IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2017-CC-01598-COA COLUMBUS LIGHT & WATER DEPARTMENT APPELLANT

v. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY APPELLEE

DATE OF JUDGMENT: 09/14/2017 TRIAL JUDGE: HON. LEE J. HOW ARD COURT FROM W HICH APPEALED: LOW NDES COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: JEFFREY CARTER SMITH COURTNEY BRADFORD SMITH ATTORNEYS FOR APPELLEE: ALBERT B. W H ITE JAMES RANDALL BUSH NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES DISPOSITION: AFFIRMED: 03/19/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC. TINDELL, J., FOR THE COURT : ¶1. Colum

bus Light & W ater Departm ent (Colum bus LW ) a

p peals the judgm ent of

the Lowndes County C ircuit Court’s a f f irm ation of the Mississippi D epartm ent of Em ploy m ent Security ’s Board of Review’s (Board) opi nion that a term inated em ploy ee was entitled to

unem ploy m ent benef

its. O n a ppeal, Colum

bus LW claim s the Board’s d ecision was not based on substantial evidence and am ounted to an arbitrary and capricious decision. Af ter review, we f

ind no error and af

f irm the circuit court’s judgm ent. FACTS ¶2. Teresa D a r

b y ( D a r b y ) w a s em

ploy ed by Colum

bus LW beginning in May 2010.Darby worked f or Colum bus LW a s a p a y

r o l l clerk with the added d uty of assisting as a backup teller. Colum

bus LW t erm inated Darby ’s em p loy m ent on May 5, 2016, f

or m ultiple violations, including: dishonesty , insubordinat i o n , u n a u t h o r i z e d u s e o f c o m

p a n y r e c o r ds, and

m ultiple violations of Colum b us LW ’ s internet-use policy

. The handboo k listed the m ost serious m isconduct violations to be: (1) “[ e]ngag[ e m ent] in acts of dishonesty of any ty pe,” (2) i nsubordination, and (3) unauthorized possession of or rem o val of “any [ Colum bus LW ] property or record . . . of

any . . . em ploy ee.” ¶3. On one occasion, a C o l u mb u s L W s u p e r v i s o r asked Darby if while working at a teller’s desk as a cashier, o n April 8, s h e l o a d e d f i ve day s of pay

r oll. D arby twice denied loading t h e p a y

r o l l inf orm ation o n that date. Yet, Darby had, i n f act, loaded the pay

roll inf orm ation. Colum

bus LW considered h e r two denials to be exam ples of dishonesty and ins u b ordination. On another occasion, D arby sent an em ail f rom h er hom e to her work address that contained a list of overtim e hours f or Colum bus LW em

ploy ees. Darby downloaded em

ploy ee overtim e h ours, em ploy ee identities, social security num bers, salary inf orm ation, and b a nk account num bers f rom a com

p a n y com puter onto a f

l ash or jum

p drive. Colum

bus LW r equired s uch personal inf orm a tion to be k ept in the of f ice. Because this inf orm ation was downloaded onto D arby ’s hom e c om puter, Colum

bus LW considered

t hat a ction to be a violation of com pany policy regarding com pany pay roll recor d s . Additionally , Colum

bus LW investigated D arby ’s internet usage a t w ork and f ound, am ong other things: 30 m inutes of news, 30 m inutes researching Bible quotes, 30 m i nutes shopping

at W algreens, 15 m inutes personal banking, 1 0 m inutes F itbit, and 10 m in u t e s o f D r. Oz.

