        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2013-CC-02149-COA

JAMES T. SMITH                                                            APPELLANT

v.

MISSISSIPPI DEPARTMENT OF                                                   APPELLEE
EMPLOYMENT SECURITY

DATE OF JUDGMENT:                         12/02/2013
TRIAL JUDGE:                              HON. ROBERT P. CHAMBERLIN
COURT FROM WHICH APPEALED:                DESOTO COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   JAMES T. SMITH (PRO SE)
ATTORNEYS FOR APPELLEE:                   ALBERT B. WHITE
                                          LEANNE FRANKLIN BRADY
NATURE OF THE CASE:                       CIVIL - STATE BOARDS AND AGENCIES
TRIAL COURT DISPOSITION:                  AFFIRMED DECISION OF THE
                                          MISSISSIPPI DEPARTMENT OF
                                          EMPLOYMENT SECURITY THAT
                                          APPELLANT WAS DISQUALIFIED FROM
                                          RECEIVING UNEMPLOYMENT BENEFITS
DISPOSITION:                              AFFIRMED – 02/17/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE LEE, C.J., ISHEE AND JAMES, JJ.

       ISHEE, J., FOR THE COURT:

¶1.    James T. Smith was fired from Resorts Casino (Resorts) pursuant to the company’s

progressive discipline policy on March 15, 2013. A claims examiner for the Mississippi

Department of Employment Security (MDES) initially determined that Smith was entitled

to unemployment benefits. Resorts appealed the claim examiner’s determination and,

ultimately, an administrative judge (AJ) determined that Smith was fired for misconduct and

was disqualified from receiving benefits. The MDES Board of Review and the DeSoto
County Circuit Court affirmed the AJ’s decision. Aggrieved, Smith appeals.

             STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶2.    Smith was employed as a games dealer by Resorts for one year and four months.

When Smith began his employment at Resorts, he signed a document stating that he had read

and agreed to the terms contained in the employee handbook, including a progressive

discipline policy. The discipline policy provided the following procedure for employee

discipline: verbal counseling for the first offense, a written warning for the second offense,

a final warning for the third offense, and discharge for a subsequent offense.

¶3.    In July 2012, Smith was given verbal counseling after a gambling mistake took place

at his table. Resorts said the mistake occurred due to Smith’s inattentiveness. In August

2012, Smith received a written warning after making an incorrect payout to a player that

resulted in a forty-five-dollar loss to Resorts. In February 2013, Smith received a final

written warning because he did not call a floor supervisor to assist him with a subsequent

mistake at his table, contrary to Resorts’ policy. Smith admitted to being aware of this

policy, but claimed the floor supervisor ignored his requests to come to his table. Finally,

on March 8, 2013, an improper bet was placed at Smith’s table. Smith was aware of the

mistake and again failed to notify a supervisor. Since the March 8, 2013 offense was Smith’s

fourth offense, Resorts fired Smith pursuant to the discipline policy. After each of Smith’s

warnings, he signed a document acknowledging that he had received the warning.

¶4.    On March 19, 2013, Smith filed for unemployment benefits. An MDES claims

examiner investigated Smith’s claim and determined that Resorts had failed to show that

Smith was fired for misconduct and, thus, was entitled to receive unemployment benefits.

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Resorts appealed the claims examiner’s determination to an AJ. After a telephonic hearing,

the AJ determined that Smith was disqualified from receiving benefits because he was fired

for misconduct. Smith appealed the AJ’s decision to the MDES Board of Review. After

adopting the AJ’s findings of fact, the Board affirmed the decision. Smith subsequently

appealed to the circuit court, which also affirmed the Board’s decision. Aggrieved, Smith

now appeals the circuit court’s judgment.

                                 STANDARD OF REVIEW

¶5.      Mississippi Code Annotated section 71-5-531 (Supp. 2014) states that the Board’s

findings of fact are conclusive if supported by evidence and if no fraud is involved.

Therefore, this Court’s jurisdiction on appeal is “confined to questions of law.” Id. The

Board’s findings create a rebuttable presumption, and the burden lies on the challenging

party to prove otherwise. Allen v. Miss. Emp’t Sec. Comm’n, 639 So. 2d 904, 906 (Miss.

