Before Diaz, P.j., Coleman, And Southwick, JJ.
The opinion of the court was delivered by: Coleman, J.
FRANCESCA DEDEAUX, APPELLANT v. MISSISSIPPI EMPLOYMENT SECURITY COMMISSION & SAV-A-CENTER, APPELLEES
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B
DATE OF JUDGMENT: 04/23/96
TRIAL JUDGE: HON. KOSTA N. VLAHOS
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES (OTHER THAN WORKER'S COMPENSATION)
TRIAL COURT DISPOSITION: UNEMPLOYMENT BENEFITS DENIED DUE TO DISCHARGE DUE TO MISCONDUCT
DISPOSITION REVERSED AND RENDERED - 4/7/98
MOTION FOR REHEARING FILED:
Francesca Dedeaux has appealed to this Court to contest the decision of the Board of Review [the Board] of the Mississippi Employment Security Commission which denied her unemployment compensation benefits on the grounds that she was discharged from her employment with Sav-A-Center for work-related misconduct. Dedeaux appealed the Board's denial of her unemployment benefits to the Circuit Court of the First Judicial District of Harrison County, which affirmed the Board's denial of Dedeaux's benefits. In her appeal from the circuit court to this Court, Dedeaux argues that the Commission erroneously based its decision upon findings of fact made by the appeals referee which were not supported by substantial evidence and that the Board's denial of her benefits was incorrect as a matter of law. As we will subsequently explain, we agree with Dedeaux, reverse the decisions of the circuit court and of the Board, and render judgment for Dedeaux.
A. Dedeaux's work history
Francesca Dedeaux worked at Sav-A-Center in Long Beach, first as a salad bar attendant and then as a cashier for approximately nine months until its store manager, Danny Davis, discharged her on November 17, 1994. His immediate reason for terminating Dedeaux was her failure to scan into the register a bag of bagels and a can of pumpkin pie mix as she checked the purchases of another employee of Sav-A-Center, Connie Pickens. In addition to the incident for which Dedeaux was terminated on November 17, the record in this case includes three earlier incidents involving Dedeaux which became the subjects of "correction action notices," about which we will explain.
On September 8, Stapleton and Dedeaux had signed the first of three "correction action notices." The subject of this notice was that Dedeaux "was $11.18 short in her till on 9-8-94. $10.00 was in food stamps." The form for this notice provided a place to answer the question "Has Associate/Employee been warned previously for a similar occurrence?" The answer to that question was "No." The form for this notice further provided a place to explain the "[c]orrective [e]ffort" taken in response to the subject of the "correction action notice." Listed for the corrective action on this notice was: "Discussed proper cash procedures. Be more careful with food stamps. They do stick together."
Fifteen days later on September 23, Stapleton and Dedeaux signed yet another "correction action notice." The subject of this notice was "Disorderly conduct on company premises." Again the answer to the question, "Has Associate been warned previously for a similar occurrence?" was "No." For the corrective action, the notice recited, "Wrote corrective action." The third "correction action notice," which both Stapleton and Dedeaux signed, was dated October 25. The subject of this notice was Dedeaux's "improper check-out procedure," which was described as "giving an employee a paid sticker without checking the item out." The answer to the following question: "Has employee ...