E-Filed Document Jun 17 2015 16:00:09 2014-CC-01798 Pages: 17 IN THE SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI CAUSE NO. 2014-CC-01798 OVER THE RAINBOW DAYCARE vs. VS. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY AND TEMPESTT GRIFFIN APPELLANT CAUSE NO. 2014-CC-01798 APPELLEES BRIEF OF APPELLEE, MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY APPEAL FROM THE CIRCUIT COURT OF FORREST COUNTY STATE OF MISSISSIPPI ORAL ARGUMENT NOT REQUESTED OF COUNSEL: ALBERT BOZEMAN WHITE ASSISTANT ANT GENERAL COUNSEL MS BARNO. 7132 ANNA CRAIN CLEMMER STAFF ATTORNEY MS BAR NO. 104279 MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY POST OFFICE BOX 1699 JACKSON, MS 39215-1699 Telephone: (601) 321-6074 Facsimile: (601) 321-6076
TABLE OF CONTENTS TABLE OF CONTENTS..... i CERTIFICATE OF INTERESTED PERSONS... ii TABLE OF CASES AND OTHER AUTHORITIES... iii STATEMENT OF THE ISSUE... 1 STATEMENT OF THE CASE... 2 SUMMARY OF THE ARGUMENT... 5 ARGUMENT... 7 CONCLUSION... 12 CERTIFICATE OF SERVICE... 13
IN THE SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF THE ST ATE OF MISSISSIPPI OVER THE RAINBOW DAYCARE vs. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY AND TEMPESTT GRIFFIN APPELLANT CAUSE NO. 2014-CC-01798 APPELLEES CERTIFICATE OF INTERESTED PARTIES The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the justices of the Supreme Court and/or the judges of the Court of Appeals may evaluate possible disqualification or recusal. 1. Mississippi Department of Employment Security, Appellee 2. Albert Bozeman White, Assistant General Counsel for Appellee 3. Anna Crain Clemmer, Staff Attorney for the Appellee 4. Christopher D. Nobles, Attorney for Appellant/Employer 5. Ms. Tempestt Griffin, Claimant 6. Honorable Robert Helfrich, Forrest County Circuit Court Judge This the 17th day of June, 2015. Isl Albert Bozeman White Albert Bozeman White Assistant General Counsel (MSB #7132) Mississippi Department of Employment Security Anna Crain Clemmer Staff Attorney (MSB #104279) Mississippi Department of Employment Security H
TABLE OF CASES AND OTHER AUTHORITIES CASES PAGE Allen v. Mississippi Employment Security Commission...... 7 639 So. 2d 904 (Miss. 1994) Barnett v. Mississippi Employment Security Commission... 7 583 So. 2d 193 (Miss. 1991) Booth v. Mississippi Employment Security Commission... 7 588 So. 2d 422 (Miss. 1991) Brandon v. Mississippi Employment Security Commission... 5 768 So. 2d 341 (Miss. 2000) Little v. Mississippi Employment Security Commission... 5,9,10 754 So. 2d 1258 (Miss. Ct. App. 1999) Mississippi Department of Employment Security v. Johnson... 10 977 So. 2d 1273 (Miss. Ct. App. 2007) Richardson v. Mississippi Employment Security Commission,... 7 593 So. 2d 31 (Miss. 1992) OTHER AUTHORITIES Mississippi Code Annotated 71-5-513(A)(I)(b) Mississippi Code Annotated 71-5-513(A)(I)(c) 1 3,5 Mississippi Code Annotated... 5, 10 71-5-523 Mississippi Code Annotated 71-5-525 Mississippi Code Annotated 71-5-531 5, 10 4, 7 Mississippi Department of Employment Security Regulation... I, 5, 6, 8, 9, 10 200.05 Uniform Rules of Circuit & County Court Practice... 4, 7 Rule 5.01, 5.02, 5.03 and 5.05 iii
IN THE SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI OVER THE RAINBOW DAYCARE APPELLANT VS. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY AND TEMPESTT GRIFFIN CAUSE NO. 2014-CC-01798 APPELLEES BRIEF OF APPELLEE MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY [Hereinafter also "MDES"] STATEMENT OF ISSUE I. Whether the Board of Review decision should be affirmed, finding the Employer, OVER THE RAINBOW DA YCARE, failed to participate the Administrative Law Judge's hearing on September 4, 2014, and thus failed to prove by substantial evidence that the Claimant, TEMPESTT GRIFFIN, was discharged for disqualifying misconduct under Mississippi Code Annotated Section 71-5-513(A)(I)(b) (Rev. 2007)? 2. Whether the Board of Review's decision is supported by substantial evidence and should be affirmed, because the Employer, OVER THE RAINBOW DA YCARE, defaulted by failing to participate and offer proof at the Administrative Law Judge's hearing on September 4, 2014, pursuant to the provisions of Mississippi Department of Employment Security Regulation 200.05 (December I, 2007)?
