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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 96-CC-00951 COA MISSISSIPPI EMPLOYMENT SECURITY COMMISSION AND FITZGERALD'S OF ROBINSONVILLE v. JOE N. TOLLIVER APPELLANT

APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B DATE OF JUDGMENT: TRIAL JUDGE: COURT FROM WHICH APPEALED: ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE: NATURE OF THE CASE: 07/31/96 HON. ROBERT LEWIS GIBBS HINDS COUNTY CIRCUIT COURT ALBERT B. WHITE NO ATTORNEY LISTED CIVIL - STATE BOARDS AND AGENCIES (OTHER THAN WORKER'S COMPENSATION) CIRCUIT COURT REVERSED COMMISSION FINDING THAT COMMISSION FAILED TO MEET ITS BURDEN OF PROOF. REVERSED AND RENDERED - 12/16/97

TRIAL COURT DISPOSITION:

DISPOSITION: MOTION FOR REHEARING FILED: CERTIORARI FILED: MANDATE ISSUED:

2/4/98

BEFORE THOMAS, P.J., HERRING, AND HINKEBEIN, JJ. HERRING, J., FOR THE COURT: The Mississippi Employment Security Commission (MESC) appeals a decision of the Circuit Court of the First Judicial District of Hinds County in which the circuit court ruled that Joe Tolliver, the employee, was entitled to unemployment benefits. We reverse and render. A. THE FACTS Joe Tolliver was the lead steward for Fitzgerald's Casino of Robinsonville, the employer, from June 14, 1994, to August 18, 1995. On July 27, 1995, Tolliver was placed on a sixty-day probationary period because of excessive absences. According to the employer, Tolliver was warned that

additional absences during the probationary period would result in a further reprimand which could include termination. Fitzgerald's had a penalty point system in place which dealt with employee absenteeism. Failing to report to work without telephoning the supervisor would result in the employee receiving four and one-half points against him. When an employee arrived late to work, the employee was assessed with one point. When the employee missed work and called in, but did not have a medical excuse, court appointment, or other justifiable excuse for missing work, the employee was assessed one point. According to the policy, an employee of Fitzgerald's was subject to termination for when he accumulated eight and one-half penalty points assessed against him. At the time of Tolliver's probation, he had accumulated nine penalty points. On August 16, 1995, Tolliver did not report to work. He was terminated by his employer on August 18, 1995. In a report labeled "Personnel Action Form," Fitzgerald's stated that Tolliver was terminated because of his "inability to work scheduled shifts." On August 21, 1995, Tolliver signed at the bottom of this form, thereby acknowledging its receipt, without making comments. Thereafter, he submitted an application for unemployment benefits with the MESC. After an investigation, the MESC determined that the employer had not shown that Tolliver was terminated for misconduct associated with his employment and that Tolliver was entitled to unemployment benefits. Fitzgerald's appealed the decision of the MESC to its Board of Review, and a hearing was held before an MESC appeals referee appointed by the Board of Review. Following the hearing, the appeals referee concluded that Tolliver was properly terminated by Fitzgerald's for misconduct associated with his employment. Specifically, the appeals referee found that Tolliver was unjustifiably absent for seven days in 1995 and late for work on two other days in 1995. In addition, the referee specifically found that Tolliver had been given warnings in regard to his absences in May, June, and July of 1995. Thus, in his opinion, the referee concluded that Tolliver had been discharged from Fitzgerald's because of excessive absenteeism, which constituted misconduct under applicable Mississippi law. Therefore, Fitzgerald's was within its right to terminate Tolliver because of his misconduct, thereby precluding Tolliver from being eligible for unemployment benefits. Because Tolliver was found ineligible for employment benefits, the MESC requested that he repay to MESC the sum of $1,260 which had been previously paid to Tolliver in unemployment benefits after his termination. Tolliver appealed to the MESC Board of Review. In his appeal, Tolliver alleged that he was misinformed as to what issues would be addressed at the hearing before the appeals referee. He claimed that he had been advised that the issue to be addressed was his inability to work the scheduled shifts. Instead, the attorney referee focused on his absences from work, as well as his arriving late for work. Thus, Tolliver claimed that he was unprepared to defend himself and that he did not bring to the hearing documentation in regard to the reasons for his absences. The Board of Review considered the record made before the appeals referee and affirmed the referee's decision. Tolliver appealed the decision of the Board of Review to the Circuit Court of the First Judicial District of Hinds County, Mississippi. After considering the record on appeal and after hearing oral argument, the circuit court acknowledged that Tolliver's employment records are "permeated with instances of absenteeism and warnings from his supervisor that his attendance record had to improve or disciplinary action would have to be taken against him." However, the court reversed the decision of the Board of Review and ruled that Tolliver was entitled to receive unemployment benefits. In its

decision, the circuit court ruled that all written communications from the MESC to Tolliver in regard to his hearing before the appeals referee provided that he was terminated because of his inability to work scheduled shifts. Thus, the circuit court ruled: Only evidence related to this claim should have been considered by the Board unless Fitzgerald's proved by clear and convincing evidence that the phrase 'inability to work scheduled shifts' referred to Tolliver's excessive absenteeism and that Tolliver knew that was the reason for his termination. Furthermore, the court stated: It would be fundamentally unfair to allow an employer to inform an employee that he or she is being discharged for one reason and at [the] hearing allow that same employer to present a different reason on which it argues the employee should be disqualified from receiving benefits. Based upon this reasoning, the circuit court reversed the Board of Review's decision and noted that the record was devoid of any evidence to support the Board's ruling that Tolliver was terminated because of misconduct. It is from this decision that MESC appeals. B. THE ISSUES On appeal, the MESC raises the following issues: I. WHETHER THE CIRCUIT COURT ERRED BY REVERSING THE BOARD OF REVIEW DECISION FINDING THAT THE EMPLOYER PROVED BY SUBSTANTIAL EVIDENCE THAT JOE TOLLIVER, APPELLEE, VIOLATED COMPANY POLICY, AND THAT SUCH VIOLATIONS CONSTITUTED DISQUALIFYING MISCONDUCT PURSUANT TO SECTION

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