James Hemphill v. Mississippi Department of Employment Security

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2014-CC-00515-COA
JAMES HEMPHILL APPELLANT
v.
MISSISSIPPI DEPARTMENT OF APPELLEES
EMPLOYMENT SECURITY AND DELTA
DISTRIBUTING COMPANY OF GREENWOOD
DATE OF JUDGMENT: 03/20/2014
TRIAL JUDGE: HON. MARGARET CAREY-MCCRAY
COURT FROM WHICH APPEALED: LEFLORE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: JAMES HEMPHILL (PRO SE)
ATTORNEYS FOR APPELLEES: ALBERT B. WHITE
LEANNE FRANKLIN BRADY
NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES
TRIAL COURT DISPOSITION: AFFIRMED DENIAL OF BENEFITS
DISPOSITION: AFFIRMED - 12/16/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE IRVING, P.J., ROBERTS AND MAXWELL, JJ.
MAXWELL, J., FOR THE COURT:
¶1. James Hemphill’s employer discharged him for having three consecutive absences
without giving notice in violation of the employer’s work policy. Hemphill sought
unemployment benefits, claiming he did give notice. But the Mississippi Department of
Employment Security (MDES) Board of Review found the employer’s testimony more
credible, and based on its finding that Hemphill’s failure to give notice was misconduct, it
denied benefits. Because it was within the Board’s authority to make this credibility
determination, we affirm.
Facts and Procedural History
¶2. Hemphill was employed by Delta Distributing Company of Greenwood as a loader
from August 18, 2010, to May 8, 2013. Delta’s attendance policy required employees to be
discharged if they fail to show up or call into work for three consecutive days. All
employees are informed of this policy when hired.
¶3. Hemphill was incarcerated from May 3 to May 9. Because Hemphill had three
consecutive absences without notification, Delta discharged him on May 8, 2013.
¶4. Hemphill then filed for unemployment benefits. A claims examiner interviewed
Hemphill and James Hargrove, the owner and vice president of Delta. The claims examiner
determined Hemphill was disqualified from receiving benefits because he was discharged for
misconduct connected with work.
¶5. Hemphill appealed to the administrative law judge (ALJ), who held a telephonic
hearing. Both Hemphill and Hargrove testified. Hemphill claimed he did contact his
employer while he was jailed. But Hargrove testified that Hemphill did not contact Delta
until after he was released from jail and his position had already been filled. The ALJ found
Hargrove’s testimony more credible and determined Hemphill failed to contact Delta while
in jail. The ALJ also believed Hargrove’s testimony that Delta’s three-day no call/no show
policy was designed to protect the company’s efficiency interests and that the policy had
been consistency enforced with other employees in the past. Thus, the ALJ determined
Hemphill was discharged for misconduct.
¶6. Hemphill appealed to the Board of Review, which adopted the ALJ’s findings of fact
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and opinion and affirmed the denial of benefits. Hemphill then appealed to the circuit court,
which also affirmed. Hemphill now appeals to this court.
Discussion
¶7. In reviewing a decision of the MDES, “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(Rev. 2011). “[W]here there is substantial evidence, this Court has no authority to reverse
the circuit court’s affirmance of the decision of the Board of Review.” Broome v. MESC,
921 So. 2d 334, 337 (¶12) (Miss. 2006) (quoting Richardson v. MESC, 593 So. 2d 31, 34
(Miss. 1992)). “The [B]oard’s findings of fact are conclusive if supported by substantial
evidence and without fraud.” Id. So we will not “reweigh the facts of the case or insert [our]
judgment for that of the agency.” Id.
¶8. Hemphill claims he was wrongly denied benefits, although he does not specify why
or cite any authority.1 An individual shall be qualified from receiving benefits if he is
“discharged for misconduct connected with work[.]” Miss. Code Ann. § 71-5-513(A)(1)(b)
(Supp. 2014). The employer bears the burden to prove misconduct. Miss. Code Ann. § 71-5-
513(A)(1)(c). Misconduct is “conduct evincing such willful and wanton disregard of the
employer’s interest as is found in deliberate violations or disregard of standards of behavior
1
We note that Hemphill’s failure to cite authority operates as a procedural bar, and
this court is under no obligation to consider the merits. Bishop v. MDES, 145 So. 3d 1254,
1255 (¶4) (Miss. Ct. App. 2014).
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which the employer has the right to expect from his employee.” Broome, 921 So. 2d at 338
(¶14) (quoting Wheeler v. Arriola, 408 So. 2d 1381, 1383 (Miss. 1982)). Misconduct is 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[.]” Id.“[M]isconduct imports conduct that reasonable and fair minded external observers would
consider a wanton disregard of the employer’s legitimate interests.” Id. (quoting MESC v.
Phillips, 562 So. 2d 115, 118 (Miss. 1990)).
¶9. The Mississippi Supreme Court has held that an employee’s failure to notify his
employer of the reason for his absences “can constitute misconduct[] if there is a policy that
requires such notice.” Barnett v. MESC, 583 So. 2d 193, 196 (Miss. 1991). And an
employee can be “disqualified from receiving unemployment benefits where the employee
violated an employer’s policy or otherwise failed to meet a required condition of
employment.” Hunter v. MDES, 120 So. 3d 435, 438 (¶8) (Miss. Ct. App. 2013).
¶10. Delta had a policy that required its employees to give notice if they were going to miss
work. If an employee fails to call in or show up for three consecutive days, Delta’s policy
mandates termination. Ultimately, the Board of Review, adopting the ALJ’s findings of fact,
believed Hargrove’s testimony about Hemphill’s failure to give notice. And it was the Board
of Review’s job to make such credibility calls. See id. at (¶10) (where the Board of Review
is presented with conflicting testimony, it must determine which testimony is more credible).
After review, we find substantial evidence supports the Board of Review’s determination
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that Hemphill committed misconduct by violating Delta’s three-day no call/no show policy.
We thus affirm.
¶11. THE JUDGMENT OF THE LEFLORE COUNTY CIRCUIT COURT IS
AFFIRMED.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS,
CARLTON, FAIR AND JAMES, JJ., CONCUR.
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