IN THE SUPREME COURT OF MISSISSIPPI

NO. 2004-CC-00663-SCT

GARY W. PANNELL

v.

TOMBIGBEE RIVER VALLEY WATER

MANAGEMENT DISTRICT

DATE OF JUDGMENT: 06/26/2003

TRIAL JUDGE: HON. THOMAS J. GARDNER, III

COURT FROM WHICH APPEALED: LEE COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: JIM WAIDE

ATTORNEY FOR APPELLEE: HENRY J. APPLEWHITE

NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES

DISPOSITION: AFFIRMED - 06/16/2005

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

CONSOLIDATED WITH

NO. 2004-CC-01368-SCT

TOMBIGBEE RIVER VALLEY WATER

MANAGEMENT DISTRICT

v.

MISSISSIPPI EMPLOYMENT SECURITY

COMMISSION AND GARY W. PANNELL

DATE OF JUDGMENT: 06/25/2004

TRIAL JUDGE: HON. PAUL S. FUNDERBURK

COURT FROM WHICH APPEALED: LEE COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: HENRY J. APPLEWHITE

ATTORNEYS FOR APPELLEES: ALBERT BOZEMAN WHITE

JIM WAIDE

NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES

DISPOSITION: REVERSED AND RENDERED - 06/16/2005

MOTION FOR REHEARING FILED:2

MANDATE ISSUED:

EN BANC.

CARLSON, JUSTICE, FOR THE COURT:

¶1. The Tombigbee River Valley Water Management District (“District”) terminated Gary

W. Pannell’s employment foll owing an investigation by District Director Jimmie Mills.

Pannell appealed to the Employee Appeals Board (EAB) where the hearing officer found that

there was no just cause for the District to terminate Pannell. T he District appealed to the full

EAB which affirmed the finding of the hearing officer and affirmed Pannell’s reinstatement.

The District then filed a petition for writ of certiorari requesting that the circuit court review

the decision of the EA

B. The Lee County Circuit Court granted the petition and reversed the

EAB decision, finding it arbitrary and capricious, against the overwhelmin g weight of the

evidence, and erroneous as a matter of law. Pannell timely filed his appeal to this Court.

¶2. After Pannell wa s terminated by the District, he filed for unemployment compensation

benefits with the Mississippi Employment Security Commission (“Commission”). The

Commission awarded Pannell unemployment compensation benefits finding th at the District

failed to prove that Pannell’s actions rose to the level of misconduct. The District appealed,

and the Board of Rev

iew affirmed the Referee’s decision granting benefits. The District then

appealed to the Lee County Circuit Court which also affirmed the findings and judgment of the

Commission. The District timely appealed to this Court, and the two cases have been

consolidated.3 FACTS

¶3. Gary W. Pannell was an employee of the District for approximately four and one-half

years. He worke d as a top-heavy equipment operator until his termination on March 31, 2002.

In January 2000, Pannell filed sev eral grievances against his supervisors at the District. Pannell

alle ged that Tommy Jaggers, Facilities Maintenance Superintendent, had allowed an acetylene

bomb to discharge within the walls of a government facility. Pannell also accused his

immediate supervisor, Harold West, of unsafe work. Finally in September 2001, Pannel l filed

a grievance against Mai

ntenance Director Mike Phillips, alleging that Phillips had climbed on

a crane while in use and had cursed and berated Pannell.

¶4. Following an investigation into Pannell’ s grievances, District Director Mills discovered

several violations by Pannell. On behalf of the Di strict, Mills issued two written reprimands

on F ebruary 13, 2002, and one pre-termination notice to Pannell on March 13, 2002. The first

reprimand alleged Pannell took “pictures of co-workers and /or of work performed or of work

being performed by the Tombigbee River Valley Water Management District during normal

work hours.

. . .” The i

ncidents were alleged to have occurred in April, August and September

2001. The second reprimand alleged that Pannell refused “to idle the dragline/crane after being

told to do so during normal work hours while [] employed.

. . .” The incidents w ere also alleged

to have occurred in April, August and September 2001.

