NCI Building Components v. Berry

811 So. 2d 321, 2001 Miss. App. LEXIS 35, 2001 WL 35983
CourtCourt of Appeals of Mississippi
DecidedJanuary 16, 2001
Docket1999-CC-01501-COA
StatusPublished
Cited by5 cases

This text of 811 So. 2d 321 (NCI Building Components v. Berry) 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
NCI Building Components v. Berry, 811 So. 2d 321, 2001 Miss. App. LEXIS 35, 2001 WL 35983 (Mich. Ct. App. 2001).

Opinion

811 So.2d 321 (2001)

NCI BUILDING COMPONENTS, Appellant,
v.
Calvin BERRY, Appellee.

No. 1999-CC-01501-COA.

Court of Appeals of Mississippi.

January 16, 2001.

*323 Louis H. Watson, Jr., Vangela M. Wade, Jackson, Attorneys for Appellant.

Hiawatha Northington, II, Attorney for Appellee.

Before McMILLIN, C.J., BRIDGES, and MYERS, JJ.

BRIDGES, J., for the Court:

¶ 1. Calvin Berry filed a claim for unemployment benefits under applicable state law after his job with NCI Building Components (NCI) was terminated. This claim was disputed by NCI on the grounds that Berry voluntarily quit his job and was therefore not entitled to unemployment benefits. Berry's claim went before the Mississippi Employment Security Commission (MESC), and on April 7, 1998, the claims examiner disqualified Berry from benefits under Miss.Code Ann. § 71-5-511(c) (Rev.2000). The claims examiner cited that Berry was not entitled to benefits under the statute because his supervisors did not terminate him from his job with NCI, but rather, Berry voluntarily chose not to return to his employment there even though he had the ability to work, was available for such work and his job as a line operator was available to him.

¶ 2. Berry appealed his decision before the appeals referee of the MESC who affirmed the decision of the claims examiner in finding that Berry voluntarily ended his position with NCI and was therefore not entitled to unemployment benefits. Berry then appealed the referee's decision before the board of review of the MESC. The full board affirmed the decisions of the claims examiner and the appeals referee in denying benefits to Berry.

*324 ¶ 3. Thereafter, Berry brought his claim before the Circuit Court of the First Judicial District of Hinds County, Mississippi, Honorable James Graves presiding. Judge Graves reversed the decision of the MESC, finding that Berry was fired from his position with NCI and was therefore qualified to receive unemployment benefits. Further, Judge Graves opined that the decision of the MESC was not supported by substantial evidence and was arbitrary and capricious. NCI has appealed the circuit court judgment before this Court and prays that this Court will overturn the decision of the lower court and reinstate the decision of the MESC that Berry voluntarily quit his job with NCI and is therefore not permitted to seek unemployment benefits under Mississippi law.

FACTS

¶ 4. Berry was employed by NCI for three and a half years as a line operator before the events leading up to this matter. On Monday, March 16, 1998, Berry reported for work on the night shift and was disciplined for a costly error on his part. Shortly after this incident, on the same day, Berry asked his supervisor how many paid days of sick leave that he had left. His supervisor reported to Berry that he had two paid sick days remaining, at which time Berry told his supervisor that he planned to take those two sick days over the next two work days. No doctor's excuses or orders were presented to his employer regarding his reasons for being absent on the work days of March 17 and 18, 1998. He reported to his supervisor only that he was having trouble operating his line and he did not feel he could do his job and needed to see a doctor. Berry completed his shift on the night of March 16, 1998.

¶ 5. NCI's company policy requires that all employees who take sick or personal leave must call in on each day that they will not be available for work and speak personally with their supervisor about the reasons for their absence. Berry admitted in his testimony before the MESC claims examiner that, on previous occasions where he had been absent from work, he had followed this policy and called in to speak with his supervisor to explain his absence. Berry claims that he spoke directly with his supervisor, Jimmy Thigpen, on March 16, 1998, regarding the sick days that he planned to take on March 17 and 18, 1998, and that therefore, there was no need for him to call in and speak with Thigpen again on those two days. Thigpen testified that he did tell Berry that he could have those days off, but Thigpen did not inform Berry that his permission for Berry to take that Tuesday and Wednesday off would be in lieu of company policy requiring Berry to call in and verify his absence. Berry, however, did not report for work on March 17 or 18, 1998, and did not call in on either of the two days to speak personally with Thigpen as required by company policy. The policy further provides that three consecutive absences without the employee calling in amounts to work abandonment.

¶ 6. On the morning of March 19, 1998, Berry came in to the office to pick up his paycheck. He was scheduled to work the night shift that evening. While Berry was in the office to receive his check, he reported to Wayland Webb, a personnel administrator, regarding two items of business. First, Berry wanted to discontinue having a fee for the laundry service to clean his uniforms deducted from his paycheck. Berry cites the reason for this to be that the laundry service had, on several occasions, caused his uniforms or part of his uniforms to be damaged or lost. He therefore wanted to stop paying for such a *325 service when he did not feel he was getting his money's worth. Webb gave Berry the paperwork to fill out to discontinue this deduction from his paycheck. Secondly, Berry inquired of Webb as to how he could gain immediate access to the moneys in his 401(k) account. Webb explained to Berry that he could not remove the money from his 401(k) account unless he either suffered from one of the hardships set out by the policy or unless he was terminated from the company. Berry asked Webb for the paperwork to remove the 401(k) moneys from his account without further indicating to Webb whether he planned to argue that he was suffering a hardship or whether he planned to terminate his employment. Webb gave the paperwork to Berry without any further questions.

¶ 7. After picking up his check and obtaining paperwork from Webb for these two items, Berry had a conversation with Scottie Williams, one of the supervisors for NCI, before leaving the premises. Berry asserts that during this exchange, Williams terminated him from his employment with NCI. However, Williams testified that he did not attempt to terminate Berry because he was not Berry's immediate supervisor and could not perform such an action. This fact was further corroborated by Thigpen and two of Berry's other supervisors, Billy Taylor and Mike Payne. It was established through all of their testimony at the MESC hearings that only one of the three of them had the authority to fire Berry. They further testified that, not only was Berry not terminated by Williams or any one of them, but they had no reason to want to terminate Berry and wanted him to stay on at the company.

¶ 8. Also, Williams testified at the MESC hearings that Berry was the one who told him that he no longer wanted his job at NCI because the responsibilities were too stressful for him. Williams stated that he told Berry that if he really wanted to quit or to discuss different job options for himself, he should speak with his immediate supervisors. Berry admits that Williams told him to meet with Thigpen about the situation at 3:00 that afternoon before his regular shift, but he chose not to do so. In fact, Williams's testimony was that when he suggested that Berry meet with Thigpen, Berry responded by saying, "f___k it, I don't even care anymore.

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811 So. 2d 321, 2001 Miss. App. LEXIS 35, 2001 WL 35983, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nci-building-components-v-berry-missctapp-2001.