1994).

¶6.      “If substantial evidence supports the [B]oard’s fact-finding and the relevant law was

properly applied to the facts, the appellate court must affirm.” Barnett v. Miss. Emp’t Sec.

Comm’n, 583 So. 2d 193, 195 (Miss. 1991) (emphasis added). If the Board’s findings are

supported by substantial evidence, “the fact that this Court, if charged with weighing the

evidence, might find otherwise is irrelevant.” Id. at 196-97. “[T]his Court must not reweigh

the facts of the case or insert its judgment for that of the agency.” Allen, 639 So. 2d at 906.

                                        DISCUSSION

¶7.      It is well settled that “[t]he burden of proof of disqualifying misconduct by clear and

convincing evidence is lodged with the employer.” Gore v. Miss. Emp’t Sec. Comm’n, 592

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So. 2d 1008, 1010 (Miss. 1992). The Mississippi Supreme Court addressed the definition

of “misconduct” in Wheeler v. Arriola, 408 So. 2d 1381, 1383 (Miss. 1982). There, the

supreme court defined “misconduct” as:

         [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, [come] within the term. Mere inefficiency,
         unsatisfactory conduct, failure in good performance as the result of inability
         or incapacity, or inadvertences and ordinary negligence in isolated incidents
         and good faith errors in judgment or discretion [are] not considered
         “misconduct.”

Id. (citation omitted). Furthermore, “repeated neglect of an employer’s interests may rise to

the [level] of misconduct.” Miss. Emp’t Sec. Comm’n v. Phillips, 562 So. 2d 115, 118 (Miss.

1990).

¶8.      Resorts’ four-strike discipline policy reflects a cohesive disciplinary procedure for

repeated violation of the company’s rules. Here, Smith’s offenses consisted of acts and

omissions that Resorts clearly outlined in its employee handbook as being prohibited. As

stated previously, Smith signed Resorts’ employee handbook, where he acknowledged and

agreed to adhere to Resorts’ policies, including the discipline policy.

¶9.      The record further indicates that Smith signed acknowledgment forms for each of his

first three offenses, thereby admitting his disregard for Resorts’ policies. The fourth and

final offense, Smith’s deliberate failure to contact a supervisor after recognizing a mistake

at his gaming table, was a policy that had been previously outlined by Resorts to Smith and

one which Smith clearly recognized. Smith had already violated the policy once, at which


                                                4
time he incurred his third offense. The requirement to contact a supervisor when a mistake

was made at Smith’s table was part of a policy that was obviously designed to protect

Resorts’ interests.

¶10.   Furthermore, the supreme court has held that it is not just whether the final offense

in a string of offenses is substantial “but whether the employee showed a pattern of

misconduct evidencing persistent disregard for the interests of the employer.” Kellar v. Miss.

Emp’t Sec. Comm’n, 756 So. 2d 840, 844 (¶10) (Miss. 2000). In Kellar, a man who was

employed as a games dealer was written up by his employer for four separate violations of

casino policy. Id. at 842 (¶2). The fifth and final incident involved him removing and eating

a can of pineapple from the employee salad bar and refusing to pay for it. Id. The supreme

court noted that the fact that it was the fifth incident solidified its rising to the level of

misconduct. Id. at 844 (¶¶15-16).

¶11.   The supreme court’s analysis and holding in Kellar serves to further justify the

conclusion that Smith committed misconduct worthy of termination, particularly when the

offenses are viewed in the aggregate. Accordingly, we find that there is substantial evidence

in the record to support the conclusion that Smith committed misconduct and was

disqualified from receiving unemployment benefits. As such, we affirm the circuit court’s

judgment.

¶12. THE JUDGMENT OF THE DESOTO COUNTY CIRCUIT COURT IS
AFFIRMED.

     LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ROBERTS, CARLTON,
MAXWELL AND FAIR, JJ., CONCUR. JAMES, J., CONCURS IN PART AND
DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION.



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