IN THE MISSISSIPPI SUPREME COURT COURT OF APPEALS. Appea, of Jones County, Mississippi Case# CV2

Transcription

1 Khloe Conner, IN THE MISSISSIPPI SUPREME COURT COURT OF APPEALS Appellant, AUG {)/ 1- ic-~.)t ; i,(. -.ji.t~~ U-. f;upheme COUHT r: (, 1 I r: : T (''1!':. I'-, ~-:, CJ C l\ 1 :S V. Cause No ( C - &o5 Mississippi Department of Employment Security AND Dollar General; Appellee(s) Appea, of Jones County, Mississippi Case# CV2./ Appellant: Khloe Conner is an adult resident of the State of Mississippi living at 277 South 4th Ave Laurel, MS Appellee: Mississippi Department of Employment Security for: Dollar General PO BOX 283 Saint Louis, MO Jones County Circuit Court 415 N. 5th Ave Laurel, MS 39440! APPEAL OF ERRONEOUS DECISION ISSUED IN THE SECOND JUDICIAL DISTRICT,JONES COUNTY CIRCUIT COURT DENYING APPELLANT UNEMPLOYMENT BENEFITS

2 Comes Now, Appellant, Khloe Conner on Appeal of an Order issued by the Honorable Dal Williamson in the Second Judicial District at Jones County, Mississippi Circuit Court at a session of court held on or about April This Appeal arises from a decision and order of the Honorable Dal Williamson which originated in the Mississippi Department of Unemployment Security where appellant sought review of the facts in the appellant's cause for unemployment benefits which arise from what appellant believes to be appellant's unlawful termination and separation from Dollar General and states the following: Jurisdiction Miss. Code Ann Basis at Law The burden is on employer to show, by substantial, clear and convincing evidence, that employee was discharged for misconduct such as will disqualify her from receiving unemployment benefits. Code 1972, , subd.a(l)(b); Miss.Code Ann (A)(l)(b) (1972) provides in part that an individual shall be disqualified for benefits 'for misconduct connected with his work." This Court has adopted the following definition of the term ' misconduct'': [C]onduct evidencing 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 a 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, 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.

3 ISSUE ON APPEAL I. Whether Appellant is excluded from receiving unemployment benefits pursuant Miss. Code Ann , where the employer has failed to meet its burden by substantial, clear and convincing evidence, that employee was discharged for misconduct? A. Appellant's Presumed Answer: Appellant is NOT excluded from receiving unen1ployment benefits. B. Appellee's Presumed Response: Appellant is excluded from receiving unemployment benefits. FACTS ON APPEAL Appellant's case is more complex than the record reflects as the Appellant was attacked while at work, but not on the clock. The Appellant has not be convicted of any crime in connection with the unprovoked attack on the appellant; Appellant was left with no choice put to provide for the Appellant's own self defense; The employer, Dollar General, by and through it's management who are authorized to conduct business in the State of Mississippi on behalf of Dollar

4 General failed in maintaining security and safety on the premises where the employment of the Appellee was held. Further, Dollar General is liable for the harm to the Appellant up to and including damages arising from the incident and Unemployment Insurance benefits authorized because the Appellant is not otherwise excluded from receiving benefits under Miss. Code Ann The Appellant is entitled to Unen1ployment Insurance Benefits and is not excluded as a person excluded under Miss. Code Ann because of action taken by Dollar General management in refusing to maintain safe premises which is the cause-in-fact and proximate cause of the harm which resulted in the attack on the Appellant and Appellant's unlawful termination and separation from employment with Dollar General. The Appellant in no way was a provoker or aggressor and the Appelleeemployer had notice, through visual and auditory observation, meaning management could see and hear a verbal altercation which happened in the presence of management. After the manager learned that there was an active threat to Appellant's safety and the safety of others on the premises at Dollar General took no action to remove the threat from the store or the stores parking area. The employer, Dollar General, after receiving notice that there was a person on its premises, did not call the police to remove the active threat, and further took no other action to ensure the safety of its' customers or employees after

5 which the Appellant was attacked while she was off the clock, but still located on the appellee-employer, Dollar General's property outside of the store and the appellant, took action to stop the assailant's attack of the Appellant's person. After the attack on the Appellant, Appellant was advised by management that Appellant would not be terminated; whereas the Appellant was later terminated and the Appellant filed for Unemployment benefits. ARGUMENT In Finnie v. Lee County Bd. of Supervisors 186 So.3d 831 (2016) the Court has held that Judicial review of a Department of Employment Security ruling in an unemployment compensation case is limited to determination of whether decision is supported by substantial evidence. Here, the Appellant asserts that the altercation, which happened while the Appellant was not on the clock was not misconduct because the Appellant was not in the course of employment as evidenced by the Appellant's departure from the store and the Appellant clocking out. Because the Appellant was not on the clock and was not in the course of employment the Appellant cannot, as a matter of law be involved in any such misconduct in connection with the work. If the Appellant was not in the course of

