IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2014-CC-01798-COA

OVER THE RAINBOW DAYCARE APPELLANT

v. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY APPELLEE

DATE OF JUDGMENT: 11/20/2014 TRIAL JUDGE: HON. ROBERT B. HELFRICH COURT FROM W HICH APPEALED: FORREST COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: ROBIN L. ROBERTS CHRISTOPHER DENT NOBLES ATTORNEYS FOR APPELLEE: ALBERT B. W H ITE ANNA CRAIN CLEMMER NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES TRIAL COURT DISPOSITION: AFFIRMED BOARD OF REVIEW ’S JUDGMENT DISPOSITION: AFFIRMED – 03/29/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., BARNES AND ISHEE, JJ. IRVING, P.J., FOR THE COURT: ¶1. This appeal ensued a f ter the Circuit Court of Forrest County af f irm ed the decision of the Board of Review of the M i ssissippi Departm ent of E m ploy m ent Security (the Board of
R e view) g ranting unem

ploy m ent benef

its to Tem

pestt Grif f in, a f orm er em ploy ee of Over The Rainbow Day care (Rainbow). Rainbow a rgues that t he circuit court erred in upholding the Board of Review’s decision because the Board of Review f ailed to adequately consider the evidence undergirding the agency ’s initial decision.¶2. Finding no error, we af f irm

. FACTS ¶3. W hen Grif

f in arrived f

or work on July 18, 2 014, Rainbow inf orm ed her that she was being s uspended f

or f ailing to attend a m andatory m eeting held the d ay bef ore. Grif f in was instructed to leave and return at 2:00 p .m . to pic k u p h e r c h e c k

. However, Grif f in did not
return until a f

ter 4 :00 p.m . Grif

f in was t hen instructed to rem ain in the of f ice, in com

pliance with com pany policy f

or s uspended em

ploy e es. R ather t han doing as instructed, Grif f in went
to her c lassroom

. Upon entering h er classroom , a phy sical a l tercation occurred b etween her

a nd her supervisor, Renae Causey

. As a result of the phy sical altercatio n , R a i n b o w
term inated her em

ploy m ent. ¶4. Thereaf

ter, Grif f in applied f

or une m p l o y m ent b enef

its with the Mississippi Departm en t of E m

ploy m ent Security (MDES). The MDES f ound that Grif

f in had been discharged f

or m isconduct and denied her claim f or benef i ts. Following the denial, Grif f in appealed. An a dm inistrative l aw judge (ALJ) set a date f or a telephonic h earing and notif ied both p arties of the date and tim e o f the hearing. On the day of t he scheduled hearing, the ALJ attem

pted s everal tim es, over a ten-m inute period, to contact Rainbow at two dif f erent

num bers that the M DES had on f ile f or it. O n the f

i r s t a t t e mp t, som eone answered Rainbow’s phone but im m e d i a t e l y term inated the call by hanging up. According to the
statem ent of the ALJ, as ref lected in the transcript record, h e thereaf ter tried unsuccessf

ully f or t he next ten m i nutes to r each som eone at the n um bers provided b y R ainbow. As a result, the A LJ conducted the h earing w ithout Rainbow and advised Grif f in that she would be

2awarded benef its because o f Rainbow’s f ailure to o f

f er any e vidence a t the hearing that she had been discharged f

or m isconduct. ¶5. In his opinion, issued the day af ter t he hearing, the ALJ explained that R ainbow had f ailed to m eet i ts b urden of proof of establishing that G rif f in had be e n t e r mi n a ted f or

m isconduct connected with her emp l o y m e n t

. Based on those f

acts, t he A L J reversed the
MDE S ’ s p r e v ious f

inding that Grif

f in was not entitled to u nem ploy m e nt benef

its. Af ter receiving the ALJ’s d e cision, Rainbow appealed to the Board of R eview. The Board of Review, without com m ent, af f irm ed the ALJ’s decision to grant G r i f f in unem ploy m ent benef its. Shortly af

t er, Rainbow f

iled an appeal in t he circuit court and attached the incident report that Causey had f

