        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2016-CC-01201-COA

JACKSON-GEORGE REGIONAL LIBRARY                                            APPELLANT
SYSTEM

v.

MISSISSIPPI DEPARTMENT OF                                                    APPELLEE
EMPLOYMENT SECURITY

DATE OF JUDGMENT:                         07/11/2016
TRIAL JUDGE:                              HON. ROBERT P. KREBS
COURT FROM WHICH APPEALED:                JACKSON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   STACIE ELIZABETH ZORN
ATTORNEYS FOR APPELLEE:                   ALBERT B. WHITE
                                          ANNA CRAIN CLEMMER
NATURE OF THE CASE:                       CIVIL - STATE BOARDS AND AGENCIES
DISPOSITION:                              REVERSED AND RENDERED - 09/12/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

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

       ISHEE, J., FOR THE COURT:

¶1.    Johnell Fowler was terminated by the Jackson-George Regional Library System

(JGRLS) after posting a compromising photo of a library patron in violation of JGRLS’s

confidentiality policy. Fowler’s claim for unemployment benefits was initially denied by the

claims examiner on the basis of employee misconduct. On appeal before an administrative

law judge (ALJ), however, the claim examiner’s findings were reversed, and benefits were

awarded. JGRLS appealed the ALJ’s decision to the Mississippi Department of Employment

Security’s (MDES) Board of Review (the Board), which adopted and affirmed the ALJ’s

findings and conclusions. Aggrieved, JGRLS then appealed to the Jackson County Circuit
Court, which affirmed the Board’s decision. JGRLS now seeks relief from this Court. We

reverse and render.

             STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶2.    Fowler was employed as a clerk by the St. Martin Library, a branch of the JGRLS, for

roughly seven years and five months. Fowler was terminated on September 22, 2014, and

filed for unemployment benefits on September 30, 2014.

¶3.    At the time of Fowler’s termination, Fowler was on a six-month probationary period

implemented in June 2014.       Fowler’s notice of probation stated that if any further

disciplinary incidents or insubordination occurred while she was on probation, Fowler would

be subject to immediate disciplinary action including, but not limited to, suspension without

pay or termination. The infractions leading to Fowler’s probation, however, were excluded

from the ALJ’s scope of investigation because, according to JGRLS, Fowler’s final incident

was allegedly enough to warrant immediate termination.

¶4.    Sometime after the initiation of her probationary period, Fowler posted a

compromising photograph of a St. Martin library patron on Facebook. The photo depicted

the patron sitting at a library computer with her underwear exposed, which Fowler captioned

as “St. Martin’s finest.” Lori Barnes, director of the JGRLS, became aware of Fowler’s

photo, and on September 22, 2014, issued to Fowler a letter of termination. Pursuant to her

role as JGRLS’s director, Barnes possessed the sole authority to terminate JGRLS employees

for cause. Barnes stated in Fowler’s termination letter that Fowler’s posting of the photo

violated JGRLS’s “confidentiality policy,” which, in its entirety, read: “Maintain strict



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confidentiality of all customer information. Never discuss customers with other employees

in public areas.” The confidentiality policy, however, did not articulate the punishment for

a violation thereof. Barnes, in her letter, wrote that she could not fathom a more textbook

violation of the policy, and thus, terminated Fowler immediately.

¶5.    As a result, Fowler filed for unemployment benefits on September 30, 2014, which

a claims examiner initially denied on the basis that Fowler was found to have violated

JGRLS’s confidentiality policy. Fowler appealed to an ALJ. The ALJ conducted a

telephonic hearing on December 5, 2014, wherein Fowler and Barnes testified as to Fowler’s

termination, among other things. In light of the testimony presented at the hearing, the ALJ

reversed the findings of the claim examiner, and awarded Fowler benefits. The ALJ made

clear the “decision [was] rendered on a credibility basis,” and that the best-available evidence

revealed JGRLS’s confidentiality policy was not uniformly applied.

¶6.    Aggrieved, JGRLS appealed to the Board. The Board affirmed the ALJ, thereby

adopting the ALJ’s findings and conclusions. JGRLS then appealed to the Jackson County

Circuit Court. The circuit court affirmed the Board, which affirmed the ALJ’s finding that

substantial evidence existed supporting the conclusion that JGRLS did not uniformly enforce

its rules and policies. JGRLS now appeals to this Court, arguing that the Board’s ruling was

not supported by substantial evidence, and therefore, was arbitrary and capricious.

