LAW.coLAW.co

Khloe CONNER, Appellant v. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY, Appellee

Court of Appeals of Mississippi2018-05-15No. NO. 2017–CC–00605–COA
247 So. 3d 341

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

majority opinion

GREENLEE, J., FOR THE COURT:

¶ 1. The Mississippi Department of Employment Securitys Board of Review (Board) affirmed the denial of unemployment benefits following Khloe Conners termination from Dollar General. Conner appealed to the Circuit Court of the Second Judicial District of Jones County, which affirmed the Boards decision. Finding no error, we affirm the circuit courts judgment.

FACTS AND PROCEDURAL HISTORY

¶ 2. On May 15, 2015, Conner began working at Dollar General as a lead sales associate. On September 30, 2016, Conner was terminated, in accordance with the companys workplace-violence policy, because she engaged in a physical altercation with a customer, during which she cut the customer with a box-cutter.

¶ 3. After her termination, Conner sought unemployment benefits, and a claims examiner investigated the reasons for her termination. Ultimately, the claims examiner denied Conner unemployment benefits finding that Conner was discharged from work for misconduct connected with her employment and was therefore disqualified from receiving benefits. Conner appealed the denial of her claim to an administrative-law judge (ALJ), who conducted a telephonic hearing.

¶ 4. During the hearing on Conners appeal, Curtis Swires, the Dollar General store manager, testified that Conner was discharged from her job as a lead sales associate because she violated Dollar Generals workplace-violence policy. He testified that Conner was aware of this policy and explained the policy indicated that Dollar General would not ignore, condone, or tolerate any disruptive, threatening, or violent behavior by any Dollar General employee, and such behavior could lead to termination.

¶ 5. Swires testified that on the day of the incident, Conner and a customer got into a verbal altercation after the customer asked for one of her items to be bagged. Following the verbal altercation, Swires testified that the customer told Conner she would be waiting on her outside and that Conner replied, You dont have to. Im on break. I will be right outside. Swires testified that he ordered Conner not to immediately go outside but wait five minutes for the customer to leave. However, Swires claimed that she ignored his order, and she waited only a minute and a half before going outside. Swires testified that about thirty seconds after Conner went outside he heard a commotion and went outside to investigate. Once outside, Swires claimed he witnessed Conner swinging at the customer and observed the customer bleeding from several areas of her body. The customer advised Swires that Conner had cut her with a box-cutter.

¶ 6. Next, Conner testified on her own behalf. She admitted that she had a verbal altercation with a customer, but denied that Swires told her to wait five minutes before going outside. She also testified that she went outside not knowing the customer was waiting on her and was attacked. She testified that she acted in self-defense and felt there was no other alternative to escape, so she picked up a box-cutter that was in her possession and cut the customer several times.

¶ 7. After concluding the hearing, the ALJ affirmed the claims examiners denial of benefits, finding that Conners conduct violated Dollar Generals workplace-violence policy and rose to the level of misconduct. Conner, still aggrieved, sought review from the Board, which after careful consideration of the record affirmed the ALJs decision.

¶ 8. On February 2, 2017, Conner appealed to the Circuit Court of the Second Judicial District of Jones County. On April 24, 2017, the circuit court affirmed the Boards decision, finding that the decision was supported by substantial evidence. Conner appeals.

STANDARD OF REVIEW

¶ 9. This Courts scope of review in an unemployment compensation case is limited. Welch v. Miss. Empt Sec. Commn , 904 So.2d 1200, 1201 (¶ 5) (Miss. Ct. App. 2004). In reviewing a decision of the Mississippi Department of Employment Security (MDES), [t]he findings as to the facts of the Board of Review are conclusive if supported by substantial evidence and absent fraud. Id. Further, the supreme court has explained that where there is the required substantial evidence, this Court has no authority to reverse the circuit courts affirmance of the decision of the Board of Review. Broome v. Miss. Empt Sec. Commn , 921 So.2d 334, 337 (¶ 12) (Miss. 2006). Thus, the denial of unemployment benefits will be disturbed on appeal only if the agencys decision (1) is not supported by substantial evidence, (2) is arbitrary or capricious, (3) is beyond the scope of power granted to the agency, or (4) violates the claimants constitutional rights. Johnson v. Miss. Empt Sec. Commn , 761 So.2d 861, 863 (¶ 6) (Miss. 2000).

