MISSISSIPPI EMPLOYMENT SECURITY COMMISSION AND KEY TEMPORARY

DATE OF JUDGMENT: 10/14/93

DATE RECORD FILED: 01/10/94

TRIAL JUDGE: Hon. Lee J. Howard

COURT FROM WHICH APPEALED: Clay County Circuit Court

ATTORNEY FOR APPELLANT: Nancy H. Stuart

ATTORNEY FOR APPELLEE: Jan D. Garrick

NATURE OF THE CASE: Administrative law

TRIAL COURT DISPOSITION: Lower court affirms board of review's decision denying benefits

SUGGESTED DISPOSITION: Affirm P.C.

BEFORE SULLIVAN, P.J., ROBERTS AND SMITH, JJ.

SMITH, JUSTICE, FOR THE COURT:

James Holliday was denied unemployment benefits because he did not report earned income during the time he was claiming unemployment benefits. Holliday says that he could not have willfully omitted this information because he is illiterate and therefore could not check the forms the he got other people to fill out. However, three times previously, he has failed to report earned income during a period that he was filing for unemployment. After an initial denial of his claim, he appealed and the Board of Review denied his claim. The circuit court affirmed this denial. Holliday appeals to this Court the following issue:

WHETHER OR NOT THE MISSISSIPPI EMPLOYMENT SECURITY COMMISSION ERRED IN DENYING BENEFITS TO HOLLIDAY.

James Holliday, fifty-seven, filed an initial claim with the Mississippi Employment Security Commission (MESC) for unemployment benefits on September 13, 1992. A determination was issued on October 5, 1992 that Holliday was disqualified on the basis that he failed to properly report his earnings for the weeks ending May 23, 1992, August 22, 1992, and August 29, 1992. Holliday appealed this pronouncement The appeals referee conducted the hearing on November 30, 1992.

Susan Hawkins was the office coordinator for Key Business Services. She testified that Holliday worked twenty-seven hours at a temporary job from Tuesday, May 19, 1992 through Thursday May 21, 1992 and then three and one-half hours during the next week for that same job. He worked twenty-two and one-half hours the week beginning August 5, 1992, twenty-four hours the next week, and forty-eight and one-half hours the week ending August 30, 1992. The employment in August was in different places. He had been paid different wages at the different jobs. Hawkins explained that she had made a mistake and paid him the same wage for the entire time, so she had to go back and make out another check to pay him for the hours during the last job in which he had earned a higher wage. She was unsure of the actual week days in the last forty-eight hour week in which Holliday worked. She testified based on the information on her time cards, which indicated that he worked forty-eight hours beginning Friday, August 28 and ending August 31. She testified that the starting date of Friday, August 28, might be incorrect, but she knew, mainly because she had erred in paying Holliday the wrong hourly wage for his last job, that he had worked forty-eight and one-half hours during the last week in August. She said that her cards were based on a Monday to Sunday work week with the employee receiving his check the following Thursday. She said that Holliday was a good worker, and they would like to reemploy him, but they did not have his most recent phone number in order to reach him.

James Holliday testified that he did work twenty-seven hours in May, but that someone in Jackson told him that he did not have to report these earnings. Holliday said that the man's name was Jimmie Reed. At that point the appeals referee informed Holliday that Jimmie Reed was a woman and that she had served as appeals referee before him. Holliday said that he did not know whether or not he worked three weeks in August of 1992. He remembered working at Poindexter Machinery and then at Galaway. He knew that he worked about forty-eight hours for Galaway and was paid for that work, but he did not know the dates of that work. It was sometime in August. He filed for unemployment, a U-claim he as referred to it, on September 9 and 16, 1992.

Holliday had difficulty filing these forms correctly because he is illiterate. He would get other people to read the forms to him and write down his answers. On a consistent basis, there were errors on the forms and unemployment office would send the form back to him. Holliday would then get some more help and "make sure he, you know, did it right." He said that the people working at the office explained the forms to him and sometimes would help him fill out the forms. It really depended on who was working as to how helpful the people would be. Though his testimony is unclear, it seems like Holliday was saying that the workers in the unemployment office told him that he had to make $648 before he could file for unemployment again. He did not know which employee filled out which form. He said that the workers that filled out the form for him did not ask whether or not he had worked at all.

