Mississippi Employment Security Commission v. Nordstrom

858 So. 2d 904, 2003 Miss. App. LEXIS 1034, 2003 WL 22480319
CourtCourt of Appeals of Mississippi
DecidedNovember 4, 2003
DocketNo. 2002-CC-01522-COA
StatusPublished

This text of 858 So. 2d 904 (Mississippi Employment Security Commission v. Nordstrom) 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
Mississippi Employment Security Commission v. Nordstrom, 858 So. 2d 904, 2003 Miss. App. LEXIS 1034, 2003 WL 22480319 (Mich. Ct. App. 2003).

Opinion

GRIFFIS, J.,

for the Court.

¶ 1. Andrew Nordstrom filed a claim for unemployment benefits with the Mississippi Employment Security Commission. The claims examiner held that Nordstrom was entitled to benefits because Tyson had failed to show Nordstrom was discharged for misconduct. The appeals referee reversed the decision of the claims examiner finding that Nordstrom failed to show good cause for leaving his employment. The board of review affirmed this decision, and Nordstrom appealed to the Circuit Court of Warren County. The circuit court reversed, finding that Nordstrom reasonably believed he was terminated, and therefore, he was entitled to benefits. Tyson now appeals asserting that the MESC decision was based on substantial evidence. Finding no error, we affirm.

FACTS

¶ 2. Andrew Nordstrom was employed as a maintenance technician by Tyson Farms in Vicksburg, Mississippi. In early August of 2001, Nordstrom hurt his shoulder. Tyson granted medical leave for Nordstrom to have surgery to repair his rotator cuff. He returned to work in late August and worked without incident until September 30, 2001. Nordstrom missed his scheduled work days on October 1, 2, 3, 8 and 9. On each of these days, Nordstrom called in and informed Tyson that he would be absent.

¶ 3. Nordstrom returned to work on October 10th. Concerned about his absences, Nordstrom went to the personnel office where he was given a “track sheet” that listed the total number of excused and unexcused absences. The track sheet indicated the five days he had just missed plus a previous absence equaled six unexcused absences: At the top of the track sheet, it stated that six unexcused absences meant that an employee was terminated. Believing he was discharged, Nordstrom never returned to work.

¶ 4. Nordstrom then filed a claim for benefits with the MESC. The claims examiner found that Nordstrom was not terminated for misconduct and granted benefits. Tyson appealed, arguing that Nordstrom had voluntarily quit his job. A telephonic hearing was set with the appeals referee.

¶ 5. Nordstrom testified that he did not voluntarily leave his job, but was “discharged.” He testified that he called in every day he was absent and told them his shoulder was “giving him problems” and that he was taking medication. Nord-strom testified that he understood that Tyson has a policy that if you are taking any kind of medication you cannot work.

¶ 6. Nordstrom testified that he went in October 10th, “ready to work.” When he went to the personnel office to check his absences, the track sheet indicated that he was terminated. When he could not find the plant manager, Nordstrom testified he asked the plant secretary if the track sheet “meant what he thought it did.” Nord-strom testified she told him “it meant exactly what it said. I was terminated.”

¶ 7. Nordstrom testified that he then went to his supervisor Jimmy Algood. Nordstrom testified that he told Algood that he was terminated. According to Nordstrom, Algood told him a medical excuse “might” remedy the problem. Nord-strom testified that he never brought in a [906]*906doctor’s excuse because he did not actually go see a doctor during the time he was absent. Nordstrom also stated that he was not aware that he had fifteen days to obtain a medical excuse, nor did the notice of termination inform him of this policy. Nordstrom testified that he believed he was terminated on October 10th.

¶ 8. Sharon Robinson, the plant personnel manager, was the only Tyson employee to testify. Robinson testified that Tyson has a company policy that when an employee has six absences that are unexcused and the employee does not have any type of documentation for it, the employee is terminated. However, if the employee provides a medical excuse in fifteen days, the employee will not be terminated. Tyson also considers a two days absence without calling in a voluntary termination. Robinson also testified that it was company policy for an employee to bring in their medication and the plant nurse would make a determination of whether they can work or not. A copy of Tyson’s employment policies was not provided in the record.

¶ 9. Robinson testified that Tyson’s records indicated that Nordstrom had called in for the days of October 1, 2, 8, 8, 9, and 101; however, Tyson’s records disclosed the reason for the absence was personal. Robinson also testified that calling in would not have excused the absences and that Nordstrom was required to provide medical excuses for such absences. Robinson testified that Tyson believed Nord-strom resigned from his employment as a “two day no report” and that he was not discharged. She admitted that she had not personally spoken with Nordstrom nor was she “thoroughly aware” of his case because she had only “arrived [at Tyson] in July.”

¶ 10. The appeals referee determined that Nordstrom had failed to show “good cause for leaving his employment and benefits were terminated.” Nordstrom filed a notice of appeal with the board of review, which affirmed the ruling of the appeals referee. Nordstrom then appealed to the circuit court which reversed the opinion of the Commission and awarded benefits to Nordstrom. The circuit court based this ruling on Huckabee v. Miss. Employment. Sec. Comm’n, 735 So.2d 390, 396(¶ 22) (Miss.1998), which held that when an employee reasonably believes he is terminated, then the employee is entitled to benefits. Tyson has perfected this appeal asserting the circuit court exceeded its authority in reversing the MESC.

STANDARD OF REVIEW

¶ 11. Mississippi Code Annotated section 71-5-531(Rev.2000) governs the standard of review for appealing a MESC decision. Section 71-5-531, in pertinent part, provides: “[i]n 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.” Miss.Code Ann. § 71-5-531 (Rev.2000). “The Board’s findings of fact are conclusive if supported by substantial evidence and without fraud.” Hoerner Boxes, Inc. v. Miss. Employment Sec. Comm’n, 693 So.2d 1343, 1346-47 (Miss.1997) (citing Richardson v. Miss. Employment Sec. Comm’n, 593 So.2d 31, 34 (Miss.1992)).

[907]*907ANALYSIS

1. Whether the circuit court exceeded its authority in reversing the Mississippi Employment Security Commission’s decision to deny unemployment benefits to Andrew Nordstrom.

¶ 12. Tyson asserts that the decision of the MESC was based upon substantial evidence, and under the applicable standard of review, it was improper for the circuit court to overturn the decision. Tyson claims the circuit court exceeded its authority, and substituted its own judgment for that of the MESC.

¶ 13. To support this claim, Tyson relies on NCI Bldg. Components v. Berry, 811 So.2d 321 (Miss.Ct.App.2001). In Berry, Calvin Berry committed a costly error to the company and was disciplined for it. Id. at 324(¶4). On the same day, Berry asked his supervisor, Jimmy Thigpen, how many paid days of sick leave he had. Id. Berry learned he had two days available and told his supervisor he planned to used those days and would be out the next two days of work. Id.

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Related

Richardson v. Employment SEC. Com'n
593 So. 2d 31 (Mississippi Supreme Court, 1992)
Hoerner Boxes, Inc. v. MESC
693 So. 2d 1343 (Mississippi Supreme Court, 1997)
Huckabee v. MISSISSIPPI EMPLOYMENT SEC. COM'N
735 So. 2d 390 (Mississippi Supreme Court, 1999)
Wheeler v. Arriola
408 So. 2d 1381 (Mississippi Supreme Court, 1982)
NCI Building Components v. Berry
811 So. 2d 321 (Court of Appeals of Mississippi, 2001)

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858 So. 2d 904, 2003 Miss. App. LEXIS 1034, 2003 WL 22480319, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mississippi-employment-security-commission-v-nordstrom-missctapp-2003.