        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                              NO. 2017-CC-01473-COA

CHARLOTTE DAILEY                                                        APPELLANT

v.

MISSISSIPPI DEPARTMENT OF                                                 APPELLEE
EMPLOYMENT SECURITY

DATE OF JUDGMENT:                        08/31/2017
TRIAL JUDGE:                             HON. JAMES MCCLURE III
COURT FROM WHICH APPEALED:               YALOBUSHA COUNTY CIRCUIT COURT,
                                         FIRST JUDICIAL CIRCUIT
ATTORNEY FOR APPELLANT:                  WILLIAM LEDYARD WILLIAMSON
ATTORNEY FOR APPELLEE:                   ALBERT B. WHITE
NATURE OF THE CASE:                      CIVIL - STATE BOARDS AND AGENCIES
DISPOSITION:                             AFFIRMED - 12/11/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE LEE, C.J., GREENLEE AND TINDELL, JJ.

      GREENLEE, J., FOR THE COURT:

¶1.   Charlotte Dailey appeals the decision of the Circuit Court of Yalobusha County,

which affirmed the decision of the Board of Review of the Mississippi Department of

Employment Security (MDES) denying her unemployment benefits. The Board of Review

adopted the MDES administrative law judge’s (ALJ) determination that Dailey voluntarily

resigned her employment without good cause, which disqualified her eligibility to receive

unemployment benefits. On appeal, Dailey asserts that: (1) the ALJ erred in declining to

admit her employer’s board minutes; (2) substantial evidence did not support the Board of

Review’s findings; and (3) the Board of Review applied the incorrect law. Finding that
substantial evidence supports the Board’s decision, we affirm.

                          FACTS AND PROCEDURAL HISTORY

¶2.      Dailey worked for the Grenada Tourism Commission. She was buying several items

for her employer at Walmart when her employer’s credit card was denied. Dailey then called

her supervisor, Larry Harges, and he drove to Walmart with another employee.

¶3.      Harges confronted Dailey about her purchases, and a verbal disagreement ensued,

during which, though disputed, Dailey may have offered to resign. Harges, without the

authority to accept a resignation, placed Dailey on administrative leave the next day.

However, Dailey did work at a previously scheduled Grenada Tourism event several days

later.

¶4.      Shortly after the event, the Grenada Tourism Commission’s board (board) met without

Dailey present. They telephonically called her from the meeting, and at that meeting, they

accepted her resignation. The board informed Dailey of the decision.

¶5.      Dailey filed for unemployment benefits several days later. The Claims Examiner

determined that she did not show good cause for resigning her employment and was,

therefore, disqualified from benefits.

¶6.      Dailey appealed to the ALJ, who also found that Dailey was disqualified from

unemployment benefits. The Board of Review upheld the ALJ’s decision. She then appealed

to the circuit court, which affirmed the decision of the Board of Review.

¶7.      In her appeal to this Court, she asserts that: (1) the ALJ erred in declining to admit the

Grenada Tourism Commission’s board minutes; (2) substantial evidence did not support the



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Board of Review’s findings; and (3) the Board of Review applied the incorrect law.

                               STANDARD OF REVIEW

¶8.    “An agency’s conclusions must remain undisturbed unless the agency’s order: (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 a statutory or constitutional right of the

complaining party.” Miss. Dep’t of Emp’t Sec. v. Good Samaritan Pers. Servs., 996 So. 2d

809, 812 (¶6) (Miss. Ct. App. 2008). “A rebuttable presumption exists in favor of the

administrative agency, and the challenging party has the burden of proving otherwise.”

Sprouse v. Miss. Emp’t Sec. Comm’n, 639 So. 2d 901, 902 (Miss. 1994). “[T]his Court must

not reweigh the facts of the case or insert its judgment for that of the agency.” Alexander v.

Miss. Dep’t of Emp’t Sec., 998 So. 2d 419, 425 (¶15) (Miss. 2008).

                                       DISCUSSION

       I.      Did the ALJ err in declining to admit the Grenada Tourism
               Commission’s board minutes?

¶9.    Dailey argues that in declining to admit the Grenada Tourism Commission’s board

minutes, the ALJ failed to include evidence that could have significantly altered the case in

her favor. Noting that a board speaks through its minutes, she asserts that the minutes would

have shown that the board fired her for “disruptive behavior,” and not because of the alleged

resignation.

¶10.   In the conversation during the telephonic hearing, Dailey asked that the minutes be

entered into evidence, which we quote verbatim:

       ALJ:          . . . Any additional documents that you, uh in this that would be


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                     relevant, ma’am?

       DAILEY:       Um . . . the um . . . agenda and the minute meeting for last year.
                     Um . . . (Phone Button Pushed)

       ALJ:          Ah . . . but now . . .

       DAILEY:       (Inaudible Crosstalk)

       ALJ:          I’m looking at those. (Background Noise) How are they relevant
                     to your separation, ma’am?

       DAILEY:       Ongoin’ personnel issues. They didn’t show any personnel
                     issues bein’ discussed with me over the past year.

