ELAINE V. SCRIVENS

v.

MISSISSIPPI EMPLOYMENT SECURITY COMMISSION

DATE OF JUDGMENT: 6/30/95

DATE RECORD FILED: 12/18/95

TRIAL JUDGE: Hon. Jannie Lewis

COURT FROM WHICH APPEALED: Humphreys County Circuit Court

ATTORNEY FOR APPELLANT:

Alsee McDaniel

P. O. Box 546

Indianola, MS 38751

ATTORNEYS FOR APPELLEE:

Mark D. Ray

Jan D. Garrick

P. O. Box 1699

Jackson, MS 39215-1699

NATURE OF THE CASE: State Boards and Agencies

TRIAL COURT DISPOSITION: Denial of unemployment compensation benefits

SUGGESTED DISPOSITION: Affirm per curiam

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

ROBERTS, JUSTICE, FOR THE COURT

Elaine V. Scrivens (Scrivens) appeals to this Court seeking review of the Order and Decision of the Circuit Court of Humphreys County affirming the decision of the Mississippi Employment Security Commission (MESC) denying her unemployment compensation benefits. Scrivens was discharged on August 22, 1994, from her job as a quality assurance inspector for Con-Fish, Inc., in Isola, Mississippi. When she applied for unemployment compensation benefits, she was denied payment because of her "misconduct".

Scrivens appealed the denial of benefits through the administrative procedures of the MESC, which resulted in a final Decision from the Board of Review of the MESC affirming the denial of the benefits. Aggrieved from this decision, the Appellant filed her appeal for Judicial Review in the Circuit Court of Humphreys County, Mississippi. The circuit court entered its order on June 30, 1995, affirming the decision from the MESC. It is from this lower court decision that Scrivens appeals to this Court.

Scrivens was employed by Con-Fish, Inc., from July 15, 1986, until August 22, 1994, as a quality assurance inspector. Her duties included inspection, weighing and measuring fish prior to its shipping to customers, and recording the information on quality assurance sheets. She held the position of quality assurance inspector for approximately five years without having received a warning or reprimand from her supervisor.

The United States Department of Commerce (USDC) regulates the fish business and allows certain fish suppliers like Con-Fish to patrol themselves with an in-house quality assurance program that requires the use of standardized forms. On a random basis USDC would review the information contained in the forms. By participating in the program, Con-Fish saves between $500,000 and $600,000 a year. The failure to properly complete the standardized forms could cause the company to be dropped by the USDC from participation in the program. Scrivens completed between forty and fifty of those forms on an average day.

A new supervisor named Tom Wilson (Wilson) was assigned to Scrivens' department sometime in May of 1994. Within one month of becoming Scrivens' supervisor, Wilson issued her a warning on June 10, 1994, for an alleged deficiency in the completion of a quality assurance form. Scrivens was on vacation the day after this report was turned in and was unable to make the necessary corrections. As a result, Scrivens received a written reprimand. Scrivens received a total of four reprimands within a twelve month period. According to company policy, an employee was to be suspended for three days after receiving the third write-up and terminated upon receiving a fourth within a twelve month period. Thus, she was discharged upon receipt of her fourth reprimand. The second write-up was issued to Scrivens citing insubordination and threatening a fellow employee on June 27, 1994. A staff meeting was called by Tom Wilson to discuss rumors of him and another employee, Brenda Benney, engaging a romantic relationship. Scrivens testified before the Appeals Referee that Wilson told her to look at him while he was talking. Then he told the employees to go back to work because he thought he knew the source of the rumor. The reprimand was given following the staff meeting because Scrivens and employee, Benney, exchanged words in a confrontational manner. Scrivens told Benney that she would "talk" to her later. Wilson deemed that a threat.

The third write-up was issued on August 5, 1994, for improper paper work on the quality assurance sheet. Scrivens was suspended for three days following this reprimand. The fourth and final written reprimand was received on August 22, 1994, for failing to properly execute documentation of product inspection. The write-up had a notation from the employer that stated Scrivens "repeatedly displayed an attitude which indicates a lack of concern for the total mission of the quality assurance program". Wilson was unable to read Scrivens' handwriting. According to Scrivens, Wilson had problems distinguishing her 5's from S's and her D's from O's.

