HUCKABEE v. MISSISSIPPI EMPLOYMENT SECURITY COMMISSION (1998)

¶ 1. Barbara Huckabee was employed as a cashier at Lyman's Quick-Stop for a period of sixteen months.   On September 29, 1995, Huckabee filed a claim for unemployment benefits after her last day of employment on September 28 at Lyman's.   On October 12, 1995, the Claims Examiner found that Huckabee had voluntarily quit her employment and disqualified Huckabee for unemployment benefits.   Huckabee appealed the decision to the Appeals Referee whom, after a hearing, made findings of fact that Huckabee had indeed voluntarily quit her employment without good cause and was not entitled to unemployment benefits.   Huckabee then appealed to the Board of Review which affirmed the Appeals Referee's decision.   Huckabee next appealed to the Harrison County Circuit Court which found that the Board's decision was not clearly erroneous nor arbitrary and capricious and affirmed the Board's decision.   Aggrieved, Huckabee appeals to this Court and raises the following issues:

I.  WHETHER THE FINDING OF THE BOARD OF REVIEW THAT HUCKABEE VOLUNTARILY LEFT WORK WITHOUT GOOD CAUSE IS SUPPORTED BY SUBSTANTIAL EVIDENCE.

II.  WHETHER AN EMPLOYEE WHO ABANDONS THE WORKPLACE UNDER THE REASONABLE BELIEF THAT HE/SHE HAS BEEN DISCHARGED IS THEREBY ELIGIBLE FOR UNEMPLOYMENT BENEFITS.

FACTS

¶ 2. Barbara Huckabee was employed as a cashier at Lyman's Quick-Stop (hereinafter Lyman's) for approximately sixteen months.   On September 29, 1995, Huckabee's employment apparently came to an end, and she filed for unemployment benefits under Mississippi Employment Security Law. Then, on October 12, 1995, the Claims Examiner found that Huckabee had voluntarily quit her employment and disqualified her for unemployment benefits.   Huckabee appealed the Claims Examiner's decision to the Appeals Referee whereby a hearing was conducted on November 1, 1995.

¶ 3. According to Huckabee, on September 28, 1995, approximately five minutes before her shift ended, Huckabee had a discussion with the manager of Lyman's, Judy Saucier, about her employment conditions.   Huckabee expressed concern to Saucier about being scheduled to work as a cook full-time which according to Huckabee was a two person job.   Saucier inquired of Huckabee if she was looking for another job, and Huckabee responded that she would be looking for another job because of the burden that had been put on her but would do it as long as she possibly could.   Saucier then stated that they would have to find someone else, and Huckabee assured Saucier that she would give two weeks notice if she did leave.   Huckabee stated that Saucier then said something but was unsure exactly what was said.   Huckabee then questioned Saucier if she was trying to get rid of her, and Saucier giggled, threw her hands up in the air, and stated, “I'm hiring somebody else.”   Huckabee interpreted Saucier's statements and conduct to mean that she had been terminated, and when she called the next morning to ask about her paycheck, she was told that she would have to talk to Saucier.   Saucier told Huckabee that she would have to return her uniforms in order to receive her paycheck.

¶ 4. Robert Dean Hyde, President of Lyman's, testified as the employer's representative.   Hyde testified that he was basically in charge of all the hiring and firing at Lyman's and that Saucier had no authority to hire and fire employees.   Hyde further testified that he had no knowledge of what transpired between Huckabee and Saucier but stated that Huckabee was not under the threat of discharge at the time and that there was still work available for Huckabee on September 29th when she did not show up for work.

¶ 5. The Appeals Referee made the following findings of fact:

Claimant was employed for approximately sixteen months as a cashier for Lyman Quick Stop, Gulfport, Mississippi, ending September 28, 1995.   The claimant became dissatisfied with her schedule and the work and she informed the employer that she would be seeking other employment.   The employer indicated that they would be seeking a replacement for the claimant in the event the claimant left her employment.   The claimant interpreted this to mean that she was discharged and the claimant did not return to work.   However, the claimant was not discharged and continuing work was available for her.

