Columbus Light & Water Department v. Mississippi Department of Employment Security

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2017-CC-01598-COA
COLUMBUS LIGHT & WATER DEPARTMENT APPELLANT
v.
MISSISSIPPI DEPARTMENT OF APPELLEE
EMPLOYMENT SECURITY
DATE OF JUDGMENT: 09/14/2017
TRIAL JUDGE: HON. LEE J. HOWARD
COURT FROM WHICH APPEALED: LOWNDES COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: JEFFREY CARTER SMITH
COURTNEY BRADFORD SMITH
ATTORNEYS FOR APPELLEE: ALBERT B. WHITE
JAMES RANDALL BUSH
NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES
DISPOSITION: AFFIRMED: 03/19/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
TINDELL, J., FOR THE COURT:
¶1. Columbus Light & Water Department (Columbus LW) appeals the judgment of the
Lowndes County Circuit Court’s affirmation of the Mississippi Department of Employment
Security’s Board of Review’s (Board) opinion that a terminated employee was entitled to
unemployment benefits. On appeal, Columbus LW claims the Board’s decision was not
based on substantial evidence and amounted to an arbitrary and capricious decision. After
review, we find no error and affirm the circuit court’s judgment.
FACTS
¶2. Teresa Darby (Darby) was employed by Columbus LW beginning in May 2010.
Darby worked for Columbus LW as a payroll clerk with the added duty of assisting as a
backup teller. Columbus LW terminated Darby’s employment on May 5, 2016, for multiple
violations, including: dishonesty, insubordination, unauthorized use of company records, and
multiple violations of Columbus LW’s internet-use policy. The handbook listed the most
serious misconduct violations to be: (1) “[e]ngag[ement] in acts of dishonesty of any type,”
(2) insubordination, and (3) unauthorized possession of or removal of “any [Columbus LW]
property or record . . . of any . . . employee.”
¶3. On one occasion, a Columbus LW supervisor asked Darby if while working at a
teller’s desk as a cashier, on April 8, she loaded five days of payroll. Darby twice denied
loading the payroll information on that date. Yet, Darby had, in fact, loaded the payroll
information. Columbus LW considered her two denials to be examples of dishonesty and
insubordination. On another occasion, Darby sent an email from her home to her work
address that contained a list of overtime hours for Columbus LW employees. Darby
downloaded employee overtime hours, employee identities, social security numbers, salary
information, and bank account numbers from a company computer onto a flash or jump
drive. Columbus LW required such personal information to be kept in the office. Because
this information was downloaded onto Darby’s home computer, Columbus LW considered
that action to be a violation of company policy regarding company payroll records.
Additionally, Columbus LW investigated Darby’s internet usage at work and found, among
other things: 30 minutes of news, 30 minutes researching Bible quotes, 30 minutes shopping
at Walgreens, 15 minutes personal banking, 10 minutes Fitbit, and 10 minutes of Dr. Oz.
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Columbus LW found that the internet use together with the use of the employee information
on a flash drive violated company policy regarding the extent and use of the internet and
external devices.
¶4. Columbus LW’s comptroller, Mr. Bernsen, testified that Darby was the only payroll
clerk and that Darby had been asking for help entering payroll. He testified that she was
unhappy about having to work as a backup teller in addition to payroll. He prompted an
investigation into her efficiency and found that Darby did not need help entering payroll and
had plenty of time to enter payroll herself without help. When she denied entering payroll
information while working as a teller, Bernsen saw that as an attempt to get help that was
unneeded.
¶5. Darby recalled the question regarding payroll differently. She agreed that when asked
if she was working on payroll, she answered, “no.” However, as she explained, she answered
that way because she was not at her desk at all that day and had been working as a teller up
front instead. She explained that when she was not busy working as a cashier/teller, she tried
to get some payroll time keyed in while at the front.
¶6. Darby admitted to times when she barely completed her payroll and other duties on
time. She testified she would work through her breaks and at lunch to get the work
completed. Columbus LW’s payroll program required importing time into the system
through an Excel spreadsheet. Thus, regarding the occasion when she brought home
employee information, she admitted to bringing home the spreadsheet, keying in payroll time
at home, and emailing the spreadsheet back to herself at Columbus LW. She stated that
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because Columbus LW was not going to give her any help, she had to take that work home
to get the job done on time. She claimed to be unaware that it was forbidden for her to do
the work at home.
