APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY STATE A TE OF MISSISSIPPI ORAL ARGUMENT NOT REQUESTED

Transcription

1 E-Filed Document Sep :30: CC Pages: 22 IN THE SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI JACKSON COUNTY, MISSISSIPPI BOARD OF SUPERVISORS vs. VS. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY AND MARGARET CHAPMAN APPELLANT CAUSE NO CC CC-0092S APPELLEES BRIEF OF APPELLEE MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY STATE A TE OF MISSISSIPPI ORAL ARGUMENT NOT REQUESTED OF COUNSEL: ALBERT BOZEMAN WHITE ASSISTANT ANT GENERAL COUNSEL MS BAR NO ANNA CRAIN CLEMMER STAFF ATTORNEY MS BAR NO MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY SECURlTY POST OFFICE BOX 1699 JACKSON, MS Telephone: (601) Facsimile: (601)

2 TABLE OF CONTENTS TABLE OF CONTENTS....i CERTIFICATE OF INTERESTED PERSONS....ii TABLE OF CASES AND OTHER AUTHORITIES iii STATEMENT OF THE ISSUE... I STATEMENT OF THE CASE... 1 SUMMARY OF THE ARGUMENT... 6 ARGUMENT... 8 Standard of Review... 8 Facts... 8 Case Authorities CONCLUSION CERTIFICATE OF SERVICE... 17

3 IN THE SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF THE ST ATE OF MISSISSIPPI JACKSON COUNTY, MISSISSIPPI BOARD OF SUPERVISORS vs. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY AND MARGARET CHAPMAN APPELLANT CAUSE NO TS APPELLEES CERTIFICATE OF INTERESTED PARTIES The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the justices of the Supreme Court and/or the judges of the Court of Appeals may evaluate possible disqualification or recusal. 1. Mississippi Department of Employment Security, Appellee 2. Albert Bozeman White, Assistant General Counsel for Appellee 3. Anna Crain Clemmer, Staff Attorney for the Appellee 4. Ryan A. Frederic, Attorney for the Appellant 5. Calvin Taylor, Attorney for the Claimant 6. Hon. Richard W. McKenzie, Forrest County Circuit Court Judge, Ret. This thel lth day of September, Isl Albert Bozeman White Albert Bozeman White Assistant General Counsel (MSB #7132) Mississippi Department of Employment Security Anna Crain Clemmer Staff Attorney (MSB #104279) Mississippi Department of Employment Security ii

4 TABLE OF CASES AND OTHER AUTHORITIES CASES PAGE Allen v. Mississippi Employment Security Commission, So.2d 904 (Miss. 1994) Barnett v. Mississippi Employment Security Commission,~ So. 2d 193 (Miss. 1991) Booth v. Mississippi Employment Security Commission,~ So.2d 422 (Miss. 1991) Brandon v. Mississippi Employment Security Commission" So.2d 341 (Miss. 2000) Campbell v. Mississippi Employment Security Commission,~ So.2d 751 (Miss. Ct. App. 2000) Claiborne v. Mississippi Employment Security Commission,~ So.2d 698 (Miss. Ct. App. 2004) Curtis v. Mississippi Employment Security Commission,~ Miss. Leis 586 (Miss. Ct. App. 1998) Gordon v. Mississippi Employment Security Commission"... 6,7, So.2d 1013 (Miss. Ct. App. 2000) Jackson County Board of Supervisors v. Miss. Emp. Sec. Comm'n, So.3d 197 (Miss. Ct. App. 2012) Kemper County School District v. Miss. Emp. Sec. Comm'n, So.2d 548 (Miss. 2002) Mississippi Employment Security Commission. v. Hudson, So.2d 1010 (Miss. Ct. App. 2000) Mississippi Employment Security Commission v. Noel, So.2d 728 (Miss. Ct. App. 1998) Reeves v. Mississippi Employment Security Commission, So.2d 1178 (Miss. Ct. App. 2002) Richardson v. Mississippi Employment Security Commission, So.2d 31 (Miss. 1992) iii

