IN THE SUPREME COURT OF MISSISSIPPI CASE N CC DEVIN JONES APPELLANT MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY APPELLEE

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1 E-Filed Document Jan :16: CC Pages: 18 IN THE SUPREME COURT OF MISSISSIPPI CASE N CC DEVIN JONES APPELLANT VS MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY APPELLEE APPEAL FROM THE CIRCUIT COURT OF LEE COUNTY, MISSISSIPPI BRIEF OF APPELLANT Alexander J. Simpson, III (MSB#10202) Counsel for Appellant Simpson Law Office, PLLC 302-C South Spring St. Tupelo, MS T: (662) F: (662) Asimpson@simpsonlawofficepllc.com ORAL ARGUMENT REQUESTED 1

2 Certificate of Interested Persons No CC Devin Jones vs Mississippi Department of Employment Security The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the justices of the Supreme Court and/or the judges of the Court of Appeals may evaluate possible disqualification or recusal. 1) Devin Jones - Appellant 2) Mississippi Department of Employment Security - Appellee 3) T&L Specialty Company - Former employer of Devin Jones 4) Alexander J. Simpson, III- Counsel for Devin Jones on Appeal 5) North Mississippi Rural Legal Services - Counsel for Devin Jones below 6) Hon. James L. Roberts, Jr. - Circuit Judge _/s/alexander J. Simpson, III Alexander J. Simpson, III Attorney of Record for Devin Jones, Appellant 2

3 TABLE OF CONTENTS Title Page...1 Certificate of Interested Persons...2 Table of Contents...3 Table of Authorities...4 Statement of Issues...5 Statement in Support of Oral Argument...6 Statement of the Case...6,7,8,9 Summary of Argument...9,10 Argument...10,11,12,13,14,15,16,17 Conclusion

4 TABLE OF AUTHORITIES MISSISSIPPI CASES 1) Acy v. Mississippi Employment v. Security Commission, 960 So. 2d ,15,16 2) Gill v. Mississippi Department of Wildlife Conservation, 574 So. 2d ) Huckabee v Mississippi Employment Security Commission, 735 So 2d ,15 3) Mississippi Employment Security Commission v. McClane-Southern, Inc., 583 So. 2d ,15 4) Wheeler v. Arriola, 408 So. 2d CALIFORNIA CASE 1) Kelley v. California Unemployment Appeals Board, B244098, Cal. App. Dist. 2, Div 8 (Feb. 10, 2014)....11,12 STATUTES 1) United States Constitution, Amendments 5 and ) 42 U.S.C.S. 503(a)(3)...9 4

5 STATEMENT OF THE ISSUES I. Whether the Circuit Court erred in affirming the decision of the Board of Review and the Administrative Law Judge that Jones was not entitled to receive unemployment benefits due to his having constructively voluntarily quit his employment. II. Whether the Circuit Court erred in finding that the actions of the Board of Review after remand were not arbitrary and capricious? III. Whether there was substantial evidence that Devin Jones committed misconduct within the meaning of the Unemployment Law, and thus was ineligible to receive benefits? STATEMENT IN SUPPORT OF REQUEST FOR ORAL ARGUMENT This case is one of first impression in Mississippi. Important questions of constitutional rights under the Due Process clauses of the Fifth and Fourteenth Amendments are raised, and oral argument will assist the Court in fully analyzing those issues. This Court s decision will affect the operations of the Mississippi Department of Employment Security and the rights of all citizens of this state attempting to qualify for unemployment benefits. The Circuit Court has apparently adopted the Constructive Voluntary Quit doctrine as applied to Mississippi unemployment law, despite citing no authority that such a doctrine is recognized in this state. If allowed to stand, this decision will significantly change existing law to the detriment of the citizens of this state. 5

