegal by court
order.” Id. at 389.
¶31. As the above cases demonstrate, the general rule is that as long as an employee has
a reasonable belief that she is required to engage in conduct that is illegal or immoral, she has
“good cause” to leave her employment voluntarily. Accord Munger v. Indus. Comm’n of
Utah, 716 P.2d 808, 809-10 (Utah 1986) (“An employee can establish good cause for
quitting if the conditions which cause him or her to quit are ‘caused by external pressure so
compelling that a reasonably prudent person, exercising ordinary common sense and
prudence, would be justified in quitting.’” (quoting Denby v. Bd. of Rev. Of Indus. Comm’n,
567 P.2d 626, 630 (Utah 1977)); Young v. Scott, 442 S.E.2d 768, 770 (Ga. Ct. App. 1994)
(noting that the Georgia Department of Labor regulations require a “reasonable person”
standard to voluntary resignations); Taylor v. Ohio Unempl. Compen. Bd. of Rev., 601
15
N.E.2d 670, 671 (Ohio Ct. App. 1991) (defining “just cause” as “conduct which a person of
ordinary intelligence would consider to be a justifiable reason for terminating employment”);
Zinman, 605 A.2d at 382 (“The employee who voluntarily terminates his employment may
carry his burden of proving cause by demonstrating conduct comporting with ordinary
common sense and prudence.” (citing Rosell Unemployment Compen. Case, 135 A.2d 769(Pa. Super. Ct. 1957))).7
¶32. These cases are consistent with this Court’s use of the “reasonable person” standard
in employment security cases. For example, in Hoerner Boxes, 693 So. 2d 1343, this Court
found that an employee was entitled to employment benefits when she voluntarily left her
employment due to repeated sexual harassment. This Court held that “if an employee is
sexually harassed to such a degree that an ordinary prudent employee would leave the ranks
of the employed for the unemployed, then the employee should not be denied unemployment
compensation benefits.” Id. at 1348 (emphasis supplied). Similarly, in Huckabee, 735 So.
2d at 397 (Miss. 1999), the Court held that “an employee who leaves work under the belief
that she has been fired has not voluntarily terminated her employment where that belief is
reasonable under the circumstances” (emphasis supplied).8
7
One court has gone so far as to say that when an employer violates laws related to
the public safety, an employee has good cause per se to quit at any time. Parnell v. River
Bend Carriers, Inc., 484 N.W.2d 442, 445 (Minn. Ct. App. 1992).
8
Both cases mention the idea of “constructive discharge,” that is, “when the employer
has made conditions so intolerable that the employee feels compelled to resign.” Hoerner,
693 So. 2d at 1347 (citing Bulloch v. City of Pascagoula, 574 So. 2d 637, 640 (Miss.
1990)). A discussion of constructive discharge is unnecessary. The primary inquiry should
be whether the employee reasonably believed that she was asked to engage in illegal or
immoral activity. See 8 Judge Leslie H. Southwick, Encyclopedia of Mississippi Law
(Jeffrey Jackson and Mary Miller eds.) § 74:41 (2001) (“Whether someone left voluntarily
16
¶33. For these reasons, rather than saying that Sherman has demonstrated good cause just
because this Court says so, I would adopt the position taken by other states – as long as an
employee has a reasonable, objective belief that she is required to engage in conduct that
presents a risk to her health, safety, or morals, she has “good cause” to leave her employment
voluntarily under Mississippi’s employment security law. From a public policy standpoint,
this standard would protect those who refuse to engage in illegal activity. Requiring the
employee to show actual wrongdoing, as the majority holds, places too heavy a burden on
the employee. Of course, if the employee has been convicted of a crime, this would be a
factor in determining whether the employee had a reasonable belief. However, it should not
be a prerequisite to demonstrating good cause.
¶34. This standard does not, as the majority suggests, mandate a finding in favor of the
claimant when there is no factual basis to support the employee’s objective belief that she
is facing a great risk to her morals. The majority’s absurd examples would not withstand this
objective analysis. Furthermore, the majority finds the word “morals” vague, but it is no
more vague a term than “good cause.” By asserting this, the majority concedes that it will
not apply the statutory language of Section 71-5-513(A)(3)(a). The refusal to recognize and
apply this subsection is directly contrary to the “strict constructionist” views to which many
members of the majority purport to adhere.
III.
with good cause or was constructively discharged, may under unemployment compensation
law not make much difference. Either category of departure will qualify a former employee
for benefits.”).
17
¶35. Regarding the merits of Sherman’s claim, I agree that she has demonstrated good
cause for leaving her employment, but not for the same reasons. Under the plain wording
of the price-gouging statute, Sherman was justified in believing that doubling prices after the
hurricane was in violation of this statute and that she could face criminal charges. Because
her belief was reasonable, and not because the Days Inn broke the law, Sherman met her
“burden of proof of good cause for leaving work,” by demonstrating that she was faced with
a significant “risk to [her] . . . morals.” Miss. Code Ann. § 71-5-513(A)(1)(c) (Rev. 2000).
¶36. Sherman has argued that she also was required to engage in other immoral conduct,
but, as stated before, the majority ignores this issue. Specifically, Sherman was concerned
that the motel was double-renting its rooms, refusing to honor Red Cross vouchers, refusing
to accept credit cards, and renting rooms that were unsuitable for habitation. Sherman
notified her supervisor about these concerns as well, but to no avail.
¶37. MDES argues that Sherman’s “ethical concern was that she may be lying; and her
testimony did not indicate engagement in activities traditionally considered immoral, such
as activities involving drugs, sex, alcohol, or minors.” This argument is absurd. Sherman
responds by pointing to one of the oldest and most referenced sources for moral guidance –
the Ten Commandments, which prohibit “bear[ing] false witness.” Exodus 20:16 and
Deuteronomy 5:20. As one court put it, “[t]o lie is dishonest, immoral and unethical by all
standards known to this court . . . . It should not be the purpose of the law to require people
to lie to maintain a living.” Whipkey v. Ohio Bureau of Employment Servs., 635 N.E.2d 88,
91 (Ohio Misc. 1994). I agree that lying to customers, especially to those made homeless by
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a natural disaster, is immoral conduct, and Sherman has demonstrated that she is entitled to
benefits on this basis as well.
GRAVES, J., JOINS THIS OPINION. EASLEY, J., JOINS THIS OPINION IN
PART.
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