DISCUSSION

¶ 10. On appeal, Conner contends that she was entitled to unemployment benefits because her actions were not misconduct, and, therefore, she is not an excluded person under Mississippi Code Annotated section 71-5-513 (Supp. 2017). She asserts that the altercation happened while she was not on the clock and was not in the course of employment so, as a matter of law, the altercation cannot be misconduct in connection with her work. Further, she asserts that her actions were in self-defense and cannot be misconduct.

¶ 11. It is well settled that in employment-misconduct cases, the employer bears the burden to prove by substantial, clear, and convincing evidence that a former employees conduct warrants disqualification of benefits.

Windham v. Miss. Dept of Empt Sec. , 207 So.3d 1249, 1252 (¶ 10) (Miss. Ct. App. 2017) (quoting Over the Rainbow Daycare v. Miss. Dept of Empt Sec. , 188 So.3d 1249, 1251 (¶ 7) (Miss. Ct. App. 2016) ). The supreme court has defined disqualifying misconduct as:

[C]onduct evincing such willful and wanton disregard of the employers interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect from his employee. Also, carelessness and negligence of such degree, or recurrence thereof, as to manifest culpability, wrongful intent or evil design, and showing an intentional or substantial disregard of the employers interest or of the employees duties and obligations to his employer ... [comes] within the term.

Wheeler v. Arriola , 408 So.2d 1381, 1383 (Miss. 1982). However, an employees conduct may be harmful to the employers interests and justify the employees discharge; nevertheless, it evokes the disqualification for unemployment insurance benefits only if it is wilful, wanton or equally culpable. Acy v. Miss. Empt Sec. Commn , 960 So.2d 592, 595 (¶ 14) (Miss. Ct. App. 2007).

¶ 12. Fighting has been found to be grounds for disqualification of benefits. Welch , 904 So.2d at 1202-03 (¶ 13). In Welch , this Court affirmed the Boards denial of unemployment benefits to a claimant who engaged in a physical altercation with another employee. The employee in Welch admitted that a fight had occurred and that he had thrown the first punch. Id. at 1202 (¶ 7). Further, Welch admitted that he received an employee handbook and knew that he could lose his job for fighting. Id. In affirming the Boards decision, we found that the evidence show[ed] that Welchs physical altercation with another employee violated the terms of the employee handbook. Id at (¶ 12). Additionally, this Court specifically found that Welchs action constituted misconduct and therefore upheld the denial of unemployment benefits. Id. at 1202-03 (¶ 13).

¶ 13. Similarly, in the present case the evidence shows that Conner had received an employee handbook, which contained her employers workplace-violence policy. While Conner testified that she did not read this handbook, she admitted that it was a reasonable policy for employees not to engage in disruptive, threatening, or violent behavior. Further, Conner admitted that she cut the customer with a box-cutter, but asserts that it was in self-defense. While Conner does have a right to defend herself, her employer also has an interest in providing a safe store for customers and other workers. Conners deliberate action of leaving the store and going into the parking lot was not only in direct contravention of her managers order but evinced such willful and wanton disregard of the employers interest ... [and] standards of behavior which the employer has the right to expect from his employee. Wheeler , 408 So.2d at 1383. Accordingly, we find the Boards denial of unemployment benefits was supported by substantial evidence. Furthermore, we specifically find that Conners action constituted misconduct and disqualified her from receiving unemployment benefits. Thus, we affirm the circuit courts decision.

CONCLUSION

¶ 14. We agree with the circuit courts decision that substantial evidence was presented to support Conners denial of unemployment benefits. Conners deliberate action of going outside to the parking lot and engaging in a physical altercation with a customer was against the employers workplace-violence policy. Further, Conner acted in such willful and wanton disregard for her employers interests that disqualification of benefits is warranted. We therefore affirm the circuit courts decision affirming the denial of unemployment benefits.

¶ 15. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, WILSON, WESTBROOKS AND TINDELL, JJ., CONCUR.