        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2013-CC-02117-COA

MISSISSIPPI DEPARTMENT OF                                                 APPELLANT
EMPLOYMENT SECURITY

v.

JACKSON COUNTY, MISSISSIPPI                                                 APPELLEE

DATE OF JUDGMENT:                         11/14/2013
TRIAL JUDGE:                              HON. MICHAEL H. WARD
COURT FROM WHICH APPEALED:                JACKSON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                  LEANNE F. BRADY
                                          ALBERT B. WHITE
ATTORNEY FOR APPELLEE:                    RYAN A. FREDERIC
NATURE OF THE CASE:                       CIVIL - STATE BOARDS AND AGENCIES
TRIAL COURT DISPOSITION:                  REVERSED DECISION OF MISSISSIPPI
                                          DEPARTMENT OF EMPLOYMENT
                                          SECURITY BOARD OF REVIEW
DISPOSITION:                              AFFIRMED - 06/09/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

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

       ISHEE, J., FOR THE COURT:

¶1.    Patrick Arroyo was employed by Jackson County, Mississippi, as the drug-court

coordinator for approximately eight months until he resigned in August 2012. Shortly

thereafter, he filed for unemployment benefits with the Mississippi Department of

Employment Security (MDES). An investigation resulted in a denial of the benefits based

on the conclusion that Arroyo left his employment for personal reasons. Arroyo appealed the

denial, and, after hearing testimony and evidence, an administrative judge (AJ) determined
that Arroyo had committed misconduct that disqualified him from receiving the benefits.

Arroyo appealed the AJ’s decision to the MDES Board of Review, which reversed the AJ’s

judgment. The Board instead found that sufficient evidence was not presented to prove that

Arroyo committed disqualifying misconduct. Jackson County then appealed the Board’s

decision to the Jackson County Circuit Court. Special Judge Michael H. Ward was appointed

to the case, and reversed the Board’s judgment on November 11, 2013. Aggrieved, MDES

appeals. Finding no error, we affirm.

                              STATEMENT OF FACTS

¶2.   In 2012, Arroyo worked as the coordinator for the drug-court program in Jackson

County. As part of his employment, he was prohibited from using any intoxicating substance

at work, including prescribed narcotics.        The policy against drug use was clearly

communicated to Arroyo. By his own admission, both verbally and in written form, Arroyo

acknowledged that he was aware of the policy at all relevant times.

¶3.   Following a random drug screen of drug-court employees, Arroyo tested positive for

Xanax, an anti-anxiety medication. Arroyo admitted that he had a prescription for Xanax,

but that he was taking the drug for a purpose other than its intended use. Due to Arroyo’s

history as a drug user and his position as the drug-court coordinator, he was counseled

regarding the problem and issued a warning from his superiors.

¶4.   Several months later, Arroyo underwent a second random drug screen. The results

were inconclusive.    However, possible Lortab usage was indicated.       Again, Arroyo

completed counseling sessions, during which he was warned that he was not permitted to



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take narcotics. The record indicates that Arroyo was given an ultimatum during the

counseling sessions that he would be terminated the next time he tested positive for any drug

usage.

¶5.      In August 2012, Arroyo asserted that he was experiencing back pain and was

prescribed Lortab, a controlled narcotic, for the pain. On August 17, 2012, he filled the

prescription and took half of a tablet of Lortab. During a meeting that morning, Arroyo

showed his supervisor, Jackson County Circuit Court Judge Robert Krebs, and a staff

attorney, Tommy Laws, his prescription and admitted that he had taken one of the tablets.

Judge Krebs conveyed to Arroyo in no uncertain terms that narcotic usage of any kind was

not allowed and that Arroyo would not be permitted to take the narcotic and continue in his

employment as the drug-court coordinator. Judge Krebs told Arroyo that if the narcotic

usage continued, Arroyo would either have to resign or be terminated.

¶6.      On August 24, 2012, Judge Krebs called Arroyo and Laws into a meeting regarding

a separate and unrelated work incident involving Arroyo. Judge Krebs informed Arroyo that

due to his poor job performance and his continued drug usage, he would no longer be

allowed to work as the drug-court coordinator. Judge Krebs then gave Arroyo the option of

resigning or being terminated.      Arroyo issued two handwritten letters effecting his

resignation that day.