6 STATEMENT OF THE CASE Devin Jones was employed by T&L Specialty Company from June 18, 2012 until February 4, 2013 (Transcript of Administrative Hearing [ Transcript ] 37, R.136). On Febraru 4, 2013, he reported to work at 7:00 PM and performed his duties as assigned until his first break at 9:00 PM. During this break, Jones received word of a medical emergency involving his girlfriend and unborn child. (Transcript 70, Record 169). Considering the dire nature of the medical emergency, Jones asked a coworker to explain the situation to the supervisor and specifically to tell the supervisor that Jones had to leave the workplace due to a medical emergency. The coworker promised to inform the supervisor, and Jones left the workplace to take care of his family.(transcript 72, R. 171) The supervisor, Mitch Monts, was aware that Jones and his girlfriend were experiencing a complicated pregnancy. The next day, Jones spoke with Mitch Monts and was told that because he left the workplace the day before, Monts believed Jones had quit his job and his employment was therefore terminated. Monts apparently immediately hired a replacement. (Transcript 75, R 174). Jones reported to work for his regular shift anyway, hoping to clarify the situation and keep his job which he did not quit. Having no success, Jones next turned to T&L s Personnel Director, Karen Hoodum, but again was unable to persuade her to allow him to return to work, despite never having resigned or otherwise voluntarily terminating his employment. Jones then filed his claim for unemployment benefits on or about February 20, The Claims Examiner found that Jones was discharged for leaving work without proper authorization, which constituted misconduct and rendered Jones ineligible to receive benefits. Jones then 6

7 timely filed an appeal of the Claims Examiner s decision to the Administrative Law Judge (ALJ) on March 27, A telephonic hearing was held on May 6, 2013, in which Jones, his legal representative, Karen Hoodum as employer representative, and Mitch Monts as employer witness participated. During this hearing, there was extensive discussion of the T&L Employee Handbook, and especially of Jones good faith belief that he was subject only to a half-point for absenteeism for leaving the workplace early to deal with a medical emergency concerning his girlfriend and unborn child. Jones clearly never believed or understood that his action would result in the termination of his employment. (Transcript 77-78, R ). By decision dated May 7, 2013, the ALJ disagreed with the Claims Examiner, and declared Jones ineligible to receive unemployment benefits on the basis of constructively voluntarily quitting his employment without good cause, despite citing no legal authority that such a doctrine has ever been recognized in Mississippi. At this point, Jones appealed to the Board of Review, however, due to a technical glitch the Board was under the impression that the ALJ had dismissed Jones claim for nonparticipation. As conceded by MDES in their brief filed in the Circuit Court on November 10, 2013, Due to a technical error, it appears that the Board was under the impression that the case had been dismissed by the ALJ due to non-participation. As such, it seems the Board did not review the merits of the case. ( R 42). Oddly, the Board s decision dated June 6, 2013, clearly and unequivocally that they had, indeed, carefully reviewed and considered all of the evidence. Upon remand from the Circuit Court, the Board, by Order dated March 13, 2014, remanded the case back to the ALJ for further hearing and decision on the merits. Further, the March 13 Order stated that all parties would be notified by the ALJ of the time and date of the 7

8 hearing to be scheduled. ( R 55). Neither Jones nor his attorney below ever received notice of further proceedings before the ALJ, and MDES has utterly failed to produce any evidence that this notice was ever given. Next, Jones received a Board of Review Decision apparently mailed on 4/12/2014 that stated This matter came before the Board of Review for consideration of an appeal filed on 3/24/2014, regarding the decision of 3/14/2014 by an ALJ of MDES. The Decision further stated that On 4/14/2014 after careful review and consideration of all of the evidence (empahsis added) the Board adopts the findings of fact and Opinion of the ALJ and affirms the ALJ s decision. ( R 56). It is entirely unclear how MDES is able to mail a decision on 4/12/2014 which is premised upon a careful review and consideration of evidence that MDES claims took place on 4/14/2014, two days after the decision was mailed. The Board then mailed, apparently on 4/14/2014, a document titled Acknowledgment of Appeal Filed which stated that the Board had received an appeal and would consider the appeal based upon the record on file. The document said that either a decision or notice of further hearing would be forthcoming. ( R 68). On 4/22/2014, the Board mailed an Order of Recall indicating that the case had been recalled for further consideration by the Board. On 5/02/2014, the Board mailed a Board of Review Decision which attempts to untangle the extremely convoluted mess it made of the Case History herein, and advised Jones he could appeal to the Circuit Court if he did so by 5/22/2014, notwithstanding the fact that Jones had already appealed to the Circuit Court, and it was the Circuit Court that remanded the case back to the Board in the first place. Also, this 5/02/2014 Decision recites that the Board carefully reviewed and considered the evidence on 4/14/2014, 8