5 Shannon Engineering v. Missississippi Employment Security Comm'n, So.2d 446 (Miss. 1989) Sherman v. Mississippi Employment Security Commission,~ So.2d 398 (Miss. 2008) Wheeler v. Arriola,... 3, 6, So. 2d 1381 (Miss. 1982) OTHER AUTHORITIES Mississippi Code Annotated Mississippi Code Annotated... 1, (A)(I)(b) Mississippi Code Annotated (A)(I)(c) Mississippi Code Annotated MDES Rules and Regulations... 5 Regulation iv

6 IN THE SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI JACKSON COUNTY, MISSISSIPPI BOARD OF SUPERVISORS VS. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY AND MARGARET CHAPMAN APPELLANT CAUSE NO CC APPELLEES BRIEF OF APPELLEE, MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY STATEMENT OF ISSUE Whether the Board of Review decision should be affinned, finding that the Employer, JACKSON COUNTY BOARD OF SUPERVISORS, failed to prove by substantial, clear and convincing evidence that the Claimant, MARGARET CHAPMAN, committed disqualifying misconduct, pursuant to Mississippi Code Annotated Section (A)(l)(b), due to alleged insubordination and poor work perfonnance? STATEMENT OF THE CASE MARGARET CHAPMAN [hereinafter also "Claimant"] was employed by JACKSON COUNTY BOARD OF SUPERVISORS [hereinafter also "Employer"] for over eight (8) years as a Drug Court Case Manager, until she was tenninated effective November 25, (R. Vol. 2, p. I, 5). She was discharged due to alleged insubordination and poor work perfonnance, by allegedly failing to collect fees and failing to report to the Circuit Judge, as instructed. (R. Vol. 2, p. 8-9, 32-36, Employer Exhibit 2, p. 98).

7 After her termination, Ms. Chapman filed for unemployment benefits. (R. Vol. 2, p. 1). Claims Examiner investigated. (R. Vol. 2, p. 7-9). Ms. Chapman and an Employer Human Resource Assistant were interviewed. (R. Vol. 2, p. 7-9). The Employer representative stated that Ms. Chapman was discharged due to insubordination. No other information was provided. (R. Vol. 2, p. 8-9). Ms. Chapman stated she was discharged due to insubordination, but said that she had only been warned twice in 8 years. She also was unaware of any final incident. Based on this investigation, the Claims Examiner determined that the Employer failed to prove that Ms. Chapman was discharged due to misconduct. (R. Vol. 2, p. 10). The Employer appealed. (R. Vol. 2, p. 12). A hearing was noticed and held. (R. Vol. 2, p , ). Ms. Chapman testified; and was represented by Attorney Calvin Taylor. Joann Byrd, Drug Court Coordinator, testified for the Employer. The Employer also tendered six (6) exhibits into evidence. The Employer was also represented by Attorney Ryan Frederic, and Tommy Long observed only. Afterwards, the Administrative Law Judge [hereinafter also "ALJ"] found that as a Drug Court Case Manager, the Claimant's duties included collecting fees from participants and reporting participant interviews to the Circuit Judge. The ALJ further found that she was warned in September 2013, and asked to improve her collections. The ALJ found that she did so, having the highest collection rate for September and October Regarding alleged failure to report to the Circuit Judge, the ALJ found that no warnings were issued for failing to report; and after being told to develop a form to report to the Judge, she did so. The ALJ further found that no proof was presented that failing to report was still a problem in The ALJ further found that although she allegedly attended outside the office participant 2