       ALJ:          Okay. And as, as far as right now as again, (Papers Shuffled)
                     have your testimony. I’ll go back and redirect on that, but those
                     would not be relevant either.

¶11.   The ALJ did not admit the minutes because Dailey had already testified to the ongoing

personnel issues. But Dailey now asserts that the minutes show something entirely different,

and she has included those purported minutes in her brief to this Court. However, they are

not properly before this Court.

¶12.   “[I]t is well established that formal rules of practice, procedure, and evidence are more

relaxed in proceedings before administrative agencies than in courts of law . . . .” Alston v.

Miss. Dep’t of Emp’t Sec., 247 So. 3d 303, 311 (¶29) (Miss. Ct. App. 2017). Still, “ideas of

fundamental fairness should prevail.” SkyHawke Techs. LLC v. Miss. Dep’t of Emp’t Sec.,

110 So. 3d 327, 330 (¶9) (Miss. Ct. App. 2012). And “[a]s a practical matter, an ALJ must

have some discretion to control the presentation of evidence.” Id. The ALJ asked Dailey why

the minutes should be admitted. Dailey answered, and the ALJ determined that her assertion

had been competently made with other evidence; so the ALJ declined to admit the minutes.

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Furthermore, Dailey did not provide the minutes; therefore, they were not in the record.

Accordingly, they are not before us because we cannot review what is not in the record.

Goolsby Trucking Co. v. Alexander, 982 So. 2d 1013, 1021 (¶24) (Miss. Ct. App. 2008). We

find that the ALJ did not act arbitrarily or capriciously in the declination.

       II.    Did substantial evidence support the Board of Review’s
              findings?

¶13.   During the hearing in front of the ALJ, Dailey testified that she told Harges at

Walmart, “If I was as unprofessional as [you], I would resign right now.” Harges, however,

testified that Dailey said, “You’ll have my resignation as of tomorrow afternoon at 5:00.”

Dailey insists that neither statement constitutes a resignation. Furthermore, she asserts that

because she worked after being placed on administrative leave, she could not have resigned.

Therefore, Dailey claims that substantial evidence does not support the Board of Review’s

findings.

¶14.   “To affirm the MDES’s denial of benefits, we must find its decision was supported

by substantial evidence and was not arbitrary or capricious.” Gladney v. Miss. Dep’t of Emp’t

Sec., 146 So. 3d 1036, 1039 (¶9) (Miss. Ct. App. 2014). “Substantial evidence is that which

is relevant and capable of supporting a reasonable conclusion, or is more than an scintilla of

evidence.” Id. (internal quotation marks omitted).

¶15.   However, Dailey fails to discuss much of the evidence presented to the ALJ, including

her own contradictory testimony. There may have been a dispute as to what Dailey precisely

said to Harges at Walmart. But at the hearing, Dailey admitted, “[T]o be honest, Judge, I may

have told him I would be giving him my resignation, but I never gave it.” It is also clear that


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Harges did not have the authority to accept Dailey’s resignation, only the board had that

authority. Her working after being placed on administrative leave but before the board could

accept her resignation does not indicate that she never resigned. Furthermore, the board

called Dailey from their meeting. During that conversation, according to Harges, Dailey

offered to resign and the board accepted her resignation. From a review of the record, Dailey

has not contested Harges’s testimony on that occurrence.

¶16.   Because the Board of Review’s decision was supported by substantial evidence and

was neither arbitrary nor capricious, we decline to disturb it.

       III.   Did the Board of Review apply incorrect law?

¶17.   Dailey asserts that “[t]here has been no evidence presented in this case to conclude

the Claimant voluntarily left her position with the Employer.” Therefore, she alleges the

Board of Review should have applied a different standard and burden of proof.

¶18.   As noted above, the record shows that there was sufficient evidence presented to the

ALJ that indicated that Dailey resigned, despite the conflicting testimony. “Unemployment

benefits are available for employees who leave work involuntarily, through no fault of their

own.” Daniels v. Miss. Emp’t Sec. Comm’n, 904 So. 2d 1195, 1197 (¶8) (Miss. Ct. App.

2004). “The burden of proof of good cause for leaving work shall be on the claimant . . . .”

Miss. Code Ann. § 71-5-513(A)(1)(c) (Rev. 2011). “The Board’s finding that an employee

has quit work voluntarily without good cause is a question of fact that will be affirmed if

supported by substantial evidence.” Daniels, 904 So. 2d at 1197 (¶8). The correct law was

applied, but Dailey did not meet the proper burden of proof. And substantial evidence



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supported the finding.

                                    CONCLUSION

¶19.   We find that substantial evidence supports the denial of Dailey’s claim. She has not

overcome the rebuttable presumption in MDES’s favor. We also find that the ALJ did not

err in denying the admission of her employer’s board minutes and that those minutes are not

before us for review. Substantial evidence supports the Board of Review’s findings, and the

Board of Review applied the correct law. Therefore, we affirm.

¶20.   AFFIRMED.

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




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