Jackson-George Regional Library System v. Mississippi Department of Employment Security ( 2017 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2016-CC-01201-COA
JACKSON-GEORGE REGIONAL LIBRARY APPELLANT
SYSTEM
v.
MISSISSIPPI DEPARTMENT OF APPELLEE
EMPLOYMENT SECURITY
DATE OF JUDGMENT: 07/11/2016
TRIAL JUDGE: HON. ROBERT P. KREBS
COURT FROM WHICH APPEALED: JACKSON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: STACIE ELIZABETH ZORN
ATTORNEYS FOR APPELLEE: ALBERT B. WHITE
ANNA CRAIN CLEMMER
NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES
DISPOSITION: REVERSED AND RENDERED - 09/12/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE IRVING, P.J., ISHEE AND GREENLEE, JJ.
ISHEE, J., FOR THE COURT:
¶1. Johnell Fowler was terminated by the Jackson-George Regional Library System
(JGRLS) after posting a compromising photo of a library patron in violation of JGRLS’s
confidentiality policy. Fowler’s claim for unemployment benefits was initially denied by the
claims examiner on the basis of employee misconduct. On appeal before an administrative
law judge (ALJ), however, the claim examiner’s findings were reversed, and benefits were
awarded. JGRLS appealed the ALJ’s decision to the Mississippi Department of Employment
Security’s (MDES) Board of Review (the Board), which adopted and affirmed the ALJ’s
findings and conclusions. Aggrieved, JGRLS then appealed to the Jackson County Circuit
Court, which affirmed the Board’s decision. JGRLS now seeks relief from this Court. We
reverse and render.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
¶2. Fowler was employed as a clerk by the St. Martin Library, a branch of the JGRLS, for
roughly seven years and five months. Fowler was terminated on September 22, 2014, and
filed for unemployment benefits on September 30, 2014.
¶3. At the time of Fowler’s termination, Fowler was on a six-month probationary period
implemented in June 2014. Fowler’s notice of probation stated that if any further
disciplinary incidents or insubordination occurred while she was on probation, Fowler would
be subject to immediate disciplinary action including, but not limited to, suspension without
pay or termination. The infractions leading to Fowler’s probation, however, were excluded
from the ALJ’s scope of investigation because, according to JGRLS, Fowler’s final incident
was allegedly enough to warrant immediate termination.
¶4. Sometime after the initiation of her probationary period, Fowler posted a
compromising photograph of a St. Martin library patron on Facebook. The photo depicted
the patron sitting at a library computer with her underwear exposed, which Fowler captioned
as “St. Martin’s finest.” Lori Barnes, director of the JGRLS, became aware of Fowler’s
photo, and on September 22, 2014, issued to Fowler a letter of termination. Pursuant to her
role as JGRLS’s director, Barnes possessed the sole authority to terminate JGRLS employees
for cause. Barnes stated in Fowler’s termination letter that Fowler’s posting of the photo
violated JGRLS’s “confidentiality policy,” which, in its entirety, read: “Maintain strict
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confidentiality of all customer information. Never discuss customers with other employees
in public areas.” The confidentiality policy, however, did not articulate the punishment for
a violation thereof. Barnes, in her letter, wrote that she could not fathom a more textbook
violation of the policy, and thus, terminated Fowler immediately.
¶5. As a result, Fowler filed for unemployment benefits on September 30, 2014, which
a claims examiner initially denied on the basis that Fowler was found to have violated
JGRLS’s confidentiality policy. Fowler appealed to an ALJ. The ALJ conducted a
telephonic hearing on December 5, 2014, wherein Fowler and Barnes testified as to Fowler’s
termination, among other things. In light of the testimony presented at the hearing, the ALJ
reversed the findings of the claim examiner, and awarded Fowler benefits. The ALJ made
clear the “decision [was] rendered on a credibility basis,” and that the best-available evidence
revealed JGRLS’s confidentiality policy was not uniformly applied.
¶6. Aggrieved, JGRLS appealed to the Board. The Board affirmed the ALJ, thereby
adopting the ALJ’s findings and conclusions. JGRLS then appealed to the Jackson County
Circuit Court. The circuit court affirmed the Board, which affirmed the ALJ’s finding that
substantial evidence existed supporting the conclusion that JGRLS did not uniformly enforce
its rules and policies. JGRLS now appeals to this Court, arguing that the Board’s ruling was
not supported by substantial evidence, and therefore, was arbitrary and capricious.
STANDARD OF REVIEW
¶7. “Our review of an administrative appeal is well established. In the absence of fraud
and if supported by substantial evidence, an order from the Board of Review of the MDES
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on the facts is conclusive in the lower court.” EMC Enter. Inc. v. Miss. Dep’t of Emp’t Sec.,
11 So. 3d 146, 150 (¶9) (Miss. Ct. App. 2009) (internal quotations omitted). This Court will
not disturb an administrative agency’s decision “on appeal unless it ‘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.’” Id. (citing Pub. Emps’ Ret. Sys. v.