8 events without pennission, Ms. Chapman testified that she did infonn the Judge, or obtain pennission. Thus, the AU concluded that the Employer failed to prove that Ms. Chapman was insubordinate, or that her alleged repeated poor work perfonnance rose to the level of misconduct; and affinned. CR. Vol. p ). The Employer appealed to the Board of Review. CR. Vol. 2, p. 136). Based on the record, after careful review, the Board of Review affinned adopting the AU's Fact Findings and Decision. CR. Vol. 2, p ). The AU's fact findings and decision were in pertinent part as follows, to-wit: Findings of Fact The claimant worked as the drug court case manager from August 29, 2005 until [sp 1 November 21, 2013, for Jackson Count Drug Court, Pascagoula, Mississippi. The claimant was required to collect fees from drug court participants. The claimant's fee collection was less than the other four courts in her area. Fees are how the employer funds drug court. The claimant's fee collection concerned the employer over funding and the claimant was asked to improve her collections. The claimant was issued the warning about fee collection in September The claimant improved her collections to the point she had the highest arnount of fees collected in her area in September and October The drug court holds fun events for participants. Some of these events were during working hours. The claimant as a case manager went to some of these events. The claimant had pennission from the judge to attend the events. No dates were available for the fun events the claimant attended in The claimant failed to report to the judge less than half of the candidates to be interviewed for drug court in No warning was issued to the claimant advising her job was in jeopardy over failing to report the candidates to the judge. The claimant's judge was concerned he was not notified about infonnation with regards to participants in drug court. The claimant was warned by the employer in September 2013, to develop a fonn to assist in giving the judge infonnation on participants. The claimant developed the fonn as instructed and the fonn allowed the judge to have the infonnation needed for drug court participants. 3

9 The employer reviewed her record for the last months of her employment and discharged the claimant for her performance and alleged insubordination November 21, Reasoning and Conclusion Section A (I) (b) of the Mississippi Employment Security Law provides that an individual shall be disqualified for benefits for the week or fraction thereof which immediately follows the day on which he was discharged for misconduct connected with the work, if so found by the Department, and for each week thereafter until he has eamed remuneration for personal services equal to not less than eight times his weekly benefit amount as determined in each case. Section A (I) 8 provides that in a discharge case, the employer has the burden to establish the claimant was discharged for misconduct connected to the employment. Section (b) 2 (IV) of the Law provides that "payments due by the employer who elects to reimburse the fund in lieu of contributions as provided in this subsection, may not be noncharged under any conditions. The reimbursement must be on a dollar for dollar basis (one dollar ($1.00) reimbursement for each dollar paid in benefits) in every case." The Mississippi Supreme Court held in the case of John McLauren, ET. AL., Trustees of Newton County Unit School District vs. Mississippi Employment Security Commission and Terry W. McElheney, 435 So. 2d 1170 (Miss. 1983), that employers who choose to be reimbursable cannot be granted a non-charge under an circumstances. In the Mississippi Supreme Court, in the case of Wheeler vs. Arriola, 408 So. 2d 1381 (Miss. 1982), the Court held that: "The meaning of the term 'misconduct', as used in the Unemployment Compensation Statute, was conduct evincing such willful and wanton disregard of the employer's interest as is found in deliberate violations or disregard of the standards of behavior which the employer has the right to expect from his employees. 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. unsatisfactorv conduct. failure in good performance as the result of inability or incapacity. or inadvertencies and ordinary negligence in isolated incidents. and good faith errors in judgment or discretion were not considered 'misconduct' within the meaning of the Statute." (Emphasis added). 4

10 MDES Regulation 308: Mississippi Department of Employment Security Regulation provides that: A. For purposes of Mississippi Code Section , misconduct shall be defined as including but not limited to: 1. The failure to obey orders, rules or instructions, or failure to discharge the duties for which an individual was employed; a. An individual shall be found guilty of employee misconduct for the violation of an employer rule only under the following conditions: I. the employee knew or should have known of the rule; ii. the rule was lawful and reasonably related to the job environment and performance; and iii. the rule is fairly and consistently enforced. 2. A substantial disregard of the employer's interests or of the employees duties and obligations to the employer; 3. Conduct which shows intentional disregard - or if not intentional disregard, utter indifference - of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of the employee; or 4. Carelessness or negligence of such degree or recurrence as to demonstrate wrongful intent. The claimant was warned in September 2013, to improve her collections and to provide more information to the judge about drug court participants. The claimant heeded the warning and improved her performance in these areas. Improvement in these areas show the claimant is following instructions as opposed to being insubordinate. The claimant advised the judge she was leaving for fun events and had his permission to do so. The claimant did fail to inform the judge of all of the participants. However, this occurred in 2012, and nothing was presented to show it was a problem in This also shows improvement and adherence to instructions. Insufficient evidence was presented by the employer to prove the claimant was insubordinate or that her performance on the job constituted work connected misconduct. Decision Affirmed. If otherwise eligible, the claimant is entitled to the receipt of benefits based on her reason for separation from employment. The employer is liable to reimburse the Department for benefits paid to the claimant based on this issue. (R. Vol. 2, p ). The Employer then appealed to the Circuit Court. (R. Vol. 2, p ). On May 2,2014, the MDES filed its Answer and the record transcript. (R. Vol. I, p. 9-1 I). On May 22, 2014, Judge 5