The Appeals Referee, in affirming the Claims Examiner's decision, held that Huckabee was not discharged but, instead, that she left her employment voluntarily and had failed to show good cause for leaving her employment.

¶ 6. Huckabee appealed to the Board of Review (hereinafter “Board”) which adopted the Findings of Fact and Opinion of the Referee in affirming the Referee's decision.   Huckabee then filed an appeal to the Harrison County Circuit Court which also affirmed the Board's decision.   The circuit court judge held that the Board's decision was neither clearly erroneous nor arbitrary and capricious.

¶ 7. Aggrieved by the adverse decisions, Huckabee now appeals to this Court.

STANDARD OF REVIEW

¶ 8. Miss.Code Ann. § 71-5-531 governs the standard of review for appealing a Mississippi Employment Security Commission (hereinafter “MESC”) Board of Review decision to the circuit court and the Mississippi Supreme Court.   This Court's judicial review is limited to questions of law as provided in Miss.Code Ann. § 71-5-531 which states in pertinent part:

In any judicial proceedings under this section, the findings of the board of review as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of said court shall be confined to questions of law.

Miss.Code Ann. § 71-5-531 (1995);  Hoerner Boxes, Inc. v. Mississippi Employment Sec. Comm'n, 693 So.2d 1343, 1346-47 (Miss.1997);  Barnett v. Mississippi Employment Sec. Comm'n, 583 So.2d 193, 195 (Miss.1991).  “The Board's findings of fact are conclusive if supported by substantial evidence and without fraud.”  Hoerner Boxes, 693 So.2d at 1347 (citing Richardson v. Mississippi Employment Sec. Comm'n, 593 So.2d 31, 34 (Miss.1992);  Ray v. Bivens, 562 So.2d 119, 121 (Miss.1990);  Melody Manor, Inc. v. McLeod, 511 So.2d 1383, 1385 (Miss.1987)).

 DISCUSSION OF THE LAW

I.  WHETHER THE FINDING OF THE BOARD OF REVIEW THAT HUCKABEE VOLUNTARILY LEFT WORK WITHOUT GOOD CAUSE IS SUPPORTED BY SUBSTANTIAL EVIDENCE.

II.  WHETHER AN EMPLOYEE WHO ABANDONS THE WORKPLACE UNDER THE REASONABLE BELIEF THAT HE/SHE HAS BEEN DISCHARGED IS THEREBY ELIGIBLE FOR UNEMPLOYMENT BENEFITS.

¶ 9. Huckabee contends that the finding of the Board that she voluntarily left work without good cause is not supported by substantial evidence, but instead, she asserts that she did not return to work at Lyman's because of her reasonable belief that she had been discharged.   Thus, Huckabee asserts that the issue before this Court is whether an employee who abandons the workplace under the reasonable belief that she has been discharged should be classified as a “discharged” employee and eligible for benefits or classified as a “voluntary quit” employee and not eligible for benefits.   Huckabee urges this Court to adopt the theory of a constructive discharge in unemployment compensation cases which occurs when the employer, through words or conduct, causes an employee to leave work under a belief that he or she has been discharged whereby the employee would not be held to have voluntarily left employment and will remain eligible for unemployment benefits.   The MESC, however, contends that the question of whether a voluntary quit or discharge took place is a question of fact, that the Board's findings are supported by substantial evidence, and that, as a result, the Board's decision should be affirmed.   The MESC further asserts that the Board is not bound by either the employer's or employee's belief as to whether a discharge or voluntary quit occurred.

¶ 10. Miss.Code Ann. § 71-5-513(A)(1)(a) provides in pertinent part:  “An individual shall be disqualified for [unemployment] benefits ․ on which he left work voluntarily without good cause, if so found by the commission․”   Miss.Code Ann. § 71-5-513(A)(1)(a) (1995).   However, a “discharged employee need only show that he has been paid wages during a base period for insured work, is unemployed and registered for work and ‘is able to work and is available for work’ in order to establish entitlement to state unemployment benefits.”  Coleman v. Mississippi Employment Sec. Comm'n, 662 So.2d 626, 627-28 (Miss.1995) (quoting Mississippi Employment Sec. Comm'n v. Gaines, 580 So.2d 1230, 1233 (Miss.1991));  see also Miss.Code Ann. § 71-5-511 (1995).