iled with t he City of H attiesburg Police Departm ent against Grif f in, charging her with sim

ple assault. The circuit court af f irm ed the Board o f Review’s decision, and, as stated, Rainbow has appealed. DISCUSSION ¶6. This app e a l i s g o v e r n e d b y M ississippi Code Annotated section 71-5-531 (Rev. 2011), which provides in part:
In a n y judicial proceedings under this section, the f indings of the Board of Review as to the f

acts, if supported by

evidence and in the a

b sence of f

r aud, shall be conclusive, and t he jurisdiction of said court shall be conf ined to questions of law.
It is well settled that “[ a] rebuttable presum ption exists in f

avor of the adm inistrative agency , and the challenging party has the burden of proving otherwise.” Allen v. Miss. Emp’t Sec. Comm’n, 639 So. 2d 904, 906 (Miss. 1994) (internal citations omi t t e d )

. I n a ddition, “[ an appellate] [ c]ourt m

ust not reweigh the f

acts of the case o r insert its j udgm ent f or that of the

3agency .” Id

.

¶7. “In m isconduct cases, ‘the em ploy er bears the burden to prove by substantial, clear, and convincing evidence t hat a f o rm er e m ploy e e’s conduct warrants disqualif ication of benef its.’” Little v
. Miss. Emp’t S ec. Comm’n, 754 So. 2d 1258, 1260 (¶10) ( Miss. Ct. App. 1999) (quoting Shannon Eng’g & Constr. Inc. v. MESC, 549 So. 2d 446, 4 50 (Miss. 1989)). ¶8. Here, Rainbow argues that the circuit court erred by upholding the Board o f Review’s decision b ecause the Board of R eview f ailed to adequately c onsider the e vidence relied upon by the MDES in its initial decision. According to Rainbow, the Board of Review’s reliance

on Rainbow’s f

ailure to participate in the hearing bef o re the A LJ caused the Board of Review
to overlook Grif

f in’s “egregious and harm f ul” a c t i o n s , and such oversight r esulted in the Board of Review enf

orcing a technicality , r ather than considering the appropria t e f a c t s. Rainbow contends that the M DES’s r eversal of its initial decision constitutes an abuse of discretion and was a rbitrary and capricious, because the ALJ sh o u l d n o t h a ve ignored the
MDE S ’ s p r i o r investigation of t he m atter and its f actual f indings. Rainbow also contends that the MDES’s initial decision should have b een considered at every stage of th e a ppeal
process, despite t he f

acts that the hearing bef

ore the ALJ was de novo and t hat it f a i l e d to present any evidence during that hearing. R a i n b o w f u rther contends that (1) the only inf orm ation available during the hearing bef ore the ALJ was the inf

orm ation collected by the MDES d uring the agency ’s initial investigation that resulted i n a f i n d ing that Grif

f in had been dism issed f

or m isconduct; (2) its absence f rom the ALJ h e a r i n g was not willf ul or intentional; and (3) its f ailure to app e a r f

o r the hearing bef

ore the A LJ should not

4autom atically result in a victory f or Grif f in because she has unclean hands. ¶9. In explaining its f

ailure to appear f

o r the hearing, Rainbow states that its em ploy ee, Causey , was sitting b y the phone awaiting the ALJ’s c all, and while she adm its that she hung
up on the ALJ when h e called, she explains that that occurred b ecause she did not r ecognize the num ber t hat he w as calling f

rom and that she was t ry ing to keep the line open f or his call.
To t hat e nd, Rainbow states that Causey hung up on every c a ll display ing a num ber that was
not the MDES’s num

ber. In support of its argum ents, Rainbow points out that the MDES’s website states that (1) t he ALJ w ill m ake a decision based on testim ony given by the appearing party or, i n the event that a party f ails to appear during an A LJ hearing, the record previously

m ade; and (2) the ALJ will act on the basis of the f ile’s inf orm ation. ¶10. In response, the MDES argues that Rainbow f a i l e d t o m eet its burden of proving

m isconduct by clear a nd convincing evidence at the hearing. The MDES contends that the hearing’s notice inf

orm ed t he parties that the purpose of the hearing was to determ ine both the reason f

or Grif f i n’s departure and whether Rainbow’s account should be charged. ¶11. In support of i ts argum ent, the MDES cites Little

