Gammage v. Mississippi Department of Employment Security

113 So. 3d 1294, 2013 WL 2302990, 2013 Miss. App. LEXIS 293
CourtCourt of Appeals of Mississippi
DecidedMay 28, 2013
DocketNo. 2012-CC-00523-COA
StatusPublished
Cited by5 cases

This text of 113 So. 3d 1294 (Gammage 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
Gammage v. Mississippi Department of Employment Security, 113 So. 3d 1294, 2013 WL 2302990, 2013 Miss. App. LEXIS 293 (Mich. Ct. App. 2013).

Opinion

GRIFFIS, P.J.,

for the Court:

¶ 1. Sharron Gammage’s employment with Jasper General Hospital was terminated. Gammage applied for unemployment benefits from the Mississippi Department of Employment Security (“MDES”), which were denied by the MDES administrative law judge (“ALJ”). She appealed to the MDES Board of Review, which affirmed. Gammage then appealed the Board of Review’s decision to the circuit court, and the decision was again affirmed. On appeal, Gammage argues that her actions did not amount to insubordination, her actions did not violate any other policy in the employee handbook, and mere disrespectful behavior does not amount to misconduct; thus, the denial of unemployment benefits was improper. Finding error, we reverse and remand the judgment of the circuit court.

FACTS

¶ 2. Gammage worked for Jasper General Hospital from May 14, 2007 to May 3, 2011. Gammage was a laundry aide in the laundry department.

¶ 3. On May 3, 2011, Gammage was off from work. Gammage contacted Annie Campbell, a coworker, who Gammage believed had written a negative letter about her. Campbell responded that she had not done so. Campbell then called Melissa Blocker, their director, to inform her of the conversation. Blocker called her assistant, Kim Windham, and asked her to contact Gammage.

¶ 4. Windham testified that her conversation with Gammage became heated. Gammage was not pleased that Windham, rather than Blocker, had called her at home on her day off. Windham suggested that Gammage come to the hospital so that Gammage, Windham, and Blocker could discuss the situation with the hospital administrator, Mr. Posey. Gammage declined. She said that she did not want to come to the hospital, because she had just washed her hair, and it was cold outside.

¶ 5. Posey, Windham, and Blocker met to discuss the phone conversation between Windham and Gammage. Initially, they decided to issue Gammage a written warning, because they believed she was disrespectful to Windham.

¶ 6. Before the written warning was prepared, Gammage and Blocker spoke on the phone. Blocker testified that Gammage told her that Windham was not her supervisor and should not call her at home on [1296]*1296her day off. Gammage denied making this comment. Blocker also said that Gam-mage raised her voice during this conversation. Gammage denied raising her voice. Blocker testified that she told Gam-mage more than once to calm down. Then, Blocker told Gammage that she was fired. Blocker testified that she fired Gammage for insubordination and improper conduct. Blocker admitted that Gam-mage did not refuse to do anything that she was asked to do.

¶ 7. On May 4, 2011, Gammage was officially terminated from her employment with the hospital for insubordination and improper conduct. Gammage filed for unemployment benefits with MDES. This appeal considers whether it was proper for MDES to deny Gammage’s claim for unemployment benefits.

STANDARD OF REVIEW

¶8. When this Court reviews administrative-agency decisions, the standard of review is that “[a]n agency’s conclusions must remain undisturbed unless the agency’s order[:] 1) is not supported by substantial evidence, 2) is arbitrary or capricious, 3) is beyond the scope or power granted to the agency, or 4) violates one’s constitutional rights.” Maxwell v. Miss. Emp’t Sec. Comm’n, 792 So.2d 1031, 1032 (¶ 7) (Miss.Ct.App.2001) (citation omitted). Upon judicial review, “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 the court shall be confined to questions of law.” Miss. Code Ann. § 71-5-531 (Rev.2011). Because we find that MDES’s order to deny Gammage unemployment benefits was not appropriate under the facts, we reverse the circuit court’s judgment.

DISCUSSION

¶ 9. Mississippi Code Annotated section 71-5-513(A)(l)(b) (Supp.2012) provides that if an employee is discharged for misconduct, she is not eligible for unemployment benefits. Gammage argues that she was not guilty of misconduct. To deny unemployment benefits, the employer has the burden of showing “by substantial clear and convincing evidence” that the former employee’s actions amounted to disqualifying misconduct. City of Clarksdale v. Miss. Emp’t Sec. Comm’n, 699 So.2d 578, 580 (Miss.1997) (quoting Foster v. Miss. Emp’t Sec. Comm’n, 632 So.2d 926, 927 (Miss.1994)).

¶ 10. The Mississippi Supreme Court has defined misconduct as:

[Cjonduct 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 [fall] within the term.

Wheeler v. Arriola, 408 So.2d 1381, 1383 (Miss.1982) (citation omitted). This Court noted that “whenever analyzing ‘misconduct,’ we not only assess violations of an employer’s stated policy, but we also consider all action (or inaction) which could be expected of the employee, and which affects the interests of the employer, regardless of whether such actions are included within the stated policy.” Miss. Emp’t Sec. Comm’n v. Percy, 641 So.2d 1172, 1175 (Miss.1994).

A. Gammage’s conduct did not amount to insubordination, and her actions did not violate the employee handbook.

¶ 11. Gammage contends that her behavior did not amount to insubordina[1297]*1297tion. Throughout the hearing, the hospital insisted that Gammage was terminated for insubordination. On the notice to employer of the claim filed and request for information filed by the hospital, the hospital stated that insubordination was the reason for Gammage’s termination from employment.

¶ 12. Under the hospital’s employee handbook, two instances of insubordination may result in dismissal. The handbook divides the various offenses an employee can commit into categories. Certain offenses warrant immediate dismissal. However, a number of offenses, classified as “category-two” offenses, require two violations before the employee may be dismissed. Category-two offenses include:

1. Insubordination
2. Failure to follow supervisor[’]s instructions
3. Violation of safety rules in absence of a threat to human life
4. Unauthorized absence without reasonable and justifiable cause
5. Failure to report to work without appropriate notification to supervisor
6. Leaving the work site without permission
7. Unauthorized use of hospital property or record.

At the hearing, the hospital offered a copy of the handbook and a certification, signed by Gammage, that acknowledged she understood it was her responsibility to read the handbook.

¶ 13.

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