¶5. Pursuant to the pre-termin ation notice, a hearing was conducted on March 19, 2002.

After the hearing, the District notified Pannell that his employment would be terminated

effective March 31, 2002. The District determined that Pannell’s “operation of the

dragline/crane [was] a danger to the safety and lives of co-workers. . . .” The District also4

found that Pannell’s conduct c onstituted a “pattern of dangerous operation.” The specific

findings of the District were as follows:

1. Improperly starting and running the dragline/ crane too fast and/or of raising

the hammer much higher than necessary in driving piling on projects such as the

Hale’s Quarters Bridge Pro ject in Monroe County on April 26, 2001, the

County Road 560 Bridge Project in Al corn County in late August and early

September 2001, and/or at other times;

2. Dropping l

eads and/or dropping pilings on projects such as the Mantachie

Creek Bridge #041 Project in Itawamba County on April 28, 2000, on the Lyle

Leggett Bridge Project in Kemper County on May 8, 2000, at the Sam Cole

Bridge Project in Kemper County on May 10, 2000, on the County Road 560

Bridg e Project in Alcorn County on August 29, 2001 and/or at other times;

and/or

3. Sleeping or otherwise not payin g attention while in the driver’s seat of the

dragline/crane a nd having to be waked up on projects such as the Hale’s Quarters

Bridge Project in Monroe County on April 27, 2001 and/or at other times.

¶6. Pannell filed an appeal of the District’s issuance of the reprimands and an appeal of the

District’s d ecision to terminate his employment. Both appeals were consolidated and were

heard by EAB Hearing Off icer Falton O. Mason, Jr., on June 28, 2002. On July 10, 2002, Judge

Mason issued an orde r overruling and denying the reprimands issued by the District and

reinstating Pannell as an employee of the District.

¶7. After hearing testimony from several witnesses, Judge Mason determined that:

The testimony and facts c learly reflect that during the four and one-half

years that the Appealing Pa rty has been operating the dragline/crane, there has

been no injury

to any person, nor has there been any reports filed stating that he

has endangered anyone in any way. Durin g his employment, he has never

received a performance appraisal; and his immediate supervisor testified tha t he

was not aware that he was supposed to ha ve one, a clear violation by the

Responding Party of one of the rules of the State Personnel Board.

The testimony also reflects that the charges against the Appealing Party

were brought only afte

r he filed a grievance against his immediate supervisor,

for using profanity at him. The testimony from Jimmie Mills, the Director, was

that when he began investigating the grievance, other employee s just opened up

to h im. It is significant that with respect to the investigation of the use of5

profanity, th

e response was that he found the complaints to be without merit, yet

almost immediately a number of charges were brought again st the Appealing

Party.

The Hearing Officer having heard the testimony of the e mployees stating

that in their opinion the Appealing Party was an unsafe dragline/crane operator;

however, there was [sic] no reports of t he incidents they testified to, nor did

they indicate they made a complaint that they fe lt their lives were in any danger.

On the occasions wherein they state the lead or piling were dropped, they did not

state or complain to anyone that they felt they were in danger.

Therefore, Judge Mason found that Pannell had met his burden of proof and should be

reinstated to his previous position with all benefits and back p ay. The District appealed to the

full EAB which issued an Ord er on October 31, 2002, affirming the Hearing Officer’s decision

to reinstate Pannell.

¶8. On November 18, 2002, the District filed a petition for writ of certiorari with the

Circuit Court of Lee County. The petition wa s granted by Circuit Judge Thomas J. Gardner, III.

After accepting briefs from both parties, the circuit court issued its Opinion and F inal Order

reversing the EAB on the grounds that the EAB’s dec ision to reinstate Pannell was arbitrary

and capricious and was not supported by substantial evidence.

