IN THE SUPREME COURT OF MISSISSIPPI

NO. 96-CC-01114-SCT

BARBARA HUCKABEE

v.

MISSISSIPPI EMPLOYMENT SECURITY COMMISSION

ON MOTION FOR REHEARING

DATE OF JUDGMENT: 10/04/96

TRIAL JUDGE: HON. KOSTA N. VLAHOS

COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT

ATTORNEYS FOR APPELLANT: JEREMY DAVID EISLER

JOHN C. JOPLING

ATTORNEY FOR APPELLEE: ALBERT B. WHITE

NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES

DISPOSITION: REVERSED AND REMANDED - 4/15/1999

MOTION FOR REHEARING FILED: 10/30/98

MANDATE ISSUED: 4/22/99

EN BANC.

SULLIVAN, PRESIDING JUSTICE, FOR THE COURT:

¶1. On October 15, 1998, we issued an opinion from which Huckabee filed the instant Motion for

Rehearing. The Motion for Rehearing is hereby granted. The original opinion is withdrawn, and this opinion

substituted therefor.

STATEMENT OF THE CASE

¶2. Barbara Huckabee was employed as a cashier at Lyman's Quick-Stop (hereinafter Lyman's) for a

period of sixteen months. Her employment at Lyman's ended on September 28, 1995. The following day,

September 29, 1995, Huckabee filed a claim for unemployment benefits with the Mississippi Employment

Security Commission. On October 12, 1995, the Claims Examiner found that Huckabee had voluntarily quit

her employment, and disqualified her for unemployment benefits. Huckabee appealed the decision to the

Appeals Referee whom, after a hearing, made findings of fact that Huckabee had indeed voluntarily quit her

employment without good cause and was not entitled to unemployment benefits. Huckabee then appealed

to the Board of Review (hereinafter "Board") which affirmed the Appeals Referee's decision. Huckabee

next appealed to the Harrison County Circuit Court which found that the Board's decision was not clearly

erroneous nor arbitrary and capricious and affirmed the Board's decision. Aggrieved, Huckabee appealed
to this Court raising the following issues:

I. WHETHER THE FINDING OF THE BOARD OF REVIEW THAT HUCKABEE

VOLUNTARILY LEFT WORK WITHOUT GOOD CAUSE IS SUPPORTED BY

SUBSTANTIAL EVIDENCE.

II. WHETHER AN EMPLOYEE WHO ABANDONS THE WORKPLACE UNDER THE

REASONABLE BELIEF THAT HE/SHE HAS BEEN DISCHARGED IS THEREBY

ELIGIBLE FOR UNEMPLOYMENT BENEFITS.

¶3. In our original opinion, we held substantial evidence exists to support the Board's determination that

Huckabee voluntarily left her employment without good cause and was, therefore, not entitled to

unemployment benefits. Accordingly, we affirmed the circuit court's decision. Upon further consideration,

however, we hold, as a matter of law, that an employee who leaves work under the reasonable belief that

he or she has been fired has not voluntarily terminated his or her employment. Therefore, the question

before this Court is whether or not Huckabee's belief that she had been discharged was reasonable given

these facts.

STATEMENT OF THE FACTS

¶4. Barbara Huckabee was employed as a cashier at Lyman's for approximately sixteen months. On

September 29, 1995, Huckabee's employment ended, and she filed for unemployment benefits under

Mississippi Employment Security Law. Then, on October 12, 1995, the Claims Examiner found Huckabee

had voluntarily quit her employment and disqualified her for unemployment benefits. Huckabee appealed the

Claims Examiner's decision to the Appeals Referee before whom a hearing was conducted on November

1, 1995.

¶5. According to Huckabee, on September 28, 1995, approximately five minutes before her shift ended,

Huckabee had a discussion with the manager of Lyman's, Judy Saucier, about her employment conditions.