11 Richard McKenzie, sitting as a specially appointed Judge, wrote counsel for the MDES and Employer stating that he had reviewed the transcript, including pleadings, orders and exhibits; and asked if counsel had anything further to submit to him. Subsequently, on June 6, 2014, Judge McKenzie entered his Order affinning the MDES decision. (R. Vol. I, p ). The Employer then appealed to this Honorable Court. (R. Vol. I, p ). SUMMARY OF THE ARGUMENT The Mississippi Supreme Court and Court of Appeals have recognized certain circumstances that do not constitute misconduct under the Employment Security Law, even though the employer may be justified in, or have a right to, discharge the employee. Brandon v. Mississippi Employment Security Comm'n, 768 So. 2d 341 (Miss. 2000); Campbell v. Mississippi Employment Sec. Comm'n. 782 So. 2d 751 (Miss. Ct. App. 2000); Gordon v. Mississippi Employment Security Comm'n 864 So. 2d 1013(Miss Ct. App. 2000); Shennan v. Mississippi Employment Sec Comm'n, 989 So. 2d 398 (Miss 2008). In defining misconduct in Wheeler vs. Arriola, 408 So. 2d 1381 (Miss. 1982), the Court also stated the general considerations as to what would not be considered misconduct. Specifically, the Court stated that... "Mere inefficiency. unsatisfactory conduct. failure in good perfonnance as the result of inability or incapacity. or inadvertencies and ordinary negligence in isolated incidents. and good faith errors in judgment or discretion were not considered misconduct' within the meaning of the Statute." Id. Regarding disqualification from receiving benefits due to insubordination, the Employer must establish that the employee constantly and continued to disobey a direct or implied order, given with proper authority. Shannon Engineering & Constr.. Inc. v. Mississippi Employment Security Commission, 549 So.2d 446, 450 (Miss. 1989). Miss Employment Security Comm'n v. 6

12 Noel, 712 So. 2d 728 (Miss. Ct. App. 1998); Gordon v. Miss Employment Security Comm'n, 864 So. 2d 1013 (Miss. Ct. App. 2004). In this case, the Employer representative testified that Ms. Chapman was discharged for three reasons, i.e. failing to collect sufficient Drug Court participant fees, failing follow Judge Krebs instruction to report participant interviews to him, and attending outside the office Drug Court events, without his permission. However, Ms. Chapman testified that she did improve her collections, prepared up to 30 page reports to the Judge, and discussed participant interviews with him, and obtained permission to go to outside the office Drug Court events, after being instructed to do so. She also had only been written up once in 8 years of employment. Further, Judge Krebs did not testify to contradict Ms. Chapman's testimony that she made good faith efforts to comply, and did comply with his requests, after being counseled by the Drug Court Coordinator. Based on the record, the testimony and documents do not support a finding that the Employer proved misconduct by clear and convincing, substantial evidence due to Ms. Chapman's failure to follow instructions or improve her work performance, when instructed to do so. Further, it is apparent from the testimony that Ms. Chapman did not repeatedly deliberately, or willfully and wantonly, disobey a direct order given by Judge Krebs, at least after being counseled on one occasion. Ms. Chapman tried to perform her job duties properly, even though she may sometimes fall short of performing to the Employer's standards. Failing to perform to the Employer's standards due to good faith errors, or inability, does not constitute misconduct. Thus, based on the case authorities cited above, and testimony, the Circuit Court and Board of Review decisions finding that the Employer failed to meet its burden of proving misconduct should be affirmed. 7

