E-Filed Document Apr 8 2016 14:20:08 2015-CC-01422 Pages: 17 IN THE SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY vs. VS. ARDERS MATTHEWS APPELLANT CAUSE NO. 2015-CC-01422 201S-CC-01422 APPELLEE EE BRIEF OF APPELLANT MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY APPEAL FROM THE CIRCUIT COURT OF WASHINGTON COUNTY STATE OF MISSISSIPPI ORAL ARGUMENT NOT REQUESTED OF COUNSEL: ALBERT BOZEMAN WHITE ASSISTANT GENERAL COUNSEL MS BAR NO. 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 ISSUES... 1 STATEMENT OF THE CASE... 3 SUMMARY OF THE ARGUMENT... 6 ARGUMENT... 7 CONCLUSION... 10 CERTIFICATE OF SERVICE... 12
IN THE SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF THE ST ATE OF MISSISSIPPI MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY vs. ARDERS MATTHEWS APPELLANT CAUSE NO. 2015-CC-01422 APPEL LEE 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, Appellant 2. Albert Bozeman White, Assistant General Counsel for Appellant 3. Anna Crain Clemmer, Staff Attorney for Appellant 4. Arders Matthews, Claimant 6. Honorable Carol White-Richard, District 4 Circuit Court Judge This the 8th day of April, 2016. 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 ii
TABLE OF CASES AND OTHER AUTHORITIES CASES PAGE Allen v. Mississippi Employment Security Comm'n,... 7 639 So. 2d 904 (Miss. 1994) Bank of Edwards v. Cassity Auto Sales. Inc.,... 10 599 So. 2d 579 (Miss.1992) Barnett v. Mississippi Employment Security Comm'n,... 7 583 So. 2d 193 (Miss.J991) Booth v. Mississippi Employment Sec. Comm'n... 7,9 588 So. 2d 422 (Miss. 1991) City of Tupelo v. Miss. Emp. Sec. Comm'n.... 10 748 So. 2d lsi (Miss. 1999) Holt v. Miss. Dept. of Emp. Sec..... 9 724 So. 2d 466 (Miss. Ct. App. 1998) Maxwell v. Mississippi Employment Sec. Comm'n... 10 792 So. 2d 1031 (Miss. Ct. App. 200 I) Miss. Emp. Sec. Comm'n v. Marion Co. Sheriffs Dept.,... 9 865 So. 2dl165 (Miss. Ct. App. 2004) Miss. Emp. Sec. Comm'n v. Parker,... 9 903 So. 2d 42 (Miss. 2005) Richardson v. Mississippi Employment Security Comm'n,... 7 593 So. 2d 31 (Miss. 1992) Wheeler v. Arriola,... 3 408 So. 2d 1381 (Miss. 1982) Wilkerson v. Miss. Emp. Sec. Comm'n & Anderson-Tully Co"... 6,8 630 So. 2d 1000 (Miss. 1994) iii
OTHER AUTHORITIES Mississippi Code Annotated 71-5-355 Mississippi Code Annotated 71-5-513 A (I) (b) Mississippi Code Annotated 71-5-513 A (I) (c) Mississippi Code Annotated 71-5-517 Mississippi Code Annotated 71-5-519 Mississippi Code Annotated 71-5-523 Mississippi Code Annotated 71-5-531 3 3 3 6, 7 I, 6, 8, 9 8 7 Mississippi Department of Employment Security... 6 Regulation 200m Mississippi Department of Employment Security... 4 Regulation 308.00 iv
IN THE SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY VS. ARDERS MATTHEWS APPELLANT CAUSE NO. 201S-CC-01422 APPELLEE BRIEF OF APPELLANT MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY STATEMENT OF ISSUE I. Whether the Circuit Court erred by failing to determine whether Arders Matthews timely filed his appeal of the Administrative Law Judge's decision to the Board of Review, pursuant to Mississippi Code Annotated 71-5-519 (1972, as amended), such that dismissal by the Board of Review was proper? 2. Whether the Circuit Court acted arbitrarily and capriciously by reversing the Board of Review decision, which dismissed Arders Matthews' appeal of the Administrative Law Judge's decision as filed twenty-nine (29) days late, and thus untimely filed? 3. Whether the Circuit Court erred by deciding Claimant's appeal based on the Employer failing to prove misconduct due to excessive absenteeism and tardiness rather than considering and deciding this appeal based on whether Arders Matthews timely filed his appeal to the Board of Review?
