Ray v. Mississippi Department of Employment Security

114 So. 3d 735, 2012 WL 5857375, 2012 Miss. App. LEXIS 708
CourtCourt of Appeals of Mississippi
DecidedNovember 20, 2012
DocketNo. 2011-CC-00685-COA
StatusPublished

This text of 114 So. 3d 735 (Ray v. Mississippi Department of Employment Security) 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
Ray v. Mississippi Department of Employment Security, 114 So. 3d 735, 2012 WL 5857375, 2012 Miss. App. LEXIS 708 (Mich. Ct. App. 2012).

Opinion

ISHEE, J.,

for the Court:

¶ 1. Robert Ray was terminated from his employment for assaulting and threatening another employee. Ray then filed for unemployment-compensation benefits with the Mississippi Department of Employment Security (MDES). He was denied benefits due to his misconduct. Thereafter, he appealed the MDES’s decision to the administrative-law judge (ALJ). The ALJ affirmed the MDES’s decision. Ray then appealed to the MDES Board of Review (Board), which also affirmed the decision. Next, Ray filed an appeal in the Lauderdale County Circuit Court. The circuit court affirmed the Board’s decision. Aggrieved, Ray appeals to this Court arguing (1) there was insufficient evidence to support the decision that he was discharged due to misconduct, and (2) his employer committed fraud by wilfully failing to provided the initial witness statements and videotape of the incident. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Ray was a substance-abuse counsel- or at the East Mississippi Correctional Facility in Meridian, Mississippi. The East Mississippi Correctional Facility was operated by GEO Group Inc. (GEO). On August 17, 2010, Ray assaulted and threatened Kino Reese, a unit manager at the facility. On September 11, 2010, Ray was terminated for violating GEO’s policy against threatening, fighting, or assaulting another employee. Ray then filed for unemployment-compensation benefits with the MDES. A claims examiner with the MDES investigated the events surrounding Ray’s discharge. The claims examiner determined that Ray was discharged due to disqualifying misconduct; therefore, he [737]*737was ineligible for unemployment-compensation benefits.

¶ B. Ray appealed the MDES decision to the ALJ, who on November 2, 2010, held a telephonic hearing. The following individuals testified at the hearing: Dorothy Pope, GEO’s human-resources manager; Kino Reese, a GEO unit manager; Christopher Thrift, a mental-health counselor; Ken Morgan, an investigator for GEO; and Ray. The videotape of the incident was not presented at the hearing.

¶ 4. Pope testified that she had watched a videotape of the incident that showed Ray approach and then poke Reese with his finger. According to Pope, Ray threatened Reese that he was going to kill him, but Ray later claimed the statement was misinterpreted. Pope stated that the corporate office ultimately made the decision to terminate Ray and that he was fired for unbecoming conduct, which included assaulting another employee.

¶ 5. Reese testified that on August 16, 2010, the day before the altercation, Reese saw an inmate sitting at Ray’s computer with Ray sitting next to the inmate. Allowing an inmate to use the computer violated company policy. When Ray saw Reese in the hallway, he and the inmate switched chairs. Reese then told his supervisor about the incident, which resulted in Ray’s computer being locked.

¶ 6. The next day, Ray approached Reese regarding the incident, but Reese refused to speak to him. According to Reese, Ray “then took his finger and ... hit [Reese] several times in the chest very aggressively.” Ray also told Reese that Reese “was trying to kill him[,] and he was going to kill [Reese] and ... [knew] how to kill [Reese].” Based on this conduct, Reese pressed criminal charges against Ray. Ray was found guilty of simple assault, although he has appealed his criminal conviction.

¶ 7. Thrift, an eyewitness to the assault, testified: “Ray came up to ... Reese and said[, ‘Y]ou’re trying to kill me[,’ while] poking him in the chest[, and then said, ‘B]ut I’m going to kill you first[,] and I know how to do it.[’]” According to Thrift, Reese did not respond, and Ray walked away.

¶ 8. Morgan testified regarding his investigation of the case. During the investigation, he gathered statements from Reese, Thrift, and two other individuals who had witnessed the assault. Morgan testified that there were no conflicting statements among those interviewed. He also watched the videotape of the altercation. Morgan testified that Ray admitted that he had told Reese he was going to kill him but that “it was taken out of context!,] and it wasn’t meant literally.” After compiling a report regarding the incident, Morgan sent the file to the corporate office for a determination on the matter.

¶ 9. Ray also testified at the hearing. First, he acknowledged that an inmate was sitting at his computer but maintained that the inmate was simply reading names off of the computer screen. Thus, he claims he did not violate company policy. Ray stated that on the day of the assault, he had asked Reese to come by his office, which Reese did not do. When he saw Reese in the hallway later that day, he approached Reese. According to Ray, he told Reese: “[You are] trying to get me fired, so I’m going to try to do the same to you by exposing the phony [m]aster’s degree that you have ... on file....” Ray claimed that he then shook his finger at Reese but never actually touched him.

¶ 10. Ray also testified that Morgan was lying because he never made any statement to Morgan; however, he admitted to writing a statement. Ray alleged that Reese and the other individuals in[738]*738volved were conspiring against him. He believed the conspiracy was in retaliation for a wage and hour claim he made against the warden in 2008.

¶ 11. Ray attempted to call three character witness to testify against Reese. The ALJ advised Ray that he would permit one character witness. However, after several unsuccessful attempts to contact each of the three character witnesses, no character witnesses testified.

¶ 12. On November 4, 2010, the ALJ affirmed the denial of unemployment-compensation benefits. The ALJ rejected Ray’s claim that the complaint was fabricated as retaliation for his wage and hour complaint against the warden. The ALJ stated: “The employer’s witnesses had nothing to gain by giving false testimony against the claimant[,] and the employer’s testimony is considered the more credible testimony in this matter.” Thus, the ALJ concluded that Ray did, in fact, assault Reese by poking him in the chest with his finger and threatening to kill him. Because these actions were “in disregard of the employer’s interests [and] constitut[ed] misconduct,” Ray was disqualified from receiving unemployment-compensation benefits.

¶ 13. On November 10, 2010, Ray appealed to the Board. He requested a rehearing and implored the Board to order GEO to send the videotape of the assault for review. The Board did not order the videotape. On December 2, 2010, the Board affirmed the ALJ’s decision and adopted the findings of fact and opinion of the ALJ.

¶ 14. Ray then appealed to the circuit court. On April 19, 2011, the circuit court affirmed the Board’s decision. The circuit court found the Board’s decision was supported by substantial evidence, and that Ray failed to produce sufficient evidence to overcome the presumption in favor of the Board’s decision. Ray now appeals.

STANDARD OF REVIEW

¶ 15. When considering an unemployment-compensation case, this Court’s scope of review is limited to questions of law. Welch v. Miss. Emp’t Sec. Comm’n, 904 So.2d 1200, 1201 (¶ 5) (Miss.Ct.App.2004)(citing Johnson v. Miss. Emp’t Sec. Comm’n, 761 So.2d 861, 863 (¶ 5) (Miss.2000)). “The findings as to the facts of the Board ... are conclusive if supported by substantial evidence and absent fraud.” Id.

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Cite This Page — Counsel Stack

Bluebook (online)
114 So. 3d 735, 2012 WL 5857375, 2012 Miss. App. LEXIS 708, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ray-v-mississippi-department-of-employment-security-missctapp-2012.