                      IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2004-CT-00522-SCT

JOE BROOME

v.

MISSISSIPPI EMPLOYMENT SECURITY
COMMISSION AND MISSISSIPPI COLLEGE


DATE OF JUDGMENT:                        02/6/2004
TRIAL JUDGE:                             HON. BOBBY BURT DELAUGHTER
COURT FROM WHICH APPEALED:               HINDS COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                  QUENTIN P. McCOLGIN
ATTORNEYS FOR APPELLEES:                 W. THOMAS McCRANEY, III
                                         ALBERT B. WHITE
NATURE OF THE CASE:                      CIVIL - STATE BOARDS AND AGENCIES
DISPOSITION:                             JUDGMENT OF COURT OF APPEALS IS
                                         REVERSED AND JUDGMENT OF THE HINDS
                                         COUNTY CIRCUIT COURT IS REINSTATED
                                         AND AFFIRMED - 01/19/2006
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       EN BANC.

       SMITH, CHIEF JUSTICE, FOR THE COURT:

¶1.    Joe Broome, a former employee of Mississippi College, sought unemployment

benefits after his employment was terminated due to misconduct.   Broome appealed to the

Mississippi Employment Security Commission (MESC) after he was denied benefits due to

his alleged misconduct.   The MESC referee denied Broome unemployment benefits, and

Broome then appealed to the Board of Review, which affirmed the denial.    Next, Broome

appealed to the Circuit Court of Hinds County which adopted the MESC’s decision. Broome
appealed the circuit court’s denial to the Court of Appeals, which reversed and rendered the

MESC’s decision.       Mississippi College then filed a petition for writ of certiorari, which was

granted by this Court, and is the basis of the present matter.

¶2.     We find the circuit court did not err in affirming the decision of the MESC.     There is

substantial evidence to support the MESC’s decision to deny benefits based on Broome’s

misconduct. Therefore, we reverse the Court of Appeals and affirm and reinstate the judgment

of the circuit court and hold Broome is not entitled to unemployment compensation benefits.




                                                 FACTS

¶3.     Broome was employed in May 1997 by Mississippi College in the housekeeping

department as a floater. As a floater, Broome was expected to perform various housekeeping

tasks. During Broome’s tenure at Mississippi College, he was cited a number of times for his

pattern of poor attendance.       On July 16, 2001, Mississippi College issued Broome his first

unsatisfactory performance review for failing to report to work or notify the department, which

Broome failed to sign.     During that review, Mississippi College informed Broome that he must

report to work when he was scheduled to work, or notify his supervisor prior to the scheduled

work time as to why he would be absent.

¶4.     On January 18, 2002, Broome’s superiors read a report to Broome concerning his

excessive absences, leaving work early, and tardiness. Broome was issued a warning that any

further absences would require written documentation explaining the reason for his absence.

¶5.     On January 30, 2002, Broome received a second unsatisfactory performance review and

was suspended for one day without pay stemming from a disruptive personal event that


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occurred on Mississippi College’s campus.       As before,     Broome refused to sign the second

unsatisfactory review.   Broome was cited in the review for leaving his work area without

permission, his lack of full cooperation with the campus safety department, and his disruptive

behavior in the matter. On February 1, 2002, Broome was placed on probation for sixty days

as the result of his job performance and the unsatisfactory write up he received on January 30,

2002.

¶6.     On November 8, 2002, Broome’s supervisor, James Carter, convened a meeting with

Broome to discuss his attendance problems.           Specifically, the meeting was held to address

whether Broome had a doctor’s excuse for missing work on November 7, 2002. Broome left

the meeting, went to the Healthplex and returned with a doctor’s note covering November 1

through November 9, even though he had worked on November 4, 5 and 6. The doctor’s note

also excused Broome from working the remainder of the day on November 8, and the next day

November 9.     Carter called attention to Broome’s disruptive behavior both during the meeting

and constantly during the course and scope of his employment at the college.           Carter also

expressed his extreme disappointment and dissatisfaction with Broome’s attitude and behavior.




¶7.     On December 8, 2002, Broome was arrested and charged with armed robbery and

possession of a firearm by a convicted felon.     Broome remained incarcerated in the Raymond

County Jail until he posted a bond and was released on December 11, 2002.

¶8.     Broome claims he was unable to personally contact Mississippi College in accordance

with their policy during his incarceration because he did not have access to a telephone during

normal business hours.     Therefore, Broome contacted his girlfriend and instructed her to


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contact Mississippi College on his behalf and inform them that he would be absent from work

because he “had some important business to take care of.”

