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IN THE CIRCUIT COURT OF COUNTY, MISSISSIPPI APPELLANTVS. CIVIL ACTION NO. MISSISSIPPI EMPLOYMENT SECURITYCOMMISSION AND APPELLEE MEMORANDUM IN OPPOSITION TO APPELLANT'S MOTION FOR SUMMARY JUDGMENT Appellee (hereinafter referred to as "Mr./Ms ") submits this memorandum in opposition to the motion for summary judgment filed by petitioner (hereinafter referred to as " "). Mr./Ms adopts and incorporates herein by reference the arguments made by the Mississippi Employment Security Commission in its response to the motion for summary judgment. INTRODUCTION This is the appeal of a decision of the Board of Review of the Mississippi Employment Security Commission (hereinafter referred to as the "Board") to award unemployment benefits to Mr./Ms . Using a motion for summary judgment rather than the applicable appellate procedure, has asserted that this Court should vacate the Board's decision and grant a determination of non-chargeability to . As grounds for its motion, asserts that it is entitled to relief solely because a portion of the testimony given before the appeals referee was not recorded and therefore not available for consideration by the Board. , however, has not and cannot assert that the missing portion of the tape included specific testimony which would have compelled the Board to reverse the appeals referee's decision. According to , the Board's decision is arbitrary and capricious per se because the Board could not have considered all of the proof presented to the appeals referee.The motion for summary judgment must be denied because it is inapplicable to this appellate proceeding and further because has failed to satisfy the requirements for obtaining summary judgment. Even if is deemed to have complied with the requirements for pursuing this appeal, can only obtain the requested relief by establishing that the Board's decision is not supported by substantial evidence. 's argument that a missing tape by itself satisfies this heavy burden is without merit. Moreover, as set forth in detail below, the decision of the Board is supported by substantial evidence and must be affirmed. STATEMENT OF THE CASE In , the United Auto Workers Local 1956 commenced an authorized strike at . The strike ended on , . After the strike ended, gave notice that it intended to terminate the employment of Mr./Ms and did so, asserting that Mr./Ms 8 engaged in serious strike misconduct. advised Mr./Ms in the course of grievance proceedings that the allegations of misconduct were established by a video tape which showed Mr./Ms making a tossing motion toward a vehicle and a video tape which showed Mr./Ms kicking a vehicle. Mr./Ms denied that he/she threw tacks and that he/she kicked any vehicle.Mr./Ms 's request for unemployment benefits was denied initially but, following a lengthy hearing, the appeals referee determined that Mr./Ms was entitled to benefits. 88 appealed this determination to the Board of Review, which affirmed the appeals referee's decision.At the hearing before the appeals referee, the proof consisted of testimony from the claimant, a representative of and a contract employee of . None of the witnesses testified that they saw Mr./Ms throw tacks or kick a vehicle at any time. The documentary proof included affidavit testimony of two police officers and two video tapes which contended showed Mr./Ms committing acts of misconduct. Both officers stated that they did not see Mr./Ms or any one throw tacks. One of the officers stated that he/she personally saw Mr./Ms make the tossing motion that was shown in the video tape and was certain that Mr./Ms did not throw tacks at that time.1 Following the hearing and the decision of the appeals referee, began to deluge the Board with additional proof in the form of depositions and an affidavit, representing that these materials "implicated" Mr./Mrs. in misconduct. In its motion for summary judgment, argues, without any legal authority whatsoever, that the Board "erroneously" failed to consider this proof. The Board, however, is authorized by law to exercise its discretion not to consider these additional materials and properly did so. Contrary to 's argument, the Board's decision not to comply with 's request to consider the additional materials is not arbitrary and capricious. Moreover, even construing the additional materials in the light most favorable to , these witnesses merely testified that they saw Mr./Ms making a tossing motion but did not see tacks in his/her hands. Such testimony does not "implicate" Mr./Ms in any misconduct. Counsel for Mr./Ms objected to the Board's consideration of this additional material and advised the Board that the testimony did not implicate Mr./Ms in any wrongdoing. See Rec. at pp. 220, 205-06.Based on this proof (discussed in detail infra), the appeals referee found:To monitor the striking workers, the employer had security guards video tape the picketers. During this tape session, the employer witnessed the claimant bending down and motioning as to throw tacks in the pathway of departing employees. Furthermore, the employer believed that the tapes showed claimant kicking the vehicle of a nonstriking