The Referee denied unemployment compensation benefits to Scrivens, and the Board of Review of the MESC affirmed that decision. Scrivens sought Judicial Review of those decisions in the Circuit Court of Humphreys County. Having the Board's decision affirmed by that lower court, Scrivens brings her case to this Court to decide the following issue:

WHETHER THE CIRCUIT COURT ERRED IN AFFIRMING THE MESC'S DECISION DENYING UNEMPLOYMENT BENEFITS BASED ON THE HOLDING THAT APPELLANT'S ACTIONS CONSTITUTED MISCONDUCT.

This Court's standard of review of an administrative agency's findings and decisions is well established. An agency's conclusions must remain undisturbed unless the agency's order 1) is not supported by substantial evidence, 2) is arbitrary or capricious, 3) is beyond the scope or power granted to the agency, or 4) violates one's constitutional rights. Sprouse v. Mississippi Emp. Sec. Comm'n, 639 So. 2d 901, 902 (Miss. 1994); (citations omitted). A rebuttable presumption exists in favor of the administrative agency, and the challenging party has the burden of proving otherwise. Id. (citing United Cement Co. v. Safe Air for the Env't, 558 So. 2d 840, 842 (Miss. 1990)). Lastly, this Court must not reweigh the facts of the case or insert its judgment for that of the state agency. Id. (citing Mississippi Pub. Serv. Comm'n v. Merchants Truck Line, Inc., 598 So. 2d 778, 782 (Miss. 1992)).

The standard of review by this Court as applied to decisions of the MESC is limited to a determination of whether the decision is supported by substantial evidence. Foster v. Mississippi Employment Sec. Comm'n., 632 So. 2d 926, 927 (Miss. 1994). It has been codified at Miss. Code Ann. 71-5-531 (1989), which states, inter alia:

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.

See also Booth v. Mississippi Employment Sec. Comm'n, 588 So. 2d 422 (Miss. 1991).

This Court must review the record to determine whether there is substantial evidence to support the Board of Review's findings of fact, and further, whether, as a matter of law, the employee's actions constituted misconduct disqualifying him from eligibility for unemployment compensation benefits. Id. at 425.

The underlying purpose of implementing employment security law in Mississippi is to protect those workers not permitted to continue employment through no fault of their own. Sprouse, 639 So. 2d at 903. The burden of proving disqualifying misconduct by clear and convincing evidence rests with the employer. Gore v. Mississippi Employment Sec. Comm'n, 592 So. 2d 1008, 1010 (Miss. 1992). Miss. Code Ann. 71-5-513 (1972) provides that an "individual shall be disqualified for benefits...[if] he was discharged for misconduct with his work, if so found by the commission..." Id. Because the facts are not disputed, the question for this Court is whether Scrivens' actions constituted misconduct under Mississippi law.

This Court in Mississippi Employment Sec. Comm'n v. Martin, 568 So. 2d 725 (Miss. 1990), defined the term "misconduct" under the above mentioned statute as:

[D]isqualification for unemployment benefits results from misconduct, which is conduct evincing such willful and wanton disregard of the employer's interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect from his employees.

Id. at 727. In Employment Sec. Comm'n v. Phillips, 562 So. 2d 115 (Miss. 1990), this Court addressed the question as to what constitutes misconduct and held:

The Legislature has afforded no definition of misconduct, although quite apparently the statute imports an objective standard. The end of law is individual and hence societal adherence to external standards. It follows that questioned acts must be judged by like standards, even where expressed in language so open textured as "misconduct connected with his work." We have fleshed out the term in a series of cases beginning with Wheeler v. Arriola, 408 So. 2d 1381, 1383 (Miss. 1982). Misconduct imports conduct that reasonable and fair-minded external observers would consider a wanton disregard of the employer's legitimate interests. Something more than mere negligence must be shown, although repeated neglect of an employer's interests may rise to the dignity of misconduct.

Id. at 118; (internal citations omitted).

