                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2014-CC-01142-SCT

DEVIN JONES

v.

MISSISSIPPI EMPLOYMENT SECURITY
COMMISSION

DATE OF JUDGMENT:                        06/19/2014
TRIAL JUDGE:                             HON. JAMES LAMAR ROBERTS, JR.
TRIAL COURT ATTORNEY:                    LEANNE F. BRADY
COURT FROM WHICH APPEALED:               LEE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                  ALEXANDER J. SIMPSON, III
ATTORNEYS FOR APPELLEE:                  ALBERT B. WHITE
                                         LEANNE F. BRADY
NATURE OF THE CASE:                      CIVIL - STATE BOARDS AND AGENCIES
DISPOSITION:                             REVERSED AND REMANDED - 01/07/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      EN BANC.

      DICKINSON, PRESIDING JUSTICE, FOR THE COURT:

¶1.   After determining that Devin Jones voluntarily quit his job without good cause, the

Mississippi Department of Employment Security (MDES) denied his application for

unemployment benefits. Because the Administrative Law Judge (ALJ) relied solely on an

inapplicable provision from the employee handbook in concluding that Jones had voluntarily

quit his job, we reverse and remand.

                 FACTUAL AND PROCEDURAL BACKGROUND

¶2.   Jones worked for T&L Specialty Company (“T&L”) as a product technician beginning

on June 18, 2012, and ending on February 4, 2013. On February 4, 2013, Jones timely
reported to work at 7:00 p.m. and performed his assigned duties until his first break at 9:00

p.m. While on his break, Jones learned that his fiancé was having complications related to

her pregnancy, so he left work early. He did not notify his supervisor, Mitch Monts, that he

was leaving, but he did ask his coworker, Demetrius Tatum, to tell Monts that he was leaving

and why. Tatum, however, failed to relay this message, and so Monts did not learn of the

emergency.

¶3.    Pursuant to a policy in T&L’s employee handbook, Monts concluded that—by leaving

work early without informing him within eight hours—Jones had “voluntarily quit” his job.

He immediately hired a replacement for Jones. Unaware that Monts deemed him to have quit

voluntarily, Jones returned to work the following day. Jones pleaded with Monts, and then

with Karen Hodum from T&L’s Human Resources department, insisting that he had not

intended to quit his job and maintaining that he believed that, by leaving work early, he

would only receive a half-point on his record.

¶4.    Jones’s pleas with T&L representatives proved unsuccessful and so he filed a claim

for unemployment benefits. Initially, a claims examiner concluded that Jones was ineligible

to receive benefits because he had committed misconduct. Jones appealed this decision to

the ALJ. After conducting a telephonic hearing, the ALJ issued a decision declaring Jones

ineligible to receive unemployment benefits on the basis of “constructively voluntarily

quitting” his employment without good cause.




                                             2
¶5.       After the ALJ issued her decision, Jones appealed to the Board of Review, but, due

to a “technical glitch,” the Board was under the impression that the ALJ had dismissed

Jones’s claim for nonparticipation and accordingly affirmed. Jones then appealed the

Board’s decision to the Circuit Court of Lee County. During the appeal process, MDES

realized its mistake and requested that the circuit court remand the case to the Board to

consider the case on the merits, and the case subsequently was remanded to the Board.

¶6.       Once the circuit court had remanded this case to the Board, the Board issued an order

remanding the case to the ALJ for further hearing and a decision on the merits. Following

a fairly confusing sequence of events, the Board rendered a decision stating that “after

careful review and consideration,” it would adopt the findings of fact and opinion of the ALJ

and thereby affirmed the decision.

¶7.       Jones once again appealed the Board’s decision to the Lee County Circuit Court, and

the circuit court affirmed the Board’s decision, stating that “the decision of the Board of

Review of the Mississippi Department of Employment Security was supported by substantial

evidence, was not arbitrary, and contains no errors of law, and that the same should be

AFFIRMED.” Jones timely filed his Notice of Appeal to this Court, asserting the following

issues:

          I.     Whether the circuit court erred in affirming the decision of the
                 Board of Review and the ALJ that Jones was not entitled to receive
                 unemployment benefits due to his having “constructively
                 voluntarily quit” his employment.



                                                3
       II.    Whether the circuit court erred in finding that the actions of the
              Board of Review after remand were not arbitrary and capricious.

       III.   Whether there was substantial evidence that Jones committed
              misconduct within the meaning of the unemployment law, and thus
              was ineligible to receive benefits.

¶8.    Finding the first issue to be dispositive, we decline to address the remaining issues.