¶9. After his termination, Pannell filed fo r unemployment benefits. A Claims Examiner

initially investigated Pannell’s application by interviewing Mills and Pannell. The District also

submitted a response to a questionnaire. Based upon the interviews and the District’s re s ponse,

the Claims Examiner awarded Pannell benefits finding that the District failed to prove

misconduct. The District a ppealed the Claims Examiner’s finding to the Mississippi

Employment Security Commission Bo ard of Review, and a hearing was held before Appeals

Referee Danny C. Timmons. Aft er considering the testimony and exhibits presented, Timmons

found that the District terminated P annell for poor work performance and unsafe work habits.6

However, Timmons found that Pannell had receiv ed no formal warnings or reprimands

regarding his quality of work or safety prior to a grievance f iled by Pannell September 2001.

Timmons further found that although Pannell admitted his work was dangerous, Pannell also

testified that he was never made aware that “h is actions were being considered by his employer

to be acts of gross negl igence or in violation of any set of safety policies.” Timmons

concluded that he did not find that “the claimant was terminated for any specific incident nor

did the claimant receive any type of disciplinary actions from his emplo yer as outlined in the

company’s policies and procedures prior to the date of termination of employment.”

Therefore, Timmons found that Pannell’s actions did not rise to the level of m isconduct as

required to deny the award of benefits.

¶10. The District appealed the f indings of the referee. The Board of Review, after fully

reviewing the findings of the referee, affirmed the award of benefits to Pannell. On August 7,

2003, the District appealed the award to the Lee County Circuit C ourt where Circuit Judge

Paul S. Funderburk affirmed the award of benefits. The District timely appealed to this Court.

ANALYSIS

¶11. The standard of review governing a n appeal from a decision of an administrative agency

is that of substantial evidence. W

alters v. Miss. Dep't of Econ. & Cmty. Dev.

, 768 So.2d 893,

895 (Miss. 2000) (citing Hollo way v. Prassell Enters., Inc. , 348 So.2d 771, 773 (Miss.

1977)). Pursuant to Mi

ss. Code Ann. § 25-9-132 (Rev. 2003), the statutory scope of judicial

review of an employee appeals board decision is:

(2) The scope of review of the circuit court in such cases shall be limited to

review of the record made before the employee appeals board or hea ring officer7

to determine if the action o f the employee appeals board is unlawful for the

reason that it was:

(a) Not supported by substantial evidence;

(b) Arbitrary or capricious; or

(c) In violation of some statutory or constitutional right of the

employee.

These factors which govern the stand ard of review for agency decisions are the

only grounds for overturning an agency's action; otherwise th e agency's

determination must remain undisturbed. Walters

, 768 So.2d at 897; Miss. Dep't

o f Envtl. Quality v. Weems , 653 So.2d 266, 273 (Miss. 1995). This Court must

often determine whether a circuit court has exceeded its authority in overturning

an agency action, and we proceed aware that “a rebuttable presumption exists in

favor of the action of the agency, and the burden of proof is on the party

challenging a n agency's action.” P ubl. Employees' Ret. Sys. v. Shurden

, 822

S o.2d 258, 263 (Miss. 2002); Pub. Employees' Ret. Sys. v. Dishmon

, 79 7

S o.2d 888, 893 (Miss. 2001). Where that authority has been exceeded, this

Court wi ll not hesitate to reverse and reinstate the agency's order. Miss.

Comm'n on Envtl. Quality v. Chickasaw County Bd. of Supervisors

, 621 So.2d

1211, 1215 (Miss. 1993).

Miss. Transp. Comm’n v. Anson

, 879 So. 2d 958, 963 (Miss. 2004). If an administrative

agency’s de cision is not based on substantial evidence, this Court will find the decision to be

arbitrary and capricious. Pub. Employees' Ret. Sys. v. Marquez

, 774 So.2d 421, 425 (Miss.

2000).