9 adopting the opinion and findings of fact of the ALJ and affirming his opinion. This is the same, or substantially similar language to that found in the decision mailed on 4/12/2014, which, again, by its own terms, was mailed two days prior to the Board allegedly conducting its careful review and consideration on 4/14/2014. ( R 69). Finally, on 5/08/2014, the Board mailed yet another Decision, this one being labeled Amended, and states both under Case History and Decision : DO NOT MAIL with an indication that the decision was mailed to all parties on 5/02/2014. The only substantive content in this missive was a notice that Jones now has until 5/28/2014 to file an appeal in Circuit Court. ( R 71). The bottom line here is that MDES, through its Board of Review, has so thoroughly mangled the process of review that any decision rendered must be considered arbitrary and capricious because MDES is utterly unable to explain exactly what happened to the case at any given point in the timeline. Their official notices provided to Jones give misleading and contradictory information about the status of his case and his procedural Due Process rights to appeal. Summary of the Argument It is well settled law that unemployment benefits are a property interest, protected under the Due Process Clause of the Fifth and Fourteenth Amendments to the United States Constitution and Article 3, 14 of the Mississippi Constitution. Additionally, claimants are entitled to a fair hearing pursuant to 42 U.S.C.S. 503(a)(3). Devin Jones did not voluntarily quit his job. There is no evidence in the record, no statement by Jones, no writing, no witness testimony, that shows Jones voluntarily quit. The 9

10 constructive voluntary quit doctrine has not been adopted in Mississippi. Even if Mississippi had such a doctrine, the facts of this case do not justify denying Jones his benefits on that basis. The actions of MDES by and through its Board of Review are clearly arbitrary and capricious. They wove the procedural history of this case into a serpentine tangle nearly impossible to sort out, with confusing, misleading, and contradictory orders referencing hearings that did not happen, with a decision mailed two days prior to the alleged careful review and consideration the decision purports to be based upon taking place. It is simply not possible for a meaningful review to take place two days after a decision based on said review has been mailed to the parties. This is exactly the sort of arbitrary and capricious decision making Courts are supposed to prevent. Devin Jones is not guilty of misconduct within the meaning of the unemployment law. He certainly did not plan on a medical emergency that night, but when it happened he took reasonable steps to inform his supervisor, through a coworker, of the situation. Rushing to seek medical treatment for a pregnant fiancé is not misconduct as contemplated in the unemployment law. Argument I. Whether the Circuit Court erred in affirming the decision of the Board of Review and the Administrative Law Judge that Jones was not entitled to receive unemployment benefits due to his having constructively voluntarily quit his employment. Devin Jones did not voluntarily quit his job. He did, as mentioned above, have to leave early during one particular shift due to a medical emergency involving his fiancé and unborn child. When he learned of the emergency, Jones took reasonable steps to inform his supervisor of 10

11 the situation through a coworker. The supervisor was aware of previous incidents which occurred outside of working hours during a complicated pregnancy, and the parties had a prior practice of communicating in this way. The supervisor had Jones cell number at all times, and could have made inquiry or even demanded Jones return to complete his shift, but did neither of those things. There is no evidence that Jones actually quit his job. His absence during part of a shift was in response to a medical emergency, and not accompanied by any statement or other act indicating any intent to abandon his employment permanently. The ALJ, and the Circuit Court by affirmation, have denied Jones his unemployment benefits on a theory that he constructively voluntarily quit his job. Neither the ALJ nor the Circuit Court cited any authority or precedent applying this doctrine in this State. Research indicates that this doctrine is simply not part of the unemployment law of Mississippi, and applying such a doctrine to deny Jones his unemployment benefits is therefore plain error. Even if Mississippi had adopted the constructive voluntary quit doctrine, the facts of this case are clearly not within the doctrine. We have no law on point, but California does. California defines a constructive voluntary quit as a situation where an employee engages in a voluntary act or course of conduct which leaves the employer no reasonable alternative but to discharge the employee. See Kelley v. California Unemployment Appeals Board, B244098, Cal. App. Dist. 2, Div 8 (Feb. 10, 2014). Examples of a constructive voluntary quit situation in California include a truck driver losing his license due to a DUI, an employee refusing to join a union after agreeing to do so at the time of hiring, or a worker who had worked the same Monday-Saturday schedule for years suddenly refusing to show up for Saturday shifts. The Kelley Court said that the common thread in these examples is the clarity of meaning and 11