4. Whether Arders Matthews failed to establish good cause for filing his appeal of the Administrative Law Judge's decision to the Board of Review untimely? STATEMENT OF THE CASE Arders Matthews [hereinafter also "Claimant"] was employed by Harlow Casino & Resort [hereinafter also "Employer"] as a cook from July 14,2014, until January 9, 2015, when he was discharged. (R. Vol 2, p. 7-9). Mr. Matthews was discharged for excessive absenteeism and tardiness when he exceeded the allowed number of absences, tardies and early-leave points under the Employer's policy. Before discharge, he was progressively disciplined, receiving verbal and written warnings. He also was aware of the policy, and informed of his point totals, but nevertheless continued not to comply. (R. Vol. 2, p. 7-9, 35-73, and Employer Exhibits). After termination, Mr. Matthews filed for unemployment benefits. (R. Vol. 2, p. I). The Claims Examiner investigated. Based on the information obtained, the Claims Examiner determined that Mr. Matthews was discharged due to misconduct for excessive absenteeism and tardies, after receiving warnings. Thus, he was found ineligible to receive unemployment insurance benefits. (R. Vol. 2, p. 10, 12). Mr. Matthews appealed. (R. Vol. 2, p. 14). A telephonic hearing was noticed and held before an Administrative Law Judge [hereinafter "AU"]. (R. Vol. 2, p. 9-22,23-164). Erica Jones, Human Resource Director, testified for the Employer. Mr. Matthews also testified. (R. Vol. 2, p. 23-146). The Employer also introduced eight (8) Exhibits into evidence. (R. Vol. 2, p. 147-164). After the hearing, the AU affirmed the Claims Examiner's decision. In so doing, the AU held that Mr. Matthews committed misconduct when he exceeded the allowed number of absenteeism, early-leave and tardiness points. (R. Vol. 2, p. 166-169). The AU further noted that Mr. Matthews was progressively warned and was aware of the Employer's policy. The AU
concluded that he was discharged due to disqualifying misconduct due to his over-all poor attendance record. (R. Vol. 2, p. 166-169). to-wit: The ALl's Fact Findings and Reasoning and Conclusion were as follows, in pertinent part, Finding of Fact The claimant was employed as a cook for Harlow's Casino Resort & Spa from July 14,2014 until January 8, 2015 when he was discharged for obtaining ten attendance points during a twelve month period in accordance with the employer's written attendance policy. The claimant received at least two written warnings for attendance and he accrued ten attendance points due to being late twelve times and for not taking part in a mandatory staff meeting. Reasoning and Conclusion: Section 71-5-513 A (I) (b) of the Mississippi Employment Security Law provides that 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 the work, if so found by the Department, and for each week thereafter until he has earned remuneration for personal services equal to not less than eight times his weekly benefit amount as determined in each case. Section 71-5-513 A (I) (c) provides that in a discharge case, the employer has the burden to establish the claimant was discharged for misconduct connected to the employment. Section 71-5-355 of the Mississippi Employment Security Law provides, in part, that an employer's experience rating shall be chargeable with benefits paid to a claimant, provided that an employer's experience rating record shall not be chargeable if the Department finds that the claimant left work voluntarily without good cause connected with the work, was discharged for misconduct connected with the work, or refused an offer of available, suitable work with the employer. In the Mississippi Supreme Court, in the case of Wheeler Vs. Arriola, 408 So. 2d 1381 (Miss. 1982), the Court held that: "The meaning of the term 'misconduct', as used in the Unemployment Compensation Statute, was conduct evincing such willful and wanton disregard of 3
