        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2014-CC-00555-COA

FRANKLIN COLLECTION SERVICE, INC.                                         APPELLANT

v.

MISSISSIPPI DEPARTMENT OF                                                  APPELLEES
EMPLOYMENT SECURITY AND ANGELICA
WESTBROOK

DATE OF JUDGMENT:                         03/20/2014
TRIAL JUDGE:                              HON. JAMES SETH ANDREW POUNDS
COURT FROM WHICH APPEALED:                LEE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   MICHAEL D. CHASE
ATTORNEY FOR APPELLEES:                   ALBERT B. WHITE
NATURE OF THE CASE:                       CIVIL - STATE BOARDS AND AGENCIES
TRIAL COURT DISPOSITION:                  AFFIRMED THE MISSISSIPPI
                                          DEPARTMENT OF EMPLOYMENT
                                          SECURITY BOARD OF REVIEW’S
                                          DECISION THAT CLAIMANT WAS
                                          ENTITLED TO BENEFITS
DISPOSITION:                              AFFIRMED – 01/12/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE IRVING, P.J., ISHEE AND JAMES, JJ.

       JAMES, J., FOR THE COURT:

¶1.    Franklin Collection Service appeals an unemployment-compensation-benefits

decision. We find no error and affirm.

                       FACTS AND PROCEDURAL HISTORY

¶2.    Angelica Westbrook was employed for ten months as a collector with Franklin

Collection Service. Brittany Thomas, a collection supervisor, testified that Westbrook was

fired after Westbrook told a debtor that a $15 processing fee was an interest charge during
a collection phone call. Since Franklin Collection did not assess or collect interest on debt

payments, Westbrook’s statement was in violation of the Fair Debt Collection Practices Act

(FDCPA) and Franklin Collection’s company policy. According to Franklin Collection’s

policy, any violation of the FDCPA meant automatic termination.

¶3.    After her termination, Westbrook filed for unemployment benefits. A Mississippi

Department of Employment Security (MDES) claims examiner interviewed Westbrook.

Franklin Collection, in response, submitted a U1-21A form indicating that Westbrook was

discharged for giving false information regarding a processing fee, which violated the

FDCPA. The claims examiner approved Westbrook’s claims on the ground that Franklin

Collection had not shown that it discharged Westbrook for misconduct.

¶4.    Franklin Collection appealed and a telephonic hearing was held before an

administrative law judge (ALJ). Thomas testified on the employer’s behalf. Thomas,

herself, along with a collection manager, reviewed the call that led to Westbrook’s

termination. Thomas testified that she heard Westbrook say that the processing fee was

interest on the debtor’s account. Thomas also testified that there had not been any similar

incidents with Westbrook. Westbrook, however, denied having made the statement and

further stated that if she had she did not remember doing so. The ALJ affirmed the claims

examiner’s determination, finding that Franklin Collection failed to prove misconduct. The

ALJ found that Franklin Collection failed to prove that Westbrook willfully or deliberately

disregarded the employer’s interests.


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¶5.    Franklin Collection appealed the ALJ’s ruling to the Board of Review. Adopting the

findings of fact and decision of the ALJ, the Board affirmed. Franklin Collection then

appealed to the Circuit Court of Lee County, which affirmed. Franklin Collection now

appeals to this Court, raising the following issues: (1) whether Westbrook’s action

constituted misconduct under the law, (2) whether MDES’s decision was arbitrary and

capricious, and (3) whether MDES’s decision is supported by substantial evidence.

                               STANDARD OF REVIEW

¶6.    In reviewing the decision of MDES, this Court will overturn the agency’s decision

only where the decision: “(1) is not support by substantial evidence, (2) is arbitrary or

capricious, (3) is beyond the scope or power granted to the agency, or (4) violates [the

claimant’s] constitutional rights.” Maxwell v. Miss. Emp’t Sec. Comm’n, 792 So. 2d 1031,

1032 (¶7) (Miss. Ct. App. 2001). “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 question of law.” Miss. Code Ann. § 71-5-531 (Rev. 2011).

