IN THE SUPREME COURT OF THE "'ATE OF MISSlS:l!

Transcription

1 IN THE SUPREME COURT OF THE "'ATE OF MISSlS:l! BRENDA WASHINGTON FILED APP oopy VS. FEB 2 ~ 2013 Supreme Court No CC-OI452 OFFICE OF THL: CLERK MISSISSIPPI DEPARTMENT SUPREME COURT OF EMPLOYMENT SECURI~ APPEALS DESOTO COVNTY PUBLIC SCHOOLS BRIEF OF APPELLANT APPELLEES I APPEAL FROM THE MISSISSIPPI EMPLOYMENT SECURITY COMMISSION BOARD OF REVIEW Brenda Washington P.O.Box576 Nesbit, MS Appellant pro se ORAL ARGUMENT NOT REOUESTED 1

2 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS... 3 STATEMENT OF ISSUES... 4 STATEMENT OF CASE STATEMENT OF FACTS SUMMARY OF ARGUMENT ARGUMENT ISSUE ONE CONCLUSION CERTIFICATE OF SERVICE

3 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI BRENDA WASIllNGTON VS. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY AND DESOTO COUNTY PUBLIC SCHOOLS APPELLANT Supreme Court No CC-OI452 APPELLEES BRIEF OF APPELLANT APPEAL FROM THE MISSISSIPPI EMPLOYMENT SECURITY COMMISSION BOARD OF REVIEW CERTIFICATE OF INTERESTED PERSONS The undersigned Appellant, Brenda Washington, certifies that the following listed persons have an interested in the outcome of this case. The representations are made in order that the Justices of this Court may evaluate possible disqualification or recusal. 1. Brenda Washington., Appellant pro se. 2. Honorable Leanne F. Brady, and Senior Attorney 3. Honorable Gerald W. Chatham, Sr., Circuit Court Judge. Respectfully Submitted, BY: Brenda Washington P. O. Box 576 Nesbit, MS Appellant 3

4 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI BRENDA WASIllNGTON VS. MISSISSIPPI DEPARTMENT OFEMFLOYMENTSECIDUTYAND DESOTO COUNTY PUBLIC SCHOOLS APPELLANT Supreme Court No CC-014S2 APPELLEES STATEMENT OF ISSUES A. Whether trial court erred in failing to find that the Board of Review decision should have been vacated and whether Circuit Court should have found that the Employee, Brenda Washington, proved by substantial evidence that she did not commit misconduct connected with her work, that is conduct evincing such willful and wanton disregard of employer's interest such as deliberate violation or disregard of standards of behavior which employer has the right to expect from his employee, or carelessness and negligence in such degree, or recurrence thereof, as to manifest culpability, wrongful intent or evil design. STATEMENT OF THE CASE Appellant, Brenda Washington, worked as an employee with Desoto County Public Schools for a period of over four (4) years. Appellant Brenda Washington was hired as a Cook, Cashier, and server. She did not quit her job nor was she laid off. Her last work day was September 26, 2011 and she was discharged/terminated effective on or about September 27, The record will show that after Appellant Washington was fired or terminated, she filed an initial claim for benefits where the Claim Examiner arbitrarily and capriciously disqualified 4

5 Appellant Washington from receipt of benefits on the grounds she was discharged for misconduct connected with the work. Ms. Washington filed her appeal from that decision. The Board of Review erroneously failed to reinstate Appellant to her job since there was no misconduct on Appellant's pact to warrant dismissal. STATEMENT OF THE FACTS The Claimant-Appellant Brenda Washington had been an employee with the Desoto County Public Schools for a period off our years. Her job was cook, server, and cashier assigned to the kitchen. Prior to this incident, no other complaints have ever been lodged against Washington as to add up as being misconduct connected with her work as being one that you can say a conduct evincing such willful and wanton disregard of the employer's interest as to amount to a deliberate violation or disregard of standards of behavior which the employer has the right to expect from his employee. Washington was never careless or negligence in such degree, or recurrence thereof, as to manifest culpability, wrongful intent or evil design against the employer. In other words, Washington was honest and trustworthy and never caused any harm or damage to the employer. The record shows that on the date of question, Ms. Washington got into a misunderstanding with Lisa Harrison, another employee who also works in the kitchen. The misuderstanding was because Ms. Washington turned off the deep fryer. Washington was using the deep fryer at the time and Washington was the employee with seniority on the job. Lisa Harrison had been assigned to the kitchen after Washington and was transferred to this school because of other problems she had caused at other schools. After the argument Washington and 5