. 1 In Little, this Court addressed a

case very sim ilar to the m atter bef ore us. T h e r e, a claim a n t was d enied unem ploy m ent benef its af ter the claim s exam iner disqualif ied the claim ant f

o r m isconduct. L ittle, 754 So. 2d at 1 259 (¶3). Following the disqualif ication, the claim ant appealed. Id. at (¶4). However, the em ploy er f ailed to appear and testif

y at the ALJ hearing. Id. at ( ¶5). The ALJ 2 c onducted

1 At the tim e of the Little decision, the MDES was ref e r red to as the Mississippi Em ploy m ent Security

Com m ission (MESC).

2 At that tim e the ALJ was ref erred to as the “MDES ref eree.” 5the hearing without the em ploy e r, receiving testim ony f rom the claim ant. Id. Based on the claim ant’s testim ony alone, t he ALJ af f irm ed the c laim s exam iner’s decision, disqualif y ing the claim ant f

or m isconduct. Id. at (¶4). The claim ant t hen appealed to t he B oard of Review, which af f irm ed the decision of the ALJ. Id. The claim ant t hen appealed to the Circuit Court of Monroe County , which af f irm ed the decision o f t he Board of Review without discussion. Id

. T h e r e a f

ter, the claim ant a

ppealed, and this C ourt reversed the judgm e nt o f the lower
court. Id. at 1261 (¶14). In reversing, this Court stated:
In the absence of e vidence of m isconduct established by [ the e m ploy er], Little was not required to of

f er rebuttal evidence or an e xplanation. T he requirem ent by the ref eree t hat Little of

f er evidence t o rebut [ the em ploy er’s] allegation of m isconduct, when no evidenc e of m isconduct had been of f ered, was an im p roper shif

ting of the burden of proof

. . . . W e f ind this a ction to be contrary to the provision of the Unem ploy me n t C om

pensation Act.

. . . W hen the im p roperly obtained evidence is excluded, 3 there is no substantive evidence to support denial of benef

its. Accordingly , t he Court reverses and renders [ j]udgm ent f

or Little. Id. at 1260 (¶¶11-13). ¶12. Citing one of its own regulations, the M DES contends t hat because the hearing was de novo, R ainbow’s f

ailure t o appear and of

f er proof constituted reasonable groun d s f o r a def ault ru ling under both caselaw and the d epartm ent’s regulations. W e agree. Section 200.05 of title 20, part 101 of the Mississippi Adm inistrative Code 4 states in pertinent part: The Board of Review or the Appeals Departme n t m ay m ake inf orm al d i s p o sition of any adjudicatory proceeding by def ault when the appealing part y

3 The testim o n y e l icited f rom Little during the ALJ hearing constituted im properly obtained evidence.

4 The regulations of t he MDES are c odif ied as t i t l e 20, part 1 01 of the Mississippi Adm inistrative Code. 6or the party w ith the burden of proof f ails to a p pear at the s cheduled hearing. A party shall be deem ed to have f ailed to t im ely appear at a hearing when the party f ails to appear as provided in the n otice o f hearing, including c alling an A p peals Departm ent telephone num ber or p roviding i n advance a t elephon e num ber as required by the notice of h earing, or by f a iling to be present at the telephone n um

ber provided by the party f or ten (10) or m o re m i nutes past the scheduled start tim e of

the hearing. The MDES also c ontends that Rainbow has m isinterpreted the s tatem ent f ound on i ts website regarding the process to b e utilized when a party d oes not appear f or a hearing. The MDES explains that the inf

orm ation pertains only to situations where a claim ant f ails to appear or participate, in which case it will be deem e d by the MDES that the claim ant has abandoned his appeal, and the MDES’s prior decision will be applied. ¶13. A d d i t i o n a l l y , t