                               STANDARD OF REVIEW

¶9.    This Court will not disturb an administrative agency’s decision unless it is 1) not

supported by substantial evidence, 2) is arbitrary and/or capricious, 3) beyond the scope or

power granted to the agency, or 4) violated one’s constitutional rights.1 Our standard of

review, therefore, is very restricted and, consequently, “an order from a Board of Review of

the Employment Security Commission on the facts is conclusive . . . if supported by

substantial evidence” absent a finding a fraud.2

                                       ANALYSIS

       Whether the Circuit Court erred in affirming the decision of the Board of
       Review and the Administrative Law Judge that Jones was not entitled to
       receive unemployment benefits due to his having “constructively
       voluntarily quit” his employment.




       1
        Mississippi Comm’n on Envtl. Quality v. Chickasaw Cty. Bd. of Supervisors, 621
So. 2d 1211, 1215 (Miss. 1993) (emphasis added).
       2
       Mississippi Emp’t Sec. Comm’n v. PDN, Inc., 586 So. 2d 838, 840 (Miss. 1991)
(emphasis added).

                                             4
¶10.   Pursuant to Mississippi unemployment law, an individual is disqualified from

receiving unemployment benefits if he “left work voluntarily without good cause. . . .”3

Whether a claimant “voluntarily quit” is a question of fact to be determined by the ALJ and

Board of Review,4 but MDES is not afforded unbridled discretion in making decisions to

award or deny benefits. Its decisions must be based on substantial evidence.5

¶11.   In concluding that Jones voluntarily had quit his job, the ALJ relied solely on the

following provision contained within T&L’s employee handbook, and then applied this

provision to determine that Jones voluntarily had quit his job:

       It is the employee’s responsibility to notify their supervisor if the employee
       will be late or absent for any reason by 8 a.m. If an employee does not contact
       the supervisor or another company representative within 8 hrs of an absence,
       the company will consider that the employee has voluntarily quit and
       termination will take place.

¶12.   The ALJ ignored relevant language which preceded the paragraph quoted above.

Specifically, the employee handbook also stated the following:

       Absentee “Points System” for employees:

       Points are assigned for absences of any kind as described below (other than
       authorized time off with pay or authorized time off without pay, as described



       3
           Miss. Code Ann. § 71-5-513 (A)(1)(a) (Rev. 2011 ).
       4
           Mississippi Emp’t Sec. Comm’n v. Fortenberry, 193 So. 2d 142, 143 (Miss. 1966).
       5
         See Broome v. Mississippi Emp’t Sec. Comm’n, 921 So. 2d 334, 337 (Miss. 2006);
Johnson v. Mississippi Emp’t Sec. Comm’n, 761 So. 2d 861, 863 (Miss. 2000); Huckabee
v. Mississippi Emp’t Sec. Comm’n, 735 So. 2d 390, 394 (Miss. 1999); Wheeler v. Arriola,
408 So. 2d 1381, 1384 (Miss. 1982) (emphasis added).

                                             5
       later in this policy). Each employee begins with zero points, and points
       assigned remain on record for 12 consecutive months.
               Tardy              =            ½ point
               Leave early        =            ½ point
               Reported absence =              1 point

¶13.   Thus, the handbook clearly distinguishes between being late (or tardy), leaving early,

and being absent. By the very terms of the employee handbook—upon which the ALJ

relied—Jones was required to notify his employer only if he was going to be late or absent.

Further, under the terms of the policy, an employee was deemed to have “voluntarily quit”

only if he failed to notify the employer within eight hours of being absent. The eight-hour-

notification requirement did not apply to “leave early.” The only provision relevant on these

facts provides that “leaving early” merely results in a half-point assignment to Jones’s record.

¶14.   While we find the handbook language to be clear, the dissent says:

       [B]ased on the plain language of these provisions, an employee who leaves
       work early clearly is considered absent. . .[and] see[s] no difference between
       an employee who fails to report to work . . . and an employee who reports to
       work but then leaves.

¶15.   Respectfully, we find nothing in the handbook’s language that supports this

proposition. To the contrary, the handbook sets out a clear distinction between the terms

“tardy,” “leave early,” and “absence.” As further support, we note that there would be no

need for the distinction if, as the dissent has concluded, they all mean the same thing.

¶16.   The dissent also makes much of the fact that, at the telephonic hearing held by the

ALJ, the T&L representatives maintained that they believed “leave early” and “absent” to be

“one and the same for purposes of its attendance policy.” Even if this is true, it matters not

                                               6
what these T&L employees believed these words to mean, because the plain language of the

policy directly contradicts any such notion that the two terms mean the same thing.

