L. C. Fisher v. Mississippi Department of Employment Security

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2013-CC-01798-COA

L.C. FISHER APPELLANT

v.

MISSISSIPPI DEPARTMENT OF APPELLEE
EMPLOYMENT SECURITY

DATE OF JUDGMENT: 10/08/2013
TRIAL JUDGE: HON. JANNIE M. LEWIS
COURT FROM WHICH APPEALED: YAZOO COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: L. C. FISHER (PRO SE)
ATTORNEYS FOR APPELLEE: ALBERT B. WHITE
ANNA CRAIN CLEMMER
LEANNE FRANKLIN BRADY
NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES
TRIAL COURT DISPOSITION: AFFIRMED THE MISSISSIPPI
DEPARTMENT OF EMPLOYMENT
SECURITY’S DECISION THAT
APPELLANT/CLAIMANT WAS
DISQUALIFIED FROM RECEIVING
UNEMPLOYMENT BENEFITS ON THE
GROUND OF MISCONDUCT
DISPOSITION: AFFIRMED: 10/06/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE GRIFFIS, P.J., BARNES AND JAMES, JJ.

GRIFFIS, P.J., FOR THE COURT:

¶1. L.C. Fisher worked as a security guard for King’s Daughters Hospital in Yazoo City,

Mississippi, from January 23, 2012, until his termination on May 28, 2013. Fisher filed a

claim for unemployment benefits with the Mississippi Department of Employment Security

(MDES). MDES found King’s Daughters fired Fisher for willful misconduct and denied
Fisher benefits. Fisher now appeals.

FACTS AND PROCEDURAL HISTORY

¶2. On May 26, 2013, an incident occurred when a gunshot victim came into the

emergency room around two in the morning. Several people from the nightclub where the

victim was wounded came into the emergency room without authorization. Fisher, the only

security guard on duty, failed to stop people from entering the emergency room and maintain

control.

¶3. At one point, an unidentified man kicked in the emergency-room door to gain access

to the victim. One of the nurse supervisors on duty, Jaime Luby, called 911 for police

assistance after Fisher failed to respond to his page. The police at the scene eventually

restored order, and the incident ended approximately forty-five minutes after starting.

¶4. On May 28, 2013, Fisher’s supervisor, Dennis Moulder, called Fisher to his office and

fired Fisher for neglecting his duties during the incident. Subsequently, Fisher filed for

unemployment benefits from MDES. The claims examiner denied Fisher unemployment

benefits, stating that his discharge based on willful misconduct disqualified him from

eligibility.

¶5. Fisher appealed the denial. An administrative law judge (ALJ) held a telephonic

hearing with Fisher; Moulder, as the employer’s representative; and Jimmy Giles, the

employer’s advocate. After the hearing, the ALJ issued an order that affirmed the denial of

Fisher’s claim.

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¶6. Fisher appealed again to the MDES Board of Review. The Board also affirmed the

decision. Fisher then appealed the Board’s decision to the Yazoo County Circuit Court. The

circuit court found that substantial evidence supported MDES’s decision and affirmed the

MDES ruling. Fisher now appeals to this Court.

STANDARD OF REVIEW

¶7. This Court applies an abuse-of-discretion standard of review to an administrative

agency’s decision. Mask v. Miss. Dep’t of Emp’t Sec., 80 So. 3d 845, 847 (¶5) (Miss. Ct.

App. 2012).

This [C]ourt’s standard of review of an administrative agency’s findings and
decisions is well established. 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. Inc., 996 So. 2d 809, 812 (¶6)

(Miss. Ct. App. 2008) (citing Miss. Comm’n on Envtl. Quality v. Chickasaw Cnty. Bd. of

Sup’rs, 621 So. 2d 1211, 1215 (Miss. 1993)). “A rebuttable presumption exists in favor of

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

Id. (quoting Sprouse v. Miss. Emp’t Sec. Comm’n, 639 So. 2d 901, 902 (Miss. 1994)).

ANALYSIS

¶8. Fisher cites no legal authority in the letter brief1 he submitted to this Court. “The

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This Court acknowledges that Fisher submitted his brief in letter form in violation
of Mississippi Rule of Appellate Procedure 28(a). Regardless, this Court chooses to address

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Mississippi Supreme Court has held that it is the duty of the appellant to provide authority

in support of an assignment of error.” Young v. State, 919 So. 2d 1047, 1049 (¶5) (Miss. Ct.