¶12. Miss. Code Ann. § 71-5-513(A)(1)(b) (Rev. 2000) provides tha t an individual may be

disqualified for unemploymen t benefits if he was discharged “for misconduct connected with

his work

. ” However, the employer has the “burden of showing by ‘substantial, clear, and

convincing evidence’ that the former employee’s conduct wa rrants disqualification from

eligibility for benefits.” City of Clarksdale v. Miss. Employment Sec. Comm'n

, 699 So.2d

578, 580 (Miss. 1997) (quoting Foster v. Miss. Employment Sec. Co mm'n , 632 So.2d 926,

927 (Miss. 1994)).8

I. Termination

A. Substantial Evidence

¶13. Regarding the Group III allegations of “Acts of Conduct”, the District alleged three

separate offenses: (1) improperly starting and runni ng the dragline too fast and raising the

hammer too high, (2) dropping leads or pilings, and (3) sleeping or otherwise not paying

attention while in the operator’s seat of the dragline.

¶14. As to the allegations of improperly starting and running the dragline too fast and raising

the hammer to high, the circuit court found that:

Harold West, Tommy Jaggers, Mike Phillips and Dale Franks all testified that

Pannell began the pile driving with the dragline operating too fast and that the

hammer w as too high thus creating a dangerous situation. There was testimony

of specific instance s of dangerous operation on particular jobs being ones in

Kemper C o unty in May 2000, T. 200-04, in Monroe County in April 2001, T.

159-61, 25 4 -57, in Alcorn County in August or September 2001, T. 258, 296,

and on other

occasions, T. 209-10. Pannell’s only evidence on this point was

that the dragline could not be operated at a slower speed and to do so would not

be safe, T. 350-51, and Pannell did not testify as to any particular job.

¶15. The District wit nesses also testified to several instances of Pannell’s dropping pilings

or leads. Pannell’s only rebuttal concerned the Alcorn County job where he testified that it had

been raining. The District also introduced a video tape, which included sound effects, along

with photographs of the dragline being operated by Harold West. These exhibits illustrated how

pilings were started and what could happen if the pilings were deep enough to raise the hammer

and speed up the engine. West also testified that the conditions of the ground where men were

guiding the piling or giving hand signals were often muddy and wet, near slopes or banks, with

the lea d, piling and hammer suspended on cables. If something were to happen with the lead,9

the men would be unable to act quickly in order to move out of the way of a falling lead or

piling.

¶16. Tommy Jaggers testified that Pannell went to sleep while the dragline was holding

bridge components and while men were working underneath the bridge in Kemper County.

Jagg ers further testified that upon being awakened, Pannell was disoriented and dangerously

jerked the cables. Dale Franks testified tha t Pannell also fell asleep while working on the

Monroe County job. When Pannell was asked to put slack in the cables, Franks testifi ed that

he appeared dazed. Pannell admitted to sleeping while on the job in the operator’s seat of the

dragline. Pannell testified it was common practice for employees to sleep on the job if they

were not p erforming a specific task at the time. Pannell also stated that he would not have a

sharp eye for danger ous situations if he were asleep while in the operator’s seat of the dragline.

¶17. Jim Rutherford, who testified on behalf of Pannell, stated that Pannell was a safe

dragline operator. However, Rutherfor d could not testify to the specific instances alleged by

the District because he quit working for the District in April 1999.

¶18. The District also alleged two acts of insubordination: (1) the unauthorized taking of

pictures and (2) the refusal to listen to his supervisors regarding the proper use of the dragline.

Pannell tes tified that he took the pictures for safety reasons; however, he admitted that the

pictures were not authorized by t he District. Dale Franks testified that Pannell got off of the

dragline while it was running in order to take the pict ures. Franks testified that this action by

Pannell caused unexpected delays in the project and was unnecessarily dangerous. Harold West

testified that during the Monroe County job, he informed Pannell three separate times to

properly idle the dragline, but Pannell refused to do so. Mike Phillips testified that when he10

arrived at the sam

e project, Pannell was still running the dragline too fast. Pannell idled the

dragline down, but Phillips testified that he soon began runni ng the dragline too fast again.

Fra nks and Jaggers also offered testimony that Pannell ran the dragline too fast on other jobs.

