Bedford Care Center v. Kirk

935 So. 2d 1135, 2006 Miss. App. LEXIS 573, 2006 WL 2255896
CourtCourt of Appeals of Mississippi
DecidedAugust 8, 2006
DocketNo. 2005-CC-00654-COA
StatusPublished
Cited by1 cases

This text of 935 So. 2d 1135 (Bedford Care Center v. Kirk) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bedford Care Center v. Kirk, 935 So. 2d 1135, 2006 Miss. App. LEXIS 573, 2006 WL 2255896 (Mich. Ct. App. 2006).

Opinion

BARNES, J.,

for the Court.

¶ 1. Vicky L. Kirk applied for unemployment compensation and was denied bene[1137]*1137fits based on a finding that she voluntarily-left her employment. She appealed, and the Circuit Court of Forrest County reversed the Mississippi Employment Security Commission, finding that the employee had not engaged in misconduct. On appeal to this Court, the following issues are raised:

A. Did substantial evidence support the Mississippi Employment Security Commission’s (“MESC”) finding that Kirk left her employment at Bedford Care voluntarily without good cause? Miss.Code Ann. § 71-5-513(A)(l)(a) (1972).
B. Did the Circuit Court commit reversible error in considering this case as a “misconduct” case instead of voluntary separation, which are statutorily independent grounds for denial?
C. Did the Circuit Court err in considering matters outside the record?
D. Did the Circuit Court err in applying its own judgment reweighing the facts, rather than making a legal determination considering substantial evidence?

¶ 2. This Court finds that the circuit court did err and reverses and renders, reinstating the decision of the Commission denying unemployment benefits.

FACTS

¶ 3. Vicky L. Kirk was a nurse working at Bedford Care Center of Petal, a twenty-four-hour elderly care center. Kirk and another nurse were asked to work on the day shift temporarily while another employee was off work with a heart attack. Kirk refused to work the day shift, even though company policy requires any employee to work any shift assigned. She had her doctor fax an excuse for modified duty, which restricted Kirk’s work activities due to a back problem.

¶ 4. When informed by her supervisor that modified job duties were not available, Kirk stated that she would return with a doctor’s full release. Although she was given an excused absence to go to her doctor, Kirk never returned with a medical release as she stated she would. Kirk never requested medical leave, which would have been available to her under the federal Family and Medical Leave Act.

¶ 5. After leaving on November 21, 2003, Kirk never spoke to her supervisors at Bedford, even though numerous calls were made to her to determine her status and asking her to return. Her one call to Bedford was made after-hours to an answer machine when none of the supervisors would be present. Kirk contends that “they could have written a short note or letter.” She never explains why a telephone call was not appropriate. A telephone call was even made to Kirk’s mother in December in an attempt to contact Kirk and determine when she would return to work. Her mother was the one who went to pick up Kirk’s check at Bedford and to pick up a fruit basket given to employees at Christmas.

¶ 6. Kirk filed for unemployment benefits on December 2, 2003. On the claim form, there are two marks under “Reason for Separation”: “Voluntary Quit” and “Other.” Kirk contends that she did not mark “Voluntary Quit.” At the hearing and in her brief to the Court, Kirk has been consistent in her statements that she was not terminated or fired. In her brief she states:

Of course I said that I was not terminated. That has never been an issue. I simply contend that Bedford Care wrongly claimed that I voluntarily quit when I had every intention of returning to work in January, 2004.

¶ 7. The appeals referee disqualified Kirk from receiving unemployment bene[1138]*1138fits pursuant to Mississippi Code Annotated § 71-5-513(A)(l)(a) (Supp.2005), which states that a person may be disqualified from receiving benefits for the time the person “left work voluntarily without good cause, if so found by the department....” Based on the facts presented, the referee found that “[t]he claimant constructively quit her job when she did not return to work. The claimant has not shown good cause within the meaning of the law for leaving her employment.” The Board of Review adopted the findings of fact of the appeals referee.

¶ 8. On appeal to the Forrest County Circuit Court, the circuit court reversed the factual determination of MESC. The circuit court stated the issue as:

The question before [the] Court is not whether there was substantial evidence for Bedford to discharge Kirk, but whether or not there was substantial, clear and convincing evidence for Bed-ford to disqualify Kirk for unemployment benefits due to insubordination which rises to the level of misconduct.

STANDARD OF REVIEW

¶ 9. In regard to appellate review, Mississippi Code Annotated § 71-5-531(A) states that “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 the court shall be confined to questions of law.” Similarly, the Mississippi Supreme Court has stated:

The denial of unemployment benefits will be disturbed on appeal only if (1) unsupported by substantial evidence, (2) arbitrary or capricious, (3) beyond the scope or power granted to the agency, or (4) in violation of the employee’s rights.

Johnson v. Miss. Emp. Sec. Comm’n, 761 So.2d 861, 863(¶ 6) (Miss.2000).

¶ 10. Substantial evidence is that which is relevant and capable of supporting a reasonable conclusion, or is “more than an scintilla of evidence.” Gilbreath v. Miss. Emp. Sec. Comm’n, 910 So.2d 682, 686(¶ 13) (Miss.Ct.App.2005) (quoting Hooks v. George County, Mississippi, 748 So.2d 678, 680(¶10) (Miss.1999)). Substantial evidence has been further defined to be “such relevant evidence as reasonable minds might accept as adequate to support a conclusion.” Hooks, 748 So.2d at 680(¶ 10) (citing Pub. Employees’ Ret. Sys. v. Marquez, 774 So.2d 421, 425(¶ 13) (Miss.2000)).

¶ 11. The reviewing court may not reweigh the facts of the case, and is prohibited from substituting its judgment for that of the agency. Allen v. Miss. Emp. Sec. Comm’n, 639 So.2d 904, 906 (Miss.1994). The employee bears the burden of proof of good cause for leaving work. Miss.Code Ann.. § 71-5-513(A)(1)(c).

DISCUSSION

A. Whether the evidence supported the commission’s decision.

¶ 12. Based on the testimony, record, and documents submitted at the hearing, the appeals referee found:

The claimant was employed for approximately four years as licensed practical nurse for Bedford Care Center, Petal, Mississippi, ending November 21, 2003. The claimant was hired to work the nightshift. Because another employee was on leave of absence, the claimant was asked to help out on the dayshift. The claimant refused because she was .scheduled for an MRI due to back pain. When she informed the employer of this, the employer requested a doctor’s statement. The claimant submitted a doc[1139]*1139tor’s statement for modified duty. The employer does not have modified duty unless an employee has sustained a work related injury. The claimant indicated that she would get a full release for work.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Thompson v. Mississippi Department of Employment Security
130 So. 3d 174 (Court of Appeals of Mississippi, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
935 So. 2d 1135, 2006 Miss. App. LEXIS 573, 2006 WL 2255896, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bedford-care-center-v-kirk-missctapp-2006.