        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2013-CC-00689-COA

TAMEKA GLADNEY                                                              APPELLANT

v.

MISSISSIPPI DEPARTMENT OF                                                     APPELLEE
EMPLOYMENT SECURITY

DATE OF JUDGMENT:                          03/27/2013
TRIAL JUDGE:                               HON. PAUL S. FUNDERBURK
COURT FROM WHICH APPEALED:                 MONROE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    TAMEKA GLADNEY (PRO SE)
ATTORNEYS FOR APPELLEE:                    ALBERT B. WHITE
                                           LEANNE FRANKLIN BRADY
NATURE OF THE CASE:                        CIVIL - STATE BOARDS AND AGENCIES
TRIAL COURT DISPOSITION:                   AFFIRMED THE MISSISSIPPI
                                           DEPARTMENT OF EMPLOYMENT
                                           SECURITY’S DECISION TO DENY
                                           BENEFITS
DISPOSITION:                               REVERSED AND RENDERED - 09/09/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE LEE, C.J., BARNES AND FAIR, JJ.

       BARNES, J., FOR THE COURT:

¶1.    The Mississippi Department of Employment Security (MDES) denied Tameka

Gladney unemployment benefits after it determined she voluntarily quit her job without good

cause. The circuit court affirmed. We find substantial evidence shows Gladney did not

voluntarily quit, but was part of a reduction in force (RIF). Thus, we reverse and render the

decision of the circuit court and MDES, and we reinstate Gladney’s unemployment benefits.

                       FACTS AND PROCEDURAL HISTORY
¶2.    Gladney was employed as a full-time teacher’s assistant with the Aberdeen School

District. In May 2012, at the end of the school year, the school principal, Angela Irvin, held

a meeting and told all the teacher’s assistants she needed to lay off two people. She asked

for volunteers. Gladney was the first to volunteer. After a second person volunteered, there

was “a little drama” because others had wanted to volunteer. Regardless, Principal Irvin told

Gladney and the second volunteer to write a letter by lunchtime stating they would not return

the following year due to lack of funds in the school district.

¶3.    Before writing the letter, Gladney asked if the pre-kindergarten room where she

worked would reopen the next school year. Principal Irvin said no; the room would be

closed, and the main teacher for that classroom would not be returning. Gladney also called

the school’s conservator, Bob Strebeck, and asked him if writing the letter would make “it

look like [she] was walkin’ away from [her] job or [she] was quitting or anything like that.”

He said no: “[I]t will not look like you [are] walkin’ away from your job. You can always

come back to the district and get a job.” He also stated that he “appreciate[d] [her] steppin’

up to the plate for the district.”

¶4.    Gladney submitted her letter on May 16, 2012, stating: “I, Tameka Gladney[,] will

not be returning back to the Aberdeen School District in the school year of August 2012-

2013 due to Lack of Funds in the Aberdeen School District. I will be returning to college

in the upcoming year.”        (Emphasis in original).   The following day, Principal Irvin

announced that because “so much drama” had ensued after she asked for volunteers, she

would choose the two employees to lay off. Gladney was not one of the two employees

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chosen, but Gladney was not asked or told to withdraw her letter. Her last day of work was

May 25, 2012.

¶5.    On June 8, 2012, Gladney filed for unemployment benefits. Although the school

district initially agreed with Gladney that she was part of the RIF, it later changed its position

and challenged her claim. After review, the MDES claims examiner denied benefits, finding

that Gladney had voluntarily quit without good cause. The claims examiner also ordered

Gladney to repay the $1,158 in benefits she received before the decision was made. Gladney

appealed. The MDES administrative law judge (ALJ) held a telephonic hearing, after which

she affirmed the claims examiner’s decision. The MDES Board of Review affirmed the

decision as well. Gladney appealed to the Monroe County Circuit Court, which also affirmed

the denial of benefits. Gladney now appeals to this Court.

                                 STANDARD OF REVIEW

¶6.    “The scope of review in an unemployment-compensation case is limited. Absent

fraud, the findings of fact of the Board of Review are conclusive if supported by substantial

evidence.” Brown v. Miss. Dep’t of Emp’t Sec., 29 So. 3d 766, 769 (¶7) (Miss. 2010). “A

rebuttable presumption exists in favor of the administrative agency, and the challenging party

has the burden of proving otherwise.” Sprouse v. Miss. Emp’t Sec. Comm’n, 639 So. 2d 901,

902 (Miss. 1994).

                                        DISCUSSION

¶7.    Under Mississippi Code Annotated section 71-5-513A(1)(a) (Supp. 2013), an

employee who “le[aves] work voluntarily without good cause” is not entitled to

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unemployment benefits. Further, an employee who is later found to be ineligible for benefits

must repay any unemployment benefits received. Miss. Code Ann. § 71-5-19(4)(a)-(b)

(Supp. 2013). Gladney argues she is entitled to unemployment benefits because she did not

leave work voluntarily without good cause, but was part of a RIF. “[T]he question of

whether an employee voluntarily quits or was discharged is a question of fact for the [MDES]

to determine.” Huckabee v. Miss. Emp’t Sec. Comm’n, 735 So. 2d 390, 394 (¶14) (Miss.

1999).

¶8.      It is undisputed that Gladney initially agreed to be part of the school district’s RIF.

