Khloe Conner v. Mississippi Department of Employment Security

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2017-CC-00605-COA

KHLOE CONNER APPELLANT

v.

MISSISSIPPI DEPARTMENT OF APPELLEE
EMPLOYMENT SECURITY

DATE OF JUDGMENT: 04/24/2017
TRIAL JUDGE: HON. DAL WILLIAMSON
COURT FROM WHICH APPEALED: JONES COUNTY CIRCUIT COURT,
SECOND JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT: KHLOE CONNER (PRO SE)
ATTORNEY FOR APPELLEE: ALBERT B. WHITE
NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES
DISPOSITION: AFFIRMED - 05/15/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE IRVING, P.J., GREENLEE AND WESTBROOKS, JJ.

GREENLEE, J., FOR THE COURT:

¶1. The Mississippi Department of Employment Security’s Board of Review (Board)

affirmed the denial of unemployment benefits following Khloe Conner’s termination from

Dollar General. Conner appealed to the Circuit Court of the Second Judicial District of Jones

County, which affirmed the Board’s decision. Finding no error, we affirm the circuit court’s

judgment.

FACTS AND PROCEDURAL HISTORY

¶2. On May 15, 2015, Conner began working at Dollar General as a lead sales associate.

On September 30, 2016, Conner was terminated, in accordance with the company’s
workplace-violence policy, because she engaged in a physical altercation with a customer,

during which she cut the customer with a box-cutter.

¶3. After her termination, Conner sought unemployment benefits, and a claims examiner

investigated the reasons for her termination. Ultimately, the claims examiner denied Conner

unemployment benefits finding that Conner was discharged from work for misconduct

connected with her employment and was therefore disqualified from receiving benefits.

Conner appealed the denial of her claim to an administrative-law judge (ALJ), who

conducted a telephonic hearing.

¶4. During the hearing on Conner’s appeal, Curtis Swires, the Dollar General store

manager, testified that Conner was discharged from her job as a lead sales associate because

she violated Dollar General’s workplace-violence policy. He testified that Conner was aware

of this policy and explained the policy indicated that Dollar General would not ignore,

condone, or tolerate any disruptive, threatening, or violent behavior by any Dollar General

employee, and such behavior could lead to termination.

¶5. Swires testified that on the day of the incident, Conner and a customer got into a

verbal altercation after the customer asked for one of her items to be bagged. Following the

verbal altercation, Swires testified that the customer told Conner she would be waiting on her

outside and that Conner replied, “You don’t have to. I’m on break. I will be right outside.”

Swires testified that he ordered Conner not to immediately go outside but wait five minutes

for the customer to leave. However, Swires claimed that she ignored his order, and she

waited only a minute and a half before going outside. Swires testified that about thirty

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seconds after Conner went outside he heard a “commotion” and went outside to investigate.

Once outside, Swires claimed he witnessed Conner swinging at the customer and observed

the customer bleeding from several areas of her body. The customer advised Swires that

Conner had cut her with a box-cutter.

¶6. Next, Conner testified on her own behalf. She admitted that she had a verbal

altercation with a customer, but denied that Swires told her to wait five minutes before going

outside. She also testified that she went outside not knowing the customer was waiting on her

and was attacked. She testified that she acted in self-defense and felt there was no other

alternative to escape, so she picked up a box-cutter that was in her possession and cut the

customer several times.

¶7. After concluding the hearing, the ALJ affirmed the claims examiner’s denial of

benefits, finding that Conner’s conduct violated Dollar General’s workplace-violence policy

and rose to the level of misconduct. Conner, still aggrieved, sought review from the Board,

which after careful consideration of the record affirmed the ALJ’s decision.

¶8. On February 2, 2017, Conner appealed to the Circuit Court of the Second Judicial

District of Jones County. On April 24, 2017, the circuit court affirmed the Board’s decision,

finding that the decision was supported by substantial evidence. Conner appeals.

STANDARD OF REVIEW

¶9. “This Court’s scope of review in an unemployment compensation case is limited.”

Welch v. Miss. Emp’t Sec. Comm’n, 904 So. 2d 1200, 1201 (¶5) (Miss. Ct. App. 2004). In

reviewing a decision of the Mississippi Department of Employment Security (MDES), “[t]he

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findings as to the facts of the Board of Review are conclusive if supported by substantial

evidence and absent fraud.” Id. Further, the supreme court has explained that “where there

is the required substantial evidence, this Court has no authority to reverse the circuit court’s

affirmance of the decision of the Board of Review.” Broome v. Miss. Emp’t Sec. Comm’n,

921 So. 2d 334, 337 (¶12) (Miss. 2006). Thus, the denial of unemployment benefits will be

disturbed on appeal only if the agency’s decision (1) is not supported by substantial evidence,

(2) is arbitrary or capricious, (3) is beyond the scope of power granted to the agency, or (4)

violates the claimant’s constitutional rights. Johnson v. Miss. Emp’t Sec. Comm’n, 761 So.

