Rico Mitchell v. Mississippi Department of Employment Security

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2021-CC-00794-COA

RICO MITCHELL APPELLANT

v.

MISSISSIPPI DEPARTMENT OF APPELLEE
EMPLOYMENT SECURITY

DATE OF JUDGMENT: 07/09/2021
TRIAL JUDGE: HON. KATHY KING JACKSON
COURT FROM WHICH APPEALED: JACKSON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: RICO MITCHELL (PRO SE)
ATTORNEY FOR APPELLEE: ALBERT B. WHITE
NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES
DISPOSITION: AFFIRMED - 05/31/2022
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE CARLTON, P.J., LAWRENCE AND McCARTY, JJ.

McCARTY, J., FOR THE COURT:

¶1. A man voluntarily quit his job after a disagreement with his supervisor. He then filed

for unemployment benefits. After his request was denied, he appealed. He argues the denial

was improper. Finding no error, we affirm.

FACTS

¶2. Rico Mitchell was an employee of Geopave LLC, a company specializing in soil

stabilization and asphalt paving. One morning, Mr. Mitchell’s supervisor informed him of

a new work assignment. A team was to drive an asphalt truck from the Geopave office in

Gulfport to a worksite in St. James, Louisiana. Upon arrival, they were to leave the truck and
drive one van back to Gulfport. Then they would ride back and forth in this van for the

remainder of the project.

¶3. Mr. Mitchell stated that he had “breathing problems” and objected to riding in a van

with five other masked employees for the long trip to Louisiana.1 The supervisor suggested

that he could ride back in the van for the first day and then drive “his” personal vehicle the

next day. The supervisor also suggested that the company could pay for Mitchell’s gas costs.

¶4. Mr. Mitchell rejected his supervisor’s compromise. He then started to leave the

meeting room. Mr. Mitchell’s supervisor asked him to stay and work something out.

Nevertheless, Mr. Mitchell continued to walk out and left work for the day.

¶5. Mr. Mitchell did not report for work the next day. Shortly thereafter, his employment

was terminated, and he was removed from the company’s payroll.

COURSE OF PROCEEDINGS

¶6. After learning of his termination, Mr. Mitchell filed for unemployment benefits. The

Mississippi Department of Employment Security determined that Mr. Mitchell did not show

good cause for voluntarily leaving his employment. As a result, he was not eligible for

unemployment benefits.

¶7. Mr. Mitchell appealed this denial and received a telephonic hearing before an

Administrative Law Judge. The purpose of the hearing was to determine whether Mr.

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In his briefing, Mr. Mitchell asserts that his concerns related to having to “ride in a
vehicle with five individuals wearing a mask for 2.5 hours during the Covid-19 pandemic.”

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Mitchell was “able [and] available for work” as required by Mississippi Code Annotated

section 71-5-511(c) (Supp. 2019). Furthermore, under Mississippi Department of

Employment Security Regulation 305.02, Mr. Mitchell needed to show that he “contact[ed]

at least three employers about jobs and submitted an application to at least one of the

employers” during the week of January 17 through January 23, 2021, to be eligible for

benefits.

¶8. Shortly after the hearing began, the ALJ told Mr. Mitchell, “[T]he time period in

question for this hearing is January the 17th through January the 23rd of 2021.” Then she

asked, “Did you actively look for work during that week?” Mr. Mitchell responded, “I

looked for work but I didn’t know that I was under some requirement to do so . . . . No one

notified me of such.”

¶9. Throughout the hearing, Mr. Mitchell repeatedly expressed confusion about the

requirements to receive unemployment benefits—including the work-search requirement.

But by the end of the hearing, he clarified that he did understand the work-search

requirement and was now attempting to document his searches.

¶10. Nonetheless, based on this exchange, the ALJ determined Mitchell was disqualified

from receiving benefits for the week at issue since he left work without good cause and had

not complied with the statutory work-search requirement.

¶11. Mr. Mitchell then appealed to the Board of Review. The Board of Review accepted

the ALJ’s findings of fact and opinion and affirmed the decision denying Mitchell benefits.

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¶12. After exhausting his administrative options, Mr. Mitchell appealed to the Circuit

Court of Jackson County. The circuit court determined he voluntarily left his employment

at Geopave following the disagreement with his supervisor. The circuit court also

determined he chose to file for unemployment benefits instead of pursuing other work as the

statute required. Accordingly, the court held that Mr. Mitchell failed to show good cause for

leaving his employment and was disqualified from receiving employment benefits.

¶13. Mr. Mitchell appealed the decision, and his case is now before this Court. While he

raises nine issues on appeal, the relevant issue before this Court is whether the circuit court’s

order, which affirmed the decision from the administrative hearings, was supported by

substantial evidence. Finding that it was, we affirm.

STANDARD OF REVIEW

¶14. “Our review of an administrative appeal is well established.” EMC Enter. Inc. v.

Miss. Dep’t of Emp. Sec., 11 So. 3d 146, 150 (¶9) (Miss. Ct. App. 2009). “In reviewing a

decision of the Mississippi Department of Employment Security (MDES), the findings as to

the facts of the Board of Review are conclusive if supported by substantial evidence and

absent fraud.” Hereford v. Miss. Dep’t of Emp. Sec., 306 So. 3d 863, 865 (¶13) (Miss. Ct.

App. 2020) (internal quotation marks omitted). “Therefore, the denial of unemployment

benefits will be disturbed on appeal only if the agency’s decision (1) is not supported by

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

to the agency, or (4) violates the claimant’s constitutional rights.” Id. at 865-66 (¶13)

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(internal quotation marks omitted).