the employer's interest as is found in deliberate violations or disregard of the standards of behavior which the employer has the right to expect from his employees. 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, came within the term. Mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, or inadvertencies and ordinary negligence in isolated incidents, and good faith errors in judgment or discretion were not considered 'misconduct' within the meaning of the Statute." MDES Regulation 308: Mississippi Department of Employment Security Regulation 308.00 provides that: A. For purposes of Mississippi Code Section 71-5-513, misconduct shall be defined as including but not limited to: I. The failure to obey orders, rules or instructions, or failure to discharge the duties for which an individual was employed; a. An individual shall be found guilty of employee misconduct for the violation of an employer rule only under the following conditions: I. the employee knew or should have known of the rule; ii. the rule was lawful and reasonably related to the job environment and performance; and iii. the rule is fairly and consistently enforced. 2. A substantial disregard of the employers interests or of the employees duties and obligations to the employer; 3. Conduct which shows intentional disregard - or if not intentional disregard, utter indifference - of an employers interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of the employee; or 4. Carelessness or negligence of such degree or recurrence as to demonstrate wrongful intent. While the claimant received one attendance point for missing a mandatory staff meeting, he was discharged for his overall attendance record which included twelve occasions of lateness after warnings. The claimant's lateness was in disregard of the employer's interests and the claimant's discharge was for misconduct connected with work under the provisions of the Mississippi Employment Security Law. Therefore the decision of the claims adjudicator is modified as to date of disqualification only. Decision Modified. The claimant is disqualified from January 9, 2015, and until the claimant has been reemployed under covered employment and has earned eight times the claimant's weekly benefit amount. The employer's experience rating record is entitled to a non-charge. 4
(R. Vol. 2, p. 166-169). The AU's decision was mailed to Mr. Matthews on March 17.2015. (R. Vol. 2, p. 169). The AU's decision stated that it would become final fourteen (14) days after the date of mailing, and that an appeal may be filed online or by phone at the number provided, or by letter to the Board of Review at Post Office Box 1699, Jackson, MS 39215, no later than March 31. 2015. (R. Vol. 2, p. 169). On April 30. 2015, Mr. Matthews appealed to the Board of Review. (R. Vol. 2, p. 170). Subsequently, after carefully reviewing the record, the Board of Review found that Mr. Matthews' appeal was not timely filed; and the AU's decision became final. Mr. Matthews' appeal was dismissed as untimely filed. (R. Vol. 2, p. 177). Mr. Matthews then appealed to the Circuit Court. (R. Vol. 2 p. 178 & Vol. I, p. 1-3). Subsequently, MDES filed its Answer and the record transcript on July 14.2015. (R. Vol. I p. 6). On August 21, 2015, just 37 days after the record transcript was filed, the Circuit Court reversed the MDES decision; and did so without any Brief being filed by Claimant, and before the MDES Brief would be due. (R. Vol. I, p. 7-9). In so doing, the Circuit Court did not address Mr. Matthews' failure to file his appeal timely to the Board of Review. Instead, the Circuit Court erroneously based its decision on the misconduct issue. MDES appealed to this Honorable Court on September 10,2015. (R. Vol. I, p. 10-12). 5
SUMMARY OF THE ARGUMENT The Mississippi Supreme Court held in Wilkerson vs. Mississippi Employment Sec. Comm'n, 630 So.2d 1000 (Miss. 1994) that the Mississippi Code Annotated 7l-5-5l7 (Rev. 2007) fourteen (14) day appeal time is clear and unambiguous, and that it should be strictly construed. Id. at 1002. The Court stated that no room exists for judicial construction, such that the courts must apply the clear meaning of the statute and enforce it. Id. The Court further stated that relief from the fourteen (14) day appeal filing deadline would only be appropriate lithe Notice was mailed to the wrong address, or delivered other than by mail. Id. at 1001-1002. Said Section 71-5-517 is the companion statute to Mississippi Code Annotated 71-5-519 (Rev. 2007). Section 71-5-519 provides that the aggrieved party has fourteen (14) days after the date of notification or mailing of the decision by the appeals tribunal, i.e. Administrative Law Judge ["ALJ"). Id. Benefit Appeal Regulation 200.01 provides that notice shall be by mail. In this case, the ALJ's decision was mailed on March 17, 2015, to Mr. Matthews. Mr. Matthews had fourteen (14) days to appeal. The Board of Review received the appeal on April 30, 2015. Mr. Matthews' appeal should have been filed by March 31, 2015; and thus, it was filed twenty-nine (29) days late. Mr. Matthews was informed of the March 31, 2015, appeal deadline in the ALJ decision. Pursuant to Mississippi Code Annotated 71-5-519 (Rev. 2007), the Board of Review made the correct decision in dismissing Mr. Matthews' appeal as untimely filed. In fact, the Board of Review's dismissal of Mr. Matthews' appeal was mandated by the unambiguous language of 6
the applicable statute and the case authorities. Id. The Circuit Court ignored the timeliness issue of Mr. Matthews' appeal, and acted arbitrarily and capriciously by reversing MDES based on a finding the Claimant did not commit misconduct. This issue was not before the Circuit Court to decide. Thus, this Honorable Court should reverse the Circuit Court and affirm the Board of Review in this matter. ARGUMENT Mr. Matthews' appeal to the Circuit Court is governed by Mississippi Code Annotated 71-5-531 (Rev. 2007), 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 Emplovrnent Sec. Comm'n, 583 So.2d 193 (Miss. 1991); and Booth v. Mississippi Employment Sec. Comm'n, 588 So.2d 422 (Miss. 1991). Further, the Mississippi Supreme Court has held that a 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 insert its judgment for that of the agency. Id. Regarding appeal requirements, Mississippi Code Annotated 71-5-517 (Rev. 2007) provides in pertinent part, to-wit: The claimant or any party to the initial determination or amended initial determination may file an appeal from such initial determination or amended initial 7
detennination within fourteen (14) days after notification thereof, or after the date such notification was mailed to his last known address. Mississippi Code Annotated 71-5-519 provides in pertinent part, to-wit:... an appeal tribunal...shall affinn, modify or reverse the findings of fact and initial detennination or amended initial detennination. The parties shall be duly notified of such tribunal's decision, together with its reason therefor, which shall be deemed to be the final decision of the board of review unless within fourteen (14) days after the date of notification or mailing of such decision, further appeal is initiated pursuant to Section 71-5-523. Mr. Matthews was afforded all of the notice to which he was entitled by statute. The Administrative Law Judge Decision contains a certification of the mailing date. (R. Vol. 2, p. 72-73). The Decision clearly provides that Appellant'S appeal must be filed within fourteen (14) days "from the date this decision was mailed", and gave Mr. Matthews the exact appeal deadline that the decision would become final. (R. Vol. 2, p. 73). The purpose of the fourteen (\4) day time period appears to be for allowing four days for mailing; and thus, giving Mr. Matthews at least ten (10) days to file his appeal. The Mississippi Supreme Court has not only found the companion statute clear and unambiguous, the Court has further held that the fourteen (14) day time period begins running from the mailing date, when mailed to the Claimant's correct last known address. Further, the Court has held that the statute must be strictly construed. Wilkerson, supra at 1002. Further, in Wilkerson, supra, an appeal under similar facts as the instant case, was dismissed because it was filed one (\) day late. Id. at 1002-3. Apparently the reasoning behind the Mississippi Supreme Court's strict construction of the Unemployment Compensation Act appeal statutes is that there is no practical means for the Department to actually verify a party's receipt of a decision. The volume of decisions mailed 8