Huckabee expressed concern to Saucier about being scheduled to work as a cook full-time which

according to Huckabee was a two-person job. Saucier inquired of Huckabee if she was looking for another

job, and Huckabee responded that she would be looking for another job because of the burden that had

been put on her but she would continuing working as long as she possibly could. Saucier then stated that

Lyman's would have to find someone else, and Huckabee assured Saucier that she would give two weeks

notice if she did leave. Huckabee stated that Saucier then said something, but she was unsure exactly what

was said. Huckabee then questioned Saucier if she was trying to get rid of her, and Saucier giggled, threw

her hands up in the air, and stated, "I'm hiring somebody else." Huckabee interpreted Saucier's statements

and conduct to mean that she had been terminated, and when she called the next morning to ask about her

paycheck, she was told that she would have to talk to Saucier. Saucier told Huckabee that she would have

to return her uniforms in order to receive her paycheck.

¶6. Robert Dean Hyde, President of Lyman's, testified as the employer's representative. Hyde testified that

he was basically in charge of all the hiring and firing at Lyman's and that Saucier had no authority to hire and

fire employees. Hyde further testified that he had no knowledge of what transpired between Huckabee and

Saucier but stated that Huckabee was not under the threat of discharge at the time, and Hyde stated there

was still work available for Huckabee on September 29th when she did not show up for work.
¶7. The Appeals Referee made the following findings of fact:

Claimant was employed for approximately sixteen months as a cashier for Lyman Quick Stop,

Gulfport, Mississippi, ending September 28, 1995. The claimant became dissatisfied with her

schedule and the work and she informed the employer that she would be seeking other employment.

The employer indicated that they would be seeking a replacement for the claimant in the event the

claimant left her employment. The claimant interpreted this to mean that she was discharged and the

claimant did not return to work. However, the claimant was not discharged and continuing work was

available for her.

The Appeals Referee, in affirming the Claims Examiner's decision, held that Huckabee was not discharged

but, instead, that she left her employment voluntarily and had failed to show good cause for leaving her

employment.

¶8. Huckabee appealed to the Board which adopted the Findings of Fact and Opinion of the Referee in

affirming the Referee's decision. Huckabee then filed an appeal to the Harrison County Circuit Court which

also affirmed the Board's decision. The circuit court judge held the Board's decision was neither clearly

erroneous nor arbitrary and capricious.

STANDARD OF REVIEW

¶9. Miss. Code Ann. § 71-5-531( Supp. 1998) governs the standard of review for appealing a Mississippi

Employment Security Commission (hereinafter "MESC") Board of Review decision to the circuit court and

the Mississippi Supreme Court. This Court's judicial review is limited to questions of law as provided in

Miss. Code Ann. § 71-5-531 which states in pertinent part:

In any judicial proceedings under this section, the findings of the board of review as to the facts, if

supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of said

court shall be confined to questions of law.

Miss. Code Ann. § 71-5-531 (Supp. 1998); Hoerner Boxes, Inc. v. Mississippi Employment Sec.

Comm'n, 693 So. 2d 1343, 1346-47 (Miss. 1997); Barnett v. Mississippi Employment Sec. Comm'n,

583 So. 2d 193, 195 (Miss. 1991). "The Board's findings of fact are conclusive if supported by substantial

evidence and without fraud." Hoerner Boxes, 693 So. 2d at 1347 (citing Richardson v. Mississippi

Employment Sec. Comm'n, 593 So. 2d 31, 34 (Miss. 1992); Ray v. Bivens, 562 So. 2d 119, 121

(Miss. 1990); Melody Manor, Inc. v. McLeod, 511 So. 2d 1383, 1385 (Miss. 1987)).

DISCUSSION OF THE LAW

I. WHETHER THE FINDING OF THE BOARD OF REVIEW THAT HUCKABEE

VOLUNTARILY LEFT WORK WITHOUT GOOD CAUSE IS SUPPORTED BY

SUBSTANTIAL EVIDENCE.