12 certainty of effect. The actions of the first two made it actually impossible for them to continue working at all, while the worker in the third example actually refused to show up for work one sixth of the time. Id. None of those examples fit the facts of this case. Jones was ready, willing, and able to continue working after resolving a medical emergency that occurred during a single shift. He acted reasonably under the circumstances, attempted to notify his supervisor of the emergency, and reported for work on time the next day. Nothing about his actions made it impossible for him to continue working or forced T&L to fire him. II. Whether the Circuit Court erred in finding that the actions of the Board of Review after remand were not arbitrary and capricious? The entire course of conduct by MDES and the Board of Review in handling this matter has been arbitrary and capricious. The multitude of orders are clearly inconsistent and contradictory in explanation of what happened to the case and when actions were taken. Offical documents issued by MDES make the incredible claim that evidence was considered on 4/14/2014 despite a decision allegedly based on that consideration being mailed on 4/12/14, two days prior to the alleged careful review of consideration. A fair assessment of the situation is that the Board of Review course of conduct in this case including entering bogus orders in regards to the processing of the case is unacceptable. Accordingly, their statements regarding careful review and consideration should be rejected as lacking credibility. It is questionable if any fair review of the case was done. The repeated failures of MDES to show any concern for 12

13 Jones constitutionally ensured rights to due process are proof positive of MDES's arbitrary and capricious actions concerning this case. Should the record and proceedings. "reflect a decision wholly unsupported by any credible evidence, we would regard that decision as contrary to law and" 'subject to modification and reversal....we may interfere only where the Board or Agency s decision is arbitrary and capricious, accepting in principle the notion that a decision' unsupporled by any evidence is, by definition, arbitrary and capricious. Gill v. Mississippi Department of Wildlife Conservation, 574 So. 2d 586. An invisible hearing 'findings of fact and opinion that are never revealed, and secret consideration of said findings are all arbitrary and capricious. III. Whether there was substantial evidence that Devin Jones committed misconduct within the meaning of the Unemployment Law, and thus was ineligible to receive benefits? Prior to the incident which prompted this case, Jones had never been written up or otherwise disciplined for any conduct in the course of his employment. This one incident was not misconduct at all. It was the normal, human reaction of a man concerned about the health and safety of his fiancé and unborn child. Any reasonable person, when notified of a medical emergency, especially one involving a pregnant fiancé, is going to want to rush to the bedside or otherwise see that the medical emergency as quickly as possible. That s exactly what Jones did, and he took the further step of sending word to his supervisor through a coworker. This Court has defined misconduct as applied to unemployment cases: The meaning of the term misconduct, as used in the Unemployment Compensation 13

14 Statute, was conduct evidencing such willful and wanton disregard of the employer s interest as is found in deliberate violations or disregard of the standards of behavior which the employer has a right to expect from his employees. 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, came within the term. Mere 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 were not considered misconduct within the meaning of the statute. Wheeler v. Arriola, 408 So. 2d 1381 (Miss. 1982). Applying that definition, this court has held that an employee who reasonably believed her employment had been terminated did not commit misconduct by failing to report to work thereafter. See Huckabee v Mississippi Employment Security Commission, 735 So 2d 290 (1999). Further, this Court has held that a single incident is insufficient to disqualify a terminated employee from receiving unemployment benefits for misconduct. Mississippi Employment Security Commission v. McClane-Southern, Inc., 583 So. 2d 626. (1991). Likewise, the Mississippi Court of Appeals has held that a single incident is insufficient to disqualify a terminated employee from receiving unemployment benefits for misconduct. See Acy v. Mississippi Employment Security Commission, 960 So. 2d 592 (COA 2007) and Gordon v. Mississippi Employment Security Commission, 864 So. 2d 1013, (COA 2004). In Huckabee, the claimant expressed dissatisfaction with her working conditions, and indicated to her supervisor that she would be seeking other employment. Huckabee did not resign, told her supervisor she would continue to work as long as she could, and told her that she would give two weeks notice prior to quitting. Her supervisor then told Huckabee that the company would hire someone else. Huckabee, believing she had been terminated at that point, 14