¶19. After fully reviewing all of the evidence presented to it, the circuit court found that as

to the three separate instances alleging “Acts of Conduct,” the evidence was “overwhelmingly

in favor of the Tombigbee District that Pannell did commit these offenses.” As to the two

separate allegations of insubordination, the circuit court found that th e “overwhelming weight

of the credible evidence supports the actions taken by the Tombigbee District.” The circuit

court further found that:

The Hearing Officer and the Full Emp loyee Appeals Board found that is was “.

. . a clear violation

by the Responding Party of one of the rules fo the State

Personnel Board ” that Pannell had not been g iven the required annual

performance appraisals by the Tombigbee District. While this court certainly

does not condone that failure to comply, this court also finds that this one

failure by the Tombigbee District was a large factor causing the Hearing Officer

and the Full Employee Appeals Board to reve rse the termination of Pannell and

to reinstate his employment with the Tombigbee District. In the case of Y oung

v. Mississippi State Tax Com’n

, 635 So. 2d 869 (Miss. 1994), the Employee

A ppeals Board similarly expressed concern that the Tax Commission ha d not

given a terminated employee the required perform ance appraisal. In Y

oung

, the

Supreme Court

held that as a matter of law the Employee Appeals Board could

not rev erse the termination of an employee by the Tax Commission on the

ground that the Tax Commission did not have a “ performance plan

. ” 635 So. 2d

at 873. The terms “

may attempt to correct unacceptable behavior ” prior to taking

formal disciplinary action “ w henever practical

” were the key provis ions

concerning the discipline of employees by a state agency. I d. 872-73. Those

same key provisions are likewise contained in th e relevant Mississippi State

Employee Handbook, July 2001, Section 10. Un der the ruling of Y

oung

, the

Hearing Offic e r’s Order as affirmed by the Full Employee Appeals Board Order

are erroneous as a matter of law and should be reversed.

(emphasis in original).11

¶20. We find that the circuit court was e minently correct in its findings in that there was

substantial evidence of the actions complained of by the Distric t and that Pannell failed in

p roving that the District acted arbitrarily and capriciously so as to entitle him to be re instated.

We also find that the EAB based its decision erroneo usly on the fact that Pannell had not be

given a performance evaluation. Therefore, Judge Gardner correctly reversed the orders of the

EAB and reinstated the decision by the District to terminate Gary Pannell.

B. Arbitrary and Capricious

¶21. We have noted:

If an agency's decision is supported by substantial evidence, then it is not

arbitrary or capricious. M iss. Bureau of Narcotics v. Stacy

, 817 So.2d 523,

526 (Miss. 2002). This Court has said that the ter ms “arbitrary” and “capricious”

are open-textured and not susceptible to precise defi nition or mechanical

application.” Miss. State Dep't of Health v. Southwest Miss. Reg'l Med. Ctr.

,

580 So.2d 1238, 1240 (Miss. 1991). Moreover, an act is capricious when it is

“done without reason, in a whimsical manner, implying either a lack of

understanding of or a disregard for the surrounding facts and settled controlling

principles.”

Id.

Anson

, 879 So. 2d a t 964. Although the EAB had the opportunity to observe the demeanor of

the witnesses which testified in the case subjudice, we have previously held that the District’s

decision to terminate Pannell was based upon substantial evid ence. Therefore, we find that the

EAB acted arbitrarily and capriciously in reversing the decision of the District and reinstating

Pannell to his previous employment.

¶22. After correctly determining that it was not the trier of fact in the present case, the Lee

County Circuit Court found pursuant to Miss issippi precedent that it had a duty to review the

proceedings before it in the following manner:12

(a) The record as a whole, including the transcript, exhibits, and all other matters

before the Employees Appeal Board including the fin dings should be reviewed

by this court.

(b) As two state agencies are involved, the findings, and actions taken, by the

Tombigbee District, the responding or employ ing agency, are entitled to a

presumption of correctness, M ississippi Departm ent of Corrections v. Harris

, 831 So. 2d 1190, 1192 (Miss. Ct. App. 2002)

(c) In order to meet that burden of proof bef ore the Employee Appeals Board,

Pannell must prove that the actions taken by the Tombigbe e District were

arbitrary, capricious, and against the overwhelming weight of the evidence and

that he is entitled to reinstatement, Harris

, 831 So. 2d at 1193 and E.A.B. Rule

21(B) (July 2001).

