IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2015-CC-00542-COA HERMAN C. KIDD APPELLANT

v. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY APPELLEE

DATE OF JUDGMENT: 02/24/2015 TRIAL JUDGE: HON. JAMES SETH ANDREW POUNDS COURT FROM W HICH APPEALED: PONTOTOC COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: HERMAN C. KIDD (PRO SE) ATTORNEYS FOR APPELLEE: ALBERT B. W H ITE ANNA CRAIN CLEMMER NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES TRIAL COURT DISPOSITION: AFFIRMED JUDGMENT OF BOARD OF REVIEW DISPOSITION: AFFIRMED - 06/14/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., ISHEE AND WILSON, JJ. WILSON, J., FOR THE COURT: ¶1. H e r ma n K idd appeals f rom the judgm ent o f the Pontotoc County C i r c u i t C o u r t af f irm ing the decision o f the Board of Review of t he M ississippi Departm ent of Em ploy m ent Security (MDES) deny ing his claim f or unem ploy m ent b enef

its. The Board’s f

inding that Kidd com m itted m i sconduct that disqualif ied him f rom benef

its i s supported by s u

bstantial evidence and is not arbitrary or capricious or contrary to law. Theref

ore, we af f irm

. FACTS AND PROCEDURAL HISTORY ¶2. K i d d h a d been e m ploy ed by Marten Transport (Marten) as a t r u c k d r i v e r f o rapproxim a tely one y ear when he was term inated on April 2, 2014. K idd worked out of New

Albany as a designated driver f o r W alm art. Kidd was t erm i nated because he m a d e racially inf lam m atory com m ents while m aking a delivery to the W alm a rt i n Cleveland. Kidd, who is w hite, adm i tted that h e com plained that when he m ade deliveries to the W alm art in Greenville, the em

ploy ees assigned to help him unload were alway s b lack. Kidd “f elt of f ended by this” because he “ was the only white person down there,” and he “f elt like [ he had] b een discrim inated against” b y W alm art. Kidd also c om plained that Greenville was a “blacky town.” Kidd sees nothing wrong with his com m e nts. He thinks he had a legitim ate grievance against W alm art. W alm art s aw it dif f erently

. W alm art com

p lained to Marten

a bout Kidd’s behavior and inf orm ed Marten that it did n ot want Kidd to m ake a ny f u t u r e deliveries to its stores. ¶3. Marten stated that it of f ered Kidd alternative w ork a s a r e g i o n a l d r iver out of its
Mem phis term inal, which would have required signif icant overnig h t t r a vel. Kidd’s job as

a local d esignated driver f or W alm art did not require such overnight travel. Marten say s that Kidd ref used this of

f er, while Kidd denies that the of f er was ever m a de. Kidd and Marten agree that his last day

of work was April 2, 2014. ¶4. On April 10, 2014, Kidd f iled an application f

or unemp l oy

m ent benef

i ts. A claim s

exam iner f

rom MDES f

ound t hat Kidd voluntarily quit and denied benef i ts on t hat ground. Kidd a ppealed, a n d an adm inistrative law judge ( ALJ) reversed the decision of the claim s

exam iner, f

inding that K idd d id not voluntarily quit and that h is c om m ents did not c onstitute
“m isconduct.” Marten then a ppealed, and the Board of Review r eversed t he ALJ’s decision,

2f

inding t hat Marten h ad m et its burden of p roving m isconduct. Kidd appealed the Board’s decision to the circuit court. T h e circuit c ourt af f irm e d, f inding that the Board’s decision was supported by

substantial evidence and was not arbitrary or contrary

to law.
DISCUSSION ¶5. “[ T]he f

indings of the Board of Review as to the f a c ts, if supported by evidence and in the absence o f f

raud, shall be conclusive.” Miss. Code A n n . § 7 1

- 5 -531 (Rev. 2011). Judicial review o f t he Board’s decisions is “conf i ned to questions of l aw.” Id. T he Board’s decision m

ust be af f irm ed u nless it “(1) is not supported by substa n t i a l e vidence, (2) is arbitrary or capricious, (3) is bey ond the scope or power granted to the agency , or (4) violates

. . . constitutional r ights.” Jackson Cty. Bd. Sup'rs v. Miss. Emp’t Sec. Comm’n , 129 So. 3d 178, 183 (¶14) (Miss. 2013) (quoting Sprouse v. Miss. Emp’t Sec. Comm’n , 639 S o. 2d 901, 902 (Miss. 1994)). ¶6. A person is disqualif ied f rom receiving unem

ploy m ent benef

its if “he was discharged
f or m isconduct connected with his work, if s o f ound by [ MDES].” Miss. Code Ann. § 71-5- 513(A)(1)(b) (Rev. 2011). The Suprem e Court has def ined “m isconduct” as conduct evincing such willf ul and wanton disregard of the e m ploy er’s interest as is f ound in deliberate violations or disregard of s tandards of behavior which the em ploy er has the r ight to expect f rom h is em

ploy ee. Also, carelessness and negligence of such degree, or recurrence thereof , a s t o m anif

est c ulpability , wrongf ul intent or evil design, and show i n g a n intentional or s u bstantial d i sregard of the e m

p loy er’s interest or of the em ploy ee’s duties and obligations to his em ploy e r, [ com e] within the term

. W heeler v. Arriola , 4 08 So. 2d 13 8 1 , 1 3 8 3 (Miss. 1982) (brackets om itted). However, “[ m ]ere inef

f iciency , unsatisf

a c t o ry conduct, f

ailure i n good perf

orm ance as the result of

3inability or in c apacity , or inadvertences and ordinary negligence in isolated incidents, and

good f aith errors in judgm ent or discretion [ are] n ot c onsidere d ‘ mi sconduct’ w ithin the

m eaning of t h e s t a t u t e .” Id. (brackets om itted); accord Miss. Adm in. Code § 20-1-
101:308.00. “The e m

ploy er b ears the burden of proving m isconduct by substantial, clear, and convincing evidence.” J ackson Cty. Bd. Sup'rs , 129 So. 3d at 183 (¶12). ¶7. In this case, t he B oard of Review applied t he correct def inition of m isconduct, and its
f inding that Kidd had com m i tted m isconduct is s upported by substantial evidence and is not arbitrary o r capricious or contrary to law. Indeed, it is evident that Kidd’s racially charged

com m ents am ounted t o an intenti o n a l “ d i s regard of standards of behavior which [ his]

em ploy e r has the right t o expect f rom [ h im ].” W

heeler , 408 So. 2d at 1383. Such conduct evidences a com

plete “ disregard o f [ his] em ploy er’s interest.” Id. Accordingly , w e af f irm

. ¶8. THE JUDGMENT O F T H E P O N T O T O C COUNTY CIRCUIT C OURT IS AFFIRMED. LEE, C .J., IRVING AND G R I F F I S , P . J J . , B A R N E S , I S H E E , C A R

L T O N , F AIR, JAMES AND GREENLEE, JJ., CONCUR.

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