2Colum

bus LW f ound that t he internet use together w ith the use of the em ploy ee inf orm ation

on a f l ash drive violated com

pany policy regar d i n g the extent and use of the internet and external devices. ¶4. Colum

bus LW ’s com

ptroller, M r. Bernsen, t estif ied that Darby was the only pay roll

c l erk and that Darby had b een asking f or help entering pay

roll. H e testif

ied t h a t s h e w a s unhappy a

bout having to work as a backup teller in addition t o p a y r o l l

. He p rom

pted an investigation i n to her ef

f iciency and f

ound that Darby did not n eed help entering pay roll and had plenty

of tim e to enter pay

roll herself

without help. W hen she denied entering pay roll inf orm ation while wor k i n g a s a teller, B ernsen saw that as an attem pt to get help that was unneeded. ¶5. Darby r ecalled the question regarding pay roll dif f erently

. She agreed that w hen asked if she w as working o n pay roll, she answered, “no.” However, as s he explained, she answered that way because she was n ot a t her desk at all t hat day and had b een working as a teller up f ront instead. S he explained that w hen she w as n ot busy working as a cashier/teller, she tried to get som e pay

roll tim e key ed in while at the f ront. ¶6. Darby adm itted to tim es when she barely com pleted her pay

roll and other duties on tim e . S h e t e s t i f

i ed she would w ork through her breaks and at lunch to get the work

com pleted. Colum

bus LW ’s p ay

roll program r equired im porting tim e into the sy stem through an Excel spreadsheet. Thus, regarding the occasion w hen she brought ho m e

em ploy e e inf orm a tion, she adm itted to b ringing hom e the spreadsheet, key ing i n pay roll t im e
at hom e, and em ailing the spreadsheet back t o herself a t C o l u m bus LW

. She s tated that

3because Colum bus LW was not going to give her any help, she had t o take t hat w ork hom e
to get the job done on tim e. She claim ed t o be unaware that it was f orbidden f

or her to do the work at hom e. ¶7. W h en Darby f

irst s tarted at C olum

bus LW , h er c o mp u t e r c r a s h e d , a n d mu ltiple docum ents she set up to m ake her p ay r oll job m o re ef

f i cient were lost. She asked her supervisor at that tim e if there were any com puter backups f

or the local drives and was told, “no.” On that occasion, she had to recreate what she approxim ated to be a y ear’s worth of docum ents. She asked her supervisor f or a CD to use as a backup f or those docum ents, and her supervisor provided h er w ith a CD f or that purpose. Over the six y ears she worked f or Colum bus LW , the backup CD evolved into a backup f lash drive. Darby would put the f lash drive in her purse to take hom e as a backup in case there was a f i re in the building. Darby claim ed that M ichelle B utler, her supervisor, was a ware she was using t h e f lash drive as a backup and that Butler had s een Darby p ut it in her pur se t o t ake hom e. Butler never told Darby those actions were prohibited. ¶8. Darby adm itted to web browsing f rom tim e to t im e during work. She also adm itted that, per t he handbook, web browsing was s trictly prohibited. The actual handbook wording regarding internet use reads, “Minim al personal use of the Internet, e-m ail[ ,] and voice m ail
sy stem s is perm itted.” Her o n ly def ense, as she s t a t e d at the hearing, was “every body up there did i t, including m y supervisor.” Then, she gave an examp l e a nd nam ed an upperm anagem ent em

ploy e e w ho was caught o bserving pornography on an open com pany

com puter during work hours. S he noted that noth i n g was done to that e m ploy ee f or the

4violation. Prior t o being t e r m i n a ted, Darby had n ot personally been warned a bout her personal use of

the internet at work. ¶9. Af ter her term ination f

rom Colum

bus LW , Darby applied f

or unem ploy m ent benef

its f rom the Mississippi D epartm ent of Em p loy m e n t S e c urity (MDES). MDES’s initial investigation hearing of

f icer f ound the r eason f

or Darby ’s d i s c h arge was actions and

om issions c o nsidered m isconduct u nder M ississippi Code Annotated s ection 71-5- 513(A)(1)(b) (Rev. 2010) and denied her unem ploy m ent benef

its. Darby disagreed with the conclusion of this initial investigation and appealed. MDES held a telephone appeal hearing

on June 20, 2016, in which D arby and C olum bus LW participated. The a dm inistrative-law judge ( AJ) f

ound in f avor o f Darby on her appeal and reversed the M DES decision, f inding Darby eligible to r eceive unem ploy m e nt b enef