                                      DISCUSSION

       I.     Misconduct

¶7.    Franklin Collection argues that Westbrook’s false statement during the phone call is

misconduct as a matter of law. The ALJ found that Westbrook’s action did not rise to the

level of misconduct, which would warrant disqualification from eligibility for unemployment

benefits. Franklin Collection argues that misconduct occurs where an employer establishes


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an applicable policy and standard of behavior, the standard is communicated to its

employees, and the employee violates this policy. An employee’s violation of an employer’s

policy, however, does not automatically constitute misconduct. The Mississippi Supreme

Court defined misconduct as:

       Conduct evincing 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 the right to expect from his employee . . . . Mere
       inefficiency, unsatisfactory conduct, failure in good performance as a result of
       inability or incapacity, or inadvertence and ordinary negligence in isolated
       incidents, and good faith errors in judgment or discretion [are] not considered
       “misconduct” within the meaning of the statute.

Wheeler v. Arriola, 408 So. 2d 1381, 1383 (Miss. 1982).

¶8.    Thus, Franklin Collection must show something more than mere negligence. Miss.

Emp’t Sec. Comm’n v. Jones, 755 So. 2d 1259, 1262 (¶¶10-11) (Miss. Ct. App. 2000) (citing

Miss. Emp’t Sec. Comm’n v. Borden, 451 So. 2d 222, 225 (Miss. 1984)). Westbrook’s

conduct also must manifest willful and wanton disregard of Franklin Collection’s interest,

as stated in Wheeler. See id.

¶9.    In Shavers v. Mississippi Employment Security Commission, 763 So. 2d 183, 186

(¶12) (Miss. Ct. App. 2000), we affirmed the denial of unemployment benefits to the

claimant after she was “reprimanded at least five times for failing to properly clean the silk

screens and the squeegees.” Likewise, in Magee v. Mississippi Department of Employment

Security, 77 So. 3d 1159, 1164 (¶12) (Miss. Ct. App. 2012), we found that the claimant, a

driver for the employer, showed carelessness and negligence sufficient to warrant a finding



                                              4
of misconduct by his involvement in four accidents within a six-month period. By contrast,

in Kemper County School District v. Mississippi Employment Security Commission, 832 So.

2d 548, 550 (¶¶10-12) (Miss. Ct. App. 2002), we held that the claimant’s failure to

accomplish numerous job-related tasks in violation of work policies and procedures did not

rise to the requiste level to justify disqualification of unemployment benefits. The claimant

had been an employee of the school district for eleven years. Id. at 549 (¶3). While several

violations had certainly occurred during that period, the claimant’s conduct did not appear

to be willful, wanton, deliberate, or in disregard of the standards of behavior the employer

expected from the claimant. Id. at 550-51 (¶12). We agreed that the employer had ample

reason to terminate the claimant, but it simply had not proven misconduct as defined in

Wheeler. Id.

¶10.   Here, we cannot clearly say that Westbrook’s statement was more than mere

negligence. Westbrook testified that she did not believe she referred to the employer’s fee

as interest. Thomas testified that Westbrook did refer to the fee as interest, and although this

was a one-time incident, the policy called for automatic termination. Franklin Collection

offered no proof that Westbrook deliberately misrepresented the processing fee as an interest

charge. We certainly understand and agree that Franklin Collection had ample reason to

terminate Westbrook. A termination for cause, however, does not necessarily require that

unemployment benefits be denied. The ALJ found that the cited reason for termination did

not amount to the requisite misconduct to preclude unemployment benefits. The Board



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adopted the findings of the ALJ, which stated the “evidence on record does not establish that

[Westbrook] willfully or deliberately disregarded the employer’s interest.”

¶11.   In response to the dissenting opinion, these findings of fact are supported by

substantial evidence and are conclusive. Our appellate jurisdiction is limited to questions

of law.