13 ARGUMENT Standard of Review The Employer's appeal is governed by Mississippi Code Annotated Section (Rev. 1995), which provides for an appeal to this Court by any party aggrieved by the decision of the Board of Review. Section states that the appeals court shall consider the record made before the Board of Review and, absent fraud, shall accept the findings of fact if supported by substantial evidence, and the correct law has been applied. (emphasis added). Richardson v. Mississippi Employment Security Commission, 593 So.2d 31 (1992); Barnett v. Mississippi Employment Security Commission, 583 So.2d 193 (Miss. 1991); Booth v. Mississippi Employment Security Commission, 588 So.2d 422 (Miss. 1991). Further, a rebuttal presumption exists in favor of the Board of Review's decision and the challenging party has the burden of proving otherwise. Allen v. Mississippi Employment Security Commission, 639 So.2d 904 (Miss. 1994). The appeals court must not reweigh the facts nor insert its judgment for that of the agency. Id. Facts In the instant case, Joann Byrd, Drug Court Coordinator, testified for the Employer. (R. Vol. 2, p. 29). Ms. Byrd testified that Ms. Chapman was employed eight and one-half years from August 29, 2005, to November 21, 2013, as a Drug Court Case Manager. She was discharged for failing to follow directives from the Circuit Judge to whom she was assigned. Further, her duties were outlined in Employer Exhibit C, which was entered into evidence as Employer Exhibit 3. (R. Vol. 2, p. 31, Employer Exhibit 3, p. 99). She was also discharged because her collection of participant fees was poor. (R. Vol. 2, p. 31). Ms. Byrd explained that Employer Exhibit J (entered into evidence as Employer Exhibit 6) 8

14 reflected the fees collected by other Drug Court Case Managers. Ms. Byrd also stated that a comparison showed that her numbers were smaller on most months. (R. Vol. 2, p. 33, Employer Exhibit 6, p. (29). Ms. Byrd further testified that Ms. Chapman was discharged for failing to report participant interviews to Judge Krebs. Ms. Byrd explained that because her interview reporting was unsatisfactory, at Ms. Byrd's request, Ms. Chapman developed a form to be completed weekly. However, Judge Krebs told her that he still was not getting the reports from her. In that regard, she reported 23 weeks for 2012, and 15 weeks for 2013 to date. There were 44 weeks in which she should have reported, presumably for (R. Vol. 2, p ). Ms. Byrd explained that they also drug test according to the system Drug tests were performed in the holding cell, because it had a bathroom to take urine samples. Ms. Byrd found that Ms. Chapman was doing Breathalyzer tests in the public corridor, even though the holding cell was the established area to do that. She was counseled about that. (R. Vol. 2, p ). That occurred over three years ago, and they did not write her up. (R. Vol. 2, p. 37). The ALI then questioned Ms. Byrd on the relevance of something that occurred three years ago, when there were no present complaints about that. Ms. Byrd stated that there were two more times this occurred, but again it was over three years ago, too. (R. Vol. 2, p ). Ms. Byrd also stated that she had no authority to discipline Ms. Chapman. However, she did speak to the Judge about this incident. The Judge told her to suspend Ms. Chapman the next time; but Ms. Chapman never did it again. (R. Vol. 2, p ). When questioned as to why Ms. Chapman was not disciplined in writing, Ms. Byrd could only say that the Judge said not to document the problem. (R. Vol. 2, p ). 9