¶9.    Broome’s girlfriend complied with his request and informed Mississippi College that

he would not be able to attend work on December 9 and 10. However, instead of reporting that

Broome’s absence was due to personal business, Broome’s girlfriend told Mississippi College

on December 9 “his mom was sick and [] they was having illness and [] his mom sick.”

Similarly, on December 10, Broome’s girlfriend told Mississippi College that Broome would

be absent because “his mother was sick.”

¶10.   On December 10, Glenn Worley, director of the physical plant at Mississippi College,

was informed of Broome’s arrest and incarceration.           After confirming that Broome was

suspected of armed robbery and in the custody of the authorities, the decision was made to

terminate Broome’s employment.

¶11.   Broome     applied   for   unemployment    benefits   subsequent   to   his   discharge from

Mississippi College.    After an employment interviewer conducted an examination, Broome’s

request for unemployment benefits was denied on the grounds of misconduct.           Broome then

filed an appeal with the appeals referee, who held a hearing and concluded Broome’s actions

constituted disqualifying misconduct.      Broome then appealed the referee’s decision to the

Board of Review, which affirmed the referee’s denial of unemployment benefits.             Broome

appealed the decision of the Board of Review to the Hinds County Circuit Court. The circuit

court determined the Board of Review’s decision was based on substantial evidence and

affirmed the Board’s ruling.   The Court of Appeals reversed the decision of the circuit court.

                                   STANDARD OF REVIEW


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¶12.   The standard of review for appealing a decision of the MESC is governed by Miss. Code

Ann. Section 71-5-531 which provides: “[i]n any judicial proceedings under this section, 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 said court shall be confined to questions of

law.” This Court has previously stated: “[w]here there is the required substantial evidence, this

Court has no authority to reverse the circuit court’s affirmance of the decision of the Board

of Review.” Richardson v. Mississippi Employment Sec. Comm’n, 593 So. 2d 31, 34 (Miss.

1992) (citing Ray v. Bivens, 562 So. 2d 119, 121 (Miss. 1990)); Piggly Wiggly v. Mississippi

Employment Sec. Comm’n, 465 So. 2d 1062, 1065 (Miss. 1985); Wheeler v. Arriola, 408

So. 2d 1381, 1383 (Miss. 1982)). “The board’s findings of fact are conclusive if supported by

substantial evidence and without fraud.” Hoerner Boxes, Inc. v. Mississippi Employment Sec.

Comm’n, 693 So. 2d 1343, 1347 (Miss. 1997); See also Richardson, 593 So. 2d at 34; Ray

v. Bivens, 562 So. 2d 119, 121 (Miss. 1990); Melody Manor, Inc. v. McLeod, 511 So. 2d

1383, 1385 (Miss. 1987).     Therefore, “this Court must not reweigh the facts of the case or

insert its judgment for that of the agency.” Allen v. Mississippi Employment Sec. Comm’n,

639 So. 2d 904, 906 (Miss. 1994) (citing Mississippi Pub. Serv. Comm’n v. Merchants

Truck Line, Inc., 598 So. 2d 778, 782 (Miss. 1992)).




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                                          DISCUSSION

       I.      WHETHER THE CIRCUIT COURT ERRED IN AFFIRMING THE
               MISSISSIPPI EMPLOYMENT SECURITY COMMISSION’S
               DENIAL OF UNEMPLOYMENT BENEFITS BASED ON THE
               HOLDING THAT BROOME’S ACTIONS CONSTITUTED
               MISCONDUCT

¶13.   “The underlying purpose of implementing employment security law in Mississippi is

to protect those workers not permitted to continue employment through no fault of their own.”

Allen, 639 So. 2d at 906 (citing Mississippi Employment Sec. Comm’n v. Gaines, 580 So.

2d 1230, 1234 (Miss. 1991); Mississippi Employment Sec. Comm’n v. Fortenberry, 193 So.

2d 142, 144 (Miss. 1966)). Broome claims his failure to disclose the reason for his absences

on December 9 and 10 did not constitute misconduct. Broome insists the MESC erroneously

disqualified him from collecting unemployment benefits to which he was entitled.   Conversely,

the MESC argues that the board of review’s decision to deny Broome benefits on the grounds

of misconduct was supported by substantial evidence.

¶14.   In the often cited case Wheeler v. Arriola, 408 So. 2d 1381, 1383 (Miss. 1982), this

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 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, came 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 were not considered “misconduct” within the
       meaning of the statute.




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Further this Court has also elaborated on the definition of misconduct by stating:

“[m]isconduct imports conduct that reasonable and fair minded external observers would

consider a wanton disregard of the employer’s legitimate interests.” Mississippi Employment

Sec. Comm’n v. Phillips, 562 So. 2d 115, 118 (Miss. 1990).

