IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2014-CC-01445-COA FRANKLIN COLLECTION SERVICE, INC. APPELLANT

v. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY AND ELIZ ABETH THOMAS APPELLEES

DATE OF JUDGMENT: 09/04/2014 TRIAL JUDGE: HON. JAMES LAMAR ROBERTS JR. COURT FROM W HICH APPEALED: LEE COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: MICHAEL D. CHASE ATTORNEYS FOR APPELLEES: ALBERT B. W H ITE LEANNE FRANKLIN BRADY ELIZABETH THOMAS (PRO SE) NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES TRIAL COURT DISPOSITION: AFFIRMED DECISION OF THE MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY’S BOARD OF REVIEW DISPOSITION: AFFIRMED - 12/15/2015 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., MAX WELL AND JAMES, JJ.
MAX WELL, J., FOR THE COURT: ¶1. W h en the Mississippi Departm ent of Em ploy m ent Security ’ s B o ard of Review justif i es its f actual f inding s w i t h evidence, those f indings shall be c onclusive

. 1 A nd when the Board’s f

actual f i ndings a re conclusive, our appellate review f ocuses s olely on questions

1 Ja ckso n C

n ty. B d

. o f S u p ’rs v. M iss. E m p ’t S ec. C o m m ’ n , 1 2 9 S o . 3 d 1 7 8 , 1 8 3 (¶1 3 ) (M iss. 2 0 1 3 ) (citin g M iss. C o d e A n n . § 7 1

- 5 -5 3 1 (R ev . 2 0 1 1 )).of

law. 2 ¶2. In this unem

ploy m ent-benef

its c ase, the Board f

o und Franklin Collection Services,
Inc. em ploy ee Elizabeth T hom a s’s p roductivity was low, so Franklin was j u s t i f i ed in
term inating Thom as. But the Board f ound Thom as’s low productivity d id not am ount to

m isconduct. So she was not disqualif ied f rom receiving unem

ploy m ent benef

its. ¶3. Af ter review, we f

ind the Board supported its decision that Thom as did not com m it disqualif y ing m i sconduct with substantial evidence. Because of this conclusive f inding, our review is strictly lim ited to deciding w hether the Board us e d t h e correct legal standard f or determ ining em

ploy ee m isconduct. Af

ter review, we f

ind it did. Theref

ore, we af f irm

. B ackground Facts and Procedural History
I. Thom as’s Em ploy m ent w ith Franklin ¶4. Thom as started working at Franklin i n April 2012. She was origi n a l l y h i red as a collector. But when this position proved t oo dif f i cult f or her, rather then term inating Thom a s, Franklin dem oted her to “sorter.” As a sorter, Thom as was ta s k e d w ith calling debtors. And when she got a debtor on the line, she was to transf er the debtor to a collector. Thom a s w as e xpected to m ake twenty -f ive transf ers a day

. She was also s upposed to write 100 collection letters, which the com pany r ef erred to as “GZs.” 3 ¶5. According to Franklin, Thom a s was not keeping up with this schedule, p rom pting a

2 Id

. 3 A p p aren tly , “G Z ” is n o t sh o rt f o r an y t h in g . R ath er, it is s i m

p ly w h at F ran k lin calls th is ty p e o f co rresp o n d en c e. 2written w arning in April 2013. Then, in J uly 2013, there were several day s where Thom as transf erred l i t t l e to no calls to c ollectors and wrote a scant a m ount of GZs. Af ter giving Thom a s a verbal warning at the beginning of the week, Franklin t erm i nated her on Friday , July 26, citing her “lack of

production” and f

ailure “to turn the situation around.” ¶6. Thom as s ought unem ploy m ent benef

its f rom the Mississip p i Departm ent of
Em ploy m ent S ecurity (MDES). Initially , MDES deem ed h er disqualif ied to r eceive benef

its because s he had been discharged due to m isconduct connected with work. See Miss. Code Ann. § 71-5-513(A)(1)(b) (Supp. 2015). 4
II. Adm inistrative Hearing ¶7. Thom as appealed a n d w a s granted a telephonic adm inistrative hearing. At this hearing, Julie Johnson, vice-pres i d e nt of portf olio m anagem ent, testif

i ed f or Franklin.
J ohnson was the o ne who had told Thom as she w as f ired. According to Johnson, Thom as “was not doing any

t hing during work.” Thom as had e stablished a p attern of being paid f or eight hours o f work, when she only worked t wo to three hours during her shif t. For exam

ple,

on July 9, Thom as only worked on eight accounts. A nd on July 25, Thom as clocked in nine

4 U n d er sectio n 7 1 -5

- 5 1 3 (A )(1 )(b ):
A n in d iv id u al sh all b e d i sq u alif ied f o r b en ef its