15 As to another circumstance that was unsatisfactory, Ms. Byrd explained that Ms. Chapman was out of the office to attend extracurricular activities, without the Judge's permission. Ms. Byrd explained that Drug Courts conduct outside activities, such as parties and cookouts. Judge Krebs was not happy that Ms. Chapman went to those without his permission. Ms. Byrd explained that she had been told to clear each event with Judge Krebs prior to going. On three different occasions, she did not, and he was upset. (R. Vol. 2, p ). These things occurred within the last 18 months. Ms. Byrd elaborated further that when Ms. Chapman failed to report participant interviews to Judge Krebs, she was asked to develop a form to do so, which she did. However, on September 12,2013, she questioned a participant in Court on matters for which she had failed to inform Judge Krebs prior to Court. He was displeased about that. (R. Vol. 2, p ). Judge Krebs told Ms. Byrd to meet with Ms. Chapman and counsel her. Ms. Byrd stated that Ms. Chapman did not improve thereafter. (R. Vol. 2, p ). She also claimed that she told Ms. Chapman on six different occasions that her job was in jeopardy for failing to communicate with the Judge and collect the fines. (R. Vol. 2, p. 43). She was told this within the last 18 months. (R. Vol. 2, p. 44). Judge Krebs discharged Ms. Chapman. (R. Vol. 2, p. 45). Ms. Byrd also stated that she was not aware of a last or final incident resulting in Ms. Chapman's termination. She assumed her discharge was due to her track record. If she had to pinpoint a final incident, was probably Ms. Chapman going to other Drug Court outside events without Judge Krebs permission during the Fall of20i3. (R. Vol. 2, p. 46). On cross-examination, Ms. Byrd stated that regarding the fees indicated as collected on Employer Exhibit J, Ms. Chapman did generate more fees for October 2013, even though she had 10

16 one less participant. (R. Vol. 2, p ). Ms. Byrd also acknowledged that if a participant did not pay, the consequences of failing to pay were up to Judge Krebs. (R. Vol. 2, p ). Ms. Byrd also acknowledged that there was no written policy regarding failure to collect the fees adequately, so she was not written up for that. However, Judge Krebs did question her and then admonish her about it. (R. Vol. 2, p ). Again, referring to Employer Exhibit J, Ms. Byrd acknowledged that Ms. Chapman had three fewer participants for May of2013, but collected more fees. Additionally, she acknowledged that for six out of twelve months in 2013, Ms. Chapman was either first or second on the list in collections. However, Ms. Byrd explained that she reviewed Ms. Chapman's collections record, and some of the participants did not pay for up to six months, and then paid in a lump sum. (R. Vol. 2, p , 129). Ms. Byrd also stated that she did not know about specific information that Ms. Chapman failed to report to Judge Krebs. She was only aware of one incident recently, when Ms. Chapman failed to tell Judge Krebs before Court about questioning of a participant. (R. Vol. 2, p ). Regarding the form that Judge Krebs asked her to develop for reporting participant interviews, Ms. Byrd stated that Ms. Chapman did develop that form in September of However, she was unaware of whether Ms. Chapman completed it, and met with the Judge. (R. Vol. 2, p ). The Employer's attorney also conducted direct examination of Ms. Byrd. (R. Vol. 2, p. 63). The Employer's exhibits were admitted into evidence. Ms. Byrd further stated that on September 12,2013, she met with Ms. Chapman to discuss failure to complete all of the reports. (R. Vol. 2, p ). The hearing was recessed, and then reconvened beginning with Ms. Chapman's testimony. (R. Vol. 2, p ). 11

17 Ms. Chapman acknowledged that she was a Drug Court and Veteran Court Case Manager. (R. Vol. 2, p. 71). Her last day of work was November 25, (R. Vol. 2, p. 71). She was discharged by Judge Krebs for insubordination. (R. Vol. 2, p ). Regarding her alleged failure to inform and get permission from Judge Krebs for attending outside events, Ms. Chapman stated that she did tell Judge Krebs when she was going to an event, such as a ball game, graduation, or party. She also asked Judge Krebs if he needed anything for Court before doing so. (R. Vol. 2, p ). She attended maybe five of these events in 2013, and some in 2012 as well. (R. Vol. 2, p ). She explained that she would tell him the day before, and ask that he call her by cell if needed. She did not know of any problems, because she was doing so. (R. Vol. 2, p ). She was never warned or disciplined for doing so. (R. Vol. 2, p. 77). Ms. Byrd was Drug Court Coordinator. She was Ms. Chapman's supervisor. She did talk to her about concerns and developing the form. (R. Vol. 2, p. 77). The meeting occurred on September 6, after Drug Court. Ms. Byrd told her that she was not getting enough info, and Judge Krebs wanted a report. They came up with a form on September 12, and she ed that to Judge Krebs every Monday. The report was sometimes 30 pages each week. (R. Vol. 2, p ). Ms. Chapman acknowledged that she had been told before to communicate, and she did by meeting with Judge Krebs before court. (R. Vol. 2, p ). Regarding collections, she kept track of the collections. She told the participants to pay, but had no authority to force them to do so. She did complete the form, so Ms. Byrd would know her collections. She did collect the most fees five times, and second most four times over 24 months. Judge Krebs was to discipline the participants if they failed to pay their fee timely. (R. Vol. 2, p. 12