The appeals referee determined that the claimant did work part time while filing a claim and failed to properly report his earnings. "The criteria used to determine fraud provides that if it is determined that the claimant has incurred a previous fraudulent overpayment established within three years a disqualification shall be doubled." The referee recognized that the MESC had made overpayments to Holliday. Holliday had, three times in the past, fraudulently failed to report income while drawing benefits.The Claimant Profile Inquiry shows that on 12/7/88, 5/1/91 and 6/17/91 the MESC required Holliday to repay benefits because of cause or reason number 10, which is failure to report income. Upon further appeal, the Board of Review adopted the Findings of Fact and Opinion of the Referee and affirmed the decision. Holliday petitioned the Circuit Court of Clay County for relief. The Chancery Court, after hearing oral argument, affirmed the Board of Review.

A rebuttable presumption exists in the favor of the administrative agency, and the challenging party has the burden of proving otherwise. Sprouse v. Mississippi Employment Security Com'n, 639 So. 2d 901, 902 (Miss. 1994). This Court must not reweigh the facts of the case or insert its judgment for that of the agency. Sprouse, 639 So. 2d at 902; Mississippi Public Service Com'n v. Merchants Truck Line, Inc. 598 So. 2d 778, 782 (Miss. 1992). Where there is the required substantial evidence, this Court has no authority to reverse the circuit court's affirmance of the decision of the Board of Review. Ray v. Bivens, 562 So. 2d 119, 121 (Miss. 1990).

WHETHER OR NOT THE MISSISSIPPI EMPLOYMENT SECURITY COMMISSION ERRED IN DENYING BENEFITS TO HOLLIDAY.

Holliday contends that the sole question for the Court's consideration is whether or not the MESC or Key Temporary proved by substantial, clear and convincing evidence that Holliday's failure to report earnings was "willful" as required by Miss. Code Ann. 71-5-513 A(2). Miss. Code Ann. 71-5-513(A)(2) states:

For the week, or fraction thereof, with respect to which he willfully makes a false statement, a false representation of fact, or willfully fails to disclose a material fact for the purpose of obtaining or increasing benefits under the provisions of this law, if so found by the commission, and such individual's maximum benefit allowance shall be reduced by the amount of benefits so paid to him during any such week of disqualification . . . .

Holliday cites to Mississippi Employment Sec. Com'n v. Bell, 584 So. 2d 1270 (Miss. 1991),for the proposition that the decision of the Commission must be reversed on appeal when the Court finds that the Commission or employer has failed to prove "willfulness" by substantial, clear and convincing evidence. Since the lower court and board of review failed to make a specific finding of "willfulness", Holliday contends the statute was not followed. Holliday argues that because he was illiterate he could not willfully fail to report the earnings. Holliday cites to several cases in jurisdictions other than Mississippi, including Hebert v. State of Maine, 323 A.2d 1 (1974), Rodriguez v. Department of Labor and Industries, 540 P.2d 1359 (1975) and Miranda v. Beaman, 391 P. 2d 555 (1964).

In Rodriguez , the Washington court held that extreme illiteracy may be grounds to apply equitable principles to relieve the applicant of undue hardship arising from a strict application of the law. Rodriguez, 540 P. 2d at 1362. This case involved a worker's compensation claim. Rodriguez only spoke Spanish and could not read or write in Spanish. When Rodriguez went to file an appeal, the interpreter that had been supplied to him was in the hospital. MESC contends that the court invoked equity to avoid a harsh result and points out that the Rodriguez court cited cases and reaffirmed the principle that illiteracy will not excuse a claimant's failure to comply with provisions of the worker's compensation act.