6 employment, the appellant's actions in self defense after an unprovoked attack cannot be reasonably determined to be misconduct. Additionally, in Mississippi Employment Sec. Com'n v. McLane-Southern, Inc. 583 So.2d 626 is where an Employer sought judicial review of administrative award of unemployment compensation benefits. The Circuit Court, Lincoln County, Joe N. Pigott, J., entered order denying benefits to employee, and employee appealed. The Supreme Court, Pittman, J., held that mere fact that employee has been involved in isolated fight with fellow employee at workplace, standing alone, is not "misconduct" such as will disqualify employee from receiving unemployment compensation benefits. Here, in the Appellant's case, the The Appellant was involved in a fight with a person who was at the Appellant's job, but who was not an employee of Dollar General, but the facts in Appellant's case are clear that the Appellant in no way was a provoker or aggressor and the Appellee-employer had notice, through visual and auditory observation, meaning management could see and hear a verbal altercation which happened in the presence of management. After the manager learned that there was an active threat to Appellant's safety and the safety of others on the premises at Dollar General took no action to remove the threat from the store or the stores parking area.

7 The employer, Dollar General, after receiving notice that there was a person on its premises, did not call the police to remove the active threat, and further took no other action to ensure the safety of its' customers or employees after which the Appellant was attacked while she was off the clock, but still located on the appellee-employer, Dollar General's property outside of the store and the appellant, took action to stop the assailant's attack of the Appellant's person, and for these reasons the Court should find for the Appellant and overturn the decision of the Unemployment Insurance Agency and further overturn the decision of the Honorable Dal Williamson, granting the Appellant Unemployment benefits. the appellant's actions in self defense after an unprovoked attack cannot be reasonably determined to be misconduct and should result in a finding that the appellant is not excluded from receiving Unemployment Benefits. Further, the court held in Wheeler v. Arriola, 408 So.2d at 1383 that "The conduct may be harmful to employer's interest and justify the employee's discharge; nevertheless, it evokes the disqualification for unemployment insurance benefits only if it is willful, wanton, or equally culpable." Here, the courts position is clear, and application of the law in Wheeler to the facts in the appellant's case, the only result is that the court should find for the appellant due to the nature of the unprovoked attack on the Appellant and the refusal and failure of the manager to maintain a safe environment. Further, the court opined that "Moreover, we hold that, regardless of the sufficiency of the proof offered by the employer, the fact that

8 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 l 3(A)(l )(b) so as to disqualify that person from receiving unemployment benefits should that person be discharged as a result of the fight. See Brown v. Lockwood, 380 So.2d 685 (La.Ct.App.1980); Sun Oil Co. v. Commonwealth Pennsylvania Unemployment Compensation Board of Review, 48 Pa.Cmwlth. 21, 408 A.2d 1169, 1170 (Pa.Commw.Ct.1979); Paige v. Com., Unemployment Compensation Board of Review, 39 Pa.Cmwlth. 141, 394 A.2d 1318, 1319 (Pa.Commw.Ct.1978); Diepenhorst v. General Electric Co., 29 Mich.App. 651, 185 N.W.2d 637, 639 (Mich.Ct.App.1971); Williams v. Brown, 157 So.2d 237,238 (La.Ct.App.1963). It is clear under the law that the "Employer has burden of showing by substantial, clear, and convincing evidence that unemployment compensation claimant's conduct warrants disqualification from eligibility benefits." Finnie v. Lee County Bd. of Supervisors (Miss. 2016) It is the Appellant's position that the employer has not shown by substantial, clear, and convincing evidence that unemployment compensation claimant's conduct warrants disqualification from eligibility benefits because, this was an attack on the Appellant that the employer had actual knowledge began with a verbal altercation on the employers premises while the appellant was not on the clock in which the appellant was forced to defend the appellants person.