STATEMENT OF THE CASE TEMPESTT GRIFFIN [hereinafter also "Claimant"] was employed as care giver for OVER THE RAINBOW DA YCARE [hereinafter also "Employer"] from January 6, 2014, until July 17,2014, when she was discharged. (R. Vol. 2, p. 1, 10-12). Ms. Griffin was discharged due to an alleged physical altercation with the owner, her supervisor. (R. Vol. 2, p. 10-13,29-35). After her discharge, Ms. Griffin filed for unemployment benefits. (R. Vol. 2, p. 1). A Claims Examiner investigated by interviewing Ms. Griffin and Renee Causey, owner and Ms. Griffin's supervisor. (R. Vol. 2 p. 7-9). Based on the information obtained, the Claims Examiner determined that Ms. Griffin was discharged due to misconduct and disqualified her from receiving benefits. (R. Vol. 2, p. 10, 11). Ms. Griffin appealed. (R. Vol. 2, p. 14). The Employer and Claimant notified that an appeal had been filed; and that the hearing would be "de novo," meaning that the Judge could only consider the evidence presented at the hearing in making hislher decision. (R. Vol. 2, p. 15-18). Subsequently, the telephonic hearing was scheduled for September 4,2014. (R. Vol. 2, p. 20-22). The notice of hearing informed the parties of the issue(s) to be considered, and that the Employer had the burden of proving misconduct. The notice further provided that if a party had not heard from the ALJ within ten (10) minutes of the hearing start time, he/she should call the provided MDES phone number. (R. Vol. 2, p. 19-22). On the date and time of the hearing, the Administrative Law Judge ["ALJ"] convened the hearing. (R. Vol. 2, p. 23-29). Ms. Griffin only participated and testified. The ALJ attempted to contact the Employer multiple times, but could not reach anyone. (R. Vol. 2, p. 23-29). Strangely, it appeared that someone was answering the Employer's phone number but then immediately hanging up without ever inquiring as to who was calling. Pursuant to the Employment Security Lmv statutes and regulations, the ALJ further found
that the since Employer failed to participate, it failed to meet its burden of proving that Ms. Griffin was discharged due to misconduct, as defined by the Employment Security Law, and case authorities. Thus, Ms. Griffin was awarded benefits. (R. Vol. 2, p. 31-33). The Employer appealed. (R. Vol. 2, p. 34) After carefully reviewing the record, the Board of Review affirmed the ALJ's decision. (R. Vol. 2, p. 40, 42). The ALJ's fact findings and conclusion were as follows, in pertinent part, to-wit: CASE HISTORY The claimant timely appealed a determination of the Mississippi Department of Employment Security which concluded that the claimant was discharged for misconduct connected with the work. A telephonic hearing before the Administrative Law Judge was held on 09/04/2014 at which time only the claimant participated in the hearing. The employer did not provide a representative or a telephone number at which to be contacted for the hearing. In the absence of the employer, no testimony was taken. ISSUE The issues to be considered in this case are whether the claimant is entitled to benefits based on the reason for separation from employment, and whether the employers experience rating record is chargeable for benefits which may be paid to the claimant. FINDINGS OF FACT Based on the record, the Administrative Law Judge finds that the claimant was discharged from employment by the employer. REASONING AND CONCLUSION Section 71-5-513 A (I) (c) of the Mississippi Employment Security Law provides that the burden of proof to establish misconduct shall be on the employer. The Administrative Law Judge, after careful review of the case and the applicable Law, is of the opinion the burden of proof as required in Section 71-5-513 A (I) (c) 3
of the law was not met by the employer and misconduct connected with the work has not been established. Therefore, a disqualification is not in order. DECISION Reversed. If otherwise eligible, the claimant is entitled to the receipt of benefits based on the job separation. The employer's account is chargeable for any benefits paid within the current benefit year. (R. Vol. 2, p. 31-33). The Employer then appealed to the Circuit Court of Forrest County, Mississippi. (R. Vol. 2, p. 43-51, R. Vol. I, p. 6-14). In so doing, counsel for the Employer inappropriately attached an Incident Report, in which Ms. Causey filed a simple assault charge against Ms. Griffm. (R. Vol. I, p. 10-11). Doing so was inappropriate, because Mississippi Code Annotated Section 71-5-531 (Rev. 2007) provides that appeal from MDES decision shall be upon the record made before the MDES and shall be confined to questions of law only. Doing so was also inappropriate, because Uniform Circuit Court Rules, Rule No. 5.01, 5.02, 5.03 and 5.05 provide that appeals from administrative agencies shall be on the record made before the administrative agency only and not de novo. According to this statute and the Uniform Circuit Court Rules, MDES filed its Answer and the record on November 17,2014. (R. Vol. I, p. 13-14). Subsequently, prior to any Briefs being filed, on November 20, 2014, the Forrest County Circuit Court entered its Order affirming the MDES decision. (R. Vol. I, p. 15-17). The Employer then appealed to this Honorable Court. (R. Vol. I, p. 18-27). 4