¶ 11. “ ‘The principle is well settled that an Order of the Board of Review on the facts is conclusive on the lower court, if supported by substantial evidence and if absent fraud.’ ”  Richardson, 593 So.2d at 34 (quoting Ray, 562 So.2d at 121 (quoting McLeod, 511 So.2d at 1385)).  “Where there is the required substantial evidence, this [C]ourt has no authority to reverse the circuit court's affirmance of the decision of the Board of Review.”   Id. (citing Ray, 562 So.2d at 121;  Piggly Wiggly v. Mississippi Employment Sec. Comm'n, 465 So.2d 1062, 1065 (Miss.1985);  Wheeler v. Arriola, 408 So.2d 1381, 1384 (Miss.1982)).

¶ 12. This Court has held on numerous occasions that the question of whether an employee voluntarily quits or was discharged is a question of fact for the MESC to determine.   See Mississippi Employment Sec. Comm'n v. Georgia-Pacific Corp., 394 So.2d 299, 303 (Miss.1981) (holding that circuit court erred by holding “MESC did not have the right to decide whether the claimants were voluntarily or involuntarily unemployed”);  Mississippi Employment Sec. Comm'n v. Fortenberry, 193 So.2d 142, 143 (Miss.1966) (holding that there was sufficient evidence to support MESC's finding of fact that the claimant voluntarily severed connection with her employment);  Mississippi Employment Sec. Comm'n v. Rakestraw, 254 Miss. 56, 60, 179 So.2d 830, 831 (1965) (finding ample evidence to support factual finding of Board that claimant voluntarily quit suitable employment without good cause and was not discharged);  Mississippi Employment Sec. Comm'n v. Corley, 246 Miss. 43, 45-46, 148 So.2d 715, 716 (1963) (holding that this Court is bound by the finding of fact by Board that claimant voluntarily quit her employment where finding of fact is amply supported by evidence).   Thus, this Court is bound by the finding of fact of the Board in this case that Huckabee voluntarily quit her employment without good cause as long as such finding is supported by substantial evidence.   See, e.g., Richardson, 593 So.2d at 34;  Piggly Wiggly, 465 So.2d at 1065;  Wheeler, 408 So.2d at 1384.

¶ 13. We find that the Board's finding of fact that Huckabee voluntarily quit her employment without good cause and was not discharged is supported by substantial evidence.   In the case sub judice, Huckabee was told by Saucier that she was hiring someone else only after Huckabee informed her that she was looking for other employment.   Then, the day after Huckabee's and Saucier's altercation, Huckabee, instead of showing up for work as scheduled, called Lyman's and asked for her paycheck before it was due whereby she was told by Saucier that she would have to first turn in her uniforms before receiving her paycheck.   At the hearing before the Appeals Referee, Hyde stated Saucier did not have the authority to relieve anyone of their duties, that Huckabee was not under the threat of discharge for any reason, and that work was still available for her at the time of separation.   Thus, we find there is substantial evidence in the record to support the Board's decision that Huckabee voluntarily quit her employment without good cause and is not eligible for unemployment benefits.

¶ 14. Huckabee, however, urges this Court to adopt a theory of constructive discharge in unemployment compensation cases whereby when an employer, through words or conduct, causes an employee to leave work under a belief that he or she has been discharged, the employee would not be held to have voluntarily left employment and will remain eligible for unemployment benefits.   Huckabee contends that it was reasonable for her to believe that after her conversation with Saucier that she had been terminated and should be eligible for unemployment benefits based on the theory of constructive discharge.   In support of her contention, Huckabee cites to the following cases decided by other jurisdictions:   Shaw v. Hansa Mold Tool & Die, Inc., 592 So.2d 1228 (Fla.Dist.Ct.App.1992);  County Market v. Dahlen, 396 N.W.2d 81 (Minn.Ct.App.1986);  Midland Elec. Inc. v. Johnson, 372 N.W.2d 810 (Minn.Ct.App.1985);  Wallace W. Carlson Co. v. Hasler, 351 N.W.2d 688 (Minn.Ct.App.1984);  White v. Unemployment Compensation Bd. of Review, 200 Pa.Super. 357, 188 A.2d 759 (1963).