II. WHETHER AN EMPLOYEE WHO ABANDONS THE WORKPLACE UNDER THE

REASONABLE BELIEF THAT HE/SHE HAS BEEN DISCHARGED IS THEREBY

ELIGIBLE FOR UNEMPLOYMENT BENEFITS.
¶10. Huckabee contends the Board's finding that she voluntarily left work without good cause is not

supported by substantial evidence. Huckabee explains she did not return to work at Lyman's because she

reasonably believed she had been discharged. The issue before this Court is whether an employee who

abandons the workplace under the reasonable belief that she has been discharged should be classified as a

"discharged" employee and eligible for benefits or classified as a "voluntary quit" employee and not eligible

for benefits.

¶11. Huckabee urges this Court to adopt the rule that when the employer, through words or conduct,

causes an employee to leave work under a belief that he or she has been discharged the employee will not

be held to have voluntarily left employment and will remain eligible for unemployment benefits. The MESC,

however, contends the question of whether a voluntary quit or discharge took place is a question of fact, the

Board's findings are supported by substantial evidence, and consequently, the Board's decision should be

affirmed. The MESC further asserts the Board is not bound by either the employer's or the employee's

belief as to whether a discharge or voluntary quit occurred.

¶12. Miss. Code Ann. § 71-5-513 A (1)(a) provides in pertinent part: "An individual shall be disqualified

for [unemployment] benefits [f]or the week . . . on which he left work voluntarily without good cause, if so

found by the commission . . . ." Miss. Code Ann. § 71-5-513 A (1)(a) (1995). However, a "discharged

employee need only show that he has been paid wages during a base period for insured work, is

unemployed and registered for work and 'is able to work and is available for work' in order to establish

entitlement to state unemployment benefits." Coleman v. Mississippi Employment Sec. Comm'n, 662

So. 2d 626, 627-28 (Miss. 1995) (quoting Mississippi Employment Sec. Comm'n v. Gaines, 580 So.

2d 1230, 1233 (Miss. 1991)); see also Miss. Code Ann. § 71-5-511 (Rev. 1995).

¶13. "'The principle is well settled that an Order of the Board of Review on the facts is conclusive on the

lower court, if supported by substantial evidence and if absent fraud.'" Richardson, 593 So. 2d at 34

(quoting Ray, 562 So. 2d at 121 (quoting McLeod, 511 So. 2d at 1385)). "Where there is the required

substantial evidence, this [C]ourt has no authority to reverse the circuit court's affirmance of the decision of

the Board of Review." Id. (citing Ray, 562 So. 2d at 121; Piggly Wiggly v. Mississippi Employment

Sec. Comm'n, 465 So. 2d 1062, 1065 (Miss. 1985); Wheeler v. Arriola, 408 So. 2d 1381, 1384

(Miss. 1982)).

¶14. This Court has held on numerous occasions that the question of whether an employee voluntarily quits

or was discharged is a question of fact for the MESC to determine. See Mississippi Employment Sec.

Comm'n v. Georgia-Pacific Corp., 394 So. 2d 299, 303 (Miss. 1981) (holding the circuit court erred

by holding "MESC did not have the right to decide whether the claimants were voluntarily or involuntarily

unemployed"); Mississippi Employment Sec. Comm'n v. Fortenberry, 193 So. 2d 142, 143 (Miss.

1966) (holding there was sufficient evidence to support MESC's finding of fact that the claimant voluntarily

severed connection with her employment); Mississippi Employment Sec. Comm'n v. Rakestraw, 254

Miss. 56, 60, 179 So. 2d 830, 831 (1965) (finding ample evidence to support factual finding of Board that

claimant voluntarily quit suitable employment without good cause and was not discharged); Mississippi

Employment Sec. Comm'n v. Corley, 246 Miss. 43, 45- 46, 148 So. 2d 715, 716 (1963) (holding this

Court is bound by the Board's finding of fact that claimant voluntarily quit her employment where finding of

fact is amply supported by evidence). Accordingly, in the case sub judice, this Court is bound by the

Board's finding of fact that Huckabee voluntarily quit her employment without good cause as long as such

finding is supported by substantial evidence. See, e.g., Richardson, 593 So. 2d at 34; Piggly Wiggly,
465 So. 2d at 1065; Wheeler, 408 So. 2d at 1384.