SUMMARY OF THE ARGUMENT Pursuant to Mississippi Code Annotated Section 71-5-513 A(I)(c) (Rev. 2007), an employer has the burden of proving misconduct. Further, the case authorities provide that an employer must prove misconduct by clear and convincing substantial evidence. See Brandon v. Mississippi Employment Sec. Comm'n, 768 So. 2d 341 (Miss. 2000) (employer's burden of proof not met regarding alleged violation of policy). Further, pursuant to its rule-making authority, MDES adopts Unemployment Insurance Regulations. Miss. Code Ann. 71-5-525 (Rev. 2007). Appeal Regulation 200.05 provides that the Appeals Department may make an informal disposition by default when the party with the burden of proof fails to appear. A copy thereof is attached hereto as Exhibit "A." Thus, failure to appear or participate is a default; and a default ruling may be entered. Pursuant to this statute, the determination as the Employer's default is within MDES's authority to determine under Mississippi Code Annotated Sections 71-5-523 and 71-5-525 (Rev. 2007), and the Regulation making authority of MDES; and is in fact mandated under the applicable case authorities applicable to the facts of this case. In, Little v. Mississippi Employment Security Comm'n, 754 So. 2d 1258 (Miss. Ct. of App. \999), the Court of Appeals addresses a case in which the employer failed to appear and testify. This case is directly on point on the obligation of the party with the burden of proof appearing and testifying to meet their statutory burden of proof. Id. In this case, the Court reverses MESC (now MDES) for finding misconduct where the employer failed to appear and testify. In so ruling, the Court stated that in the absence of evidence offered by the employer, the Claimant was 5
not required to testify. The Court further holds that where an employer fails to appear and offer evidence, the employer does not meet its burden of proving misconduct by clear and convincing evidence as a matter of law. Id. Thus, conforming to this decision, MOES appropriately holds in this case that the Employer fails to meet its burden of proof, reversing the Claims Examiner decision. (R. Vol. 2, p. 31-33). In the instant case, Ms. Griffin only was available to testify at the hearing. Further, the ALJ followed MOES procedure in repeatedly attempting to contact the Employer at the phone number provided. The record reflects that the All followed MDES procedure by recessing the hearing for ten (10) minutes, reconvening the hearing, and again attempting several times to contact the Employer. Unemployment Insurance Reglliation 200.05. Further, the record reflects that the call was answered, and then immediately disconnected by the answering party. (R. Vol. 2, p. 20-22, 23-29). Incredulously, as set out in counsel for the Employer's brief, the Employer representative was apparently available to testify, and admitted answering the phone. However, after answering the AU's call, she immediately hung up, and did so without first determining the identity of the caller. Thus, the Employer representative obviously received the hearing notice, and was available to testify, but to her detriment failed to take the call and participate in the hearing. Based upon the case authorities as set out herein, and the Employer's failure to offer any testimony at the hearing de novo, the Board of Review correctly found that the Employer failed to meet its burden of proving that Ms. Griffin's committed disqualifying misconduct. Thus, this Honorable Court should affirm the Circuit Court and MOES decisions. 6
In the event the Court finds that the Employer demonstrated good cause for not participating in the hearing, which MDES opposes, this matter should be remanded by the Court to the MDES to conduct a de novo hearing with both parties participating, and a decision. Further, MDES opposes the Court giving any consideration to any evidentiary documents submitted by counsel for the Employer that were not made a part of the record before MDES, because doing so is inappropriate under the statutes and Uniform Circuit CalirI Rilles. Id. at 71-5-531. Should the Court find that such document should be considered, again, this matter should be remanded by the Court to the MDES to conduct a de novo hearing with both parties participating, and a decision. ARGUMENT Standard of Review The Employer's appeal is governed by Mississippi Code Annotated Section 71-5-531 (Rev. 1995), which provides for an appeal to the Circuit Court by any party aggrieved by the decision of the Board of Review. Section 71-5-531 states that the appeals court shall consider the record made before the Board of Review and. absent fraud. shall accept the findings of fact if supported by substantial evidence. and the correct law has been applied. (Emphasis added). Richardson v. Mississippi Employment Sec. Comm'n, 593 So.2d 31 (Miss. 1992); Barnett v. Mississippi Employment Sec. Comm'n, 583 So.2d 193 (Miss. 1991); Booth v. Mississippi Employment Sec. Comm'n, 588 So.2d 422 (Miss. 1991). Further, a rebuttal presumption exists in favor of the Board of Review's decision and the challenging party has the burden of proving otherwise. Allen v. Mississippi Employment Sec. Comm'n, 639 So.2d 904 (Miss. 1994). The appeals court must not reweigh the facts nor 7