h e M D ES r ef

erences M ississippi Code Annotated section 71-5-531 an d Rules 5 .01, 5.02, 5.03, and 5.05 of the Unif orm R ules of C ircuit a nd County Court Practice

as authorities f

or the proposition that appeals f rom a n adm inistrative agency are not de novo appeals and m

ust be based entirely on the record m ade bef ore the adm i nistrative agency . Theref ore, the MDES p oints out that it was inappropriate f or Rainbow to a t tach the incident report to the appeal that it f i led in the circuit court and that no s t atute or regulation perm its

a reviewing court to consider t he incident report while m aking its d ecision. Again, we agree with the MDES on this point. ¶14. In rebuttal, Rainbow, attem pting to distingu i s h t h e f acts of this case f

rom those in Little, points o ut t hat, although Little was d ischar g e d b y h e r em ploy er f or thef t, Little had

m aintained that s he had intended to pay f or the stolen i tem s but had gotten d istracted, causing her to f orget t o pay f

or them

. A pparently , R ainbow surm ises that Little is distinguishable

7because i n Little , unlike h ere, Little’s explanation was at least p lausible but Grif f in’s is not because the r e w a s a w i tness and a police r eport v erif y ing Grif f in’s assault on Causey

. Rainbow f

urther a r g u e s t h a t it did not abandon the appeal, citing to its continued appeals

a f ter the ALJ’s decision. Rainbow m isses the point of Little

. Little supports the MDES’s position that the em

ploy er bears the burden o f proving disqualif y ing m isconduct on the part of the claim ant. Interestingly , Rainbow apparently overlooks t h e f act that in Little , the

em ploy e r, like the e mp l o y e r h e re, f ailed to appear f

or a t elephonic appellate hearing. Our reversal was based on the f act that the ALJ had er r o neously required the claim ant to go f orward and rebut som ething that had not been established by the absent em

ploy er. Stated

a n o t h e r way , the ALJ in Little erroneously shif ted the burden of p roof away f ro m t h e

em ploy e r to the claim a nt, and that was the basis f or the reversal. ¶15. W e f

i nd that Rainbow had adequate notice of t he telephonic hearing bef ore the ALJ.
W h ile we draw no c onclusion as to why Rainbow f ailed to p articipate during t h e de novo review of Grif

f in’s c l a i m, w e a g ree with the Board of R eview’s, and t he circuit court’s decisions f

inding t hat, by f

ailing t o appear f

o r the hearing, Rainbow f

ailed to m eet i ts burden of proof under section 71-5-513(A)(1)(c) to establish t hat G rif f in w as discharged f

or

m isconduct. In arriving at th i s c o nclusion, we n ote t hat f rom the very beginning Grif f in’s position w as t h at it was Causey , not she, w h o s t a r ted the altercation. Her position in this regard was stated i n the docum e nts that were subm i tted to t he MDES bef ore the claim s

exam iner issued his f

i ndings. ¶16. In regard to t he website inf orm ation discussed earlier in t his opinion, we agree with

8the MDES that that inf orm ation cannot and d oes not t rum p statutes and caselaw m andating that an em

ploy er, who seeks to h ave a term i nated e m ploy ee d enied unem

p loy m ent benef

its, has the burden to p rove that the em ploy ee com m itted disqualif y ing m isconduct. And f

inally ,
we note that Rainbow h a s n either alleged nor shown that the language on the MDES’s website inf

luenced or caused its f

a ilure to a ppear or that it r elied on t he language in any way in f ailing to appear. So even if the languag e i s c o n f u s i n g , a nd we are not say ing that it is, that conf usion did n o t i n a n y way contribute to the situation that Rainbow f ound itself in. Theref ore, we cannot f

ind that the circuit court e rred in af f irm ing the d ecision o f t he Board of Review. Accordingly , we af f irm

. ¶17. THE JUDGMENT OF THE F O R R E ST COUNTY CIRCUIT COURT IS AFFIRMED. LEE, C.J., GRIFFIS, P.J., BARNES, ISH E E , F AIR, JAMES, WILSON AND GREENLEE, J J., CONCUR. CARL TON, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

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