¶7.      Shortly thereafter, Arroyo filed for unemployment benefits with MDES. MDES

assigned a claims examiner to the case to determine if Arroyo was eligible for the benefits.

An investigation ensued, and Arroyo was eventually denied the benefits. The claims



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examiner determined that Arroyo resigned from his position due to personal reasons, thereby

disqualifying him from obtaining unemployment benefits. Arroyo appealed the decision to

MDES.

¶8.    Several telephonic hearings then took place with the assigned AJ, after which time the

AJ affirmed the initial MDES decision denying Arroyo benefits. Aggrieved, Arroyo

appealed to the Board. Although Arroyo technically resigned, the Board deemed the

circumstances a constructive discharge, and evaluated it in terms of whether or not Arroyo

was discharged based on misconduct. Ultimately, the Board found that Jackson County had

not met its burden of proving that Arroyo committed misconduct. The Board concluded that

although taking the narcotic was against Jackson County’s policy, the act did not rise to the

level of misconduct. Hence, the AJ’s ruling was reversed, and Arroyo was awarded benefits.

¶9.    Jackson County appealed the Board’s decision to the circuit court. Due to the close

proximity of Judge Krebs to the case, the Mississippi Supreme Court assigned Judge Ward

as a special judge. After both parties filed briefs on the issues, Judge Ward reversed the

Board’s decision and reinstated the AJ’s decision denying Arroyo benefits. MDES now

appeals.

                                      DISCUSSION

¶10.   We employ an abuse-of-discretion standard when reviewing a trial court’s decision

to affirm or reverse an administrative agency’s findings. McGee v. Miss. Emp’t Sec.

Comm’n, 876 So. 2d 425, 427 (¶5) (Miss. Ct. App. 2004) (citation omitted). We must

“review the record to determine whether there is substantial evidence to support the



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Board[’s] . . . findings of fact, and further, whether, as a matter of law, the employee’s

actions constituted misconduct disqualifying him from eligibility for unemployment

compensation.” Miss. Emp’t Sec. Comm’n v. Berry, 811 So. 2d 298, 301 (¶8) (Miss. Ct. App.

2001) (citing City of Clarksdale v. Miss. Emp’t Sec. Comm’n, 699 So. 2d 578, 580 (¶15)

(Miss. 1997)).

¶11.     The supreme court defined “misconduct” in Wheeler v. Arriola, 408 So. 2d 1381,

1383 (Miss. 1982), 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). Moreover, “repeated neglect of an employer’s interests may rise to the

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

1990).

¶12.     Additionally, the supreme court has addressed the proper analysis of a claimant’s

eligibility for unemployment benefits when possible misconduct is at issue. See Johnson v.

Miss. Emp’t Sec. Comm’n, 761 So. 2d 861, 866 (¶19) (Miss. 2000); Halbert v. City of

Columbus, 722 So. 2d 522, 526-27 (¶¶18-21) (Miss. 1998). Put simply, “numerous cases .

. . support the position that misconduct occurs . . . where an employer establishes an



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

and the employee violates these policies.” Johnson, 761 So. 2d at 866 (¶19) (citations

omitted).

¶13.   Here, we cannot find that the circuit court abused its discretion in overturning the

Board’s decision. It is clear that Jackson County’s policy prohibiting Arroyo, as the drug-

court coordinator, from using narcotics was aptly conveyed to Arroyo. Arroyo admits that

he was aware of the policy both prior to and during his employment as the drug-court

coordinator. Nonetheless, after being cautioned on two prior occasions regarding his drug

usage, Arroyo continued to use a prescribed narcotic and even presented the narcotic to his

employer. When given the choice between ceasing the drug usage and keeping his job or

continuing the drug usage and losing his job, Arroyo chose the latter. His repeated actions

flew in the face of his employer’s policy, and yet he continued to use the prescribed narcotic.

Hence, we cannot find fault in the circuit court’s determination that Arroyo committed

disqualifying misconduct. This issue is without merit.

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

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




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