6 Lisa apologized to each other and both expressed they that they were sorry. Washington and Lisa was told to go back to work. Upon arriving back at work on the following Monday Washington made a complaint to Ms. Pickett that Lisa Harrison was pushing on the kids at the school and hollowing at the kids. Ms. Pickett called down to the office and talked to Cynthia and had Washington fired after Ms. Pickett alleged Washington was arguing with Lisa Harrison. Lisa Harrison was not fired. Washington was never given any writeup or reprimand prior to being terminated. The fact is that the burden of proof falls on the employer to prove their case of misconduct against Ms. Washington and that case cannot be proven without the actual witnesses' statement or testimony. There is a fact that Ms. Washington did not walk away fromjob, but was fired and tenninated by the employer. She committed no harm to the employer to consider that she bas committed a serious conduct in order to deny her unemployment compensation. The employer failed to present at evidence to refute or dispute the facts and matters set forth herein. SUMMARY OF THE ARGUMENT There was no evidence or source of proof presented that Appellant Washington committed misconduct with the unemployment compensation statute, indicating that Ms. Washington's conduct evincing such willful and wanton disregard of the employer's interest such as deliberate violation or disregard of standards of behavior in such degree, or recurrence thereof, as to manifest culpability wrongful intent to evil design. Wheeler v. Arriola, 408 S02d 1381 (Miss. 1982) The Mississippi Employment Security Commission Review Board and the Referee made their decision to deny Brenda Washington Unemployment benefit because of misconduct mainly on hearsay evidence. The actual witnesses which were her accusers did not make themselves available to even give a oral or written statement or to be cross examine by Ms. Washington. The 6

7 Circuit Court never conducted an evidentiary hearing but merely rubber stamped the finding of the Mississippi Department of Employment Security (MDES). held that: ARGUMENT ISSUE ONE: WHETHER THE CIRCUIT COURT SHOULD HA VB VACATED THE DECISION AND OF THE MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY AND SHOULD HA VB FOUNT THAT THE EMPLOYEE, BRENDA WASHINGTON, PROVED BY SUBSTANTIAL EVIDENCE THAT SHE DID NOT COMMIT MISCONDUCT CONNECTED wrrn HER WORK, THAT IS CONDUCT EVINCING SUCH WILLFUL AND WANTON DISREGARD OF STANDARDS OF BEHAVIOR WHICH EMPLOYER HAS THE RIGHT TO EXPECT FROM IDS EMPLOYEE, OR CARELESSNESS AND NEGLIGENCE IN SUCH DEGREE, OR RECURRENCE THEREOF, AS TO MANIFEST CULPABILITY, WRONGFUL INTENT OR EVIL DESIGN~ AND WHETHER THE APPELLEE'S DECISION TO DENY BRENDA WASIDNGTON UNEMPLOYMENT COMPENSATION BECAUSE OF MISCONDUCT WAS BASED UPON UNCORROBORATED TESTIMONY AND HEARSAY EVIDENCE. This Court, in the case of Wheelerv. Arriola 408 So.2d 1381 (Miss. 1982), the Court "The meaning of the term 'misconduct'. as used in the unemployment compensation statute, was misconduct evincing such willfui 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 the rightto 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 interest or of the employee's or of the employee's duties and obligations to his employer. carne within the term...!emphasis added] LAW AND ANALYSIS Unemployment benefits are available for employees who leave work involuntarily, through no fault of their own. Mills v. Miss. Employment Sec. Comm'n. 228 Miss , 89 So.2d 727,729 (1956) (quoting Dwyer v. Appeal Bd. ojmich Unemployment Camp. Comm'n., 321 Mich. 7

8 178, 188, 32 N'w.2d 434, 437 Page 1068 (1948». An employee is disqualified from receiving unemployment benefits if the person left the job voluntarily without good cause. Miss. Code Ann (A)(I)(a) (Supp. 2003). The employee has the burden of proving that he left the job for good cause. Miss. Code Ann (A)(I) (Supp. 2003). ~ 9. Our review of the MESC's denial of unemployment benefits is limited to questions oflaw as provided in Mississippi Code Annotated section (Rev. 2000). "The Board's findings offact are conclusive if supported by substantial evidence and without fraud." Hoerner Boxes, Inc. v. Miss. Employment Sec. Comm'n., 693 So.2d 1343, 1347 (Miss. 1997). The Board's finding that an employee has quit work voluntarily without good cause is a question of fact that will be affirmed if supported by substantial evidence. Huckabee v. Miss. Employment Sec. Comm'n., 735 So.2d 390, 394 (~14) (Miss. 1999).[fnl] In the case sub judice, the Appellant filed a claim for benefits under the Mississippi employment Security Law and the claims examiner disallowed same, holding that the employee Brenda Washington was discharged because of misconduct. This court should reverse finding that there was no evidence, under the law, to support Appellant's discharge for misconduct connected with her work. Before the court affirmed the MESE Board of Review decision, the court must find that Appellant Washington violated the Employer' Rule by committing misconduct. The Court must find that the evidence the Appellee presented must prove the following: A) That Appellant Washington committed conduct evincing willful and wanton disregard of her employer's interest; B) That such conduct was such as deliberate violation or disregard of standards of behavior which her employer has the right to expect from his employee 8