Gladney volunteered for the RIF; she submitted a letter stating she would not return the

following school year due to “lack of funds” in the school district; and the school accepted

her letter. She was thanked by the school’s conservator for volunteering. Later, however,

Principal Irvin announced that she had changed her mind about accepting volunteers and

would choose the two employees to lay off. The ALJ found that when Principal Irvin made

this announcement, the volunteer option went away. At this point, according to the ALJ,

Gladney had two choices: (1) rescind her letter, or (2) not rescind her letter and, in effect,

voluntarily quit. The ALJ found that because Gladney did not rescind her letter, it was her

intention to voluntarily quit in order to attend college in the fall. The ALJ also found that

Gladney quit while other positions were available. Although Gladney’s position would not

be renewed and her classroom was closing, the ALJ found Gladney could have possibly

worked elsewhere in the school district. Thus, unemployment benefits were denied.

¶9.      To affirm the MDES’s denial of benefits, we must find its decision was supported by

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substantial evidence and was not arbitrary or capricious. Bedford Care Ctr. v. Kirk, 935 So.

2d 1135, 1138 (¶9) (Miss. Ct. App. 2006). “Substantial evidence is that which is relevant

and capable of supporting a reasonable conclusion, or is ‘more than an scintilla of

evidence.’” Id. at (¶10) (quoting Gilbreath v. Miss. Emp. Sec. Comm’n, 910 So. 2d 682, 686

(¶13) (Miss. Ct. App. 2005)). “[A] decision that is supported by substantial evidence is not

arbitrary and capricious.” Jackson Cnty. Bd. Sup’rs v. Miss. Emp’t Sec. Comm’n, 129 So.

3d 178, 183 (¶14) (Miss. 2013). Factual findings are left to the MDES’s discretion, as “[i]t

is the role of the agency, in its expertise, to determine the weight of the evidence and the

credibility of the witnesses.” Id. at (¶15).

¶10.   Substantial evidence does not support the MDES’s finding that Gladney voluntarily

quit her job without good cause. The basic facts of this case are undisputed. After accepting

Gladney’s letter, which stated Gladney would not return due to the school district’s lack of

funds, the principal changed her mind about taking volunteers. The principal chose the two

employees to lay off, and Gladney was not chosen. But the fact remains that when the

principal decided not to allow volunteers, she had already accepted Gladney’s letter. We find

that once Gladney’s letter was accepted, it was too late for the principal to change her mind

without informing Gladney that her letter would thereafter be considered a voluntarily

departure if it were not withdrawn. Gladney remained under the impression she was part of

the RIF. This understanding was confirmed by the school’s payroll clerk after Gladney filed

for unemployment benefits. Gladney’s last day of work was May 25, 2012, and she filed for

unemployment benefits on June 8, 2012. On June 13, 2012, the payroll clerk responded to

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a MDES “Request for Information” form, in which the clerk stated the reason for Gladney’s

separation was a “RIF”/“lack of work.” The ALJ recognized this in her findings, which

state: “The employer’s first response to the request for separation information was that the

reason for the job separation was a reduction in force due to a lack of funds. Later the

employer asserted that the claimant voluntarily resigned.” Thus, even based on the school’s

own understanding at the time Gladney filed for unemployment benefits, Gladney was part

of the RIF. It was not until the claim was before the claims examiner that the school asserted

Gladney voluntarily quit. The MDES’s finding that Gladney was not part of the RIF is not

supported by the evidence.

¶11.   Also, the MDES’s finding that Gladney chose to quit to return to college is without

any basis in the evidence. Although Gladney wrote in her letter that she would “be returning

to college in the upcoming year,” there is no indication in the record that it was Gladney’s

intention to quit work to return to college. Gladney stated that she had attended night classes

in the past while working and that she could continue to do so. Gladney was adamant that

she needed a job and would have continued working at the school if not for the RIF. The

MDES’s finding that Gladney voluntarily quit to return to college is not supported by

substantial evidence.

¶12.   Likewise, we cannot find substantial evidence to support the MDES’s finding that

Gladney could have worked elsewhere in the school district. Gladney testified she had

worked for the school district for seven years and would continue to do so if work was

available. Gladney was told her pre-kindergarten class was closing, and the classroom’s

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main teacher was not returning. Gladney asked Principal Irvin if the school would have

another pre-kindergarten class in the fall to replace hers. Principal Irvin said no, leading

Gladney to believe there would be no employment available for her. The ALJ found that

“[a]lthough [Gladney’s] specific classroom closed, the principal did not say that work was

not available elsewhere in the district.” (Emphasis added). We cannot find the principal’s

nondisclosure amounts to substantial evidence that other positions were available. This is

speculation, at best.

¶13.   We liken the school district’s actions to a “bait and switch,” for which Gladney should

not be penalized. Gladney was led to believe she was part of the RIF once she turned in her

letter. She was never told her letter was rejected or asked to withdraw the letter. The district,

through its payroll clerk, confirmed Gladney’s impression that she was still part of the RIF

even after the principal’s announcement that she would choose the two employees to lay off.

Because there is not substantial evidence to support the MDES’s decision, we reverse and

render the denial of unemployment benefits and the order demanding that Gladney repay

$1,158. Gladney’s unemployment benefits shall be reinstated.

¶14. THE JUDGMENT OF THE MONROE COUNTY CIRCUIT COURT IS
REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED
TO THE APPELLEE.

      LEE, C.J., IRVING, P.J., ISHEE, ROBERTS, MAXWELL, FAIR AND JAMES,
JJ., CONCUR. GRIFFIS, P.J., AND CARLTON, J., DISSENT WITHOUT
SEPARATE WRITTEN OPINION.




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