DISCUSSION

¶15. As noted above, Mr. Mitchell raises nine issues in his brief. The core issue is whether

the circuit court had substantial evidence to affirm the decision that Mr. Mitchell was not

“able and available for work.”2

I. Substantial evidence existed to determine that the work-search
requirement was not satisfied.

¶16. We must uphold the decision of the administrative agency as long as it is “supported

by substantial evidence and absent fraud.” Hereford, 306 So. 3d at 865 (¶13). “Substantial

evidence is that which is relevant and capable of supporting a reasonable conclusion, or is

more than [a] scintilla of evidence.” Dailey v. Miss. Dep’t of Emp. Sec., 271 So. 3d 715, 719

(¶14) (Miss. Ct. App. 2018). Accordingly, we must determine if there is substantial evidence

to support the finding that Mr. Mitchell failed to follow the statutory requirements for a work

search.

¶17. During the telephonic hearing, Mr. Mitchell and the ALJ engaged in an exchange over

whether he satisfied the requirements:

ALJ: Okay. The time period in question for this hearing is January the 17th
through January 23rd of 2021. Did you actively look for work during
that week?

M: Uh, I looked for work but didn’t know that I was under some

2
Mr. Mitchell has a separate appeal focused on the ultimate denial of his
unemployment benefits, which is docketed as 2021-CC-00795-COA.

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requirement to do so. I, I was looking for work based on my, just I
needed a job. I didn’t know because I hadn’t, I hadn’t been accepted
into unemployment and I was still dealing with so many processes to
even be verified. So, I didn’t know that I was under a certain
requirement. No one notified me of such.

As the hearing continued, the parties stated:

ALJ: . . . So, at the time, you were not but you understand now that you need
to look for work every week.

M: Yes.

ALJ: Okay.

M: Yes ma’am. And I’ve met that requirement every week.

¶18. Based on this exchange, Mr. Mitchell admitted to the ALJ that he did not satisfy the

work-search requirements. Therefore, the ALJ concluded that Mr. Mitchell did not satisfy

the work-search requirement during the week of January 17 through January 23.

¶19. In light of this concession, the ALJ had substantial evidence to conclude that Mr.

Mitchell was disqualified from receiving benefits—regardless of whether he was aware of

the requirements. Because there is substantial evidence to support the decision, the circuit

court had substantial evidence to determine that Mr. Mitchell failed to complete the work-

search requirements.

II. Mr. Mitchell’s remaining allegations are without merit.

¶20. In his briefing, Mr. Mitchell alleges his due process rights were violated at numerous

times during the administrative proceedings and that his former employer committed perjury

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in preparing evidence for these proceedings.3

¶21. But contrary to the requirements of the Mississippi Rules of Appellate Procedure, Mr.

Mitchell fails to support these contentions with “citations to the authorities, statutes, and

parts of the record relied on.” MRAP 28(a)(7). “Failure to comply with Mississippi Rule

of Appellate Procedure 28(a)[(7)] renders an argument procedurally barred.” Nevels v. Miss.

Dep’t of Emp. Sec., 39 So. 3d 995, 997 (¶10) (Miss. Ct. App. 2010). “It is the appellant’s

duty to see that all matters necessary to his appeal, such as exhibits, witnesses’ testimony, and

so forth, are included in the record . . . .” Weatherly v. Union Planters Bank N.A., 914 So.

2d 1222, 1224 (¶11) (Miss. Ct. App. 2005).

¶22. Mr. Mitchell represents himself pro se in this matter. As set out in footnote two, he

has a pending appeal also relating to the denial of unemployment benefits. Mr. Mitchell filed

the same brief in that pending matter as in this appeal. The issues raised in the brief in the

instant case appear more applicable to the other appeal. Although Mr. Mitchell may not

understand the import of filing the same brief in both cases, the Mississippi Supreme Court

has “emphasized that ‘[p]ro se parties should be held to the same rules of procedure and

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Specifically, he argues that MDES violated his due process rights by denying him
access to his former employer’s statements until after the hearing. He also argues that the
ALJ violated his due process rights by providing a defense for the employer, intervening in
his questioning of the company’s representative, preventing him from asking questions about
COVID-19, and barring him from testifying about issues that arose after January 6, 2021.
He further alleges that his former employer committed perjury by never speaking with him,
testifying that he could have driven a company truck, misidentifying whom a brief was
addressed to, and creating confusion about the reason Mr. Mitchell left his employment.

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substantive law as represented parties.’” Robinson v. Burton, 49 So. 3d 660, 665 (¶17)

(Miss. Ct. App. 2010) (quoting Dethlefs v. Beau Maison Dev. Corp., 511 So. 2d 112, 118

(Miss. 1987)).

¶23. Accordingly, as his arguments regarding due process and perjury are not supported

by citations to any authority, we decline to review them. See Magee v. Miss. Dep’t of Emp.

Sec., 77 So. 3d 1159, 1164-65 (¶15) (Miss. Ct. App. 2012).

CONCLUSION

¶24. The circuit court had substantial evidence to affirm the ALJ’s decision that Mr.

Mitchell was disqualified from receiving unemployment benefits. Accordingly, the decision

of the circuit court is AFFIRMED.

BARNES, C.J., CARLTON AND WILSON, P.JJ., GREENLEE, McDONALD,
LAWRENCE, SMITH AND EMFINGER, JJ., CONCUR. WESTBROOKS, J.,
CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN
OPINION.

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