       II.    Substantial-Evidence and Arbitrary-and-Capricious Standard

¶12.   We will combine the analysis of Franklin Collection’s last two issues. Franklin

Collection argues that the Board’s decision was arbitrary and capricious and was not

supported by substantial evidence . Franklin Collection provides two reasons to support this

contention: the Board gave an insufficient explanation for the decision, and there is

insufficient evidence to support the possible factual findings that might have led to the

Board’s decision.

¶13.   The supreme court has stated an “agency’s decision is ‘arbitrary’ when it is not done

according to reason or judgment, but depending on the will alone.” Pub. Emps’ Ret. Sys. v.

Marquez, 774 So. 2d 421, 429 (¶34) (Miss. 2000). Furthermore, a decision is capricious “if

it is done without reason, in a whimsical manner, implying either a lack of understanding of

or a disregard for the surrounding facts and settled controlling principles.” Id. at 429, 430

(¶34). “If an administrative agency’s decision is not based on substantial evidence, it

necessarily follows that the decision is arbitrary and capricious.” Id. at 430 (¶35).

¶14.   Franklin Collection contends that the Board’s decision was arbitrary and capricious



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because the Board did not give a clear reason for finding that Franklin Collection failed to

prove misconduct. Based on our reading of the ALJ’s decision, the ALJ did give clear

reasoning for her decision to affirm the claims examiner’s determination. The ALJ found

that the evidence presented at the hearing did not show conduct that “wil[l]fully or

deliberately disregarded the employer’s interest.” The ALJ then defined misconduct, as set

out in Wheeler. The ALJ, relying on the evidence on record, found that Westbrook’s actions

did not rise to that level of misconduct.    Thus, the ALJ’s reasoning is clear: Franklin

Collection failed to prove that Westbrook’s actions are misconduct as defined in Wheeler.

We find that the Board’s decision was not made depending on the will alone or in a

whimsical manner. Therefore, the judgment was not arbitrary or capricious.

¶15.   Franklin Collection also argues that the Board’s decision is not supported by

substantial evidence. The ALJ, however, considered all the evidence that was made part of

the record and, based on that evidence, found that misconduct had not been established. At

the hearing before the ALJ, Thomas, on behalf of Franklin Collection, testified that

Westbrook gave false information to a debtor. Westbrook, by contrast, testified that she did

not recall making the statement. Moreover, Thomas testified that she did ask Westbrook why

she used the word “interest” instead of “convenience fee, ” and Westbrook stated that “she

did not realize she said interest.”

¶16.    The Board, adopting the ALJ’s finding of fact and opinion, found that Franklin

Collection failed to prove misconduct. We show deference to the factual findings of the



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Board and hold that based on the evidence presented, the Board’s decision was supported by

substantial evidence. Both of these issues are without merit.

¶17. THE JUDGMENT OF THE CIRCUIT COURT OF LEE COUNTY IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, FAIR AND WILSON, JJ.,
CONCUR. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION.
BARNES, J., NOT PARTICIPATING.

       CARLTON, J., DISSENTING:

¶18.   I respectfully dissent from the majority’s opinion. Mississippi Code Annotated

section 71-5-513(A)(1)(b) (Supp. 2015) provides that an employee will be disqualified for

benefits due to misconduct connected with work. The evidence presented below established

that Franklin Collection terminated Westbrook for misconduct connected to her work and

that Westbrook was therefore disqualified from receiving unemployment benefits.

¶19.   Westbrook worked for Franklin Collection as a debt collector. The record reflects that

Westbrook’s work-related misconduct violated both Franklin Collection’s policies and

federal law applicable to Franklin Collection’s debt-collection services.1 The record shows

that Franklin Collection discharged Westbrook in accordance with its policy of terminating

employees who violated the FDCPA. The record also reflects that MDES’s decision was

arbitrary and unsupported by the evidence or by the law applicable in this case.