18 81-83). She never excused anyone for not paying timely. That had to be done by the Judge. (R. Vol. 2, p ). Ms. Chapman further stated that fines and fees was a big topic, because that is how Drug Court is funded. (R. Vol. 2, p ). Only Judge Krebs disciplined participants for failing to pay. Further, she was never warned, but was discussed; and she reported any participant failure to pay to the Judge. (R. Vol. 2, p ). Ms. Chapman was also questioned about any warnings as to her work performance, or getting information to the Judge. She was warned once in the last 18 months. (R. Vol. 2, p ). She was also told by Ms. Byrd that Judge Chapman was going to fire her if she did not make or get reports to him, so she did that. (R. Vol. 2, p. 87). Regarding to outside events, in November 2013 she attended a Drug Court graduation. Beforehand, she also went to Judge Krebs's office after completing her work, and asked if he needed anything, and permission to go. (R. Vol. 2, p ). Ms. Chapman also testified that Judge Krebs had never warned her about her work performance. (R. Vol. 2, p. 89). The ALl also questioned Ms. Chapman about how a person becomes a Drug Court participant. (R. Vol. 2, p ). Judge Krebs sometimes instructed her to interview someone for eligibility. (R. Vol. 2, p. 91). She was also questioned about getting info to Judge Krebs in September 2013 on a participant. She prepared a report and talked to him about the participant. (R. Vol. 2, p. 92). She often prepared 30 page reports. (R. Vol. 2, p. 92). The ALl then stated that he had concluded his questioning, and gave Attorney Frederic an opportunity to question Ms. Chapman. Afterwards, Attorneys Frederic and Taylor were given the opportunity to make closing remarks. (R. Vol. 2, p ). 13

19 Case Authorities and Argument Typically to support a finding of misconduct based on poor work performance, the Employer must establish that the employee deliberately or willfully and wantonly disregarded warnings to improve, and failed to make reasonable efforts to do so. Further, to establish misconduct based on insubordination, the Employer must prove that Claimant deliberately, or willfully and wantonly, repeatedly disobeyed a direct order. See Curtis v. Mississippi Employment Security Comm'n, 1998 Miss. Leis 586 (Miss Ct. App. 1998)(fire fighter's refusal to follow supervisor's instruction until it was put in writing was insubordination because the record reflected that she had been previously informed that failure to a direct order related to a job duty would result in immediate discharge); Claiborne v. Mississippi Employment Security Comm'n, 872 So. 2d 698 (Miss. Ct. of App. 2004)(prolonged and persistent failure to perform routine duties, especially after repeated warnings, constitutes misconduct); Mississippi Employment Security Comm'n v. Hudson, 757 So. 2d 1010 (Miss. Ct. App. 2000)( Ms. Hudson's profanity, expressions of displeasure over a job assignments, and refusal to perform, rose to the level of misconduct); Reeves v. Mississippi Emplovrnent Security Commission; 806 So.2d 1178 (Miss. Ct. App. 2002)(failure to clean up parts after repeated instructions is misconduct). Conversely, where the instruction was not a direct order, with the resulting discipline well-defined for failing to follow those instructions, or the failure is not deliberate or due to wanton disregard, but ordinary negligence or inability, then insubordination and misconduct have not been established. This case is somewhat analogous to Jackson County Board of Supervisors v. Mississippi Employment Security Comm'n, 129 So. 3d 197 (Miss. Ct. App. 2012). In this case, the testimony was conflicting as to whether an administrative assistant and fair coordinator worked the number 14

