James Williams, appellant, pro se.
Leanne Franklin Brady, Albert B. White, Madison, attorneys for appellee.
Before LEE, C.J., MAXWELL and FAIR, JJ.
¶ 1. After investigation, the claims examiner denied James Williams unemployment benefits, finding he had been terminated for misconduct after refusing a drug test. Williams filed a timely appeal but failed to appear at a telephonic hearing with the administrative law judge— that is, Williams failed to answer the phone at the time scheduled for the hearing. The ALJ, following the Mississippi Department of Employment Security's Benefit Appeal Regulations, found that Williams had abandoned his appeal and defaulted. The MDES Board of Review and the DeSoto County Circuit Court affirmed. Williams then appealed to the Mississippi Supreme Court, which assigned the case to this Court. We likewise affirm.
STANDARD OF REVIEW
¶ 2. " The scope of review in an unemployment-compensation case is limited. Absent fraud, the findings of fact of the Board of Review are conclusive if supported by substantial evidence." Brown v. Miss. Dep't of Emp't Sec., 29 So.3d 766, 769 (¶ 7) (Miss.2010) (citation omitted). " A rebuttable presumption exists in favor of the administrative agency, and the challenging party has the burden of proving otherwise." Sprouse v. Miss. Emp't Sec. Comm'n, 639 So.2d 901, 902 (Miss.1994).
¶ 3. This case is controlled by our decision in Henry v. Mississippi Department of Employment Security, 49 So.3d 1159, 1161-62 (¶ 11) (Miss.Ct.App.2010), where it was held:
This Court has previously addressed the issue of whether the dismissal of an MDES appeal is appropriate when the appealing party fails to participate in the appellate hearing. [ Miss. Dep't of Emp't Sec. v. Johnson, 977 So.2d 1273, 1276 (¶ 7) (Miss.Ct.App.2008) ]. First, we have concluded that the adoption of the Regulations by the MDES is well within the authority granted to the MDES by Mississippi Code Annotated section 71-5-525 [ (Rev.2011) ]. See, e.g., [i]d. at 1276 (¶ 6). Second, after reviewing the applicable Regulations, we have determined that an appealing party's failure to participate in a scheduled hearing may properly be deemed abandonment of the appeal and, therefore, grounds for dismissal. Id. at 1275-76 (¶ 6).
¶ 4. The record shows that Williams was mailed a " notice of telephonic hearing" on May 11, 2012. The notice informed Williams that the hearing would take place on May 21 at 10:00 a.m. It also instructed Williams to update his contact information and told him what to do if he was unable to attend or if he did not receive the expected call from the ALJ. The notice warned that " [f]ailure to provide a valid telephone number, or the inability to receive the call at the time of the scheduled hearing, may result in the loss of this case." The transcript of the hearing indicates that the ALJ placed a call to Williams's number at the appointed time and left a voicemail message informing Williams that he had ten minutes to call into the hearing. The ALJ called again at 10:10 a.m., but Williams again did not answer.
¶ 5. Failure to appear at a hearing may be excused on a showing of good cause. See Mississippi Department of Employment Security, Unemployment Insurance Regulations § 202.05(B) (2010). However, Williams has made no effort to show good cause; he asserted in his notice of appeal from the ALJ's dismissal that a " telecommunication error" was responsible
for his failure to attend, but he has never elaborated on that point. Given our standard of review, the Board of Review's implicit finding that Williams ...