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Mississippi Band of Choctaw Indians v. Mississippi Employment Security Commission

August 18, 1998

MISSISSIPPI BAND OF CHOCTAW INDIANS, APPELLANT
v.
MISSISSIPPI EMPLOYMENT SECURITY COMMISSION AND TIM BEN, APPELLEES



Before McMILLIN, P.j., Coleman, And Southwick, JJ.

The opinion of the court was delivered by: Southwick, J., For The Court:

Mississippi Band of Choctaw Indians v. Mississippi Employment Security Commission, et al, 96-CC-01323-COA

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

DATE OF JUDGMENT: 11/07/96

TRIAL JUDGE: HON. MARCUS D. GORDON

COURT FROM WHICH APPEALED: NESHOBA COUNTY CIRCUIT COURT

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

TRIAL COURT DISPOSITION: CIRCUIT COURT AFFIRMED THE DECISION OF THE BOARD OF REVIEW OF THE MESC.

DISPOSITION REVERSED AND REMANDED

Tim Ben was terminated by the Mississippi Band of Choctaw Indians (MBCI), where he was a health center employee. The Mississippi Employment Security Commission (MESC) granted unemployment benefits. The Circuit Court of Neshoba County affirmed. On appeal to this Court, the MBCI first claims that there is insubstantial evidence to support the MESC referee's findings of fact. Second, the MBCI argues that the claimant's conduct constitutes misconduct as defined by statute and case law. Third, the MBCI contends that the referee acted arbitrarily and capriciously by erroneously interpreting Mississippi Employment Sec. Comm'n v. McLane-Southern, Inc. , 583 So. 2d 626 (Miss. 1991). Finding merit in the MBCI's third assignment of error, we reverse and remand to the MESC for further proceedings.

FACTS

Tim Ben had been employed by the MBCI in the Choctaw Health Center (CHC) as Director of Support Services. Approximately one year prior to his termination, Ben had been given a warning in the form of a written memorandum with regard to following the procedures when leaving the CHC. The memorandum had been issued by Jim Wallace, the Director of the CHC, following an oral warning regarding the same subject matter. Ben was instructed not to leave the premises unless he notified his supervisors.

On March 14, 1995, Ben was placed on a 90-day probation for the following reasons: (1) not following the chain of command; (2) poor work performance; (3) releasing information without authorization from the Director; (4) poor work habits; (5) unsatisfactory work performance; and (6) failure to complete assigned tasks. During the disciplinary probation of Ben, it became apparent to Jim Wallace, who was Ben's immediate supervisor, that Ben was not at work during business hours, though his time sheets indicated that he was there. Since Ben's absences from work were not accompanied by the appropriate entries on his time sheets, Mr. Wallace assigned Billy Smith, a co-worker of Ben, to document the whereabouts of Ben during the work day.

After gathering what he deemed to be significant evidence of Ben's tardiness and absences, along with erroneous time sheets, Mr. Wallace forwarded a memorandum to Chief Phillip Martin setting forth a chronology of events. Eight occasions were listed in which Ben had either been tardy or absent from work without authorization. It was recommended that Ben be terminated for (1) chronic absenteeism and tardiness; (2) falsifying his time sheets; and (3) breaking the rules of probation. Four of the eight dates in question were further documented by the sworn affidavits of Linda Taylor and Billy Smith. These affidavits were introduced at ...


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