9 C) That the said conduct of Appellant Wasbington was so carelessness and negligence in such degree or recurrence thereof, as to manifest culpability, wrongful intent or evil design to damage, degrade or destruct the employee's business. No evidence was presented in the record as to discharge a trustful, caring hard worker such as one who had an excellent record and more than four years of experience with no allocations or confusion between her superior officers or fellow-employees. There were no recurrence of any intentional misconduct as to be wrongful intent or evil design to damage, degrade or destroy the employee's business. Most of all Appellant was honest and secured the interests of the employee as the best she new how or as the best to her ability. Moreover, Washington was fired from her employment when she reported misconduct of another employee which misconduct was associated with treatment of the kids in which Washington was connected to keeping safe. Appellant was very careful not to get carelessness and mess up her job on her post, that she was responsible for protecting the children who came to the kitchen to be served and securing her posted area Washington was not denied benefits because she was found to have been discharged for insubordination, a form of misconduct. Actions that constitute "misconduct" are a proper basis for denying unemployment benefits. Miss. Code Ann (A)(I)(b) (Supp. 2005); Wheelerv. Arriola 408 So. 2d 1381, 1383 (Miss. 1982). Once a former employee has filed for benefits, the evidentiary burden is on the former employer to show by "substantial, clear, and convincing evidence" that the claimant is disqualified from receiving benefits. Pannell v. Tombigbee River Valley Water Mgmt. Dist., 909 So. 2d 1115, 1120 (Miss. 2005). The first issue to be discussed is 1he kind of evidence that must exist before the total evidence may be considered to be substantial. 9

10 The Employer Representative, the Appellee stated that Washington was tenninated because ofilllcooperative, negative attitude, causes conflict However, Appellee presented no source of the said Policy nor did Appellee quote any rules or regulation references of where such rule may be fuillld for review, nor were there any witnesses available for the hearing so that Washington may cross examine them as to the true reason why she was fired, and with such testimony or cross examination and/or without such report, the said quote cannot amoilllt to anything but hearsay evidence. The evidence against Ms. Washington must be clear and convincing; and, without the actual witnesses of the incidents and those that actual did the writeups, the evidence cannot be clear and convincing. In other words this can only be hearsay evidence without offering proof. In a recent case, McClinton v. Dept. of Employ Sec, 205-CC COA (Miss. App , the Court stated: "[ A]n agency decision must be supported by substantial evidence. Administrative agency hearings are not limited to strict rules of evidence. Davis v. Pub. Emp. Ret. Sys So.2d 1225,1231 (Miss. 1998). However, "illlcorroborated hearsay testimony is insufficient to rise to the required level ofsubstantia1 evidence." Miss. Emp. Sec. Comm'n v. McLane-Southern, Inc., 583 So. 2d 626,628 (Miss. 1991). Consideration of hearsay as substantial evidence Decisions by an administrative agency receive deference. St. Dominic-Jackson Mem'l Hosp. v. Miss. State Dep't of Health, 910 So. 2d 1077, 1081 (Miss. 2005). The facts will not be re-weighed nor will the discretion of the court be substituted for the discretion of an agency. Id ~ 6. As we have already summarized, an agency decision must be supported by substantial evidence. Administrative agency hearings are not limited to strict rules of evidence. Davis v. Pub. Emp. Ret Sys., 750 So. 2d 1225, 1231 (Miss. 1998). However, "illlcorroborated hearsay testimony is insufficient to rise to the required level of substantial evidence." Miss. Emp. Sec. Comm'n v. McLane-Southern. Inc., 583 So. 2d 626, 628 (Miss. 1991). The Mississippi Supreme Court has never cited its opinion in McLane-Southern. This Court has cited it only twice for the illlcorroborated hearsay statement. The more recent use led to reversal because we foillld that the only evidence supporting the disqualliying conduct was such hearsay. Campbell v. Miss. Emp. Sec. Comm'n. 782 So. 2d 751, 755 (Miss.Ct.App.2000). In an earlier decision, this Court examined 10

