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Powell v. Mississippi Employment Security

February 10, 1998

BILLY W. POWELL, APPELLANT
v.
MISSISSIPPI EMPLOYMENT SECURITY, APPELLEE COMMISSION



DATE OF JUDGMENT: 09/13/96 TRIAL JUDGE: HON. ROBERT H. WALKER COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT

TRIAL COURT DISPOSITION: DENIAL OF UNEMPLOYMENT BENEFITS AFFIRMED BY CIRCUIT COURT

Before Bridges, C.j., Payne, And Southwick, JJ.

The opinion of the court was delivered by: Bridges, C.j., For The Court

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES (OTHER THAN WORKER'S COMPENSATION)

Billy Powell was denied unemployment benefits by the Mississippi Employment Security Commission and the Circuit Court of Harrison County after having been terminated by his employer, Treasure Bay Casino, for failing to report back to work after a medical leave of absence and a vacation. Powell appeals the denial arguing that his failure to return to work did not constitute misconduct. We conclude that the Board of Review's decision was supported by substantial evidence and was not arbitrary and capricious. We, therefore, affirm the holding of the circuit court.

FACTS

Powell was employed by Treasure Bay Casino for approximately fourteen months as a security guard. On March 22, 1995, Powell applied for and was granted a medical leave of absence for gall bladder surgery by Dr. Larry Killebrew. Dr. Killebrew provided Powell a certificate that stated that Powell would be able to return to work on May 16, 1995. The employer's witnesses testified that this was the only medical documentation ever received by Treasure Bay Casino as to when Powell could be expected to return to work.

Due to some financial problems, Powell requested vacation from May 16, 1995 through May 19, 1995, which was granted. On May 23, 1995, Powell failed to report to work. According to the Employee Handbook, a security department employee who is not coming to work is required to call in four hours prior to the beginning of his shift, otherwise he is deemed a "no call-no show" which is a termination offense. The referee's decision stated the casino attempted to contact Powell for several days, but were unsuccessful, and Powell was discharged for misconduct. Subsequently, the Mississippi Employment Security Commission Board of Review disqualified Powell from receiving unemployment benefits.

ARGUMENT AND DISCUSSION OF LAW

I. WHETHER POWELL'S FAILURE TO RETURN TO WORK CONSTITUTEDMISCONDUCT AS DEFINED BY MISS. CODE ANN. § 71-5-513(A)(1)(b) (REV. 1995).

II. WHETHER THE COURT PROVED BY SUBSTANTIAL EVIDENCE THAT POWELL COMMITTED DISQUALIFYING MISCONDUCT PURSUANT TO MISS. CODEANN. § 71-5-513(A)(1)(b) (REV. 1995) BY FAILING TO RETURN TO WORK AFTERBOTH MEDICAL AND VACATION LEAVE HAD EXPIRED.

Since Powell's issues both relate to the Commission's denial of his claim for benefits, we shall review them simultaneously. Our scope of review of the findings and decisions of an administrative agency such as the Mississippi Employment Security Commission is well established. Section 71-5-531 of the Mississippi Code sets forth the parameters of the judicial review of board of review findings. Section 71-5-531 reads in part: "In 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 ...


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