20 of hours she reported, and whether she was permitted to perform fair association duties while performing other work duties. The claimant's supervisor did not testify; and the MDES found that the Employer failed to meet its burden of proving misconduct, such that the employer failed to prove that she did not actually work the hours reported, or have permission to work both jobs simultaneously at times. The Court found that while it may have ruled differently, MDES was entitled to give claimant's testimony more weight than the employer's hearsay testimony, such that the MDES decision that the employer failed to prove misconduct, should be affirmed. Similarly, the Employer failed to provide the testimony by Ms. Chapman's direct supervisor, Judge Krebs, who would have first-hand knowledge as to the factual issues. Without that testimony, the Employer failed to meet its burden of proof. Further, Ms. Chapman made good faith efforts to comply; and testified that she did comply, at least in her view, with Judge Krebs's instructions to report to him verbally and in writing, and get permission before attending outside events. Further, her collections appear to be adequate during 2013, if not leading all collections; and only Judge Krebs could discipline participants for failing to pay. Judge Krebs did not testify to refute this testimony. And in fact, since Judge Krebs did not testify, Ms. Chapman's testimony that he reported to him both in writing and verbally after being counseled, and got his permission before attending outside Drug Court events, was not controverted or contradicted. In conclusion, in addition to the Employer failing to present sufficient proof of insubordination, at worst, Ms. Chapman's actions or inactions appear to be due to inadvertence, or ordinary negligence, or good faith errors; and thus, not misconduct. See also Wheeler v. Arriola, supra (secretary was unable to perform to the employer's standards, but her failure to do was due to 15

21 inability, not misconduct); Kemper County School District v. Mississippi Emplovment Sec. Comm 'n, 832 So. 2d 548 (Miss. 2002) (failure to follow policies and accomplish numerous tasks, including depositing money daily, properly documenting records, and managing employees, did not constitute misconduct when these failures apparently resulted from ordinary negligence in isolated incidents); Gordon v. Miss. Employment Sec. Comm'n, 864 So. 2d 1013 (Miss. Ct. App. 2004) (Employer's failure to give claimant direct instruction regarding infection control policy, and consequences offailure to follow it, negated misconduct). CONCLUSION The testimony does not support a finding that the Employer proved misconduct by clear and convincing evidence due to Ms. Chapman's failure to follow instructions or improve her work performance, when instructed to do so. Further, it is apparent that Ms. Chapman did not repeatedly and deliberately violate a direct order, but tried to perform her job duties, even though she may sometimes fall short of performing to the Employer's standards. Failing to perform to the Employer's standards due to good faith errors, or inability, does not constitute misconduct. Thus, based on the case authorities cited above, and testimony, the Circuit Court and Board of Review decisions finding that the Employer failed to meet its burden of proving misconduct should be affirmed. RESPECTFULLY SUBMITTED, this the 11th day of September, MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY By: /s/ Albert Bozeman White ALBERT BOZEMAN WHITE ASSISTANT GENERAL COUNSEL 16

22 OF COUNSEL: ALBERT BOZEMAN WHITE ASSIST ANT GENERAL COUNSEL MSB No Post Office Box 1699 Jackson, MS CERTIFICATE OF SERVICE I, Albert Bozeman White, Attorney for Appellant, Mississippi Department of Employment Security, do hereby certify that I have this day electronically filed the foregoing pleading with the Clerk of the Court using the MEC filing system, which sent notification of such filing to the following: Ryan A. Fredric, Esq. Office of the Board Attorney Jackson County, Mississippi Post Office Box 998 Pascagoula, MS Calvin Taylor, Esq. Taylor Law Firm Post Office Box 0006 Pascagoula, MS I further certify that a copy of same has been mailed by U. S. mail, postage prepaid, to the following: Honorable Richard W. McKenzie Forrest County Circuit Court Judge, Ret. Post Office Box 1403 Hattiesburg, MS THIS, the~ day of September, Isl Albert Bozeman White ALBERT BOZEMAN WHITE 17