In Hebert, the applicant failed to list his brief, immediate past employment and the evidence revealed that he thought the question meant his last substantial employment. The Maine court stated that the Commission must evaluate whether the applicant was "subjectively cognizant that his answer was contrary to fact, thereby to be a deception, a 'lie.'" Herbert, 323 A.2d at 6. The MESC asserts that Hebert is factually different from the case sub judice. Hebert, in answering the claim form, had listed the place he worked for the last four years, but left off his last job which lasted two and one-half months. The court stated that the claim form was ambiguous in the way it asked the question and that Herbert had properly answered the question according to his interpretation.

In Miranda v. Beaman, 391 P. 2d 555 (1964) the commission found that Miranda had failed to report all his earnings for a two week period and further found Miranda failed to report the income "knowingly with intent to obtain benefit." Id. at 557. Holliday contends that the referee and lower court did not make any finding as to his willfulness, as the Arizona court did in Miranda, and therefore are not following the dictates of the statute. Yet, the MESC points out that the Miranda court ultimately disqualified the claimant even though he had asserted that he did not report his earnings because a language barrier made it impossible for him to understand the reporting requirements.

Holliday contends that he did not have a "guilty mind" when filing these claims, so he should not be penalized. He also cites to several states' definitions of "willful" and to the Black's Law Dictionary definition which is "an act done wilfully and knowingly when the actor intends to do it and knows the nature of the act." Black's Law Dictionary, at p. 1435, 5th ed.

MESC cites to Diprizio v. Industrial Commission of Bd. of Review, 572 P. 2d 679 (Utah 1977) where the Utah court rejected the argument of an Italian immigrant who could not clearly understand English when the immigrant claimed that his failure to report his earnings was a mistake rather that willful. The Utah court noted that the referee as the fact finder was not obligated to believe his argument and noted that during the hearing he understood and responded to questions.

Both the MESC and Holliday cite to law in other states due to the fact that Mississippi does not seem to have any cases interpreting the necessary elements for a disqualification based upon willful failure to report earnings. However, the facts of this case clearly support the referee's finding that Holliday had unreported income which disqualified him from receiving benefits. Three times previously, Holliday had attempted to claim unemployment when he in fact had some income and did not report it. He claims that he told the person who filled out the forms for him that he had worked and earned some income and that person did not report the income as Holliday told him. Yet, Holliday did not call any of these persons to testify to such or get an affidavit from them substantiating Holliday's allegations. Holliday knew that he had a problem with his forms. Holliday testified that the forms were often sent back to him lacking information that he would then have to supply.

The referee's findings of fact indicate that Holliday clearly failed to report earnings on three separate occasions, but that he was not aware that the earnings were to be reported. Such finding that Holliday was unaware that the earnings were to be reported is contrary to the more substantial evidence. Holliday claims to have told the persons who filled out his forms exactly what income he had received. Thus, the information which they wrote down on the forms came only from Holliday. Holliday has repeatedly filed for unemployment benefits. While his illiteracy was indeed an unfortunate handicap, nevertheless, the proof showed that employees were primarily the persons who filled out his forms upon which he provided them the information thereon. Even in this unfortunate situation, ultimately this Court would have to pronounce that ignorance of the law is no excuse. Surely Holliday learned something from his numerous filings. Surely the three prior incidents of failure to report income should have impacted upon Holliday. Under the facts presented here, Holliday had to have knowingly withheld information regarding additional income that he failed to report. That is all that is necessary under the statute to deny benefits. The appeals referee therefore reached the right result, but for the wrong reason. We hold that there is substantial evidence in this record to support the Board of Review's finding that Holliday did not report earned income when he filed his unemployment claim and he therefore violated Miss. Code Ann. 71-5-513(A)(2). There is no merit to Holliday's raised issue.

JUDGMENT AFFIRMED.

LEE, C.J., PRATHER AND SULLIVAN, P.JJ., PITTMAN, McRAE, ROBERTS AND MILLS, JJ., CONCUR. BANKS, J., NOT PARTICIPATING.