Dozier, 995 So. 2d 136, 138 (¶7) (Miss. Ct. App. 2008)).
¶8. “A rebuttable presumption exists in favor of the administrative agency’s decision and
findings, and the challenging party has the burden of proving otherwise.” Id. (citing
Cummings v. Miss. Dep’t of Emp’t Sec., 980 So. 2d 340, 344 (¶13) (Miss. Ct. App. 2008)).
“[I]f an agency’s decision is not based on substantial evidence, [however,] it will be deemed
arbitrary and capricious.” Id. (quoting Case v. Pub. Emps’ Ret. Sys., 973 So. 2d 301, 310
(¶20) (Miss. Ct. App. 2008)).
DISCUSSION
I. Misconduct Defined
¶9. “A person is disqualified from receiving unemployment benefits if ‘[she] was
discharged for misconduct connected with [her] work, if so found by [MDES].’” Kidd v.
Miss. Dep’t of Emp’t Sec., 202 So. 3d 1283, 1285 (¶6) (Miss. Ct. App. 2016); see also Miss.
Code Ann. § 71-5-513(A)(1)(b) (Rev. 2012). The Mississippi Supreme Court addressed the
definition of “misconduct” in Wheeler v. Arriola, 408 So. 2d 1381, 1383 (Miss. 1982).
There, the supreme court defined “misconduct” as:
[C]onduct evincing such willful and wanton disregard of the employer’s
interest as is found in deliberate violations or disregard of standards of
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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, [come] 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 [are] not considered
“misconduct.”
Id. (citation omitted).
¶10. Additionally, MDES Regulation 308.00 (Miss. Admin. Code § 20-1-101:308.00)
states, in pertinent part:
For purposes of Mississippi Code Section 71-5-513, misconduct shall be
defined as including but not limited to:
1. The failure to obey orders, rules or instructions, or failure to
discharge the duties for which an individual was employed;
a. An individual shall be found guilty of employee
misconduct for the violation of an employer rule
only under the following conditions:
i. the employee knew or should have known of the
rule;
ii. the rule was lawful and reasonably related to
the job environment and performance; and
iii[.] the rule is fairly and consistently enforced.
(Emphasis added). “The employer bears the burden of proving misconduct by substantial,
clear, and convincing evidence.” Kidd, 202 So. 3d at 1285 (¶6); accord Miss. Code Ann. §
71-5-513(A)(1)(c).
II. The Board’s Decision Was Not Supported by Substantial Evidence
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¶11. As the circuit court highlighted in its order, the issue before the Board was whether
there was substantial evidence to support the finding that Fowler’s actions did not constitute
employee misconduct because JGRLS did not uniformly apply its confidentiality policy. On
appeal to this Court, JGRLS alleges there was no evidence upon which the Board could
support its decision. Reviewing the record, we likewise cannot say that the Board’s decision
was supported by substantial evidence.
¶12. “Substantial evidence . . . means something more than a mere scintilla of evidence,
and that it does not rise to the level of a preponderance of the evidence.” Smith v. Tippah
Elec. Power Ass’n, 138 So. 3d 900, 903 (¶12) (Miss. 2014) (internal quotations omitted). “It
may be said that it means such relevant evidence as reasonable minds might accept as
adequate to support a conclusion.” Id. “Substantial evidence means evidence which is
substantial, that is, affording a substantial basis of fact from which the fact in issue can be
reasonably inferred.” Id. Here, JGRLS’s principal argument is that Fowler’s testimony
related to the ultimate issue was not based upon personal knowledge—therefore, it could not
rise to the level of substantial evidence. We agree.
¶13. During the hearing before the ALJ, Barnes testified that, though Fowler was on
probation for prior, unrelated infractions, her posting of the photo was grounds for immediate
termination. Because of this testimony, Fowler’s prior infractions that lead to her probation
were deemed irrelevant, and excluded from the ALJ’s scope of investigation. Barnes further
testified that through her role as JGRLS’s director, she had personal knowledge of other
employees’ disciplinary records. She reiterated as well that JGRLS’s rules and regulations
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were uniformly and consistently enforced, that past employees had been subject to immediate
termination for confidentiality-policy violations, and that were other employees to post
similar photos, they would have faced similar penalties. Fowler, on the other hand, testified
to the contrary.
¶14. Fowler began by stating that the Facebook photo she posted was of a patron, likely
taken in 2013, which remained on her phone for years; prior to her posting the photo, it had
never been shared with anyone else. Fowler went on to testify that she posted the photo after
other JGRLS employees began posting photos of a similar nature. Fowler stated that she was
aware of JGRLS’s policies, but at the time she posted the photo, did not believe her photo
violated any JGRLS rules as neither the patron’s name nor face was displayed in the photo.
