Shelli D. Bounds v. Mississippi Department of Employment Security ( 2018 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2017-CC-01515-COA
SHELLI D. BOUNDS APPELLANT
v.
MISSISSIPPI DEPARTMENT OF APPELLEES
EMPLOYMENT SECURITY AND SAL-LIZ, INC.
DATE OF JUDGMENT: 10/05/2017
TRIAL JUDGE: HON. STEVE S. RATCLIFF III
COURT FROM WHICH APPEALED: RANKIN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: KYLE BOYD AINSWORTH
ATTORNEYS FOR APPELLEES: ALBERT B. WHITE
JAMES RANDALL BUSH
DON A. MITCHELL
NATURE OF THE CASE: CIVIL - STATE BOARDS AND
AGENCIES
DISPOSITION: AFFIRMED - 11/20/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE IRVING, P.J., GREENLEE AND TINDELL, JJ.
IRVING, P.J., FOR THE COURT:
¶ 1. The Mississippi Department of Employment Security (MDES) affirmed the denial of
unemployment benefits following Shelli Bounds’s termination from Sal-Liz Inc. Bounds
appealed to the Circuit Court of Rankin County, which affirmed MDES’s decision. Bounds
appeals again, asserting the following issues: (1) whether Sal-Liz proved that she exhibited
misconduct by substantial clear and convincing evidence; and (2) whether her alleged
behavior constitutes insubordination that rises to the level of misconduct. We find no error;
therefore, we affirm.
FACTS
¶2. On July 26, 2010, Bounds began working at Sal-Liz as a sales clerk. On December
15, 2016, she was terminated. Bounds filed for unemployment benefits. A claims examiner
determined that Bounds was terminated for committing misconduct connected with her
employment and consequently denied her benefits. Bounds appealed the denial of her claim,
and an administrative law judge (ALJ) conducted a telephonic hearing on March 14, 2017.
¶3. During the hearing, both Bounds and her former supervisor, Judy Alexander-Stamm,
testified regarding the events that occurred on the day that Bounds was terminated.
Alexander-Stamm testified that she asked Bounds—who was standing nearby reviewing an
order book—to assist a customer who had entered the store. Bounds refused. Alexander-
Stamm again asked Bounds to assist the customer. Bounds “slammed” the order book down
onto the counter. She picked up a clipboard to read the customer’s name, then “threw the
clipboard across the counter.” A little while later, Bounds went to the break room to have
her lunch. Alexander-Stamm followed her and said that she needed to talk to Bounds about
her behavior in front of the customers. Bounds replied that she was busy and to leave her
alone. Alexander-Stamm reasserted that she needed to talk to Bounds, and Bounds again
refused. At this point, Alexander-Stamm instructed Bounds to go home. Bounds repeatedly
asked Alexander-Stamm if she was firing her until Alexander-Stamm finally stated that she
was. Alexander-Stamm testified that Bounds was ultimately discharged “[f]or her behavior
and insubordination, [and] lack of following instructions.” Alexander-Stamm maintained
that she had not initially intended on firing Bounds, but that when Bounds continued to
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refuse to follow instructions, she had no choice but to fire her.
¶4. When asked whether she had ever had problems with Bounds before that date,
Alexander-Stamm replied, “We always had a b-ah, she never would um . . . really help the
customers. We would always have to go and ask her to help, and . . . sometimes she would
just bury herself in the stockroom and just, you know, uh kind of hide to keep from helping
customers. It was a[n] ongoing problem.” Alexander-Stamm further maintained that while
Bounds had “never really had an, an outburst of anger like [that] before,” she had previously
refused to help customers and refused to follow orders. Alexander-Stamm stated that she had
spoken with Bounds about that behavior before.
¶5. Bounds testified to a largely similar version of events occurring on December 15,
2016, but maintained that she did not slam the order book down or throw the clipboard across
the counter. Bounds admitted that she refused to speak to Alexander-Stamm in the break
room; however, she maintained that Alexander-Stamm never confirmed that she was actually
firing her. Bounds also asserted that she had never been formally reprimanded prior to this
incident. Bounds’s sister, Theresa Borne, testified on behalf of Bounds. She agreed that
Bounds’s action of closing the book “made a loud sound,” but she denied that Bounds
slammed the clipboard onto the counter.
¶6. Following the hearing, the ALJ found that Bounds had exhibited misconduct in that
she displayed inappropriate behavior after being instructed to assist a customer, and further
displayed inappropriate behavior when Alexander-Stamm tried to speak with her about her
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behavior. Consequently, the ALJ denied unemployment benefits to Bounds. Bounds
appealed to the MDES Board of Review (Board), which adopted the findings of fact and
opinion of the ALJ and affirmed her decision. Bounds filed a notice of appeal and petition
for review with the Circuit Court of Rankin County, which affirmed the Board’s decision.
Bounds timely appealed.