¶20.   A review of the record reflects that Westbrook initially told the claims examiner she



       1
           See Fair Debt Collection Practices Act § 807, 15 U.S.C. § 1692e (2012).

                                              8
did not recall describing the $15 convenience processing fee as an interest charge to a debtor

during a phone call. After the claims examiner approved Westbrook’s claim, Franklin

Collection appealed the initial determination. At a telephonic evidentiary hearing before an

ALJ, Franklin Collection presented the testimony of Westbrook’s supervisor, Thomas.

Franklin Collection’s evidence showed that, by her own admission, Westbrook was aware

of the company’s policies. The record reflects that Franklin Collection provided no interest

loans and charged only a convenience fee for processing loan payments made by phone,

credit card, or debit card. Franklin Collection presented evidence that it had a phone-

monitoring service to monitor all the debt-collection calls. Franklin Collection’s evidence

showed that the phone-monitoring service notified Westbrook’s supervisor, Thomas, that

Westbrook had misrepresented to a debtor that a processing fee was an interest charge.

¶21.   Thomas testified that she listened to the recorded phone call and reviewed a summary

of the phone call. Thomas also reviewed the recorded call with her collection manager, Mike

Taurse. In so doing, Thomas confirmed that Westbrook made the misrepresentation to the

debtor. Thomas testified that Franklin Collection had to comply with the FDCPA in order

to operate and that section 807 of the FDCPA prohibits debt collectors from using false or

misleading information in connection with any debt. Thomas explained that violations of the

FDCPA could also result in lawsuits against Franklin Collection.

¶22.   Westbrook admitted that Franklin Collection provided her with job training on how

to conduct collection calls, and she testified that she was aware of the company policies at



                                              9
issue. Even though Westbrook first told the claims examiner that she had no recollection of

what she told the debtor during the phone call, she later changed her statement at the

subsequent evidentiary hearing and denied ever saying anything about an interest fee. The

evidentiary hearing reflects that Franklin Collection met its burden of proof by clear and

convincing evidence to establish work-related misconduct through direct testimony, and not

hearsay, of Thomas, who verified the content of Westbrook’s recorded collection call.

Furthermore, the record reflects that Westbrook herself established that she was aware that

such conduct violated Franklin Collection’s company policy. Other testimony given by

Westbrook was substantially contradicted and impeached.

¶23.   The record shows that Franklin Collection met its burden of proof by establishing that

Westbrook engaged in work-related misconduct that disqualified her for benefits. See Miss.

Code Ann. § 71-5-513(A)(1)(b). Disqualifying misconduct includes the following:

       [C]onduct 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 . . . .

Wheeler v. Arriola, 408 So. 2d 1381, 1383 (Miss. 1982) (citation omitted); see also Miss.

Emp’t Sec. Comm’n v. McLane-S. Inc., 583 So. 2d 626, 627 (Miss. 1991).

¶24.   As acknowledged, the employer bears the burden of establishing such misconduct by

clear and convincing evidence, and this evidentiary standard requires more than a mere



                                             10
preponderance of the evidence. Jackson Cty. Bd. of Supervisors v. Miss. Emp’t Sec.

Comm’n, 129 So. 3d 178, 183 (¶12) (Miss. 2013). The record in this case shows that

Franklin Collection clearly met this burden of proof through the testimony of Thomas, who

provided direct testimony to establish Westbrook’s misconduct. Furthermore, Westbrook

herself admitted to being trained on Franklin Collection’s debt-collection policies. The

record reflects that Westbrook’s misconduct not only violated Franklin Collection’s policies

but also exposed the company to financial liability and other legal jeopardy.

¶25.   Engaging in conduct that violates established company policy and that also exposes

the employer to financial and other legal liability constitutes willful misconduct evincing a

wanton disregard for the employer’s interest. See Wheeler, 408 So. 2d at 1383. I therefore

find that the decision below was arbitrary and not supported by substantial evidence.

Accordingly, I respectfully dissent from the majority’s opinion.




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