¶15.    During his tenure at Mississippi College, Broome had a record that reflected a pattern

of excessive absenteeism.     Mississippi College had a policy requiring any employee missing

work to notify their supervisor.     Occasionally Broome complied with this policy and notified

his supervisor of his absences, and at other times Broome ignored this policy.           Further,

Broome’s first unsatisfactory review provided that if Broome was unable to be present for

work, he was required to notify his supervisor as to the reason for his absence. Thus, Broome

was on notice of the protocol to follow if he was to be absent from work.

¶16.    This Court noted in Barnett v. Mississippi Employment Sec. Comm’n, 583 So. 2d 193,

196 (Miss. 1991), that in some circumstances “excessive absenteeism could constitute

misconduct.”   Additionally, Barnett held “[a] claimant’s failure to notify the employer of the

reason for absences can constitute misconduct, if there is a policy that requires such notice.”

Id.    The referee determined Broome was not entitled to benefits based on the untruthful

reasons his girlfriend supplied to his employer while he was incarcerated.      Also, the referee

noted that Broome may not have instructed his girlfriend to lie for him, but he certainly did not

want his employer to know the real reason for his absence due to his past attendance problems.




¶17.    The record is replete with instances of Broome’s absences, misconduct, and the

warnings he received from Mississippi College.        Broome’s deception, repeated absences, and

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continued misbehavior were in substantial disregard of Mississippi College’s interests.                See

Wheeler, 408 So. 2d at 1383.               Broome also substantially disregarded the duties and

obligations he owed to Mississippi College.         See Id.       After collectively viewing the pattern of

Broome’s absences and disruptive conduct during the course of his employment, we find that

reasonable and fair-minded observers would classify Broome’s activity as a wanton disregard

of Mississippi College’s legitimate interests. See Phillips, 562 So. 2d at 118. This Court has

previously stated: “if there is substantial evidence to support the Board’s decision, the fact that

this Court, if charged with weighing the evidence, might find otherwise is irrelevant.” Barnett,

583 So. 2d at 196.

¶18.     We also note that the purpose of the “employment fund is to take care of deserving

employees who have lost their jobs through no misconduct and involuntary unemployment.”

Mississippi Employment Sec. Comm’n v. Borden, 451 So. 2d 222, 224 (Miss. 1984).                        We

find Broome is not a “deserving employee” in accordance with legislative intent.

¶19.     Mississippi College argues that, contrary to the applicable standard of review, the Court

of Appeals incorrectly reweighed the evidence and substituted its judgement for that of the

agency’s. See Trading Post, Inc. v. Nunnery, 731 So. 2d 1198, 1200 (Miss. 1999). The

Court of Appeal’s opinion undertakes a new factual analysis in each of the two issues. Broome

v. Mississippi Employment Sec. Comm’n, 2005 WL 1500 29F, at *1 (Miss. Ct. App. June 14,

2005).    Additionally, the Court of Appeals made the following conclusions for each issue as

a matter of fact, subsequent to a detailed study of the record:




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            A. “Broome could not have been found guilty of misconduct for violating his
            employer’s policy of personally making the call when the evidence shows that
            it was impossible for Broome to comply with this directive.”

            B.      “Broome’s embarrassment about being imprisoned and his failure to
            explicitly tell his girlfriend to tell the truth does not constitute misconduct that
            demonstrates a willful or wanton disregard for his employer’s interests.”

Id. at *3, *5.

¶20.        We hold that the Court of Appeals improperly reweighed the evidence and substituted

its judgement for that of the MESC in this matter.           The Court of Appeals opinion is almost

entirely void of any consideration of whether substantial evidence was present in support of

the MESC’s ruling.         Further, the Court of Appeals did not apportion great deference to the

MESC’s ruling, as required under the applicable standard of review. Id. at *5.            The Court of

Appeals may disagree with the findings of the MESC, however it had no authority in its limited

appellate role to reevaluate the relative weights of the parties’ proof. Mississippi Comm’n on

Evntl. Quality v. Chickasaw County Bd. of Supervisors, 621 So. 2d 1211, 1216 (Miss. 1993).

Hence, the Court of Appeals deprived the MESC’s decision of the substantial deference it was

entitled.

                                             CONCLUSION

¶21.        After a diligent review of the record we find there is substantial evidence in the record

to support the MESC’s decision denying Broome unemployment benefits. Therefore, for the

reasons stated, the judgment of the Court of Appeals is reversed and the judgment of the

Circuit Court of Hinds County reinstated and affirmed.

¶22. JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE
JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY IS REINSTATED AND
AFFIRMED.

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     WALLER AND COBB, P.JJ., EASLEY, CARLSON, DICKINSON AND
RANDOLPH, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY. DIAZ, J.,
NOT PARTICIPATING.




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