11 somewhat closely the "uncorroborated hearsay" language; the Department refers us to that opinion as an accurate statement of the law." rd. Case authorities establish that wilful and wanton or grossly negligent, violations of reasonable Employer policies constitutes disquajiiying misconduct See Mississippi Security Commission vs. Percy, 641 So.2d 1172 (Miss. 1994). One of the issue of conduct is whether the Defendant employer proved by substantial evidence that Ms. Washington repeatedly violated the Employer's reasonable standards of behavior, by neglecting her assigned duties and deliberately or willfully and wantonly causing a disturbance on her job. Section states that the appeal court shall consider the record made before the Board of Review and, absent fraud, shall accept the findings of fact if supported by substantial evidence, and the correct law has been applied. "Live testimony always overrides "uncorroborated hearsay in the form of testimony and through statements," rd. In the case sub judice the Appellee had none, except for Ms. Lindsay and she could only give hearsay testimony. An employee's failure to follow his employer's policy may constitute misconduct and disquaiijy him from receiving unemployment benefits. Captain v. Mississippi Emplovment Security Commission 817 So.2d 634 (Miss. Ct. App. 2002). However, the employer bears the burden of proof in showing misconduct by clear and convincing evidence. Trading Post, Inc. v. Nunnery, 731 So.2d (Miss. 1999). The employer was represented by Ms. Lindsay, who only could give hearsay testimony concerning the alleged misconduct, did give clear and convincing evidence in proving the Employer's case. She did not have any statements given her by the actual witnesses or the one that actually did the termination. The evidence given was not clear and convincing as to prove 11

12 misconduct. However, Ms. Lindsay did admit that Ms. Washington was tenninated for a negative attitude and that Lisa was not terminated. It is clear evidence that neither one of the prior incident amount to misconduct. The final incident in question, which Appellant. Washington was discharged in regards to, definitely is not a misconduct. Case authorities establish that; wilful and wanton or grossly negligent, violations of reasonable employer policies constitutes disqualifying misconduct. See Mississippi Security Commission vs. Percy, 641 So.2d 1172 (Miss. 1994). One of the issue of conduct is whether the Defendant employer proved by substantial evidence that Ms. Washington repeatedly violated the Employer's reasonable standards of behavior, by neglecting her assigned duties and deliberately or willfully and wantonly to involve herself in a misconduct that may possibly cause her job or to be discharged. Section states that the appeal court shall consider the record made before the board of review and, absent fraud, shall accept the findings of fact if supported by substantial evidence, and the correct law has been applied. Richardson v. Mississippi Emplovment Security Commission. 593 So.2d 31 (1992); Barnett v. Mississippi Employer Security Commission. 583 Spl2d 193 (Miss. 1991); Booth v. Mississippi Emplovment Security Commission. 588 So.2d ). Misconduct imports conduct that reasonable and fair minded external observers would consider wanton disregard of the employer's legitimate interests. Mississippi Emplovment Security Commission v. Phillips. 562 So.2d 115, 118 (Miss. 1990). 12

13 CONCLUSION The Board of Review adopted the findings of fact and opinion of the Appeals Referee and affirmed the Appeals Referee's decision, which action on the part of the Board of Review had the practical effect of denying Washington's claim for unemployment compensation benefits. The Circuit Court merely rubber stamped the findings of the Board. The Court must find that, based on MESC v. McLane-Southern. Inc., 584 Sp/2d (Miss. 1991), and the fact that the employer put on no live witnesses of the incident, only uncorroborated hearsay statements of the fellow employees. There were no video tapes made available to be reviewed by Ms. Washington for cross examination. WHEREFORE, PREMISES CONSIDERED, the Appellant, Ms. Brenda Washington, prays that this Honorable Court issue a decision that the denying of her claim for unemployment compensation benefits be reversed and remanded to the Circuit Court so that the Circuit Court may conduct additional proceedid.gs and may direct that the MDES take the appropriate action to determine the correct amount of unemployment compensation benefits to which Brenda Washington is entitled. Appellant further prays for any other such order or relief as this court may deem just and proper. RESPECfFULL Y SUBMITfED, on this the ~ day of February, ~G. wda Brenda Washington, Pro se P. O. Box 576 Nesbit, MS

14 CERTIFICATE OF SERVICE 1, Brenda Washington, do certify that I have mailed first class, via U. S. Postal Service, postage prepaid, a true and correct copy of "Brief of Appellant" to the following parties: Hon. LeAnne F. Brady, Senior attorney Mississippi Department of Employment Security Post Office Box 1699 Jackson, Mississippi Honorable Gerald W. Chatham, Sr. Circuit Court Judge P. O. Box 527 Hernando~ This.Q 1 day of February, 2013 d!~~~il Brenda Washington P.O.Box576 Nesbit, MS Appellant pro se 14