makes this impractical; and neither the legislature nor the Supreme Court has found the appeals statutes in need of revision. See Booth v. Mississippi Employment Sec. Comm'n, 588 So.2d 422, 427-28 (Miss. 1991) (due process is satisfied if notice is reasonably calculated to apprize the interested parties of the hearing). As applied to the facts of this case, this Court should reverse the Circuit Court decision, and affirm the Board of Review's decision dismissing Mr. Matthews' appeal. As case authority thereof, in addition to the cases cited herein above and below, and the applicable Employment Security statutes cited herein above, the Court should consider Miss. Employment Sec. Comm 'n v. Parker, 903 So. 2d 42 (2005). In this case, the Supreme Court reversed the Circuit Court, and reinstated the MDES decision dismissing Ms. Parker's appeal to the MDES Board of Review as untimely filed. In this case, the Circuit Court had erroneously applied the Mississippi Rules ojcivii Procedure to Ms. Parker's MDES administrative appeal deadlines, rather than the Employment Security Law, and specifically Mississippi Code Annotated 7I-5-519 (Rev. 2000). Finding that the Mississippi Rules oj Civil Procedure did not apply to administrative proceeding and appeal deadlines, the Supreme Court reversed the Circuit Court, and reinstated and affirmed the MDES Board of Review decision, holding that the fourteen (14) day appeal deadline was applicable and would be strictly construed. Id. at 44-45. Further, there are many other case authorities generally upholding the MDES appeal deadlines and addressing the good cause for late filing issue. See Miss. Employment Sec. Comm' n v. Marion Co. Sheriff's Dept, 865 So. 2d 1156 (Miss. Ct. App. 2004)(fourteen day appeal deadline applied); Holt v. Mississippi Employment Sec. Comm'n, 724 So.2d 466 (Miss. Ct. App. 9
1998) (insufficient evidence was presented to overcome the presumption of proper delivery); City of Tupe\o v. Mississippi Employment Sec. Comm'n, 748 So.2d 151 (Miss. 1999) (City did not show good cause for filing an appeal late simply because the notice was mailed to one of several addresses for the City); Maxwell v. Mississippi Employment Sec. Comm'n 792 So. 2d 1031 (Miss. Ct. App. 2001) (where claimant waited until after his dishonorable discharge was changed to an honorable discharge to file appeal, good cause was not shown for appealing untimely); Powell v. Mississippi Employment Sec. Comm'n, 787 So.2d 1277 (Miss. 2001) (Circuit Court's allowance of untimely appeal based upon claimant's assertion of "unforeseen circumstances" was insufficient proof of good cause. Mr. Matthews also has not presented an excuse for late filing at all, or that would be recognized as good cause under the statutes. This Court has also previously stated that the timeliness of appeal issue is jurisdictional. Bank of Edwards v. Cassity Auto Sales. Inc., 599 So.2d 579 (Miss. 1992); Booth v. Mississippi Employment Sec. Comm'n, 588 So.2d 422 (Miss. 1991). CONCLUSION The primary issues in this matter are (I) whether the AU's Decision was mailed to Mr. Matthews' correct address; and (2) whether the appeal was filed within fourteen (14) days of the date mailed. Mr. Matthews' address is the last address given by him to the Department; and appears correct. Further, there is no dispute that Mr. Matthews' appeal to the Board of Review was made on April 30, 2015, being twenty-nine (29) days late. Since there is ample evidence to support the decision of the Board of Review in holding that Mr. Matthews did not timely file his appeal, 10
and since the law was appropriately applied to the facts and supports the Board's decision, the Board of Review's dismissal of Claimant's appeal should be affirmed, and the Circuit Court reversed. RESPECTFULLY SUBMITTED, this the 8 th day of April, 2016. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY BY: /s/ Albert Bozeman White ALBERT BOZEMAN WHITE OF COUNSEL: Albert Bozeman White MDES Assistant General Counsel MSB No. 7132 Post Office Box 1699 Jackson, MS 39215-1699 (601) 321-6074 11
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 Supreme Court of Mississippi, and a true and correct copy has been mailed to the following, to-wit: Mr. Arders Matthews 921 Cedar Street Greenville, MS 38701-6310 Honorable Carol White-Richard Circuit Court Judge, District 4 Post Office Box 686 Indianola, MS 38751-0686 THIS, the 8th day of April, 2016. Isl Albert Bozeman White ALBERT BOZEMAN WHITE