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Columbus Light & Water Department v. Mississippi Department of Employment Security

Court of Appeals of Mississippi

March 19, 2019

COLUMBUS LIGHT & WATER DEPARTMENT APPELLANT
v.
MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY APPELLEE

          DATE OF JUDGMENT: 09/14/2017

          LOWNDES COUNTY CIRCUIT COURT TRIAL JUDGE: HON. LEE J. HOWARD

          ATTORNEYS FOR APPELLANT: JEFFREY CARTER SMITH COURTNEY BRADFORD SMITH

          ATTORNEYS FOR APPELLEE: ALBERT B. WHITE JAMES RANDALL BUSH

         EN BANC.

          TINDELL, J.

         ¶1. Columbus Light & Water Department (Columbus LW) appeals the judgment of the Lowndes County Circuit Court's affirmation of the Mississippi Department of Employment Security's Board of Review's (Board) opinion that a terminated employee was entitled to unemployment benefits. On appeal, Columbus LW claims the Board's decision was not based on substantial evidence and amounted to an arbitrary and capricious decision. After review, we find no error and affirm the circuit court's judgment.

         FACTS

         ¶2. Teresa Darby (Darby) was employed by Columbus LW beginning in May 2010. Darby worked for Columbus LW as a payroll clerk with the added duty of assisting as a backup teller. Columbus LW terminated Darby's employment on May 5, 2016, for multiple violations, including: dishonesty, insubordination, unauthorized use of company records, and multiple violations of Columbus LW's internet-use policy. The handbook listed the most serious misconduct violations to be: (1) "[e]ngag[ement] in acts of dishonesty of any type," (2) insubordination, and (3) unauthorized possession of or removal of "any [Columbus LW] property or record . . . of any . . . employee."

         ¶3. On one occasion, a Columbus LW supervisor asked Darby if while working at a teller's desk as a cashier, on April 8, she loaded five days of payroll. Darby twice denied loading the payroll information on that date. Yet, Darby had, in fact, loaded the payroll information. Columbus LW considered her two denials to be examples of dishonesty and insubordination. On another occasion, Darby sent an email from her home to her work address that contained a list of overtime hours for Columbus LW employees. Darby downloaded employee overtime hours, employee identities, social security numbers, salary information, and bank account numbers from a company computer onto a flash or jump drive. Columbus LW required such personal information to be kept in the office. Because this information was downloaded onto Darby's home computer, Columbus LW considered that action to be a violation of company policy regarding company payroll records. Additionally, Columbus LW investigated Darby's internet usage at work and found, among other things: 30 minutes of news, 30 minutes researching Bible quotes, 30 minutes shopping at Walgreens, 15 minutes personal banking, 10 minutes Fitbit, and 10 minutes of Dr. Oz. Columbus LW found that the internet use together with the use of the employee information on a flash drive violated company policy regarding the extent and use of the internet and external devices.

         ¶4. Columbus LW's comptroller, Mr. Bernsen, testified that Darby was the only payroll clerk and that Darby had been asking for help entering payroll. He testified that she was unhappy about having to work as a backup teller in addition to payroll. He prompted an investigation into her efficiency and found that Darby did not need help entering payroll and had plenty of time to enter payroll herself without help. When she denied entering payroll information while working as a teller, Bernsen saw that as an attempt to get help that was unneeded.

         ¶5. Darby recalled the question regarding payroll differently. She agreed that when asked if she was working on payroll, she answered, "no." However, as she explained, she answered that way because she was not at her desk at all that day and had been working as a teller up front instead. She explained that when she was not busy working as a cashier/teller, she tried to get some payroll time keyed in while at the front.

         ¶6. Darby admitted to times when she barely completed her payroll and other duties on time. She testified she would work through her breaks and at lunch to get the work completed. Columbus LW's payroll program required importing time into the system through an Excel spreadsheet. Thus, regarding the occasion when she brought home employee information, she admitted to bringing home the spreadsheet, keying in payroll time at home, and emailing the spreadsheet back to herself at Columbus LW. She stated that because Columbus LW was not going to give her any help, she had to take that work home to get the job done on time. She claimed to be unaware that it was forbidden for her to do the work at home.

         ¶7. When Darby first started at Columbus LW, her computer crashed, and multiple documents she set up to make her payroll job more efficient were lost. She asked her supervisor at that time if there were any computer backups for the local drives and was told, "no." On that occasion, she had to recreate what she approximated to be a year's worth of documents. She asked her supervisor for a CD to use as a backup for those documents, and her supervisor provided her with a CD for that purpose. Over the six years she worked for Columbus LW, the backup CD evolved into a backup flash drive. Darby would put the flash drive in her purse to take home as a backup in case there was a fire in the building. Darby claimed that Michelle Butler, ...


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