. . . [ f ] o r th e w eek , o r f

ractio n th ereo f , w h ich im m ed iately

f o llo w s th e d ay

o n w h ich h e w a s d isch a rg ed f o r m isco n d u ct co n n ected w ith h is w o r k , if so f o u n d b y th e d ep artm en t, an d f

o r each w eek th erea f

ter u n t il h e h as earn e d r em u n eratio n f

o r p erso n al serv ices p erf o rm ed f o r an em p lo y e r, as in th is ch ap ter d ef in ed , eq u al t o n o t less th an eig h t (8 ) tim es h is w eek ly b en ef it am o u n t, as d eterm in ed in each case. 3hours, but only spent 3.7 “o n the dialer,” try ing to call d ebtors. W hen asked by the

adm inistrative judge ( AJ) what Thom a s was doing instead, Johnson said Thom as was at her work station, but there was “a lot of talking going on.” Johnson said she had tried to talk to Thom a s about “wasting a lot of tim e” at work. ¶8. Thom as also testif ied. She adm itted she had been discharged f or not keeping up with production—and that Franklin had talked to her about it. But Thom as pointed out m ost of the corrective-action f

orm s in her em

ploy m ent f ile stem m ed f

rom h er p ast job a s a collector. Thom a s h a d only been given one written warning a s a sorter. Thom as t old t he AJ, “I f elt like
I d i d m y job.” T hom as explained that, if she was not o n t h e d i a l e r , s h e was writing GZs. Thom a s a dm itted there were day s when she o nly transf erred one or two calls. But she said there had been problem s with wrong phone num bers a nd disconnected phone lines. Thom as

rem em b ered just o ne day w hen she wrote only f if ty GZs—but her tim e was s pent updating
accounts that day

. Thom as claim e d she was n ot the only em ploy ee who struggled with low production. So it was unf air that Franklin singled her out. ¶9. The AJ asked Thom as about talking during work. Thom as insisted Fra n k l i n h a d a social atm osphere w h e re em ploy ees sat together. And t here w ere n o rules prohibiting talking. T hom as im

pressed o n the AJ that she had tried to b e a good em ploy ee. She f

elt she did her job to the best of

her ability

. ¶10. In rebuttal, Johnson pointed out Franklin would h ave credited Thom as f or calling a

num ber that had been disconnected. She closed by say ing T hom as had been f i red because

4of

her “unwillingness to do her job.” ¶11. Af ter this hearing, the AJ issued an o pinion awarding T hom as benef its. Franklin had proved Thom as f

ailed to m eet her quotas, j ustif y ing her t e rm i nation. But that is all it proved—low produc t i v ity

. Bey ond showing T hom as “m ay have socialized too m uch,” Franklin had no evidence Thom as’s low productivity w a s accom panied by the ty

p e of willf

ul

or w anton acts or o m issions necessary to m eet t he def inition of “ m isconduct.” See W heeler v. Arriola , 408 So. 2d 1381, 1383 (Miss. 1982).
III. Appeals ¶12. Franklin appealed t o M D ES’s B oard of Review. Af ter r eview, the Board adopted the
AJ’s f indings of f

acts and o pinion. Franklin then a ppealed to the Lee County Circuit Court, which af f irm e d the Board’s decisio n . F r a n k l in now appeals t o this c ourt, challenging the Board’s f inding that Thom as was not discharged f or m i sconduct connected to her work.
Discussion
I. Review of an Agency Decision ¶13. Franklin f

aces an uphill b attle on appeal. “[ A] rebuttable p resum ption exists in f

avor of the adm inistrative agency [ ,]” so Franklin “has the burden of proving otherwise.” Jackson Cnty. Bd. of Sup’rs v. M

iss. Emp’t Sec. Comm’n , 129 So. 3d 17 8 , 1 8 3 ( ¶ 1 3 ) (Miss. 2013) (quoting Miss. Emp’t Sec. C omm’n v. Harris , 672 So. 2d 739, 743 (Miss. 1996)). “ All levels