9 In another case, an unemployment compensation decision by the Board of Review which was not based on substantial evidence was found to be arbitrary and capricious. In Broome v. Mississippi Employment Sec. Com'n 921 So.2d 360 (2005) and further held that "An employee's violation of an employer's policy does not automatically constitute "misconduct" so as to disqualify employee from receiving unemployment compensation benefits; rather, an employee's conduct must manifest willful and wanton disregard of the employer's interest. West's A.M.C (A)( 1 )(b). " This case supports the facts in Broome because Dollar General refused to take action and secure its premises by calling the police and having the threat to appellant and others removed from the premises. A similar case, Ho/mes v. Campbell Properties, Inc. 47 So.3d 721 (2010) An Administratrix of car wash customer's estate filed wrongful death suit against owner and operator of car wash, arising out of incident in which car wash employee struck customer with a baseball bat, killing him, asserting claims for premises liability, failure to train, and other claims. Owner and operator filed motion for summary judgment. The Court of Appeals, Maxwell, J., held that: 1 car wash employee's assault of customer was not foreseeable, as necessary to establish causation element of premises liability claim, and 2 owner and operator were not liable for failure

10 to train car wash employee. The elements of negligence, which Mabeline would be required to prove at trial, are: 1) a duty owed by the defendant to the plaintiff, 2) a breach of that duty, 3) damages; and 4) a causal connection between the breach and the damages, such that the breach is the proximate cause of the damages. Burham v. Tabb, 508 So.2d 1072 (Miss 1987), Boyd v. Lynch, 493 So.2d 1315 (Miss.1986); Marshall v. The Clinic for Women, PA, 490 So.2d 861 (Miss 1986). Here, the attack on the attack on the appellant was foreseeable because the The employer, Dollar General, after receiving notice that there was a person on its premises, did not call the police to remove the active threat, and further took no other action to ensure the safety of its' customers or employees after which the Appellant was attacked while she was off the clock, but still located on the appellee-employer, Dollar General's property outside of the store and the appellant, took action to stop the assailant's attack of the Appellant's person. Because Dollar General did not have the person removed, Dollar General is responsible for the cause in fact which is attributable to the attack against the appellant, and for these reasons and those previously stated the Court should find for the Appellant and overturn the decision of the Unemployment Insurance Agency and further overturn the decision of the Honorable Dal Williamson, granting the Appellant Unemployment benefits, And for these reasons the Court should find for the Appellant and overturn the decision

11 of the Unemployment Insurance Agency and further overturn the decision of the Honorable Dal Williamson, granting the Appellant Unemployment benefits. PRAYER FOR RELIEF i And for these reasons the Court should find for the Appellant and overtu~n I I the decision of the Unemployment Insurance Agency and further overturrh the decision of the Honorable Dal Williamson, granting the Appellant Unemployment benefits. Respectfully submitted, Appellant (J

12 PROOF OF SERVICE r/iii I ~ '/) '/1 (,,{J\.J--~, Appellant have served on all necessary parties this notice of appeal on all necessary or interested parties at I,lurxi C(yv,0- I 'J-17 84f~ f/w_,, lcwt2l.all1 cj ;( ; 101 ;Y!_,1r:rflrl!1tt1.t & f7ufs.,ykk/0 -, ':!_ I ~J? f r, 1 ' ~, [1t1 p;vy vvn~ v1 t u<:ru;11 r-0 +ov 'Uciv' C1e11e.v 3 ".... p O {&Jy 2l3 6}1t1-t,Jones Cou(i-tlj C1VCu,{ Court _ Uuic, fl1 () fu d_. j,,l/is )~,;;)t0- W3 I (J)0-0K23 on, g-u fi-, 2017 fll!t./ ~ UIUlt-11 i/u1s.,~jj';ljjj O,;i._ ( Date

13 I ~!!-L' c~ the ATTESTATION AND CERTIFICATION Appellant in this Appeal and I have personal knowledge of the facts in this Appeal. Further, I swear or affirm, under penalty of perjury that the facts herein are true and accurate to the best of my understanding, knowledge and u~~ Appel ;i;(. r-11 t / f This_ / rl--day of,_l\:;u_.,._.'-'-----t"-,' }l---iu--"j"-'.' _1 z; STATE OF MISSISSI COUNTY OF Personally appear~,b,efore me, the underrj;j/ auth~y in and. for said county and state, on this_ f1--. day of ~, 9-1)/1, within my jurisdiction, the within named, who acknowledged that (he/she/they) executed the above and foregoing instrument. Notary Public./1jl,1 ~ /&Ji \ -.. "' Printed Name: ; 'l,ll/;y J/,,_ of Mtss,... -<-~.s'..,. My Commission -~---'-",I f--=.l-. =..,. /1...,..,. ~\:.l'ia Mos u~ \.. 0 '5' -0.: ID No - : ~ * NOTARY PUBLIC *.i Comm Expires January 13, "'o ~...._'Ives cou~'\......