¶ 15. In Shaw v. Hansa Mold Tool & Die, Inc., Shaw collected his tools and departed from his employment after his employer told him to “get out,” and in response to Shaw's inquiry whether he was being fired, the employer stated “that he was not firing [him] but that he was reducing Shaw's wages.”  Shaw v. Hansa Mold Tool & Die, Inc., 592 So.2d 1228, 1229 (Fla.Dist.Ct.App.1992).   The court held that there was substantial, competent evidence in the record to support the appeals referee's finding that Shaw had been discharged since Shaw testified that he believed he had been terminated.   Shaw, 592 So.2d at 1229.

¶ 16. In County Market v. Dahlen, Dahlen, after missing three days of work in a row due to illness, reported to work and was told by the bakery manager “not to bother punching in,” and when Dahlen asked why, the bakery manager responded:  “That's pretty obvious, you've missed too many days.”  County Market v. Dahlen, 396 N.W.2d 81, 82 (Minn.Ct.App.1986).   The Minnesota Court of Appeals affirmed the Commissioner's decision that Dahlen was entitled to receive unemployment compensation benefits because he did not quit but rather left County Market because of an honest belief that he had been discharged.  Dahlen, 396 N.W.2d at 83;  see also Midland Elec., Inc. v. Johnson, 372 N.W.2d 810, 811-12 (Minn.Ct.App.1985) (affirming decision of Commissioner to award unemployment benefits to Johnson who reasonably believed he had been discharged after employer asked him to turn in his tools, could not guarantee work when he returned from trip, and walked away when Johnson asked if he should call when he got back);  Wallace W. Carlson Co. v. Hasler, 351 N.W.2d 688, 690-91 (Minn.Ct.App.1984) (affirming Commisioner's award of unemployment benefits where the employee had good-faith belief he had been discharged after conversation with production manager in which production manager told him he should not question his supervisor, should be more cooperative, and should take breaks at appropriate times instead of leaving early).

¶ 17. In White v. Unemployment Compensation Board of Review, White left her employment after being told by her employer, “I am the boss and she is the boss (employer's wife)-If you don't like it, there is the door.”  White v. Unemployment Compensation Bd. of Review, 200 Pa.Super. 357, 188 A.2d 759, 760 (1963).   The court affirmed the Board's award of unemployment benefits to White and held that the Board's inference that the language “there's the door” amounted to a discharge was reasonable and logical.  White, 188 A.2d at 760.

¶ 18. This Court, however, has addressed before the issue of constructive discharge in an unemployment compensation context.  Hoerner Boxes, Inc. v. Mississippi Employment Sec. Comm'n, 693 So.2d 1343, 1347 (Miss.1997).   The Hoerner Boxes Court stated that “constructive discharge results when the employer has made conditions so intolerable that the employee feels compelled to resign.”  Hoerner Boxes, 693 So.2d at 1347 (citing Bulloch v. City of Pascagoula, 574 So.2d 637, 640 (Miss.1990) (citing Shawgo v. Spradlin, 701 F.2d 470, 481 (5th Cir.1983))).   In Hoerner Boxes, the employee claimed that she voluntarily left her employment with good cause as a result of the hostile environment created by a continued practice of sexual harassment by other employees, and the Referee and Board of Review concluded that the workplace environment was hostile as a result of sexual harassment and awarded the employee unemployment benefits as having shown good cause for voluntarily leaving her employment.  Id. The employer, however, on appeal argued that the employee's departure was not tantamount to a constructive discharge because the employee participated in the sexual harassment and welcomed the creation of the hostile environment.  Id. This Court, however, affirmed the Board's decision awarding unemployment benefits to the employee and held that sexual harassment in the workplace constituted good cause for voluntarily leaving employment.  Id. at 1348.