                                STANDARD OF REVIEW

¶7.    “Our review of an administrative appeal is well established. In the absence of fraud

and if supported by substantial evidence, an order from the Board of Review of the MDES



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on the facts is conclusive in the lower court.” EMC Enter. Inc. v. Miss. Dep’t of Emp’t Sec.,

11 So. 3d 146, 150 (¶9) (Miss. Ct. App. 2009) (internal quotations omitted). This Court will

not disturb an administrative agency’s decision “on appeal unless it ‘1) is not supported by

substantial evidence, 2) is arbitrary or capricious, 3) is beyond the scope or power granted

to the agency, or 4) violates one’s constitutional rights.’” Id. (citing Pub. Emps’ Ret. Sys. v.

Dozier, 995 So. 2d 136, 138 (¶7) (Miss. Ct. App. 2008)).

¶8.    “A rebuttable presumption exists in favor of the administrative agency’s decision and

findings, and the challenging party has the burden of proving otherwise.” Id. (citing

Cummings v. Miss. Dep’t of Emp’t Sec., 980 So. 2d 340, 344 (¶13) (Miss. Ct. App. 2008)).

“[I]f an agency’s decision is not based on substantial evidence, [however,] it will be deemed

arbitrary and capricious.” Id. (quoting Case v. Pub. Emps’ Ret. Sys., 973 So. 2d 301, 310

(¶20) (Miss. Ct. App. 2008)).

                                       DISCUSSION

       I.     Misconduct Defined

¶9.    “A person is disqualified from receiving unemployment benefits if ‘[she] was

discharged for misconduct connected with [her] work, if so found by [MDES].’” Kidd v.

Miss. Dep’t of Emp’t Sec., 202 So. 3d 1283, 1285 (¶6) (Miss. Ct. App. 2016); see also Miss.

Code Ann. § 71-5-513(A)(1)(b) (Rev. 2012). 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


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       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).

¶10.   Additionally, MDES Regulation 308.00 (Miss. Admin. Code § 20-1-101:308.00)

states, in pertinent part:

       For purposes of Mississippi Code Section 71-5-513, misconduct shall be
       defined as including but not limited to:

               1. The failure to obey orders, rules or instructions, or failure to
               discharge the duties for which an individual was employed;

                       a. An individual shall be found guilty of employee
                       misconduct for the violation of an employer rule
                       only under the following conditions:

                       i. the employee knew or should have known of the
                       rule;

                       ii. the rule was lawful and reasonably related to
                       the job environment and performance; and

                       iii[.] the rule is fairly and consistently enforced.

(Emphasis added). “The employer bears the burden of proving misconduct by substantial,

clear, and convincing evidence.” Kidd, 202 So. 3d at 1285 (¶6); accord Miss. Code Ann. §

71-5-513(A)(1)(c).

       II.     The Board’s Decision Was Not Supported by Substantial Evidence



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¶11.   As the circuit court highlighted in its order, the issue before the Board was whether

there was substantial evidence to support the finding that Fowler’s actions did not constitute

employee misconduct because JGRLS did not uniformly apply its confidentiality policy. On

appeal to this Court, JGRLS alleges there was no evidence upon which the Board could

support its decision. Reviewing the record, we likewise cannot say that the Board’s decision

was supported by substantial evidence.

¶12.   “Substantial evidence . . . means something more than a mere scintilla of evidence,

and that it does not rise to the level of a preponderance of the evidence.” Smith v. Tippah

Elec. Power Ass’n, 138 So. 3d 900, 903 (¶12) (Miss. 2014) (internal quotations omitted). “It

may be said that it means such relevant evidence as reasonable minds might accept as

adequate to support a conclusion.” Id. “Substantial evidence means evidence which is

substantial, that is, affording a substantial basis of fact from which the fact in issue can be

reasonably inferred.” Id. Here, JGRLS’s principal argument is that Fowler’s testimony

related to the ultimate issue was not based upon personal knowledge—therefore, it could not

rise to the level of substantial evidence. We agree.

¶13.   During the hearing before the ALJ, Barnes testified that, though Fowler was on

probation for prior, unrelated infractions, her posting of the photo was grounds for immediate

termination. Because of this testimony, Fowler’s prior infractions that lead to her probation

were deemed irrelevant, and excluded from the ALJ’s scope of investigation. Barnes further

testified that through her role as JGRLS’s director, she had personal knowledge of other

employees’ disciplinary records. She reiterated as well that JGRLS’s rules and regulations



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were uniformly and consistently enforced, that past employees had been subject to immediate

termination for confidentiality-policy violations, and that were other employees to post

similar photos, they would have faced similar penalties. Fowler, on the other hand, testified

to the contrary.

¶14.   Fowler began by stating that the Facebook photo she posted was of a patron, likely

taken in 2013, which remained on her phone for years; prior to her posting the photo, it had

never been shared with anyone else. Fowler went on to testify that she posted the photo after

other JGRLS employees began posting photos of a similar nature. Fowler stated that she was

aware of JGRLS’s policies, but at the time she posted the photo, did not believe her photo

violated any JGRLS rules as neither the patron’s name nor face was displayed in the photo.