¶15. We find the Board's finding of fact that Huckabee voluntarily quit her employment without good cause

(i.e., was not discharged) is not supported by substantial evidence. In the case sub judice, the Appeals

Referee found as a matter of fact that Huckabee informed her employer that she would be seeking other

employment, and her supervisor indicated that she would be seeking a replacement for Huckabee in the

event Huckabee left. The Appeals Referee further found as matter of fact that Huckabee interpreted her

employer's comments to mean that she was discharged and, therefore, Huckabee did not return to work.

¶16. The fact that Huckabee indicated to her employer that she would be seeking other employment does

not defeat her claim that she was terminated. Other courts considering this issue have held that a statement

regarding a job search or even a statement of future resignation does not defeat a claim of termination.

Ganly's Pub v. Unemployment Compensation, 639 A.2d 1313, 1316 (Pa. Cmwlth. Ct. 1994) ("In the

absence of some triggering event, her statement that she would be seeking another job does not constitute a

voluntary quit"); Chapman v. Fla. Dept. of Labor & Emp. Sec., 415 So. 2d 820, 821 (Fla. Ct. App.

1982) ("[Claimaint] replied that he would leave his job eventually but would remain as long as the employer

wanted. The employer then stated that there was no need for him to wait until a replacement could be hired

and advised him to immediately leave the job. In our view, the employer's action amounted to a discharge;

[claimant's] departure cannot be characterized as voluntary") .

¶17. In the case at bar, Huckabee testified she informed her supervisor that she would have to find another

job if her working conditions did not improve but assured her supervisor that she would stay as long as she

possibly could. Huckabee claims Saucier then stated that Lyman's would have to find someone else and

Huckabee assured Saucier that she would give two weeks notice if she did leave. When Huckabee asked

Saucier if she was trying to get rid of her, Saucier giggled, threw her hands up in the air, and stated, "I'm

hiring somebody else."

¶18. Huckabee argues that after her conversation with Saucier it was reasonable for her to believe she had

been terminated; and therefore, she should be eligible for unemployment benefits. In support of her

argument, Huckabee cites to the following cases decided by other jurisdictions: Shaw v. Hansa Mold

Tool & Die, Inc., 592 So. 2d 1228 (Fla. Dist. Ct. App. 1992); County Market v. Dahlen, 396

N.W.2d 81 (Minn. Ct. App. 1986); Midland Elec. Inc. v. Johnson, 372 N.W.2d 810 (Minn. Ct. App.

1985); Wallace W. Carlson Co. v. Hasler, 351 N.W.2d 688 (Minn. Ct. App. 1984); White v.

Unemployment Compensation Bd. of Review, 188 A.2d 759 (Pa. Super. Ct. 1963).

¶19. In Shaw v. Hansa Mold Tool & Die, Inc., Shaw collected his tools and departed from his

employment after his employer told him to "get out," and in response to Shaw's inquiry whether he was

being fired, the employer stated "that he was not firing [him] but that he was reducing Shaw's wages." 592

So. 2d at 1229. The court held there was substantial, competent evidence in the record to support the

appeals referee's finding that Shaw had been discharged since Shaw testified that he believed he had been

terminated. Id.

¶20. In County Market v. Dahlen, Dahlen, after missing three days of work in a row due to illness,

reported to work and was told by the bakery manager "not to bother punching in," and when Dahlen asked

why, the bakery manager responded: "That's pretty obvious, you've missed too many days." 396 N.W. 2d

at 82. The Minnesota Court of Appeals affirmed the Commissioner's decision that Dahlen was entitled to

receive unemployment compensation benefits because he did not quit but rather left County Market
because of an honest belief that he had been discharged. Id. at 83; see also Midland Elec., Inc. v.