¶17.   Finally, the dissent asserts that Jones bore the burden of proof to establish that he had

good cause for leaving work. We agree. But the error we find is not the weight of the

evidence, but rather the ALJ’s incorrect determination that Jones “voluntarily quit” his job.

On remand, Jones certainly will have the burden of proving that he had good cause for

leaving work early.

¶18.   Within the “findings of fact” portion of her decision, the ALJ—relying on her

incorrect interpretation of the handbook provision—found the following:

       The claimant constructively quit on February 5, 2013, when he left work
       during a break and did not return or notify the employer. The employer policy
       requires employees to notify their supervisor if absent, tardy, or leave work
       early. If a person leaves work without notifying the supervisor and makes no
       attempt to call for eight (8) hours, the employer considers the employee to
       have quit.

¶19.   Nowhere does the ALJ conclude that Jones was being untruthful about his reason for

leaving work early, nor is there any indication that the ALJ considered Jones’s fiancee’s

pregnancy complications to be less than good cause. Thus, the dissent’s concern for the

burden of proof is unfounded.

¶20.   On the day in question, Jones was not tardy, nor was he absent, and so the policy

requiring him to notify his employer within eight hours or be deemed to have quit voluntarily,

did not apply. Jones’s argument that he believed he would receive only a half-point in his

record for leaving early that day is completely consistent with the plain language of the

                                               7
policy included within the handbook. Because the “voluntary quit” provision did not apply

to Jones’s conduct on these facts, the ALJ erred in relying exclusively on it to conclude that

Jones voluntarily had quit his job.

                                      CONCLUSION

¶21.   Because the ALJ relied solely on an inapplicable provision from the employee

handbook in concluding that Jones voluntarily had quit his job, we find that MDES’s

decision in denying Jones unemployment benefits was not supported by substantial evidence.

Accordingly, we must reverse the judgment of the Lee County Circuit Court and remand this

case for a proper determination of whether Jones is eligible for unemployment benefits.

¶22.   REVERSED AND REMANDED.

     LAMAR AND COLEMAN, JJ., CONCUR. KITCHENS, J., CONCURS IN
RESULT ONLY WITH SEPARATE WRITTEN OPINION JOINED BY KING, J.
PIERCE, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY
WALLER, C.J., AND RANDOLPH, P.J. MAXWELL, J., NOT PARTICIPATING.

       KITCHENS, JUSTICE, CONCURRING IN RESULT ONLY:

¶23.   I agree with the plurality’s determination that Devin Jones did not quit his job

voluntarily and without good cause for the purpose of Section 71-5-513(A)(1)(a) of the

Mississippi Code. However, because the plurality relies upon a misinterpretation of the T&L

Specialty Company employee handbook in reaching this conclusion, I respectfully concur

only in the result.

¶24.   Devin Jones was employed by T&L Specialty Company as a production technician

from June 18, 2012, until February 4, 2013. On February 4, 2013, Jones reported to work on

                                              8
time at 7:00 p.m. and performed his assigned duties until his first break at 9:00 p.m. During

that break, Jones learned that his pregnant girlfriend was ill. At 9:17 p.m., Jones left work,

asking a coworker to explain the situation to their supervisor, Mitch Monts. The coworker

promised to inform the supervisor, and Jones left the workplace to take care of his pregnant

girlfriend. The coworker apparently did not inform Monts about Jones’s absence. However,

Monts was aware that Jones’s girlfriend was experiencing a complicated pregnancy.

¶25.   On February 5, 2013, Jones was told by a manager at Specialty that Jones had quit his

job the night before because he had left his post without first notifying his supervisor. Jones

showed up to work his shift that night, but Specialty had replaced him. On February 20,

2013, Jones filed an application for unemployment benefits with the Mississippi Employment

Security Commission (MESC). The MESC claims examiner found that Jones had been

discharged for leaving work without authorization, which constituted misconduct. After

holding a telephonic hearing, an MESC administrative law judge (ALJ) ruled that Jones was

ineligible for unemployment benefits because he constructively had quit his job without good

cause. The ALJ’s determination was affirmed on appeal by the MESC Board of Review and

by the Circuit Court of Lee County.

¶26.   It is well settled that judicial review of a Mississippi Employment Security

Commission Board’s ruling is limited. Piggly Wiggly of Bay Springs & Dixieland Food

Stores, Inc. v. Miss. Emp’t Sec. Comm’n, 465 So. 2d 1062, 1064-65 (Miss. 1985). The

Mississippi Legislature has determined that: “In any judicial proceedings . . . the findings of


                                              9
the Board . . . as to the facts, if supported by evidence and in the absence of fraud, shall be

conclusive, and the jurisdiction of the court shall be confined to questions of law.” Miss.