She likewise stated that, in hindsight, she realized the posting was the wrong thing to do, but

in light of that above, she did not realize at the time that her actions would violate JGRLS’s

confidentiality policy.

¶15.   Fowler also stated that, to her knowledge, of the other employees who posted similar

Facebook photos, none were disciplined. Though she admitted that she did not divulge the

names of those fellow employees to Barnes, nor possessed actual, personal knowledge of

others’ disciplinary records, Fowler testified that she would have known if others were

reprimanded because JGRLS employees “talk to each other.”

¶16.   Following the hearing, the ALJ stated in his opinion:

       The best available evidence indicates that those rules were not uniformly
       enforced against all the employees. Violation of a rule that is not uniformly
       enforced does not constitute misconduct as defined by Mississippi state law.



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       This decision is rendered on a credibility basis. The testimony of [Fowler and
       Barnes] carried as to the enforcement of the rules. [Fowler’s] testimony on
       that issue was cohesive and convincing.

       While [Fowler’s] actions may constitute sufficient reason to discharge an at-
       will employee, they were not proven to constitute misconduct and thus do not
       disqualify the claimant from receiving unemployment insurance benefits.

Thus, the ALJ found that JGRLS did not meet its burden of proving misconduct by

substantial, clear, and convincing evidence. See Kidd, 202 So. 3d at 1285 (¶6); accord Miss.

Code Ann. § 71-5-513(A)(1)(c); see also Miss. Admin. Code § 20-1-101:308.00.

¶17.   It was further found that Fowler’s testimony was consistent, reliable, and credible.

JGRLS, however, contends that because Fowler’s testimony was uncorroborated hearsay not

based upon any personal knowledge, it cannot rise to the level of substantial evidence, and

thus, the Board’s adoption of the ALJ’s findings was arbitrary and capricious. We agree.

¶18.   We find such even in light of the fact that “the [R]ules of [E]vidence are relaxed in

administrative settings[.]” SkyHawke Tech. LLC v. Miss. Dep’t of Emp’t Sec., 110 So. 3d

327, 330 (¶9) (Miss. Ct. App. 2012). We also acknowledge that the circuit court relied

heavily on McClinton v. Mississippi Department of Employment Security, 949 So. 2d 805

(Miss. Ct. App. 2006), in which this Court held that “if hearsay, even if not corroborated in

the traditional sense, is highly probative because it has strong indicia of reliability, it can at

least in many situations be substantial evidence.” Id. at 814 (¶29). Likewise, MDES asserts

the same here. Upon review of the record, however, we cannot say that this is one of the

many situations the McClinton court anticipated.

¶19.   This is because Mississippi Rule of Evidence 602 states “[a] witness may testify to



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a matter only if evidence is introduced sufficient to support a finding that the witness has

personal knowledge of the matter.” M.R.E. 602. Thus, “[a] person must have personal

knowledge of the matter as opposed to a mere opinion, in order to testify.” M.R.E. 602

advisory committee’s note to 2016 amendment (emphasis added). And though evidence

“introduced to sufficiently prove the witness’s personal knowledge” permits “the witness [to]

testify to that matter,” we find such is not the case here. Robinson v. State, 940 So. 2d 235,

238 (¶9) (Miss. 2006).

¶20.   To begin, Fowler admitted that she lacked any personal knowledge as to other

employees’ disciplinary records. From an evidentiary standpoint alone, that is enough to bar

her testimony as to the uniform enforcement of JGRLS’s rules and regulations. See M.R.E.

602. Going further, however, we cannot say that Fowler’s assertions of personal knowledge

due to employee correspondence was enough to “supply the necessary foundation showing

that [she] ha[d] personal knowledge.” See M.R.E. 602 advisory committee’s note to 2016

amendment. JGRLS employs over ninety employees across eight different branches. Yet

Fowler failed to report any of the other employees allegedly engaged in similar conduct, and

did not provide any statements by them to her that would have given her personal knowledge

that they had not been disciplined. Thus, having laid no foundation, and possessing no

personal knowledge as to the ultimate issue of uniform enforcement, we find Fowler’s

testimony cannot constitute substantial evidence—as such, the Board’s decision cannot stand.

                                      CONCLUSION

¶21.   In sum, we recognize both the highly deferential standard of review accorded the



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Board’s findings and the rebuttable presumption in favor of its decision. EMC, 11 So. 3d at

150 (¶9) (citing Cummings, 980 So. 2d at 344 (¶13)). Nevertheless, because we find the

Board’s decision was not supported by substantial evidence, it necessarily follows that the

decision was also arbitrary and capricious. See id. Therefore, we reverse and render the

judgment of the circuit court, and reinstate the ruling of the claims examiner denying benefits

to Fowler.

¶22.   REVERSED AND RENDERED.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR,
WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.




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