(d) Pa nnell, as the aggrieved employee, had the burden of proof before the

Employee Appeals Board that the actions complained of by the Tombigbee

District did not occur and that the alleged reasons for dismissa l are not true,

Walters v. Mississippi Depa rtment of Economic and Community

Development

, 768 So . 2d 893, (Miss. 2000); H arris

, 831 So. 2d at 1193;

E.A.B. Rule 21(C) (July 2001); and Miss. Code Ann. § 25-9-127.

(e) If there is substantial evidence of the actions complained of by the

Tombigbee District, such as at least one Group I I I offense or two Group II

offenses which permit the agency to terminate Pannell, the E mployee Appeals

Board can not alter the agency’s decision to ter minate Pannell as the employing

agency “.

. . acted in accordance with the published policies, rules and

regulations . . .” H

arris

, 831 So. 2d at 1193 and E.A.B. Rule 24(B) (July 2001).

(emphasis in original). Because th e circuit court, after fully reviewing the decision of the EAB,

correctly determined that the EAB ’s decision was not supported by substantial evidence and

was, therefore, arbitrary and capricious, we affirm the circuit court’s reversal of the Order of

the EAB and its reinstatement of the District’s termination of Gary Pannell’s employment.

II. Unemployment Benefits

¶23. In Wheeler v. Arriola

, 408 So. 2d 1381 (Miss. 1982), this Court adopted the following

definition of “misconduct”:

conduct evincing such willful and wanton disregard of the employer's in t erest

as is found in delibera

t e violations or disregard of standards of behavior which

the employer has the right to expect from his employee. Also, careles sness and

negligence of such degree , or recurrence thereof, as to manifest culpability,13

wrongful intent or evil design, and s howing an intentional or substantial

disregard of the employer's interest or of the employee's duties and obligations

to his e mployer, came within the term. Mere inefficiency, unsatisfactory

conduct, failure in good performance as the result of inability or incapa city, or

inadvertences and ordinary negligenc e in isolated incidents, and good faith

errors in judgment or discretion were not considered “misconduct” within the

meaning of the statute.

Id. at 1383. If there does not appear to be any willful or wanton conduct or where the employee

has attempted in good faith to perform satisfactorily, this Court has refused to find

misconduct.

¶24. Pann ell argues that there was substantial evidence for the Referee’s finding that

Pannell’s employment with the District was terminated was due to his filing of a grievance

against his superior, not due to his performance as a dragline operator. Pannell test ified before

the Referee that in the four and one-half years that he had been an employee of the District,

he had never been given any formal warnings conc erning his performance until after his

grievances were filed. Pannell denied t hat he had done anything wrong in the operation of the

crane and explained that the particular crane in question had worn brakes which caused the

hammer to be erratic. Pannell also testified that he denied all charges made by the District that

he dropped any leads or pilings, and he st ated that he had made official reports that the brakes

needed to be repaired. Pannell further testified that he d id not willfully disregard any directions

from his superiors regarding operation of the dragline.

¶25. Tommy Jaggers, a witness for the District, testifi ed that Pannell intentionally operated

the dragline in a manner which caus ed problems for the other workers and the company.

Harold West, Pannell’s immediate supervisor, testified that Pannell dr opped leads and pilings,

the result of which could have caused great injury to other employees. West stated that he14

corrected Pa nnell’s operation of the crane to the best of his ability. West further testified that

he also asked Pannell several times to decrease the speed at which he was operating the

machine, but Pannell refused to do so.

¶26. Mike Phillips, the general supervisor, also testified that Pannell wil lfully disobeyed

orders and ran the crane at an improper speed. After repeatedly being told how to operate the

machine, Pannell idled the machi ne so far down that it would not work, causing Phillips to get

into the cab of the crane and physically instruct Pannell on the proper operation. Other

witnesses testified to numerous incide nces where Pannell operated the crane at an improper

speed after being instructed to slow the machine down. There was als o testimony that Pannell

slept on the job after being instructed not to do so. Pannell admitted to slee ping on the job, but

he denied ever being told not to.

