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Smith v. Mississippi Dep't of Employment Security

Court of Appeals of Mississippi

February 17, 2015

JAMES T. SMITH, APPELLANT
v.
MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY, APPELLEE

COURT FROM WHICH APPEALED: DESOTO COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 12/02/2013. TRIAL JUDGE: HON. ROBERT P. CHAMBERLIN. TRIAL COURT DISPOSITION: AFFIRMED DECISION OF THE MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY THAT APPELLANT WAS DISQUALIFIED FROM RECEIVING UNEMPLOYMENT BENEFITS.

JAMES T. SMITH, APPELLANT, Pro se.

FOR APPELLEE: ALBERT B. WHITE, LEANNE FRANKLIN BRADY.

BEFORE LEE, C.J., ISHEE AND JAMES, JJ. LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ROBERTS, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. JAMES, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION.

OPINION

Page 1221

ISHEE, J.

¶1. James T. Smith was fired from Resorts Casino (Resorts) pursuant to the company's progressive discipline policy on March 15, 2013. A claims examiner for the Mississippi Department of Employment Security (MDES) initially determined that Smith was entitled to unemployment benefits. Resorts appealed the claim examiner's determination and, ultimately, an administrative judge (AJ) determined that Smith was fired for misconduct and was disqualified from receiving benefits. The MDES Board of Review and the DeSoto County Circuit Court affirmed the AJ's decision. Aggrieved, Smith appeals.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶2. Smith was employed as a games dealer by Resorts for one year and four months. When Smith began his employment at Resorts, he signed a document stating that he had read and agreed to the terms contained in the employee handbook, including a progressive discipline policy. The discipline policy provided the following procedure for employee discipline: verbal counseling for the first offense, a written warning for the second offense, a final warning for the third offense, and discharge for a subsequent offense.

¶3. In July 2012, Smith was given verbal counseling after a gambling mistake took place at his table. Resorts said the mistake occurred due to Smith's inattentiveness. In August 2012, Smith received a written warning after making an incorrect payout to a player that resulted in a forty-five-dollar loss to Resorts. In February 2013, Smith received a final written warning because he did not call a floor supervisor to assist him with a subsequent mistake at his table, contrary to Resorts' policy. Smith admitted to being aware of this policy, but claimed the floor supervisor ignored his requests to come to his table. Finally, on March 8, 2013, an improper bet was placed at Smith's table. Smith was aware of the mistake and again failed to notify a supervisor. Since the March 8, 2013 offense was Smith's fourth offense, Resorts fired Smith pursuant to the discipline policy. After each of Smith's warnings, he signed a document acknowledging that he had received the warning.

¶4. On March 19, 2013, Smith filed for unemployment benefits. An MDES claims examiner investigated Smith's claim and determined that Resorts had failed to show that Smith was fired for misconduct and, thus, was entitled to receive unemployment benefits. Resorts appealed the claims examiner's determination to an AJ. After a telephonic hearing, the AJ determined that Smith was disqualified from receiving benefits because he was fired for misconduct. Smith appealed the AJ's decision to the MDES Board of Review. After adopting the AJ's findings of fact, the Board affirmed the decision. Smith subsequently appealed to the circuit court, which also affirmed the Board's decision. Aggrieved, Smith now appeals the circuit court's judgment.

STANDARD OF REVIEW

¶5. Mississippi Code Annotated section 71-5-531 (Supp. 2014) states that the Board's findings of fact are conclusive if supported by evidence and if no fraud is involved. Therefore, this Court's jurisdiction on appeal is " confined to questions of law." Id. The Board's findings create a rebuttable presumption, and the burden lies on the challenging party to ...


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