¶7. When Darby first started at Columbus LW, her computer crashed, and multiple
documents she set up to make her payroll job more efficient were lost. She asked her
supervisor at that time if there were any computer backups for the local drives and was told,
“no.” On that occasion, she had to recreate what she approximated to be a year’s worth of
documents. She asked her supervisor for a CD to use as a backup for those documents, and
her supervisor provided her with a CD for that purpose. Over the six years she worked for
Columbus LW, the backup CD evolved into a backup flash drive. Darby would put the flash
drive in her purse to take home as a backup in case there was a fire in the building. Darby
claimed that Michelle Butler, her supervisor, was aware she was using the flash drive as a
backup and that Butler had seen Darby put it in her purse to take home. Butler never told
Darby those actions were prohibited.
¶8. Darby admitted to web browsing from time to time during work. She also admitted
that, per the handbook, web browsing was strictly prohibited. The actual handbook wording
regarding internet use reads, “Minimal personal use of the Internet, e-mail[,] and voice mail
systems is permitted.” Her only defense, as she stated at the hearing, was “everybody up
there did it, including my supervisor.” Then, she gave an example and named an upper-
management employee who was caught observing pornography on an open company
computer during work hours. She noted that nothing was done to that employee for the
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violation. Prior to being terminated, Darby had not personally been warned about her
personal use of the internet at work.
¶9. After her termination from Columbus LW, Darby applied for unemployment benefits
from the Mississippi Department of Employment Security (MDES). MDES’s initial
investigation hearing officer found the reason for Darby’s discharge was actions and
omissions considered misconduct under Mississippi Code Annotated section 71-5-
513(A)(1)(b) (Rev. 2010) and denied her unemployment benefits. Darby disagreed with the
conclusion of this initial investigation and appealed. MDES held a telephone appeal hearing
on June 20, 2016, in which Darby and Columbus LW participated. The administrative-law
judge (AJ) found in favor of Darby on her appeal and reversed the MDES decision, finding
Darby eligible to receive unemployment benefits. Thereafter, Columbus LW appealed to the
Board. In a July 26, 2016 decision, the Board adopted the findings of fact and opinion earlier
entered by the AJ and affirmed the decision.
¶10. In August 2016, Columbus LW appealed the Board’s decision to the circuit court.
The circuit court reviewed the record and briefs, found the Board’s decision to be supported
by substantial evidence and law, and affirmed the Board’s decision on September 14, 2017.
Thereafter, Columbus LW filed its notice of appeal.
¶11. Columbus LW now appeals to this Court, asserting that: (1) the circuit court erred in
affirming the Board’s arbitrary and capricious ruling; and (2) the circuit court erred in finding
substantial evidence supported the Board’s decision. Columbus LW asks this Court to
reverse the Board’s previous findings and deny Darby unemployment compensation.
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STANDARD OF REVIEW
¶12. A person is disqualified from receiving unemployment benefits if “[she] was
discharged for misconduct connected with [her] work, if so found by [MDES].” Miss. Code
Ann. § 71-5-513(A)(1)(b). The Mississippi Supreme Court has defined “misconduct” as
conduct evincing such willful and wanton disregard of the employer’s interest
as is found in deliberate violations or disregard of standards of behavior which
the employer has the right to expect from his employee. Also, carelessness and
negligence of such degree, or recurrence thereof, as to manifest culpability,
wrongful intent[,] or evil design, and showing an intentional or substantial
disregard of the employer’s interest or of the employee’s duties and obligations
to his employer, [come] within the term.
Wheeler v. Arriola, 408 So. 2d 1381, 1383 (Miss. 1982) (brackets omitted). However,
“[m]ere inefficiency, unsatisfactory conduct, failure in good performance as the result of
inability or incapacity, or [inadvertencies] 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. The underlying purpose of Mississippi’s employment security
law is to protect workers not permitted to continue employment through no fault of their own.
Sprouse v. Miss. Emp’t Sec. Comm’n, 639 So. 2d 901, 902 (Miss. 1994). “The employer
bears the burden of proving misconduct by substantial, clear, and convincing evidence.”
Kidd v. Miss. Dep’t of Emp’t Sec., 202 So. 3d 1283, 1285 (¶6) (Miss. Ct. App. 2016);
Jackson Cty. Bd. of Supervisors v. Miss. Emp’t Sec. Comm’n, 129 So. 3d 178, 183 (¶12)
(Miss. 2013).