Johnson, 372 N.W.2d at 811-12 (affirming the Commissioner's decision to award unemployment benefits

to Johnson who reasonably believed he had been discharged after his employer asked him to turn in his

tools, could not guarantee work when he returned from an upcoming trip, and walked away when Johnson

asked if he should call when he got back); Wallace W. Carlson Co. v. Hasler, 351 N.W.2d at 690-

91(affirming the Commisioner's award of unemployment benefits where the employee had a good-faith

belief he had been discharged after a conversation with the production manager in which the production

manager told him he should not question his supervisor, should be more cooperative, and should take

breaks at appropriate times instead of leaving early).

¶21. In White v. Unemployment Compensation Board of Review, White left her employment after

being told by her employer, "I am the boss and she is the boss (employer's wife)--If you don't like it, there

is the door." 188 A.2d at, 760. The court affirmed the Board's award of unemployment benefits to White

and held the Board's inference that the language "there's the door" amounted to a discharge was reasonable

and logical. Id.

¶22. The proper question for this Court's consideration, then is whether it was reasonable for Huckabee to

interpret her supervisor's statement "I'm hiring someone else" to mean her employment had been terminated.

The reasonableness of an employee's belief that she has been discharged turns on the surrounding facts and

circumstances. The statement "I'm hiring somebody else" is language a reasonable person would interpret as

a discharge. Accordingly, we find Huckabee's belief that she had been terminated was, in fact, reasonable.

¶23. In his dissenting opinion, Justice Smith takes issue with our opinion that it was reasonable for

Huckabee to believe that she had been terminated, and he states she should not be eligible for

unemployment benefits based on the theory of constructive discharge. According to Justice Smith, the facts

in the case sub judice do not reach the level of a constructive discharge as defined by this Court in

Hoerner Boxes Inc. v. Mississippi Employment Sec. Comm'n., 693 So. 2d 1343. However, in her

Motion for Rehearing, Huckabee explains that she regrets using the term "constructive discharge" in the

brief she filed with this Court because use of the term has confused the issue presented by this appeal.

Subsequent to Huckabee filing her brief, this Court rendered its opinion in Hoerner Boxes which discussed

"constructive discharge" in the context of intolerable work conditions. Huckabee does not contend that

intolerable work conditions created good cause for her to leave her employment. Rather, Huckabee

contends that, as the Appeals Referee found, she left work believing her employment had been terminated.

Therefore, we are of the opinion this Court's analysis in Hoerner Boxes in not germane to the instant case.

¶24. Also, Justice Smith claims the present case is analogous to Mississippi Employment Sec. Comm'n

v. Fortenberry, 193 So. 2d 142 (Miss. 1966). We disagree. There is no suggestion in the record that

Huckabee committed acts of flagrant disrespect as did the claimant in Fortenberry. Huckabee did not

"demand" her pay before leaving the workplace, as did the claimant in Fortenberry. More importantly, the

claimant in Fortenberry did not claim to be acting out of a reasonable belief that she had been discharged.

CONCLUSION

¶25. After careful review of the record and testimony, we find the evidence does not support the Board's

determination that Huckabee voluntarily left her employment without good cause. We hold, as a matter of

law, that an employee who leaves work under the belief that she has been fired has not voluntarily

terminated her employment where that belief is reasonable under the circumstances. We find Huckabee's
belief that she had been discharged was reasonable given these facts and circumstances. Accordingly, we

reverse the judgment of the circuit court and remand to the lower court for a determination as to the amount

of compensation owed Huckabee, and further proceedings consistent with this opinion.

¶26. REVERSED AND REMANDED.

PRATHER, C.J., PITTMAN, P.J., BANKS AND McRAE, JJ., CONCUR. SMITH, J.,

DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY MILLS AND WALLER, JJ.