She likewise stated that, in hindsight, she realized the posting was the wrong thing to do, but
in light of that above, she did not realize at the time that her actions would violate JGRLS’s
confidentiality policy.
¶15. Fowler also stated that, to her knowledge, of the other employees who posted similar
Facebook photos, none were disciplined. Though she admitted that she did not divulge the
names of those fellow employees to Barnes, nor possessed actual, personal knowledge of
others’ disciplinary records, Fowler testified that she would have known if others were
reprimanded because JGRLS employees “talk to each other.”
¶16. Following the hearing, the ALJ stated in his opinion:
The best available evidence indicates that those rules were not uniformly
enforced against all the employees. Violation of a rule that is not uniformly
enforced does not constitute misconduct as defined by Mississippi state law.
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This decision is rendered on a credibility basis. The testimony of [Fowler and
Barnes] carried as to the enforcement of the rules. [Fowler’s] testimony on
that issue was cohesive and convincing.
While [Fowler’s] actions may constitute sufficient reason to discharge an at-
will employee, they were not proven to constitute misconduct and thus do not
disqualify the claimant from receiving unemployment insurance benefits.
Thus, the ALJ found that JGRLS did not meet its burden of proving misconduct by
substantial, clear, and convincing evidence. See Kidd, 202 So. 3d at 1285 (¶6); accord Miss.
Code Ann. § 71-5-513(A)(1)(c); see also Miss. Admin. Code § 20-1-101:308.00.
¶17. It was further found that Fowler’s testimony was consistent, reliable, and credible.
JGRLS, however, contends that because Fowler’s testimony was uncorroborated hearsay not
based upon any personal knowledge, it cannot rise to the level of substantial evidence, and
thus, the Board’s adoption of the ALJ’s findings was arbitrary and capricious. We agree.
¶18. We find such even in light of the fact that “the [R]ules of [E]vidence are relaxed in
administrative settings[.]” SkyHawke Tech. LLC v. Miss. Dep’t of Emp’t Sec., 110 So. 3d
327, 330 (¶9) (Miss. Ct. App. 2012). We also acknowledge that the circuit court relied
heavily on McClinton v. Mississippi Department of Employment Security, 949 So. 2d 805(Miss. Ct. App. 2006), in which this Court held that “if hearsay, even if not corroborated in
the traditional sense, is highly probative because it has strong indicia of reliability, it can at
least in many situations be substantial evidence.” Id. at 814 (¶29). Likewise, MDES asserts
the same here. Upon review of the record, however, we cannot say that this is one of the
many situations the McClinton court anticipated.
¶19. This is because Mississippi Rule of Evidence 602 states “[a] witness may testify to
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a matter only if evidence is introduced sufficient to support a finding that the witness has
personal knowledge of the matter.” M.R.E. 602. Thus, “[a] person must have personal
knowledge of the matter as opposed to a mere opinion, in order to testify.” M.R.E. 602
advisory committee’s note to 2016 amendment (emphasis added). And though evidence
“introduced to sufficiently prove the witness’s personal knowledge” permits “the witness [to]
testify to that matter,” we find such is not the case here. Robinson v. State, 940 So. 2d 235,
238 (¶9) (Miss. 2006).
¶20. To begin, Fowler admitted that she lacked any personal knowledge as to other
employees’ disciplinary records. From an evidentiary standpoint alone, that is enough to bar
her testimony as to the uniform enforcement of JGRLS’s rules and regulations. See M.R.E.
602. Going further, however, we cannot say that Fowler’s assertions of personal knowledge
due to employee correspondence was enough to “supply the necessary foundation showing
that [she] ha[d] personal knowledge.” See M.R.E. 602 advisory committee’s note to 2016
amendment. JGRLS employs over ninety employees across eight different branches. Yet
Fowler failed to report any of the other employees allegedly engaged in similar conduct, and
did not provide any statements by them to her that would have given her personal knowledge
that they had not been disciplined. Thus, having laid no foundation, and possessing no
personal knowledge as to the ultimate issue of uniform enforcement, we find Fowler’s
testimony cannot constitute substantial evidence—as such, the Board’s decision cannot stand.
CONCLUSION
¶21. In sum, we recognize both the highly deferential standard of review accorded the
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Board’s findings and the rebuttable presumption in favor of its decision. EMC, 11 So. 3d at
150 (¶9) (citing Cummings, 980 So. 2d at 344 (¶13)). Nevertheless, because we find the
Board’s decision was not supported by substantial evidence, it necessarily follows that the
decision was also arbitrary and capricious. See id. Therefore, we reverse and render the
judgment of the circuit court, and reinstate the ruling of the claims examiner denying benefits
to Fowler.
¶22. REVERSED AND RENDERED.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR,
WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.
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