2d 861, 863 (¶6) (Miss. 2000).

DISCUSSION

¶10. On appeal, Conner contends that she was entitled to unemployment benefits because

her actions were not “misconduct,” and, therefore, she is not an excluded person under

Mississippi Code Annotated section 71-5-513 (Supp. 2017). She asserts that the altercation

happened while she “was not on the clock” and was not in the course of employment so, as

a matter of law, the altercation cannot be misconduct in connection with her work. Further,

she asserts that her actions were in self-defense and cannot be misconduct.

¶11. It is well settled that in employment-misconduct cases, “the employer bears the burden

to prove by substantial, clear, and convincing evidence that a former employee’s conduct

warrants disqualification of benefits.” Windham v. Miss. Dep’t of Emp’t Sec., 207 So. 3d

1249, 1252 (¶10) (Miss. Ct. App. 2017) (quoting Over the Rainbow Daycare v. Miss. Dep’t

of Emp’t Sec., 188 So. 3d 1249, 1251 (¶7) (Miss. Ct. App. 2016)). The supreme court has

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defined disqualifying “misconduct” as:

[C]onduct evincing such willful and wanton disregard of the employer’s
interest as is found in deliberate violations or disregard of standards of
behavior which the employer has the right to expect from his employee. Also,
carelessness and negligence of such degree, or recurrence thereof, as to
manifest culpability, wrongful intent or evil design, and showing an intentional
or substantial disregard of the employer’s interest or of the employee’s duties
and obligations to his employer . . . [comes] within the term.

Wheeler v. Arriola, 408 So. 2d 1381, 1383 (Miss. 1982). However, an employee’s conduct

“may be harmful to the employer’s interests and justify the employee’s discharge;

nevertheless, it evokes the disqualification for unemployment insurance benefits only if it is

wilful, wanton or equally culpable.” Acy v. Miss. Emp’t Sec. Comm’n, 960 So. 2d 592, 595

(¶14) (Miss. Ct. App. 2007).

¶12. Fighting has been found to be grounds for disqualification of benefits. Welch, 904 So.

2d at 1202-03 (¶13). In Welch, this Court affirmed the Board’s denial of unemployment

benefits to a claimant who engaged in a physical altercation with another employee. The

employee in Welch admitted that a fight had occurred and that he had thrown the first punch.

Id. at 1202 (¶7). Further, Welch admitted that he received an employee handbook and knew

that he could lose his job for fighting. Id. In affirming the Board’s decision, we found that

the “evidence show[ed] that Welch’s physical altercation with another employee violated the

terms of the employee handbook.” Id at (¶12). Additionally, this Court specifically found that

Welch’s action constituted misconduct and therefore upheld the denial of unemployment

benefits. Id. at 1202-03 (¶13).

¶13. Similarly, in the present case the evidence shows that Conner had received an

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employee handbook, which contained her employer’s workplace-violence policy. While

Conner testified that she did not read this handbook, she admitted that it was a reasonable

policy for employees not to engage in “disruptive, threatening, or violent behavior.” Further,

Conner admitted that she cut the customer with a box-cutter, but asserts that it was in self-

defense. While Conner does have a right to defend herself, her employer also has an interest

in providing a safe store for customers and other workers. Conner’s deliberate action of

leaving the store and going into the parking lot was not only in direct contravention of her

manager’s order but evinced “such willful and wanton disregard of the employer’s interest

. . . [and] standards of behavior which the employer has the right to expect from his

employee.” Wheeler, 408 So. 2d at 1383. Accordingly, we find the Board’s denial of

unemployment benefits was supported by substantial evidence. Furthermore, we specifically

find that Conner’s action constituted “misconduct” and disqualified her from receiving

unemployment benefits. Thus, we affirm the circuit court’s decision.

CONCLUSION

¶14. We agree with the circuit court’s decision that substantial evidence was presented to

support Conner’s denial of unemployment benefits. Conner’s deliberate action of going

outside to the parking lot and engaging in a physical altercation with a customer was against

the employer’s workplace-violence policy. Further, Conner acted in such willful and wanton

disregard for her employer’s interests that disqualification of benefits is warranted. We

therefore affirm the circuit court’s decision affirming the denial of unemployment benefits.

¶15. AFFIRMED.

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 LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR,
WILSON, WESTBROOKS AND TINDELL, JJ., CONCUR.

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