COBB, J., NOT PARTICIPATING.

SMITH, JUSTICE, DISSENTING:

¶27. Originally, this Court found the Board's finding of fact that Huckabee voluntarily quit her employment

without good cause and was not discharged was supported by substantial evidence. Huckabee v. Miss.

Empl. Sec. Comm'n., No. 96-CC-01114-SCT (October 15, 1998). On Motion for Rehearing however,

a new majority of this Court has decided that the Board's finding of fact is unsupported by substantial

evidence. Maj. Op. at 8. As the facts have remained the same, I must adhere to our original and

accordingly dissent.

¶28. In the case sub judice, Huckabee was told by Saucier that she was hiring someone else only after

Huckabee informed her that she was looking for other employment. Then, the day after Huckabee's and

Saucier's altercation, Huckabee, instead of showing up for work as scheduled, called Lyman's and asked

for her paycheck before it was due whereby she was told by Saucier that she would have to first turn in her

uniforms before receiving her paycheck. At the hearing before the Appeals Referee, Hyde stated Saucier

did not have the authority to relieve anyone of their duties, that Huckabee was not under the threat of

discharge for any reason, and that work was still available for her at the time of separation. The Appeals

Referee found that "the claimant voluntarily left her employment." Thus, I must adhere to our original view

that there is substantial evidence in the record to support the Board's decision that Huckabee voluntarily quit

her employment without good cause and is not eligible for unemployment benefits.

¶29. As Huckabee contends, the new Majority finds that it was reasonable for her to believe that after her

conversation with Saucier that she had been terminated and should be eligible for unemployment benefits

based on the theory of constructive discharge. Maj. Op. at 11. The new Majority relies upon the following

cases decided by other jurisdictions: Shaw v. Hansa Mold Tool & Die, Inc., 592 So. 2d 1228 (Fla.

Dist. Ct. App. 1992); County Market v. Dahlen, 396 N.W.2d 81 (Minn. Ct. App. 1986); Midland

Elec. Inc. v. Johnson, 372 N.W.2d 810 (Minn. Ct. App. 1985); Wallace W. Carlson Co. v. Hasler,

351 N.W.2d 688 (Minn. Ct. App.1984); White v. Unemployment Compensation Bd. of Review, 188

A.2d 759 (Pa. Sup. Ct. 1963).

¶30. This Court, however, has addressed before the issue of constructive discharge in an unemployment

compensation context. Hoerner Boxes, Inc. v. Mississippi Employment Sec. Comm'n, 693 So. 2d
1343, 1347 (Miss. 1997). The Hoerner Boxes Court stated that "constructive discharge results when the

employer has made conditions so intolerable that the employee feels compelled to resign." Hoerner Boxes,

693 So. 2d at 1347 (citing Bulloch v. City of Pascagoula, 574 So. 2d 637, 640 (Miss. 1990) (citing

Shawgo v. Spradlin, 701 F.2d 470, 481 (5th Cir. 1983))). In Hoerner Boxes, the employee claimed

that she voluntarily left her employment with good cause as a result of the hostile environment created by a

continued practice of sexual harassment by other employees, and the Appeals Referee and Board of

Review concluded that the workplace environment was hostile as a result of sexual harassment and

awarded the employee unemployment benefits as having shown good cause for voluntarily leaving her

employment. Id. The employer, however, on appeal argued that the employee's departure was not

tantamount to a constructive discharge because the employee participated in the sexual harassment and

welcomed the creation of the hostile environment. Id. This Court, however, affirmed the Board's decision

awarding unemployment benefits to the employee and held that sexual harassment in the workplace

constituted good cause for voluntarily leaving employment. Id. at 1348.

¶31. However, I adhere to the position that the facts in the case sub judice do not reach the level of a

constructive discharge as defined by this Court in Hoerner Boxes. There is no evidence in the record that

Huckabee's employer made her working environment conditions so intolerable that she felt compelled to

resign. See id. at 1347. Moreover, regardless of the Majority's contention that Huckabee regrets citing

Hoerner Boxes, she did in fact cite the case as authority for her position. Her regret is of no consequence.