Code Ann. § 71-5-531 (Rev. 2011). In Melody Manor, Inc. v. McLeod, 511 So. 2d 1383

(Miss. 1987), this Court held: “The principle is well settled that an Order of the Board of

Review on the facts is conclusive on the lower court, if supported by substantial evidence and

if absent fraud.” Substantial evidence requires more than a “mere scintilla” of evidence,

Johnson v. Ferguson, 435 So. 2d 1191, 1195 (Miss. 1983), but it does not rise to the level

of “a preponderance of the evidence.” Babcock & Wilcox Co. v. McClain, 149 So. 2d 523,

523-24 (Miss. 1963); accord Delta CMI v. Speck, 586 So. 2d 768, 773 (Miss. 1991).

¶27.   Unemployed individuals are disqualified from receiving benefits under two

circumstances: (1) the employee “left work voluntarily without good cause” or (2) the

employee “was discharged for misconduct connected with his work.” Miss. Code Ann. § 71-

5-513(A)(1)(a)-(b) (Rev. 2011). “The burden of proof of good cause for leaving work shall

be on the claimant, and the burden of proof of misconduct shall be on the employer.” Miss.

Code Ann. § 71-5-513(A)(1)(c) (Rev. 2011).

¶28.   Here, it is apparent that there is not substantial evidence supporting the ALJ’s

determination that Jones “left work voluntarily without good cause.” The ALJ found that

Specialty’s employee handbook “requires employees to notify their supervisor if [they are]

absent, tardy, or leave work early. If a person leaves work without notifying the supervisor

and makes no attempt to call for eight (8) hours, the employer considers the employee to have


                                              10
quit.” However, this is not an accurate interpretation of the Specialty employee handbook.

The handbook provides:

       It is the employee’s responsibility to notify their supervisor if the employee
       will be late or absent for any reason by 8 a.m. If an employee does not contact
       the supervisor or another company representative within 8 hrs of an absence,
       the company will consider that the employee has voluntarily quit and
       termination will take place.

(Emphasis added.) Here, Jones, by notifying his coworker that he was leaving work,

substantially complied with the requirements of the employee handbook that employees

“contact the supervisor or another company representative within 8 hrs of an absence.” Not

only did Jones substantially comply with company policy, but the record also is devoid of any

evidence that Jones intended to quit his job by leaving to take care of his pregnant girlfriend.

In fact, he showed up to work at Specialty, on time, the very next night.

¶29.   I disagree with the plurality’s conclusion that, “[o]n the day in question, Jones was not

tardy, nor was he absent.” Plur. Op. ¶ 20. The handbook requires that an employee “notify

[his or her] supervisor if the employee will be late or absent for any reason.” Oxford English

Dictionary defines absent as “the state of being away from a place or person.” Absent,

Compact Oxford English Dictionary (2d ed. 2000). In leaving his place of work at 9:17 p.m.

and in failing to return to complete his shift thereafter, Jones was “absent” from his

workplace within the common meaning of the term absent.

¶30.   Furthermore, even if there were substantial evidence supporting the ALJ’s conclusion

that Jones “voluntarily quit” his position at Specialty by leaving work early, the ALJ and the


                                              11
plurality misapply the relevant unemployment benefits statute. In pertinent part, Section 71-

5-513(A)(1)(a) of the Mississippi Code provides:

¶31.   A. An individual shall be disqualified for benefits:

       (1)(a) For the week, or fraction thereof, which immediately follows the day on
       which he left work voluntarily without good cause, if so found by the
       department, and for each week thereafter until he has earned remuneration for
       personal services performed for an employer, as in this chapter defined, equal
       to not less than eight (8) times his weekly benefit amount, as determined in
       each case; however, marital, filial and domestic circumstances and obligations
       shall not be deemed good cause within the meaning of this subsection.
       Pregnancy shall not be deemed to be a marital, filial or domestic circumstance
       for the purpose of this subsection.

Miss. Code Ann. § 71-5-513(A)(1)(a) (Rev. 2011) (emphasis added). Because Jones “left

work” for the purpose of caring for his pregnant girlfriend, the relevant statute’s express

language provides that he is not disqualified from receiving unemployment benefits.

¶32.   In sum, no evidence in the record supports the ALJ’s conclusion that Jones voluntarily

left work without good cause. By notifying his coworker that he was leaving work to care

for his pregnant girlfriend and by asking his coworker to explain the reason he left work to

his supervisor, Jones substantially complied with the provisions of the employee handbook.