its. Thereaf

ter, Colum

b us L W appealed to the Board. In a July 26, 2016 decision, the Board adopted the f indings of f

a ct and opinion earlier entered by

the AJ and af

f irm ed the decision. ¶10. In August 2016, Colum b us LW appealed the Board’s d e c i s i on to the circuit court. The c ircuit court reviewed the record and brief s, f o und the Board’s decision to be supported by substantial evidence and law, and af f irm ed the Board’s decision on Septem ber 14, 2017. Thereaf ter, Colum

bus LW f iled its notice of

appeal. ¶11. Colum

bus L W now appeals to this Court, asserting that: ( 1) the circuit c o urt erred in af f irm ing the Board’s arbitrary and capricious ruling; and (2) the c ircuit court erred in f inding substantial e vidence supported the B o a r d’s decision. Colum bus LW asks this Court to reverse the Board’s previous f indings and deny

Darby unem ploy m ent com pensation.

5STANDARD OF REVIEW

¶12. A p e r s o n i s d isqualif ied f rom receiving u nem

p loy m ent bene f

i t s i f “ [ s h e ] w a s discharged f

or m isconduct connected with [ her] work, if so f o und by [ M DES].” Miss. Code Ann. § 71-5-513(A)(1)(b). The Mississippi 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 right t o expect f rom h is em

ploy ee. Also, carelessness and neglig e n c e of such degree, or recurrence thereof , as to m anif

est c ulpability , wrongf ul i ntent[ , ] or e v i l d esign, and showing an intentional or s u bstantial disregard of the em

ploy er’s interest o r of the em ploy ee’s duties a

n d obligations to his em ploy e r, [ com e] within the term

. W heeler v. Arriola , 4 08 So. 2d 1381, 1383 (Miss. 1982) (brackets om itted)

. H o w e ver, “[ m ]e r e i nef

f iciency , unsatisf

actory conduct, f

ailure i n good perf

orm ance as the result of inability or incapacity , or [ i nadvertencies] and ordinary negligence in isolated incidents, and good[ -]f aith errors in judgm ent or discretion [ are] n ot considered ‘ m i s c o n d u ct’ within the

m eaning of the s tatute.” Id

. T he u nderly ing purpose of M ississippi’s em ploy m e n t security law is to protect workers not perm i tted to continue em ploy m ent through no f

ault of their own. Sprouse v
. Mi s s
. E m

p’t Sec. C

omm’n , 639 S o. 2d 9 01, 902 (Miss. 1994). “The em ploy er bears t h e b u rden of p roving m isconduct by substantial, c lear, and convincing evidence.” Kidd v. Miss. Dep’t o

f E mp’t Sec ., 202 So. 3d 1 283, 1285 ( ¶6) (Miss. Ct. App. 2016); Jackson Cty. Bd. of Supervisors v. Miss. Em p ’ t S ec. Comm’n , 129 So. 3d 1 78, 183 (¶12) (Miss. 2013). ¶13. This appeal is g o v e r n e d b y t h e v e r y h i g h s t a n d a r d f o und in Mississippi Code Annotated section 71-5-531 (Rev. 2010), w hich provides that the Board’s opinion regarding

6f

indings of f

act i s conclusive in the absence of f raud and if supported b y evidence. Id .; Miss. Dep’t o f Emp’t Sec. v. Harbin , 11 So. 3d 137, 139 (¶5) ( Miss. Ct. App. 2 009). A rebuttable
presum ption exists in f

avor of the adm inistrative agency , and the challenging p arty has the burden of proving otherwise. Miss. Dep’t of Emp’t Sec. v. Good Samaritan Pers. Servs. , 996 So. 2d 809, 812 ( ¶6) ( M iss. Ct. App. 2008) (quoting Sprouse , 639 S o. 2d at 902). “This
Court m ust n o t r e w e i g h the f

acts of t he case or insert its judgm ent f or that of the adm inistrative a gency .” Allen v. M i s s
. Emp’t Sec. C