insert its judgment for that of the agency. [d. Facts In the instant case, Ms. Griffin only was available to testify at the hearing. Further, the ALJ followed MDES procedure in repeatedly attempting to contact the Employer at the phone number provided. The record reflects that the ALJ followed MDES procedure by recessing the hearing for ten (10) minutes, reconvening the hearing and again attempting several times to contact the Employer. Unemployment Insurance Regulation 200.05. Further, the record reflects that the call was answered, and then immediately disconnected by the answering party. (R. Vol. 2, p. 20-22, 23-29). Incredulously, as set out in counsel for the Employer's brief, the Employer representative was apparently available to testify, and admitted answering the phone. However, after answering the ALJ's call, she immediately hung up, and did so without first determining the identity of the caller. Thus, the Employer representative obviously received the hearing notice, and was available to testify, but to her detriment failed to take the call, and failed to participate. Argument and Authorities The critical issue is whether the Employer met its burden of proving misconduct by clear and convincing evidence by appearing and testifying at the hearing. The Employer was given notice, but failed to participate in the hearing and testify. The hearing notice provided that the hearing would be to determine the reason for separation, and whether its account would be chargeable. (R. Vol. 2, p. 19-22). Since hearings before the MDES are "de novo," the Employer's failure to ofter any proof is tantamount to a default under both case law and the 8
Department's Regulations. Unemployment Insurance Regulations 200.05 (December I, 2007). Regarding the Employer' s burden of appearing at the hearing and making out a clear and convincing case establishing misconduct, in Little v. Mississippi Emplovment Securitv Comm'n, 754 So. 2d 1258 (Miss. Ct. of App. 1999), the Court of Appeals addresses a case in which the employer failed to appear and testify. This case is directly on point. In this case, the lillie, supra, the Claims Examiner disqualified the claimant based on committing disqualifying misconduct. The claimant appealed. The employer failed to appear and testify. The MDES referee (now ALJ) nevertheless took testimony from the claimant; and based on that testimony alone affirmed the Claims Examiner's decision, finding that claimant committed disqualifying misconduct. Id. at 1259-1260. In reversing the Court held stated as follows: Id. at 1260. "In the absence of evidence of misconduct established by KFC, Little was not required to offer rebuttal evidence or an explanation. The requirement by the referee that Little offer evidence to rebut KFC's allegation of misconduct, when no evidence of misconduct had been offered, was an improper shifting of the burden of proof... We find this action to be contrary to the provision of the Unemployment Compensation Act... When the improperly obtained evidence is excluded, there is no substantive evidence to support denial of benefits. Accordingly, the Court reverses and renders Judgment for Little." Lillie was a unanimous decision. Regarding application of Unemployment Insurance Regulations, Appeal Regulation 200.05 provides that the Appeals Department may make an informal disposition by default when the party with the burden of proof fails to appear. Thus, failure to appear or participate is a default; and a default ruling may be entered. Pursuant to this statute, the determination as the Employer's 9
