Buller v. Mississippi Department of Employment Security

111 So. 3d 1276, 2013 WL 1614676, 2013 Miss. App. LEXIS 180
CourtCourt of Appeals of Mississippi
DecidedApril 16, 2013
DocketNo. 2011-CC-00898-COA
StatusPublished
Cited by1 cases

This text of 111 So. 3d 1276 (Buller v. Mississippi Department of Employment Security) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Buller v. Mississippi Department of Employment Security, 111 So. 3d 1276, 2013 WL 1614676, 2013 Miss. App. LEXIS 180 (Mich. Ct. App. 2013).

Opinion

IRVING, P.J.,

for the Court:

¶ 1. This appeal arises from a decision of the Harrison County Circuit Court, affirming the finding of the Board of Review (the Board) of the Mississippi Department of Employment Security (MDES) that Shaina Buller, a former employee of the Gulf Coast Community Action Agency (GCCAA), committed disqualifying misconduct pursuant to Mississippi Code Annotated section 71-5-513 (Supp.2012), and is therefore not entitled to unemployment compensation benefits. Feeling aggrieved, Buller appeals and argues that the circuit court erred in affirming the Board’s ruling.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Buller worked as an assistant teacher and a lead teacher for GCCAA for thirteen years. GCCAA has various Head Start centers along the Mississippi Gulf Coast and assigns and reassigns its teachers to different centers according to the centers’ needs. Before Buller began working for GCCAA, the company informed her that teachers were not given permanent positions in any of the centers and that she could be reassigned to another center at any time. Buller accepted these conditions.

¶ 4. On September 20, 2010, GCCAA informed Buller that she had been reassigned to one of GCCAA’s other centers due to a shortage of teachers at that center. GCCAA informed Buller that she was expected to report to the new center the following day. Buller did not report to the new center. Instead, she filed a grievance with the company, alleging that she had inadequate transportation to get to the new center and requesting that she remain at her current location.

¶ 5. While waiting for GCCAA’s decision regarding her hardship request, Buller refused to report to the new center. As a result, GCCAA suspended Buller and later terminated her employment. Buller applied for unemployment benefits. MDES denied Buller’s request for unemployment benefits, finding that Buller’s refusal to report to the new center amounted to disqualifying misconduct. Buller appealed. An administrative law judge (ALJ) held a telephonic hearing at which Buller; Deby Gill, GCCAA’s CAIO specialist; Gloria Taylor, a division manager for GCCAA; and Lena Depiver, GCCAA’s human resources manager, testified. The only evidence offered during the hearing was live witness testimony.

¶ 6. Gill testified that Buller voluntarily left her employment with GCCAA because she did not show up for work at her newly assigned center on September 21, 2010, nor did she attempt to show up for work on any day thereafter. Gill stated that she notified Buller’s center manager that Bul-ler had been reassigned to another center due to a teacher shortage at the other center. According to Gill, teachers are made aware that they may be required to work in another center in the area if needed. Gill spoke with Buller on September 22, 2010, to confirm to Buller that GCCAA had reassigned her to another center and [1278]*1278that GCCAA expected her to report to the new center. Gill noted that Buller never informed her that she was not going to go to the new location. Taylor affirmed that Gill had reassigned Buller to another center and that Buller never reported to work after the reassignment.

¶ 7. Depiver reaffirmed that GCCAA informs its teachers that there are no permanent positions and that they may be reassigned when needed. Depiver stated that she spoke with Buller about the situation. Buller told her that she did not have adequate transportation or the money to drive back and forth to the new center. Depiver testified that she mapped a different route to the new center for Buller in an attempt to find a shorter driving distance. Additionally, Depiver told Buller that her job would be in jeopardy if she did not report to the new location. Depi-ver also testified that when an employee refuses an assignment, the employee is expected to arrange a counseling session with the employee’s supervisor to discuss the reasons for refusal. If the employee continues to refuse the assignment, the employee meets with the Head Start director.

¶ 8. Buller testified that she did not report to the new center because she does not have dependable transportation. She admitted that she was aware that she could be moved to one of GCCAA’s other centers. Buller knew that there were no guaranteed permanent positions at any of GCCAA’s centers. She began submitting hardship letters to her supervisor two years prior to her termination. Since submitting her first hardship letter, she had been reassigned to two other facilities. Buller noted that she did not tell her center manager that she would not accept the new assignment. She stated that she only wanted to talk to the center director first. Buller also admitted that she had agreed to work where she was needed when GCCAA hired her as a teacher, that she never drove the alternate route that Depi-ver had suggested, and that she knew that her job was in jeopardy because she was not reporting to work. Buller claimed that she never received a letter informing her of her final employment status.

¶ 9. Additional facts, as necessary, will be related during our analysis and discussion of the issue.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 10. An appellate court’s review of a decision of the MDES is limited. Booth v. Miss. Emp’t Sec. Comm’n, 588 So.2d 422, 424 (Miss.1991). The Mississippi Supreme Court has stated that an appellate court “has no authority to reverse the ... the decision of the Board of Review” if the decision is supported by substantial evidence. Alexander v. Miss. Dep’t of Emp’t Sec., 998 So.2d 419, 424 (¶ 15) (Miss.2008) (citations omitted). However, we will overturn an agency’s decision if it is arbitrary or capricious. Allen v. Miss. Emp’t Sec. Comm’n, 639 So.2d 904, 906 (Miss.1994). If the Board’s findings of fact are supported by substantial evidence, those findings “shall be conclusive, and the jurisdiction of the [appellate] courtfs] shall be confined to questions of law.” Miss.Code Ann. § 71-5-531 (Rev. 2011).

¶ 11. Buller argues that the ALJ’s decision was not based on substantial evidence and was arbitrary, capricious, and erroneous as a matter of law because the ALJ applied the wrong definition of misconduct. According to Buller, the ALJ should have applied the definition of misconduct found in section 308 of MDES’s Unemployment Insurance Regulations instead of the definition promulgated by our supreme court in Wheeler v. Arriola, 408 [1279]*1279So.2d 1381, 1383 (Miss.1982). We disagree.

¶ 12. An employee that is discharged for misconduct is not entitled to unemployment benefits. Miss.Code Ann. § 71-5-513(A)(1)(b) (Supp.2012). Our supreme court has defined misconduct as:

conduct 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, [come] within the term.

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111 So. 3d 1276, 2013 WL 1614676, 2013 Miss. App. LEXIS 180, Counsel Stack Legal Research, https://law.counselstack.com/opinion/buller-v-mississippi-department-of-employment-security-missctapp-2013.