¶ 19. We, however, find that the facts in the case sub judice do not reach the level of a constructive discharge as defined by this Court in Hoerner Boxes.   There is no evidence in the record that Huckabee's employer made her working environment conditions so intolerable that she felt compelled to resign.   See id. at 1347.   Furthermore, we find that the case sub judice is analogous to Mississippi Employment Security Commission v. Fortenberry.

¶ 20. In Fortenberry, a supervisor reprimanded one of the sewing machine operators in which the supervisor shook her finger at the operator and said:  “That machine will sew.”  Fortenberry, 193 So.2d at 143.   During the lunch hour, Fortenberry shook her finger at the same operator and told her, “Get to your machine and go to work.”  Id. The supervisor then approached Fortenberry and stated that it was not nice to mock her during the lunch hour.  Id. Fortenberry responded that she did not think it was nice for the supervisor to talk to the operator the way she did.  Id. Fortenberry called the supervisor again and stated the same, and the supervisor told Fortenberry that the matter was of no concern to her and that her job was to sew.  Id. Fortenberry responded that she “was ready to get in it.”  Fortenberry, 193 So.2d at 143.   The supervisor then reported the incident to the forelady who arranged a meeting with the plant manager and Fortenberry.  Id. Fortenberry denied that she was mocking the supervisor but was advised that she would be required to apologize to the supervisor, and she refused to do so.   Id. The plant manager told the supervisor and Fortenberry “to go home, cool off, and come back the next morning.”  Id. Fortenberry stated that she would not come back the next morning to be fired and that if she was to be fired then it would have to be then whereupon she demanded her pay and left.   Id. Fortenberry came back late the next day but did not go back to work because she was required to apologize to the supervisor.  Fortenberry, 193 So.2d at 143.

¶ 21. Fortenberry filed for unemployment benefits, and the Referee rejected the claim because Fortenberry was discharged because of misconduct during work hours.  Id. Fortenberry appealed the Referee's decision, and the Board of Review decided that Fortenberry “was not entitled to receive benefits under the provisions of the Mississippi Employment Security Law for the reason that the claimant ‘did voluntarily leave her employment for she demanded her check before it was due and failed to return to work․’ ”  Id. This Court held that there was substantial evidence to support the Board's decision that Fortenberry left her employment and “voluntarily demanded and received her compensation before it was due, and did not return to her employment for reasons of her own.”  Id. at 144.

¶ 22. Analogously, in the case sub judice, Huckabee was told by Saucier that she was hiring someone else only after Huckabee informed her that she would be leaving.   After the conversation, Huckabee did not report to work the next day, but instead, Huckabee called Lyman's and requested her paycheck at which time she was instructed by Saucier that she would have to turn in her uniforms before she could receive her paycheck.   Furthermore, at the hearing before the Appeals Referee, Hyde stated Saucier did not have the authority to relieve anyone of their duties, that Huckabee was not under the threat of discharge for any reason, and that work was still available for her at the time of separation.   Thus, we hold that the instant case is analogous to Fortenberry in that Huckabee “voluntarily demanded and received her compensation before it was due, and did not return to her employment for reasons of her own.”   See Fortenberry, 193 So.2d at 144.

CONCLUSION

¶ 23. Since we are bound by the Board's findings of fact unless there is no substantial evidence to support the findings of fact or fraud exists, we hold that, after reviewing the record and testimony, substantial evidence exists to support the Board's determination that Huckabee voluntarily left her employment without good cause and was, therefore, not entitled to unemployment benefits.   Thus, as a result, we affirm the circuit court's decision.

¶ 24. JUDGMENT AFFIRMED.

SMITH, Justice, for the Court:

PRATHER, C.J., SULLIVAN and PITTMAN, P.JJ., and McRAE, JAMES L. ROBERTS, Jr., MILLS and WALLER, JJ., concur. BANKS, J., concurs in result only.