employee. In viewing the videotape, claimant does bend down and he/she made a motion as if to throw tacks. However, there is no visible evidence that claimant had tacks in his/her hand or that he/she threw tacks in the pathway of the vehicles. In the incident where claimant allegedly kicked the vehicle, the tape does show the claimant making a kicking motion at a passing vehicle. However, it is difficult to tell if claimant actually struck the vehicle with this motion If claimant did, in fact, come in contact with the vehicle, the allegred kick was nothing more than a touch. There was no visible damage nor sound from the alleged kick. In this case, the Referee is of the opinion that there was not substantial clear and convincing evidence provided by the employer to show that claimant threw tacks in the pathway of vehicles of the nonstriking employees nor has it been shown the claimant maliciously or intentionally damaged a nonstriking employee's vehicle with the kick. (emphasis added). initiated this appeal but has failed to comply with the procedural requirements for pursuing appeals of decisions of the Board. When the Mississippi Employment Security Commission filed the transcript of proceedings, it was determined that a portion of the testimony given before the appeals referee was not recorded. The missing testimony includes a portion of the claimant's testimony and a portion of the testimony of one of 's witnesses, . Counsel for the Mississippi Employment Security Commission offered the opportunity to reconstruct the record but refused to participate, choosing instead to proceed on the record as it existed. has now filed its motion for summary judgment which is before this Court. I. THE SUMMARY JUDGMENT MOTION SHOULD BE DENIED BECAUSE IT IS NOT THE PROPER PROCEDURE FORBRINGING 'S APPEAL BEFORE THIS COURT. This is an appeal from the decision of the Mississippi Employment Security Commission Board of Review and the issues presented to this Court as well as this Court's scope of review are clearly limited by law. Rather than using the procedures promulgated especially for this type of proceeding, has filed a motion for summary judgment. The motion must be denied because it is procedurally inapplicable and, even if it were appropriate, has failed to satisfy the burden required to obtain summary judgment.In an appeal from an administrative agency ruling, this Court merely determines whether the decision of the Board is supported by substantial evidence, Miss. Code Ann. Section 71-5-531, and does not take additional proof or even make factual findings. The limited nature of this Court's review makes the summary judgment procedure completely unsuitable. Summary judgment is designed to "expedite the determination of actions on their merits and eliminate unmeritorious claims or defenses without the necessity of a full trial." Miss. R. Civ. P. 56 (comment). Such considerations have no place in an appeal where a full trial has already been held and neither party has a right to another one.2 Apparently recognizing that the procedures for conducting trials would not facilitate expeditious review of appeals, the Mississippi Supreme Court promulgated special rules applicable to administrative appeals.3 See Uniform Circuit Court Rules 4.00 (adopted August 10, 1979). Rule 4.00, et seq., expressly applies to appeals from the Mississippi Employment Security Commission. These rules recognize the limited nature of this Court's review and provide an efficient procedure uniquely designed to facilitate fair and speedy resolution of these appeals. has chosen not to follow these rules which are expressly applicable. has instead filed a motion for summary judgment which must be denied both because it is procedurally incorrect and because has failed to satisfy its burden for obtaining summary judgment. Indeed, does not even address the appropriate standard for granting a motion for summary judgment or argue that that standard has been satisfied. Summary judgment should be granted only when "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Miss. R. Civ. P. 56(c). In its motion, however, does not even allege the absence of genuine questions of material fact and asserts no basis on which it is entitled to judgment as a matter of law. Under such circumstances is not entitled to summary judgment and its motion should be denied.Pursuant to Rule 56(h) of the Mississippi Rules of Civil Procedure, Mr./Ms is therefore entitled to an award of the reasonable expenses incurred in attending the hearing of this motion. Further, because the motion is without reasonable cause, Mr./Ms is entitled to an award of attorneys' fees.2It appears that is attempting to use the summary judgment procedure to circumvent the prohibition against supplementing the record on appeal. 's attempts to present additional evidence to the Board were unsuccessful because the Board, as it is authorized by law to do, refused to consider the depositions and affidavit that submitted. has submitted these same materials to this Court in support of its motion for summary judgment; 88 would have no opportunity to bring these materials to the attention of this Court if it used the proper procedures.3The authority to promulgate local court rules is reserved in Rule 83 of the Mississippi Rules of Civil Procedure. II. 