default is within MDES's authority to determine under Mississippi Code Annotated Sections 71-5-523 and 71-5-525 (Rev. 2007), and the Regulation making authority ofmdes; and is in fact mandated under the case authorities applicable to the facts of this case. Lillie. supra. The Court of Appeals applied this Regulation in Miss. Dept. Employment Sec. v. Johnson, 977 So. 2d 1273 (Miss. Ct. of App 2007). In this case, the Claims Examiner disqualified the claimant for misconduct. The claimant appealed. However, neither the claimant nor the employer participated at the hearing; and the Administrative Appeals Officer (now All) affirmed finding that the claimant abandoned her appeal applying Appeal Regulation 200.05. On further appeal by the claimant, the Circuit Court however reversed and awarded claimant benefits, finding that the employer failed to present any evidence of misconduct. On appeal by the employer to the Court of Appeals, the Court reversed the Circuit Court reinstating the Board of Review's decision, finding that pursuant to Appeal Regulation 200.05, the claimant had abandoned her appeal. Id. at 1274. Further, counsel mistakenly references the MDES website arguing that the website provides that if a party does not appear, the decision will be made on the testimony of the appearing party, or record previously made. Counsel for Claimant misinterprets this website information. This information is accurate where a claimant failed to appear or participate, in which case the earlier decision, i.e. the Claims Examiner's decision, would be applied, because the claimant would have effectively abandoned hislher appeal. However, pursuant to the Little and Johnson cases, this information would not apply where an employer alone fails to appear and participate, and the Claims Examiner's previous ruling was that the claimant had committed misconduct. 10
Website infonnation is just that, infonnation. It is not designed, and cannot be, comprehensive of all MDES statutes, Regulations and applicable case authorities. Thus, any reliance in this matter on what the website reflects is inappropriate. The statutes, Regulations and applicable case authorities control. Further, counsel for the Employer does not allege any reliance on the website by the Employer representative for not participating in the hearing. In the instant case, the Employer has effectively abandoned its appeal by failing to participate in the hearing; and this Honorable Court should affinn. However, counsel for the Employer argues that since the Employer representative was available to testify, but mistakenly did not take the ALJ's phone call, the Employer presumably had good cause for not participating. However, neither this excuse nor any other good cause excuse, would entitle the Court to apply the oral statements made to the Claims Examiner as evidence, which are not evidence to be considered by the ALJ, as the statute calls for a de novo ALJ hearing. Further, there is no statute, rule of evidence or Regulation that entitles counsel for the Employer to request this Court to admit the Incident Report into evidence on an appeal, or in any way rely upon, or request that the Court consider that Incident Report in making its decision. In that regard, doing so would be inappropriate, because the Claimant has not had an opportunity to rebut said Incident Report, or present any evidence of her own. In the event the Court finds that the Employer demonstrated good cause for not participating in the hearing, which MDES opposes, this matter should be remanded by the Court to the MDES to conduct a de novo hearing with both parties participating, and a decision. Further, MDES opposes the Court giving any consideration to any evidentiary documents submitted by 11
counsel for the Employer that were not made a part of the record before MDES; and asserts that doing so is inappropriate under the statute and Uniform Circuit Courl Rules. Should the Court find that such document should be considered, again, this matter should be remanded by the Court to the MDES to conduct a de novo hearing with both parties participating, and a decision. CONCLUSION The testimony does not support a finding that the Employer proved Ms. Griffin was discharged due to misconduct by any evidence, much less by clear and convincing substantial evidence. Further, the Employer has defaulted by failing to participate in the hearing, entitling MDES to dismiss this matter and award benefits to the Claimant. Where the Board of Review's decision is supported by the evidence and follows the law, the appeals court should accept the Board's Findings of Fact and Decision, and Circuit Court's ruling; and affirm. RESPECTFULLY SUBMITIED, this the 17th day of June, 2015. MISSISSIPPI DEPARTMENT OF EMPLOYMENTSECUruTY OF COUNSEL: Albert Bozeman White MDES Assistant General Counsel MSB No. 7132 Post Office Box 1699 Jackson, MS 39215-1699 Phone: 601-321-6074 By: /s/ Albert Bozeman White ALBERT BOZEMAN WHITE Assistant General Counsel 12
CERTIFICATE OF SERVICE I, Albert Bozeman White, Attorney for Appellee, Mississippi Department of Employment Security, do hereby certify that I have this day electronically filed the foregoing pleading with the Clerk using the MEC system, with a copy having been mailed via the USPS, postage prepaid, to the following: Christopher D. Nobles, Esq. Roberts and Associates P. 0. Box 1953 Hattiesburg, MS 39403-1953 Honorable Robert Helfrich Circuit Court Judge, Forrest County Post Office Box 309 Hattiesburg, MS 39043 Tempestt Griffin 514 N. George A venue Petal, MS 39465-2410 This the 17th day of June, 2015. Isl Albert Bozeman White ALBERT BOZEMAN WHITE 13