omm’n , 639 So. 2 d 904, 906 (Miss. 1994) (citation om itted).
ANALYSIS ¶14. We a r e tasked, in t his a ppeal, with reviewing an a dm inistrative agency ’ s decisi o n . Because “a rebuttable presum ption exists in f

avor of the adm inistrative agency [ , ]” Colum bus
LW f aces an uphill battle. See Franklin Collection Serv. Inc. v. Miss. Dep’t of Emp’t Sec. , 181 So. 3d 304, 307 (¶13) (Miss. Ct. App. 2015). “The f indings of

the Board . . . as to the f a cts, i f s upported by e vidence and in the absence of f raud, shall b e conclusive, and the jurisdiction of [ this] c ourt shall be co n f i ned to questions o f law.” Miss. Code Ann. § 71-5-531. ¶15. The issues as s t a t e d b y C o l u mb u s L W a re: (1) “the [ c ]ircuit [ c]ourt err[ ed] in af f irm ing the arbitrary and c apricious ruling of the MDES”; and (2) “the [ c ] i r c u i t [ c]ourt [ erred in] af

f irm [ ing] the MDES r

uling without substantial e v idence.” The strict and high standard of review set f orth by section 71-5-531 severely l i mits this Court’s power to consider Colum

bus LW ’s argum ents, let alone r e v e r s e , mo dif y , or rem a nd t he case. Id

.

7“Under our standard of revie w, e ven if there is evidence which would have supported a

dif f erent result, we will not disturb a decision of the Board that is supported by substantial evidence.” Franklin C

ollection Serv. Inc. , 181 S o. 3 d a t 309 (¶18) (quoting Jackson Cty. Bd. of Supervisors , 129 So. 3d at 184 (¶16)). ¶16. Keeping in m ind our standard of r eview, we f ind t h e B o a r d ’ s d e c i s i o n was not arbitrary or capricious a nd w as based on substantial evidence. W hile i t m ay not have been how this Court w ould have ruled on the Board-provided f acts, w e are not em

powered to reweigh the f

acts and substitute our opinion f or that of the Board. Pub. Emps’ Ret. Sys. v. Howard, 9 05 So. 2d 1279, 1285 (¶15) (Miss. 2005). Our analy s is of this case and t his appeal closely aligns with our a naly sis in Franklin Collection Service Inc. Bound by the high

s t a n dard of review, o ur role here, as there, “is n ot to reevaluate the evidence to a s k ” i f Darby ’s term ination resulted f rom m isconduct. Franklin Collection S erv. Inc. , 181 So. 3d

at 309 (¶20). And here, the Board supported its d ecisi o n with substantial evidence in the f orm of Darby ’s testim o n y . ¶17. Darby testif

ied she had not intentionally l ied to her supervisors at Co l u m b u s L W about
pay roll but had sim

ply m isunderstood the questi o n s . S h e testif i ed t hat she entered pay

roll while perf

orm ing other duties, on her breaks, at lunch, and a t hom e in an attem pt to com plete the p ay roll in a tim ely m anner. Darby brought hom e com pany inf orm ation, she testif

ied, only

to protect the inf

orm ation a nd spreadsheets and t o tim ely com plete her work. Further, Darby claime d h e r i nternet u se was neither unusual am ong Colum bus LW e m

ploy e es nor as concerning as a known incident of past internet abuse by

a supervisor at work.

8¶18. “W here t h e r e is s ubstantial evidence, an agency ’s f act f inding m ust be allowed to stand even though there m i ght be room f or disagreem ent o n that i ssue.” Jackson Cty. Bd. of Supervisors , 129 So. 3d at 183 (¶15). Because the B o a rd s u pported its decision with substantial evidence, we cannot say the decision was either arbitrary or capricious, and we af f irm the Board’s decision. ¶19. AFFIRMED. BARNES, C.J., C ARLTON AND J. WILSON, P.JJ., GREENLEE, WESTBROOKS, McDONALD, L A W R E NCE, McCARTY AND C. W ILSON, JJ., CONCUR.

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