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EDWARD L. BOOTH v. MISSISSIPPI EMPLOYMENT SECURITY COMMISSION9/11/1991
] court shall be confined to questions of law.
Miss. Code Ann. 71-5-531 (1972); see Shannon Eng'g & Constr. Co. v. Miss. Employment Sec. Comm'n, 549 So. 2d 446, 448 (Miss. 1989); Miss. EmploymentSec. Comm'n v. Blasingame, 237 Miss. 744, 747, 116 So. 2d 213, 214 (1959) (" The legislature has clearly provided that judicial review of decisions of the Board . . . shall be confined to questions of law. "), quoted in Wheeler, 408 So. 2d at 1384; see also Miss. Employment Sec. Comm'n v. Pulphus, 538 So. 2d 770, 772 (Miss. 1989); Miss. Employment Sec. Comm'n v. Sellers, 505 So. 2d 281, 283 (Miss. 1987); Melody Manor, Inc. v. McLeod, 511 So. 2d 1383, 1385 (Miss. 1987). The word" evidence, "as used in 71-5-531, has been interpreted to mean" substantial evidence. "Williams v. Miss. Employment Sec. Comm'n, 395 So. 2d 964 (Miss. 1981).
Accordingly, this Court should review the record to determine whether, as a matter of law, the Board's fact-finding is supported by substantial evidence. If the evidence is sufficient, then this Court should determine whether, as a matter of law, Booth's actions constitute misconduct.
The record reveals that the City fired Booth in October of 1988 for excessive absenteeism. The local union president, however, helped Booth get his job back through the following agreement:
On agreement between the City of Pascagoula and Local 1944, that Eddie Booth will be on probation for a period of 3 months, without missing any time what-so-ever or he will be terminated.
Dianne Stevens, the City's personnel director, explained that the City did not intend to strictly enforce the agreement. In fact, the City overlooked Booth's absence from several days of work; however, the City could not tolerate twelve absences which occurred during a 60-day portion of the probation period. These absences, in addition to other factors, led to Booth's dismissal for the following reasons:
1. Excessive absenteeism.
2. Threatening to do bodily harm to three (3) crew Foremen.
3. Leaving the job during regular working hours without permission and during this time taking a DUI worker with .
Booth does not deny that he committed the acts described in the letter of dismissal; rather, he admits absences on" numerous occasions ". He contends that most (but not all) absences were
excused. Whether the twelve absences were excused or not is irrelevant in view of the agreement's provision that he not be absent even one day during the 90-day probation period.
Booth also admits that he threatened others - including three supervisors - over a several-year period. But Booth minimizes the seriousness of such conduct. Contrary to Booth's contention, his threats were serious. They all involved threats of bodily harm, and, on at least one occasion, he told one of his supervisors that he would one day be waiting for him after work and" blow him away. "
Finally, Booth admits that he borrowed one of the City's vehicles without authorization and while he had a suspended license. However, he asks this Court to overlook this incident because no one told him that he could not borrow the vehicle and because he" did not [borrow] it again. "
In sum, the record reveals substantial evidence to support the Board's fact-finding. Moreover, Booth's further contention that the evidence does not fall within the definitional parameters of" misconduct "is devoid of merit. This Court has defined" misconduct "as:
onduct evincing such willful and wanton disregard of the employer's interest as is found in deliberate violations or disregard of standards of behavior
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