¶27. In Shannon Engineering & Constr. , Inc. v. Mississippi Employment Sec. Comm’n

,

549 So. 2d 446 (Miss. 1989), this Court held that “in subordination” was included within the

scope of “misconduct” under Miss. Cod e Ann. § 71-5-513 warranting a denial of

unemployment benefits. In Shannon

, we defined “insubordination” as a “constant or continuing

intentional refusal to obey a direct or implied order, reasonable in nature, and given by and with

proper authority.” 549 So. 2d at 449 (quoting Sims v. Bd. of Trustees, Holly Springs Mun.

Separate School Dist.

, 414 So.2d 431 , 435 (Miss. 1982)). Several incidences of

insubordination were presented to th e Referee; however, the Referee chose to place greater

weight on the fa ct that these incidences were not officially reported until an investigation was

conducted as a result of grievances filed by Pannell.15

[T]he referee does not find that the claimant was term inated for any specific

incident nor did the claimant receive a n y type of disciplinary actions from his

employer as outlined in the company’s policies and procedur es prior to the date

of termination o f employment. The referee does not find that the claimant’s

actions woul d rise to the level of misconduct as that term is used in the law and

therefore, affirms the decision of the claims examiner.

¶28. Upon a thorough review of the record, we find that the District met its burden of proof

by clear and convincing evidence that Pannell’s conduct warranted disqualification of

unemployment benefits. Several District employees testif ied that Pannell continued to operate

machiner y at dangerous speeds after repeatedly refusing to heed warnings by his superiors of

his improper use of the machinery. Pannell’s only excuse for his conduct was that the

machinery was in disrepair.

¶29. As stat ed previously, this Court has held in Y oung v. Mississippi State Tax Comm’n

,

635 So. 2d 869 (Miss. 1994), that it was improper for the EAB to reverse a termination on the

grounds that the em

ployer had failed to take formal disciplinary action. Likewise, we find it

improper to award unemployment benefits on the sole grounds that formal d isciplinary action

was not taken prior to the employee’s termination. There is substantial evidence in the record

that Pannell was verbally warned sever al times of his improper conduct regarding his operation

of machinery. He was corrected by his immediate supervisor, and he was corrected by his

general supervisor. We find that the decision of the Mississippi Employment Security

Commission

to award unemployment benefits to Gary Pannell was arbitrary and capricious and

against the overwhelming weight of the evidence. T herefore, we reverse the circuit court’s

affirmance of the Commission’s award of unemployment benefits to Gary Pannell. CONCLUSION16

¶30. The Lee County Circuit Court was correct in find ing the Employee Appeals Board’s

decision to reinstate Gary Pannell’s employment with the Tombigbee River Valle y Water

Management Dist

rict was arbitrary and capricious and against the overwhelming weight of the

evidence. Therefore, we affirm the circuit court’s judgmen t reversing the EAB decision and

reinstating the District’s termination of Gary Pannell’s employment. However, the Lee County

Circuit Court improperly affirmed the Mississippi Employ ment Security Commission’s award

of unemployment benefits to Gary Pannell. Finding that the Commission’s decision was

arbitrary and capricious and against the overwhelming weight of the evidence, we reverse the

circuit court’s judgment and the Commission’s judgment, and we render jud gment here denying

the unemployment compensation benefits claim of Gary W. Pannell.

¶31. CAUSE NO. 2004-CC-00663-SCT IS AFFIRMED. CAUSE NO.

2004-CC-01368-SCT IS REVERSED AND RENDERED.

SMITH, C.J., WALLER, P.J., DICKINSON A ND RANDOLPH, JJ., CONCUR.

GRAVES, J., CONCURS IN PART AND DISSEN T S IN PART WITHOUT SEPARATE

WRITTEN OPINION . EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN

OPINION. COBB, P.J., AND DIAZ, J., NOT PARTICIPATING.