Furthermore, even if there were evidence in the record that Jones left work voluntarily,

Section 71-5-513(A)(1)(a) of the Mississippi Code provides that pregnancy is not a marital,

filial, or domestic circumstance that is outside the meaning of the term good cause as

contemplated by the statute. Because, however, the plurality relies upon a misinterpretation




                                             12
of the T&L Specialty Company employee handbook in reaching this conclusion, I

respectfully concur only in the result.

       KING, J., JOINS THIS OPINION.

       PIERCE, JUSTICE, DISSENTING:

¶33.   Respectfully, I dissent from the plurality’s decision to reverse the Mississippi

Department of Employment Security’s (MDES) decision, denying Devin Jones

unemployment compensation.

¶34.   I disagree with the plurality that the Administrative Law Judge (ALJ) relied on an

inapplicable provision from the employee handbook and failed to consider language

contained in another provision.

¶35.   As noted by the plurality, the employee handbook contains the following provision(s):

       Absentee “Points System” for employees:

       Points are assigned for absences of any kind as described below (other than
       authorized time off with pay or authorized time off without pay, as described
       later in this police). Each employee begins with zero points, and points
       assigned remain on record for 12 consecutive months.

       Tardy                 =            ½ point
       Leave early           =            ½ point
       Reported absence      =            1 point

       It is the employee’s responsibility to notify their supervisor if the employee
       will be late or absent for any reason by 8 a.m. If an employee does not contact
       the supervisor or another company representative within 8 hrs of an absence,
       the company will consider that the employee has voluntarily quit and
       termination will take place.



                                             13
¶36.   Based on the plain language of these provisions, an employee who leaves work early

clearly is considered absent. I see no difference between an employee who fails to report to

work and does not contact the employer within eight hours of the absence and an employee

who reports to work but then leaves the workplace without informing the employer within

eight hours of absenting himself from the workplace. According to the record, the ALJ asked

the employer, T&L Specialty Company, Inc. (Specialty), at the hearing held in this matter

about both provisions related above. Speciality responded that it considers such conduct as

one and the same for purposes of its attendance policy.

¶37.   The plurality finds nothing in the handbook that supports the interpretation that there

is no difference between an employee who fails to report to work and an employee who

reports to work but then leaves. Respectfully, this is wrong. First, the first sentence of the

“point system” provision says: “Points are assigned for absences of any kind as described

below . . . [i.e., tardy, leave early, and reported absence].” (Emphasis added.) Second, as the

human resources officer for Speciality explained, the second provision is read in conjunction

with the first. The human resources officer testified that, “[t]he points mentioned are for

tardy, a reported absence[;] [t]here is a half point for leaving early, but without notification

within eight hours of that absence of leaving early, then that is a voluntary quit. . . . That

coincides with the reporting absence policy that is in conjunction with that attendance point

system.”




                                              14
¶38.   This is common sense. The plurality fails to recognize this because the plurality is

hung up on the fact that an employee who leaves work early incurs only a half point on his

record. What the plurality fails to take into consideration is this: Why does a reported

absence constitute a one-point assessment, but leaving work early constitutes only a half-

point? This is because proper notification to Specialty is implicit in both instances, as the

human resources officer testified. Under the plurality’s mistaken reading of the handbook,

an employee who reports to work, clocks in, and then immediately leaves without clocking

out is treated more graciously than the employee who notifies Speciality before his or her

shift begins, that he or she will be absent. I point out that the record shows that Speciality

utilizes a time clock, and Jones admitted in his testimony that he did not clock out when he

left work the evening in question. According to Jones, he may have asked Tatum to clock

him out, but Jones was unsure.

¶39.   Further, Jones bore the burden of proof in this case that he had good cause for leaving

work. Miss. Code Ann. § 71-5-513(A)(1)(c) (Rev. 2011). Jones was the only person who

testified on his behalf, and the only factual evidence presented as to why Jones left and that

he notified a coworker, came from Jones’s uncorroborated testimony. Jones’s supervisor,

Mich Monts, and Specialty’s human resources representative, Karen Hoodum, both testified

that they did not know why Jones had left that evening and did not return. MDES was well

within its discretion in this instance to reject Jones’s testimony. See Jackson Cty. Bd. of

Supervisors v. Miss. Emp’t Comm’n, 129 So. 3d 178, 183 (Miss. 2013) (“It is the role of the


                                             15
agency, in its expertise, to determine the weight of the evidence and the credibility of the

witnesses.”).

¶40.   Sufficient evidence was presented to support MDES’s decision that Jones was

ineligible for unemployment benefits. Accordingly, I would affirm the judgment of the Lee

County Circuit Court.

       WALLER, C.J., AND RANDOLPH, P.J., JOIN THIS OPINION.




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