¶32. The Majority curiously remarks that "the Appeals Referee found, she left work believing her

employment had been terminated." Maj. Op. at 12. To clarify, the Appeals Referee found that Huckabee

had unreasonably interpreted a remark by her employer to mean she was discharged, and the Referee

specifically found that Huckabee had voluntarily quit her employment.

¶33. Furthermore, I remain steadfast that the case sub judice is analogous to Mississippi Employment

Security Commission v. Fortenberry, 193 So.2d 142 (Miss. 1966). In Fortenberry, a supervisor

reprimanded one of the sewing machine operators in which the supervisor shook her finger at the operator

and said: "That machine will sew." Fortenberry, 193 So. 2d at 143. During the lunch hour, Fortenberry

shook her finger at the same operator and told her, "Get to your machine and go to work." Id. The

supervisor then approached Fortenberry and stated that it was not nice to mock her during the lunch hour.

Id. Fortenberry responded that she did not think it was nice for the supervisor to talk to the operator the

way she did. Id. Fortenberry called the supervisor again and stated the same, and the supervisor told

Fortenberry that the matter was of no concern to her and that her job was to sew. Id. Fortenberry

responded that she "was ready to get in it." Fortenberry, 193 So. 2d at 143. The supervisor then reported

the incident to the forelady who arranged a meeting with the plant manager and Fortenberry. Id.

Fortenberry denied that she was mocking the supervisor but was advised that she would be required to

apologize to the supervisor, and she refused to do so. Id. The plant manager told the supervisor and

Fortenberry "to go home, cool off, and come back the next morning." Id. Fortenberry stated that she would

not come back the next morning to be fired and that if she was to be fired then it would have to be then

whereupon she demanded her pay and left. Id. Fortenberry came back late the next day but did not go

back to work because she was required to apologize to the supervisor. Fortenberry, 193 So. 2d at 143.

¶34. Fortenberry filed for unemployment benefits, and the Referee rejected the claim because Fortenberry

was discharged because of misconduct during work hours. Id. Fortenberry appealed the Referee's

decision, and the Board of Review decided that Fortenberry "was not entitled to receive benefits under the
provisions of the Mississippi Employment Security Law for the reason that the claimant 'did voluntarily leave

her employment for she demanded her check before it was due and failed to return to work . . . .'" Id. This

Court held that there was substantial evidence to support the Board's decision that Fortenberry left her

employment and "voluntarily demanded and received her compensation before it was due, and did not

return to her employment for reasons of her own." Id. at 144.

¶35. Analogously, in the case sub judice, Huckabee was told by Saucier that she was hiring someone else

in the event Huckabee informed her that she would be leaving. After the conversation, Huckabee did not

report to work the next day, but instead, Huckabee called Lyman's and requested her paycheck at which

time she was instructed by Saucier that she would have to turn in her uniforms before she could receive her

paycheck. Furthermore, at the hearing before the Appeals Referee, Hyde stated Saucier did not have the

authority to relieve anyone of their duties, that Huckabee was not under the threat of discharge for any

reason, and that work was still available for her at the time of separation. Thus, in my view, the instant case

is analogous to Fortenberry in that Huckabee "voluntarily demanded and received her compensation

before it was due, and did not return to her employment for reasons of her own." See Fortenberry, 193

So. 2d at 144.

¶36. Since this Court is bound by the Board's findings of fact unless there is no substantial evidence to

support the findings of fact or fraud exists, I would accordingly affirm because substantial evidence exists to

support the Board's determination that Huckabee voluntarily left her employment without good cause and

was, therefore, not entitled to unemployment benefits.

¶37. I respectfully dissent.

MILLS AND WALLER, JJ., JOIN THIS OPINION.