App. 2005) (citation omitted). “Failure to cite legal authority in support of an issue is a

procedural bar on appeal.” Id. Notwithstanding the procedural bar, we find Fisher’s

argument is without merit.

¶9. Fisher contends MDES unfairly denied his request for unemployment benefits. In his

letter brief, Fisher recounts his version of the May 26, 2013 event without asserting any

specific error. MDES argues the substantial evidence supported benefit disqualification

based on Fisher’s willful misconduct.

¶10. The grounds for disqualification from unemployment benefits is statutory. Mississippi

Code Annotated section 71-5-513(A)(1)(b) (Supp. 2014) states:

An individual shall be disqualified for benefits:

....

For the week, or fraction thereof, which immediately follows the day on which
he was discharged for misconduct connected with his work, 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.

(Emphasis added).

¶11. Courts have defined misconduct in the statute as:

the merits of the case.

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[C]onduct 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, [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” within the meaning of the statute.

Acy v. Miss. Emp’t Sec. Comm’n, 960 So. 2d 592, 594-95 (¶13) (Miss. Ct. App. 2007)

(quoting Wheeler v. Arriola, 408 So. 2d 1381, 1383 (Miss. 1982)).

¶12. The evidence presented included King’s Daughters’ employment policies and

surveillance-video footage from the May 26 incident. MDES also considered the testimony

of Moulder, Fisher, and Luby.

¶13. “At an administrative hearing, the employer carries the burden to prove by substantial,

clear, and convincing evidence that the employee committed misconduct.” Miss. Emp’t Sec.

Comm’n v. Woods, 938 So. 2d 359, 363 (¶7) (Miss. Ct. App. 2006) (citation omitted).

“‘Substantial evidence’ has been defined as evidence ‘which is relevant and capable of

supporting a reasonable conclusion.’” Id. (quoting Gilbreath v. Miss. Emp’t Sec. Comm’n,

910 So. 2d 682, 686 (¶13) (Miss. Ct. App. 2005)).

¶14. According to Moulder’s testimony, the video footage of the incident revealed that

Fisher failed to make any attempt to assist the victim, lock the emergency-room doors, or

restore order. Fisher refuted Moulder’s testimony, and claimed he attempted to address the

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situation and called for police backup himself. However, Fisher failed to offer any witness

testimony or documentary evidence in support of his claims.

¶15. Further, Moulder specifically pointed to Fisher on the video footage and showed

Fisher allowed several people into the emergency room, stayed in the security booth for

several minutes, and did not assist the shooting victim, all contrary to Fisher’s testimony.

Moulder also testified that Fisher’s actions directly violated the employer’s procedure for

locking down the emergency room when there is a gunshot victim. Though Fisher denied

having knowledge of the lock-down procedure for a gunshot victim, he admitted he knew the

procedure for locking the doors to prevent too many people from entering the area.

¶16. Additionally, Moulder submitted documentation of Fisher’s acknowledgment and

receipt of employee handbooks detailing the procedures Fisher failed to follow. The

documents show Fisher signed and dated these forms on January 23, 2012, and on March 15,

2013. The specific policies Fisher allegedly violated included the hospital’s admission

statement requiring security to provide a safe and secure environment, and security protocols

requiring security personnel to remove unruly persons from the premises.

¶17. Fisher counters that King’s Daughters failed to follow its own disciplinary procedure

by firing him without any warning. The disciplinary policy, however, states: “[A]ctions will

result in one or some of the following: (1) [o]ral warning, (2) [w]ritten warning, (3)

[d]isciplinary suspension of a specified number of days, [or] (4) [d]ischarge.” Thus,

discharge is only one of the possible punishments outlined in the policy. Further, at the

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hearing, Fisher testified he knew of the procedure for review of his discharge, but admitted

he did not attempt to file any grievance.

¶18. Therefore, based on the evidence presented, the ALJ found the substantial evidence

proved Fisher knew of the proper policies, failed to follow these policies, and acted

carelessly and negligently. The ALJ concluded Fisher’s actions met the definition of

misconduct to disqualify him from benefits. We agree. The evidence showed Fisher acted

with willful and wanton disregard for the procedures and policies illustrated by Moulder’s

testimony and the documentary evidence. Therefore, this issue is without merit.

¶19. THE JUDGMENT OF THE YAZOO COUNTY CIRCUIT COURT IS
AFFIRMED.

LEE, C.J., IRVING, P.J., BARNES, ISHEE, CARLTON, MAXWELL, FAIR,
JAMES AND WILSON, JJ., CONCUR.

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