Scrivens claims that she had completed her forms the same way for the entire time that she worked at Con-Fish, and this was the first complaint. She states that her handwriting cannot be changed. This Court has further defined the parameters of employee "misconduct" by stating that the "[m]ere inefficiency, unsatisfactory conduct, failure in good performance as a result of inability or incapacity, or inadvertence and ordinary negligence in isolated incidents, and good faith errors in judgment or discretion are not 'misconduct' within the meaning of the [unemployment compensation] statute." Wheeler, 408 So. 2d at 1383-84. Notwithstanding the absence of reprimands in her past, Scrivens did not comply with instructions to change her pattern of behavior. Therefore, her conduct cannot be deemed an isolated incident.

When Scrivens and a fellow employee, Benney, had a conversation at the staff meeting, Scrivens told Benney she would talk to her later. There is a dispute between Wilson and Scrivens as to the overtones of the above conversation. Nevertheless, the Appellant received a reprimand citing insubordination and rude behavior.

This Court has held insubordination to be misconduct within the Mississippi Employment Security Law, ordinarily adequate to deny benefits. Shannon Eng'g & Constr., Inc. v. Mississippi Employment Sec. Comm'n, 549 So. 2d 446 (Miss. 1989) (citing Sims v. Board. of Trustees, Holly Springs Mun. Separate Sch. Dist., 414 So. 2d 431, 435 (Miss. 1982).

In Sims, the Supreme Court adopted the following definition: "A 'constant or continuing intentional refusal to obey a direct or implied order, reasonable in nature, and given by and with proper authority' [constitutes insubordination]." This Court holds that the Sims definition should be extended to unemployment cases and that insubordination is included within the scope of "misconduct."

Id. (emphasis added; with internal citations omitted)

This one incident of insubordination is sufficient to constitute misconduct when coupled with Scrivens' failure to comply with her supervisor's other instructions. The employer must prove by clear and convincing evidence that [Scrivens] was guilty of insubordination. Gore, 592 So. 2d at 1010. The definition used in Sims, as adopted by this Court, requires a "constant or continuing refusal to obey a direct or implied order" of the employer. Id. The evidence shows that Scrivens could not or would not comply with instructions from her supervisor. This Court finds that Scrivens' actions rise to the level of misconduct.

It is this Court's duty to determine whether substantial evidence was presented by the employer to justify the denial of unemployment compensation benefits. Id. Scrivens argues that the Appeals Referee considered hearsay testimony in determining whether misconduct existed. The employer's representative testified that Scrivens was discharged for receiving four (4) warnings within a 12-month period. His testimony was based solely on what he had been told or read in reports.

The Appeals Referee relied on this testimony in determining whether the acts by Scrivens constituted misconduct. Con-Fish concedes that the testimony was hearsay, but argues that the testimony falls within the exception to hearsay in Rule 803 (6) of the Mississippi Rules of Evidence. That Rule provides:

(6) Records of Regularly Conducted Activity.

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

The Official Comments following Rule 803 (6) states:

It is important to note that the custodian as well as the other qualified witnesses may testify. Thus, it is not necessary to call or to account for all participants who made the record.

However, the source of the material must be an informant with knowledge who is acting in the course of the regularly conducted activity. This is exemplified by the leading case of Johnson v. Lutz, 253 N.Y. 124, 170 N.E. 517 (1930), which is still the applicable law today under the rule. That case held that a police report which contained information obtained from a bystander was inadmissible; the officer qualified as one acting in the regular course of business, but the informant did not.

Id.

The personnel records were introduced by the personnel officer of Con-Fish, who was the custodian and had control of the documents. Con-Fish states that the personnel action documents were introduced without objection from Scrivens, and they were the regularly kept records of Con-Fish which were made at the time the acts by Scrivens occurred.

This Court finds the testimony by the Con-Fish's representative comes within the exception to hearsay in Rule 803 (6) of the Mississippi Rules of Evidence. The testimony was correctly heard and is considered to be substantial evidence of employee misconduct.

The actions by Scrivens were sufficient to merit her termination from employment at Con-Fish. There was sufficient substantial evidence in the record to place the label of misconduct on those actions. Thus, the denial of unemployment benefits was the correct decision. Scrivens should not be entitled to receive unemployment compensation benefits. Therefore, the lower court's decision is affirmed.

JUDGMENT IS AFFIRMED.

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