'S APPEAL SHOULD BE DISMISSED BECAUSE IT HASNOT SATISFIED ITS BURDEN OF ESTABLISHING THAT THEDECISION OF THE BOARD OF REVIEW IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE. Even if had properly pursued this appeal, it is not entitled to prevail because it has not met the heavy burden of proof placed on a party challenging the action of an administrative agency. Melody Manor Convalescent Center v. Mississippi State Department of Health, 546 So.2d 972, 974 (Miss. 1989). According to Miss. Code Ann. Section 71- 5-531, the decision of the Board must be upheld if it is supported by "evidence", a term which the Mississippi Supreme Court has interpreted to mean "substantial evidence." Booth v. Mississippi Employment Security Commission, 588 So.2d 422, 425 (Miss. 1991). "Substantial on evidence" is "something more than a 'mere scintilla' of evidence and . . . does not rise to the level of 'a preponderance of the evidence."' Delta CMI v. Speck, 586 So.2d 768, 773 (Miss. 1991) (citations omitted) (workers' compensation appeal). Therefore, "in cases where substantial evidence supportive of the Board's fact-findings exists and the relevant law was properly applied to the facts, the appellate courts are without authority to disturb the Board's conclusion." Shannon Engineering & Construction Co. v Mississippi Employment Security Commission, 549 So.2d 446 (Miss. 1989). In other words, in order to prevail on its appeal, must show that the record is devoid of evidence that supports the Board's findings that Mr./Ms did not engage in misconduct or that the Board misapplied the applicable law in determining that Mr./Ms 's action did not amount to misconduct. has failed to satisfy this burden.First, the record clearly contains sufficient evidence supportive of the Board's findings of fact. The appeals referee, whose findings the Board adopted, found that Mr./Ms did not engage in misconduct.4 Rather than analyzing the evidence in the record, relies on the bald statement that "the evidence that exists in the record does not adequately support the Board of Review's decision." Mem. at p. 9. Although has failed to identify any proof in the record that constitutes evidence that Mr./Ms did engage in misconduct, the record is replete with proof that he did not.Mr./Ms 's termination was also the subject of a grievance which was recently heard by an arbitrator. By letter dated , , sent a copy of the arbitrator's decision to the judge to whom this case has been assigned and requested that the decision be added as an exhibit to the motion for summary judgment. Because the decision was not sent to the clerk of the Court, it has not been made an exhibit to the motion and cannot properly be considered by the Court. In any event, the arbitrator's decision supports Mr./Ms and not 8888 because the arbitrator agreed with the Board. After quoting the decision of the appeals referee, the arbitrator stated:At the hearing, offered the testimony of two witnesses. Mr./Ms , the representative, had no first hand knowledge of misconduct by Mr./Ms but stated that the company had videotapes which showed Mr./Ms placing tacks under cars and kicking a car. These videotapes were admitted. The Arbitrator would have to agree with that finding, in regard to the Mr./Ms ’s misconduct, related to the bowling motions and the apparent kick at the automobile as seen in the videos. However, the charge of misconduct made at the arbitration hearing was much broader. Arbitrator's decision, p. 17.This portion of the arbitrator's decision was not included in 's letter to the judge.Mr./Ms also testified that the video tape was the only proof that the company had that Mr./Ms had anything to do with tacks during the strike, rec. pp. 26 & 28, 30; that he/she had not talked to anyone who saw Mr./Ms throwing tacks, rec. p.26; that he/she had not talked to any of the people in the video to ask if they saw Mr./Ms throwing tacks, rec. p. 26; that he/she had not asked the police who were standing near Mr./Ms if they saw Mr./Ms throwing tacks, rec. p. 28; and that none of the managers and supervisors who were assigned to watch for misconduct on the picket line reported any tack throwing by Mr./Ms Mr./Mrs. . With respect to the allegation that Mr./Ms kicked a vehicle, Mr./Ms testified that he/she had not spoken to the person who was driving the vehicle which Mr./Ms allegedly kicked, rec. p. 31; that he/she was not sure if the person whose vehicle was allegedly kicked had reported any damage to the vehicle, rec. p. 32; and that he/she had not talked to any of the people who were around Mr./Ms when he/she allegedly kicked the into evidence and made available for review by the appeals referee, the Board and this Court. The other witness for , , a contract employee of , testified that Mr./Ms told him/her to get out of the way when Mr./Ms was operating a mechanical sweeper at the front entrance although Mr./Ms never felt threatened by Mr./Ms . Mr./Ms further testified that he/she did not see Mr./Ms or anyone put any tacks on the ground. Rec. pp. 47-48.The final witness was the claimant, Mr./Ms . Although a portion of the testimony of Mr./Ms is missing, he/she clearly did not admit that he/she engaged in misconduct. 