DISCUSSION
¶ 7. “The standard of review in cases where this Court examines the circuit court’s
judgment affirming the Board’s decision is abuse of discretion.” Windham v. Miss. Dep’t
of Emp’t Sec., 207 So. 3d 1249, 1251 (¶8) (Miss. Ct. App. 2017). “An agency’s findings
should not be disturbed unless its order is: (1) not supported by substantial evidence, (2)
arbitrary or capricious, (3) beyond the scope or power granted to the agency, or (4) violative
of the claimant's constitutional rights.” Id.
¶8. Mississippi Code Annotated section 71-5-513(A)(1)(b) (Supp. 2016) provides that an
individual shall be disqualified from receiving unemployment benefits if “[s]he was
discharged for misconduct connected with [her] work . . . .” 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, came within the term. Mere inefficiency, unsatisfactory
conduct, failure in good performance as the result of inability or incapacity, or
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inadvertences and ordinary negligence in isolated incidents, and good faith
errors in judgment or discretion were not considered “misconduct” within the
meaning of the statute.
Wheeler v. Arriola, 408 So. 2d 1381, 1383 (Miss. 1982). “The employer bears the burden
of proving misconduct by substantial, clear, and convincing evidence.” Kidd v. Miss. Dep’t
of Emp’t Sec., 202 So. 3d 1283, 1285 (¶6) (Miss. Ct. App. 2016).
¶9. Bounds contends that Sal-Liz presented insufficient evidence to prove by substantial,
clear, and convincing evidence that she demonstrated misconduct, such that her
unemployment benefits should be denied. However, we disagree. During the hearing, both
Alexander-Stamm and Bounds testified to largely similar versions of the facts later
delineated by the ALJ in her opinion. While Bounds contested Alexander-Stamm’s
testimony that she “slammed” the book onto the counter or threw the clipboard, she admitted
that she refused to speak to Alexander-Stamm in the break room. Borne testified that while
Bounds did not slam the book, the act of closing it “made a loud sound.” Further, Sal-Liz
provided sworn affidavits of Ouida Alsup, the owner of Sal-Liz and Alexander-Stamm’s
mother, and Debbie Campbell, a fellow employee who witnessed the latter half of events that
occurred in the break room. Both Alsup and Campbell confirmed the version of events given
by Alexander-Stamm. Campbell further stated that Bounds had previously expressed that
she refused to quit and that “she wanted to get fired so that every time they wrote a check,
the store would know they were paying her.”
¶10. Bounds also maintains that her conduct was not insubordination rising to the level of
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misconduct as required by section 71-5-513(A)(1)(b). “Insubordination is defined as a
constant or continuing intentional refusal to obey a direct or implied order, reasonable in
nature, and given by and with proper authority.” Gammage v. Miss. Dep’t of Emp’t Sec., 113
So. 3d 1294, 1297 (¶13) (Miss. Ct. App. 2013). “Insubordination may rise to the level of
misconduct on certain occasions.” Id. at (¶15). An isolated incident is not a constant or
continuing intentional refusal; however, “[t]his Court has held that when an employee
repeatedly refuses to perform a task she was ordered to perform and curses at her supervisor,
she has committed misconduct through her insubordination.” Id. (citing Miss. Emp’t Sec.
Comm’n v. Hudson, 757 So. 2d 1010, 1014-15 (¶12) (Miss. Ct. App. 2000)).
¶11. Here, the record reflects that Bounds exhibited insubordination in the form of a
continuing intentional refusal to obey a direct or implied order, both on the day of the
incident and prior to it. Alexander-Stamm testified during the hearing that Bounds was
notorious for avoiding customers and that she had previously refused to assist them and
refused to follow instructions. While Alexander-Stamm acknowledged during the hearing
that the store had no written policy mandating employees to voluntarily assist customers, she
maintained that it was the common practice of their store to do so. Additionally, the record
contains a request for information sent to Sal-Liz from the MDES after Bounds filed for
unemployment benefits; in the explanation for why benefits should be denied, Alexander-
Stamm wrote that the employees had been advised on December 11, 2016, that the store
would be enacting hourly cutbacks due to slow sales. Alexander-Stamm maintained that
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since learning about the cutbacks until her ultimate termination on December 15, 2016,
“Bounds was rude, sullen and non-responsive to questions and request[s] to help customers.”
This evidence, taken together, demonstrates a pattern of refusal to obey orders, and
constitutes insubordination.
¶12. Bounds contended during the hearing that in her six years of working at Sal-Liz, she
had “never been written up or reprimanded” and that she had received a good evaluation a
month or two prior to the date on which she was terminated. However, we deem that fact
immaterial. The evidence suggests that Bounds was, in fact, insubordinate on more than one
occasion. Accordingly, we see no reason to disturb the Board’s decision to deny
unemployment benefits.
¶13. AFFIRMED.
LEE, C.J., GRIFFIS, P.J., BARNES, CARLTON, FAIR, WILSON,
GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.
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