¶13. This appeal is governed by the very high standard found in Mississippi Code
Annotated section 71-5-531 (Rev. 2010), which provides that the Board’s opinion regarding
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findings of fact is conclusive in the absence of fraud and if supported by evidence. Id.; Miss.
Dep’t of Emp’t Sec. v. Harbin, 11 So. 3d 137, 139 (¶5) (Miss. Ct. App. 2009). A rebuttable
presumption exists in favor of the administrative agency, and the challenging party has the
burden of proving otherwise. Miss. Dep’t of Emp’t Sec. v. Good Samaritan Pers. Servs., 996
So. 2d 809, 812 (¶6) (Miss. Ct. App. 2008) (quoting Sprouse, 639 So. 2d at 902). “This
Court must not reweigh the facts of the case or insert its judgment for that of the
administrative agency.” Allen v. Miss. Emp’t Sec. Comm’n, 639 So. 2d 904, 906 (Miss.
1994) (citation omitted).
ANALYSIS
¶14. We are tasked, in this appeal, with reviewing an administrative agency’s decision.
Because “a rebuttable presumption exists in favor of the administrative agency[,]” Columbus
LW faces an uphill battle. See Franklin Collection Serv. Inc. v. Miss. Dep’t of Emp’t Sec.,
181 So. 3d 304, 307 (¶13) (Miss. Ct. App. 2015). “The findings of the Board . . . as to the
facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the
jurisdiction of [this] court shall be confined to questions of law.” Miss. Code Ann.
§ 71-5-531.
¶15. The issues as stated by Columbus LW are: (1) “the [c]ircuit [c]ourt err[ed] in
affirming the arbitrary and capricious ruling of the MDES”; and (2) “the [c]ircuit [c]ourt
[erred in] affirm[ing] the MDES ruling without substantial evidence.” The strict and high
standard of review set forth by section 71-5-531 severely limits this Court’s power to
consider Columbus LW’s arguments, let alone reverse, modify, or remand the case. Id.7
“Under our standard of review, even if there is evidence which would have supported a
different result, we will not disturb a decision of the Board that is supported by substantial
evidence.” Franklin Collection Serv. Inc., 181 So. 3d at 309 (¶18) (quoting Jackson Cty. Bd.
of Supervisors, 129 So. 3d at 184 (¶16)).
¶16. Keeping in mind our standard of review, we find the Board’s decision was not
arbitrary or capricious and was based on substantial evidence. While it may not have been
how this Court would have ruled on the Board-provided facts, we are not empowered to
reweigh the facts and substitute our opinion for that of the Board. Pub. Emps’ Ret. Sys. v.
Howard, 905 So. 2d 1279, 1285 (¶15) (Miss. 2005). Our analysis of this case and this appeal
closely aligns with our analysis in Franklin Collection Service Inc. Bound by the high
standard of review, our role here, as there, “is not to reevaluate the evidence to ask” if
Darby’s termination resulted from misconduct. Franklin Collection Serv. Inc., 181 So. 3d
at 309 (¶20). And here, the Board supported its decision with substantial evidence in the
form of Darby’s testimony.
¶17. Darby testified she had not intentionally lied to her supervisors at Columbus LW about
payroll but had simply misunderstood the questions. She testified that she entered payroll
while performing other duties, on her breaks, at lunch, and at home in an attempt to complete
the payroll in a timely manner. Darby brought home company information, she testified, only
to protect the information and spreadsheets and to timely complete her work. Further, Darby
claimed her internet use was neither unusual among Columbus LW employees nor as
concerning as a known incident of past internet abuse by a supervisor at work.
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¶18. “Where there is substantial evidence, an agency’s fact finding must be allowed to
stand even though there might be room for disagreement on that issue.” Jackson Cty. Bd. of
Supervisors, 129 So. 3d at 183 (¶15). Because the Board supported its decision with
substantial evidence, we cannot say the decision was either arbitrary or capricious, and we
affirm the Board’s decision.
¶19. AFFIRMED.
BARNES, C.J., CARLTON AND J. WILSON, P.JJ., GREENLEE,
WESTBROOKS, McDONALD, LAWRENCE, McCARTY AND C. WILSON, JJ.,
CONCUR.
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