888 has not alleged that any such incriminating testimony was presented to the appeals referee and further has made no effort to describe any of the missing testimony. In the portion of his/her testimony that is available, Mr./Ms denied all allegations of misconduct.At the hearing, two police officers also testified by affidavit and stated that they did not see anyone throw tacks during the strike. One of the officers, , stated that he/she saw Mr./Ms kneel down and pretend to throw something; Officer , however, was "certain that he did not have anything in his hand when he did this." aff. at par. 6.The videotapes of the alleged incidents of misconduct were included in the record and clearly constitute the requisite substantial evidence to support the Board's decision. The appeals referee specifically found that the videotapes did not establish vehicle, rec. p. 32. that Mr./Ms engaged in misconduct. Even if the video tapes are subject to a different interpretation, the Board's interpretation is not unreasonable and is supported by substantial evidence.6Therefore, it is clear that the record does contain much more than the necessary "substantial evidence" that Mr./Ms did not engage in misconduct. Even if could point to any contrary evidence that was presented to the appeals referee, the Board must still be affirmed because its decision is supported by substantial evidence.Second has not argued that any of the testimony in the missing part of the record would have necessarily changed the Board's decision. Instead, contends that it should prevail here simply because the Board of Review did not have the complete record before it when it made its decision. Significantly, does not argue that there is anything in the missing portion of the record that would dispute or discredit in any way the findings of the Board. has not made any effort to demonstrate that the Board would have been required to conclude differently if it had had before it the complete transcript of the hearing before the referee. In other words, argues that the absence of a portion of the transcript is arbitrary and capricious per se. This argument is without merit. 6 The record from which this Court determines whether substantial evidence exists to support the Board's decision is the proof presented to the appeals referee plus any additional evidence, which the Board chose to include in the record. Because the Board did not decide to supplement the record at all, the material submitted by after the decision by the appeals referee should not be considered.In Harp v. Department of Army, 791 F.2d 161, 163 (Fed. Cir. 1986), the entire tape of the hearing before the hearing officer was lost and a transcript was not available for review on appeal. Harp, the claimant, asserted that he was entitled to relief simply because a transcript was not available. Harp's allegations were of a general nature and he failed to even allege that any particular testimony which would be revealed if there were a transcript was not considered or was misused by the presiding official and, therefore, might have caused a different result in the case. 791 F.2d at 163 (emphasis original)In Harp, the court rejected Harp's claim, noting that the record was not "devoid of evidence" and that the hearing official had identified specific testimony on which he relied. 791 F.2d at 163. Therefore, the record, although incomplete, provided a sufficient basis for refusing to overturn the hearing official's decision.Here, as in Harp, has failed to identify any particular testimony that is not included in the transcript which would allow to prevail. Indeed, has not even alleged that any of the missing testimony is inconsistent with the Board's findings or that the Board misconstrued or misunderstood any of the testimony or proof. See Morales v. Merit System Protection Board, 932 F.2d 800, 802 (9th Cir. 1991). Instead, merely asserts that it should prevail solely because the transcript is incomplete. Even if could argue that the missing testimony implicated Mr./Ms in misconduct, the fact remains that the record contains substantial evidence from which the Board could determine that Mr./Ms did not engage in misconduct.Nevertheless, argues that the decision of the Mississippi Employment Security Commission should be vacated because of the absence of a recording of testimony which may or may not be dispositive or relevant. As evidenced by the lack of any substantive argument that the decision of the Board is in error on the merits of its claim, is clearly seeking to take undue advantage of a procedural snafu. Particularly when has refused to participate in efforts to reconstruct the missing portion of the record, further proceedings are unnecessary and the decision of the Board should be affirmed.For these reasons, appellee requests that the Court deny the appellant's motion for summary judgment and assess costs, including reasonable attorneys' fees, against the appellant. Respectfully submitted, _______________________________________ Attorney for Of Counsel: Telephone: MSB # Attorney for