15 stopped reporting to work and filed her claim for unemployment benefits. The Court held that Huckabee reasonably believed she had been terminated at the point that the supervisor told her she d hire someone else, reversed the trial court decision, and remanded the case for a determination of benefits to be paid to Huckabee. Huckabee, Supra In McClane-Southern, the employee was discharged for being involved in a fight at work. The claimant was coming down some stairs when another employee attacked her with a box cutter. The claimant defended herself by grabbing the attacker s arm to prevent herself from being cut or stabbed. Both employees were terminated for fighting at work in violation of the employer s policies. The claimant then filed for unemployment benefits. The Board of Review awarded her benefits, and the employer appealed to the Circuit Court of Lincoln County. That Court reversed the Board of Review decision, and denied claimant s benefits, finding her guilty of misconduct. The claimant then appealed to this Court, which held: Moreover, we hold that, regardless of the sufficiency of the proof offered by the employer, the fact that an employee has been involved in an isolated fight with a fellow employee at the workplace, standing alone, is not "misconduct" within the meaning of section (A)(1)(b) so as to disqualify that person from receiving [*629] unemployment benefits should that person be discharged as a result of the fight. McClane-Southern, Supra at 628. In Acy, the claimant, Kathi L. Acy, was a greeter at Wal Mart. Part of her job was to stop any customer that caused the security alarm to sound while attempting to leave the store, and verify that the customer had a receipt to prove the customer had purchased the items the customer was attempting to remove from the store. On February 10, 2005, the alarm sounded and Acy stopped the customer to inspect her receipt. The customer became irate and snatched the receipt out of Acy s hand before she could complete her inspection. Acy then used profanity under her 15

16 breath while returning to her station. The customer complained to management. Acy admitted using profanity, but said she did not direct the profanity at the customer. Acy was then fired from her job for a single incident of using profanity in front of a customer. She applied for unemployment benefits, and was awarded benefits by the administrative law judge. The employer then appealed to the Board of review, which reversed the administrative law judge, and denied benefits to Acy, finding her guilty of misconduct. Acy then appealed to the Circuit Court of Rankin County, which affirmed the Board of Review, and Acy then appealed that decision to the Court of Appeals, which held: Acy, Supra at P. 19. However, accepting that Acy's conduct was a violation of Wal-Mart's policies and procedures, thus justifying her termination, it is the opinion of this Court that her actions do not amount to disqualifying misconduct as defined by Mississippi case law, as an isolated incident of misconduct by [an] employee does not generally disqualify [the employee] from receiving the benefit of unemployment compensation." Daniels v. Miss. Empl. Sec. Comm'n, 904 So. 2d 1195, 1197 (P9) (Miss. Ct. App. 2004) (citing Gore v. Miss. Empl. Sec. Comm'n, 592 So. 2d 1008, 1011 (Miss. 1992)). Thus, we reverse the circuit court's finding that Acy committed disqualifying conduct within the meaning of Mississippi Code Annotated section A(1)(b) [**10] (Supp. 2006), as construed by the court in Wheeler. At most, what we have here is a mis-communication compounded by a misunderstanding of an ambiguously worded employee handbook. Jones made several attempts to explain his actions, and as he testified, honestly believed that pursuant to the Employee Handbook, that at most he would be charged with a half-point for leaving the workplace during a shift. Since he had no other points, or any disciplinary actions at all, and said Handbook provided that termination would not occur until 6 points were accumulated, Jones had every reason to believe his job was not in jeopardy due to his family medical situation. If T&L wished to discharge 16

17 Jones for his actions that night, they are within their rights to do so, but their handbook does not determine state law regarding voluntary termination of employment, and they did not produce any evidence sufficient to deny Jones his unemployment benefits on the basis of any alleged misconduct. Conclusion The Circuit Court erred when it affirmed the ALJ and Board of Review decisions to deny Jones his unemployment benefits. Jones did not voluntarily quit his job. Mississippi has not recognized the constructive voluntary quit doctrine, and even if this State were to adopt the doctrine, this case would not fall under it. The entire course of conduct by MDES and the Board of Review in this case has been arbitrary and capricious. Multiple conflicting ordered were entered, hearings that never happened were cited, decisions were allegedly based on careful review and consideration that supposedly happened two days after the decision was mailed to the parties. All of this procedural irregularity cannot be cured after the fact by yet another explanatory order that still conflicts with prior orders. There is no evidence of misconduct within the meaning of the unemployment law in the record before this Court. This Court should reverse the June 19, 2014 Order of the Circuit Court and render a decision in favor of Appelant Devin Jones, awarding him the full amount of his unemployment benefits. RESPECTFULLY SUBMITTED, DEVIN JONES, APPELLANT By: /s/alexander J. Simpson, III Alexander J. Simpson, III (MSB#10202) Counsel for Appellant Simpson Law Office, PLLC 302-C South Spring St. 17

18 Tupelo, MS T: (662) F: (662) Certificate of Service I hereby certify that on this day I electronically filed the foregoing pleading or other paper with the Clerk of the Court using the MEC system which sent notification of such filing to the following: Hon. Albert B. White Hon. LeAnne Franklin Brady This the 9 th Day of January, /s/alexander J. Simpson, III Alexander J. Simpson, III. 18