5of judicial review f o cus on the decision of the [ MDES 5 ] Board of Review, as that i s the f inal d e c i s i on of the agency .” Id. (citing M iss. Code Ann. § 71-5-531 (Supp. 2015)). “ [ T ] h e f indings o f the Board of R eview a s to the f acts, i f supported by evidence and in the absence of f r aud, shall be conclusive, and the jurisdiction of said court shall be conf i ned to questions of law.” Id.
II. Finding of Fact, Not Question of Law ¶14. W i th this standard in m ind, Fra n k lin f ram e s its f

irst argum ent a s a question of law.
It argues the Board m ade a legal error by concluding low productivity cannot be considered disqualif y ing m isconduct, even when such low productivit y r e s u l t ed f rom a lack of ef

f ort. However, this argum ent assum es Franklin proved Thom as’s low productivity resulted f rom her lack of

ef f ort. But this is n o t what the Board f o und. ¶15. In h er f

indings of f

act, which the Board a dopted, t h e A J d i d f ind Thom as f

ailed to

m eet her required quotas. But the AJ did not f i nd Thom as’s f

ailures were attributable to a lack of ef f ort. At m ost, Franklin had proven Thom as “m ay have s ocialized too m u ch.” But the AJ f o und this evidence was insuf f icient to prove w illf

ul and wanton behavior rising to the level of

m isconduct, as def

ined in W heeler , 408 So. 2d at 1383. ¶16. According to W

h eeler , “[ m ]ere inef

f iciency , unsatisf

actory conduct, f

ailure in good perf orm ance as t he r esult of inability or incapacity , or inadvertences and ordinary negligence

5 T h e M ississip p i D ep a rtm en t o f E m p lo y m en t S e cu rity w as f

o r me r l y k n o w n as th e M ississip p i E m

p l o y m en t S ecu rity

C o m m issio n an d is o f

t en still ref

e rred to b y th a t n am e . 6in isolated i ncidents, and g o o d f a ith e rrors in judgm ent or discretion [ are] not considered
‘m isconduct’ within the m eaning of the statute.” Id. ; see, e
. g
. , Miss. Emp’t S ec. Comm’n v. Johnson , 9 So. 3 d 1 170, 1 174 (¶11) (Miss. Ct. App. 2009) (f inding a receptionist’s “f

ailure
to com p lete [ her] work projects [ was] the result of sim ple inability , i nef

f iciency , lack of training, a nd/or i nexperience”— n o t m isconduct). Instead, “m isconduct” i s “conduct evincing such willf

ul and wanton disregard of the em p loy er’s in t e r e s t a s is f

ound in deliberate violations or disregard o f standards of behavior which the em ploy e r has the right
to e xpect f

rom his em

ploy e e.” W

heeler , 408 So. 2d at 1383; see e.g. , Reeves v. M iss. Emp’t Sec. Comm’n , 806 So. 2d 1 178, 1179 (¶7) (Miss. C t. App. 2002) (f inding a m etal f

abricator who ref u sed to clean up parts he burnt, a f ter being expressly asked to do s o by h is supervisor,

was term i n a t e d f

o r m isconduct). “[ C]arelessness a nd negligence of such d egree, or

recurrence thereof

, a s to m anif

est culpability , wrongf

ul intent or evil design, and showing an intentional or substantial disregard of the em ploy er’s interest o r of the em ploy ee’s duties and obligations to his em

ploy er . . . [ also f

all] within the term .” Id. ¶17. In c oncluding Thom as was not term inated f or m i sconduct, t he AJ and Board applied the correct legal def

inition of m i sconduct. But the AJ and Board sim ply f ound, a s a factual

m atter, Franklin f

ailed to m eet its “burden of p roving m isconduct by substantial, clear, and convincing e vidence.” Jackson Cnty. Bd. o f S up’ r s , 1 2 9 So. 3d at 1 83 (¶12) (citing Miss. Code Ann. § 71-5-513(A)(1)(c); Foster v. Miss. E mp’t Sec. Comm’n , 632 So. 2d 926, 927

7(Miss. 1994)). 6 So Franklin’s real problem w i th t he Board’s decision h a s t o do with its

f inding of f act, not its conclusion of

law.
III. Substantial Evidence Supporting the Board’s Decision ¶18. Mississippi law directs w e approach t his f i nding of f

a ct def erentially

. “Under our standard of r eview, even if there is evidence w hich would have supported a dif f erent result,

we will not disturb a decision o f the [ Board] that is s upported b y substantial e vidence.” Id. at 184 (¶16). ¶19. W h ile perhaps not quite as clear and convincing a s Franklin s uggests, we do r ecognize Franklin presented e vidence supporting its position t hat T hom as w illf ully disregarded her

em ploy e r’s interest by not doing her job. But T hom as countered F ranklin’s evidence. She testif i ed she had a lway s worked to the best of her ability , and f actors outside of her control had contributed to h er m issing her quotas. And the Board was obviously swa y e d t o som e

6 O n ap p eal, F ran k l in co n ten d s th e em p lo y er’s ev id en t iary b u rd en sh o u ld b e d o w n g rad ed f

ro m clear a n d co n v in cin g ev id en ce o f m isco n d u ct to a m ere p rep o n d era n c e b ecau se sec t i o n 7 1

- 5 -5 1 3 (A ) ( 1 )(c) is silen t ab o u t th e m atter. B u t o u r su p rem e co u rt h as b een clear an d c o n sisten t o n t h is issu e f o r a q u arter cen tu ry . I n 1 9 8 9 , th e su p r em e co u rt, k eep in g i n m in d t h e p u b lic p o licy o f M ississip p i’s u n e m p lo y m en t

- b e n e f

its statu tes, h eld “th at in u n e mp l o y

m en t co m

p en s atio n cases, th e em

p lo y er b e ars th e b u r d en to p ro v e b y su b stan tial , c l e a r , a n d co n v in cin g ev id en ce th at a f o rm e r em p lo y ee’s co n d u ct w arran ts d isq u alif icatio n o f b en ef

its.” S h a n n o n E n g ’g & C o n str., In c. v. M i ss. E m p ’t S ec. C o m m ’n , 5 4 9 S o . 2 d 4 4 6 , 4 5 0 ( M iss. 1 9 8 9 ). A n d ev en af ter s u b sectio n (A )(1 )(c) w as ad d ed t o sectio n 7 1 -5 -5 1 3 , th e su p rem e co u rt h as n o t w aiv ered f ro m th is stan d ard

. A s recen tly a s 2 0 1 3 , th e su p rem e co u rt reiterated “[ t] h e em p lo y er b e ars th e b u rd en o f p r o v in g m isco n d u ct b y su b stan tial, clear, an d co n v in ci n g e v id en ce[ , ] ” w h ich “req u ires p ro o f b ey o n d a m ere p rep o n d eran ce o f th e ev id en ce.” Ja ckso n C n ty. B d

. o f S u p ’rs , 129 So. 3d at 183 (¶1 2 ) (citin g S h a n n o n E n g ’g

& C o n st. , 5 4 9 S o . 2 d at 4 5 0 n . 1 ).

8extent by

her testim ony . ¶20. W h ile we certainly m ay h ave weighed this evidence d if f erently t han the Board, our role is not to reevaluate the evidence t o a sk if Thom as ’s low productivity resulted f rom

m isconduct. See id

. at 183-84 (¶¶15-16). Rather, we ask—Is the B oard’s f inding of no

m isconduct supported by substantial evidence? S ee i d

. And af

ter review, we f

ind it is. The Board supported its decision wi t h substantial evidence, nam ely , the t estim ony of Thom as, whose credibility w as a m atter f or the B oard—not this court—to decide. See id. at 183 (¶15). And “[ w]here there is substantial evidence, an agency ’ s f a ct f inding m ust be allowed to stand

even though there m ight be room f or disagreem ent on that i ssue.” Id. (cita t i o n s o m itted). ¶21. “An em

ploy e e’s conduct m ay constitute grounds f or term ination, y et b e insuf f icient
to constitute m isconduct disqualif y ing t h e c l a i m ant f

rom unem

ploy m ent benef

its.” Id. at (¶11). The Board f

ound T hom as’s low p r o d u c t i on justif ied term ination—but not disqualif i cation f rom u nem

p loy m ent benef

its. As t he Board supported its de cision with substantial evidence, we m ust def er to this decision as conclusive.
IV. No Violation of a Uniform l y Enforced Rule ¶22. Franklin alternatively argues the Board erred i n apply ing t he “unif orm l y enf orced rule” principle. Violating an em p loy er’s rule, which is known (actually or constructively ), reasonably related to the job, a nd f a irly and consistently enf orced, is a n o t h e r way f

or an

em ploy e e to com m it disqualif y ing conduct u n d e r section 71-5-513(A)(1)(b). See MDES Reg. 308.00.

9¶23. In her decision, the AJ f ound Franklin p resented “ n o evidence of a viola t i o n o f a unif orm ly enf orced rule.” W hile J ohnson had “indicated that [ T hom as] m ay have socialized
too m uch,” Franklin had “no rule against talking and all of they em ploy ees talked while they worked.” On appeal, Franklin agrees, insisting “it did n o t t e r minate Ms. T hom as f or disobey ing a r

ule, but rather f

o r f ailing to perf

orm the duties f

o r which she was hired.” So

we f ail to see how t he Board could have p o ssibly erred in a greeing with the AJ— and
F r a nklin —that there was no e vidence Thom as was discharged f or violating an em

plo y e r r u l e . ¶24. THE JUDGMENT OF T HE LE E C O U N T Y C I R C U I T C O U R T I S AFFIRMED. LEE, C.J., I RVING AND GRIFFIS, P.JJ., ISHEE, C ARLTON, FAIR, JAMES AND WILSON, JJ., CONCUR. BARNES, J., NOT PARTICIPATING.

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