E-Filed Document May 10 2018 16:26:50 2017-CC-01515 Pages: 8

IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI

SHELL! D. BOUNDS
SHELLID. APPELLANT

vs.
VS. CAUSE NO. 2017-CC-01515
CAUSENO. 2017-CC-OI515

MISSISSIPPI DEPARTMENT OF EMPLOYMENT

SECURITY AND SAL-LIZ INC. APPELLEES

REPL
REPLYY BRIEF OF APPELLANT
ON APPEAL FROM THE CIRCUIT COURT OF
RANKIN COUNTY, MISSISSIPPI

ORAL ARGUMENT NOT REQUESTED

KYLE B. AINSWORTH, MSB # 9543

Rogers, Ainsworth && Williams, PLLC
51 , Suite B
567 Highway 51,
Ridgeland, Mississippi 39 157
(601)
(601) 969-7777
 TABLE OF CONTENTS

Table of Contents ...................................................... .......... .. .. .. ... .... ... ... ... .................................... ..1

Table of Authorities ................................................. .......... ..... .... .... .... ... .. .. ... .................................... ii

Argument. ........................................................... .. .. ...... .... ..... .... .... .. .. ... .. ...... .................................... 1

I. Response to authorities cited by Appellee ................................................. ..... ... ... ... ... ... ... 1

II . The allegations against Ms . Bounds do not constitute insubordination that rises to the level
of misconduct connected with the work ..................................................................... ... ..2

Conclusion ........................................................................................................................ ... ... ........... 4

Certificate of Service ............................................................................................................ ...... ....... 5

I.
 TABLE OF AUTHORITIES

CASES;

Acy v. Miss. Employment Sec. Comm ' n., 960 So. 2d 592 (M iss.App. 2007) ........................... ... ... 3

Gammage v. Miss. Dep't of Emp' t Sec., 113 So. 3d 1294 (Miss.App. 20 13) ............................... ..4

Gordon v. Miss. Employment Sec. Comm' n. , 864 So.2d !OI3 (Miss.App. 2004) .......................... 3

Gore v. Miss. Employment Sec. Comm ' n. , 592 So.2d 1008 (Miss. 1992) ................................... 2,3

Miss issippi Employment Sec urity Comm 'n v. Hudson, 757 So. 2d 1010
(Miss. Cl.App. 2000) ........ ...................... ...... ..... ........................................................................ 1,2,3

Shannon Engineering & Constructi on. Inc. v. Mississippi Employment

Sec. Comm' n., 549 So.2d 446 (Miss. 1989) ................................ ........ ... ....... ............................... 1,2

Si ms v. Bd. of Trustees. Holly Springs Mun. Separate School Di st., 414 So.2d 4 31
(M iss. 1982) ..................................................... ...... ........................................................................... 1

II.
 ARGUMENT

I. Response to authorities cited by Appellee.

MDES cites two cases pertaining 10 the central issue o f whether the alleged cond uct of Ms.

Bounds was insubordination and ri ses to the level of mi sconduct connected with the work. The two

cases are Shannon Engineering & Construction, Inc. v. Missi ssippi Employment Sec. Comm'n., 549

So.2d 446, 450 (M iss. 1989) and Mississippi Employment Securi ty Comm ' n v. Hudson, 757 So. 2d

lOW (Miss. Ct. App. 2000).

In Shannon, the Court adopted the de finition of insubordination as "constant or continuing

intentional refusal to obey a direct or implied order, reasonab le in nature, and given by and with

proper authority", Shannon, at 449; citing Sims v. Bd. of Trustees. Holly Springs Mun. Separate

School Di st. , 4 14 So. 2d 43 1 (Miss. 1982).

The employee in Shannon was terminated after a conversation with his employer over his job

title and responsibilities and for refusing to sign a document regarding hi s job classification. While

the Referee determined this constituted misconduct connected with the work, the Board of Review,

Circuit Court and Mississippi Supreme Co urt held such conduct was not insubordi nation that

constituted mi sconduct connected with the work. Shannon, at 448 , 450. There was no "constant

or continuing" intentional refusal in Shannon. Likewi se, Ms. Bo unds did not exhibit a constant or

continuing intentional refusal to obey an order.

Ms. Bounds assisted the customer after being told the second time when Ms. Alexander-

Stamm refused her explanation that the customer was waiting to be fitt ed by Ms. Bourne. Nor does

the incident in the break room reflect constant or continuing conduct. The testimony revealed that

when Ms. Alexande r-Stamm approached Ms. Bounds on her lunch break, Ms. Bounds said she

would not discuss the matter until her lunch break was over. Ms. Alexander- Stamm demanded that
she di scuss the incident right then and when Ms. Bounds did not immediately comply, she was fired.

(Tr. 56, 57). Thi s exchange could not have taken more than a few seconds. Additionally, Ms.

Bounds did not refuse to discuss the maUer. She refused to di scuss it during her thirty minute lunch

break. There is no indication in the record that Ms. Alexander-Stamm told Ms. Bounds that ifshe

did not immediately comply that she would be terminated. Based on the holding in Shannon, Ms.

Bounds did notexhj bit insubordination that rises to the level of mi sconduct connected with the work.

The other case cited by MDES , Mississippi Employment Security Comm'n v. Hudson, 757

So. 2d 1010 (M iss. Ct. App. 2000), is also cited by Ms. Bounds in her Brief at pages 9, 10.

Ms. Hudson was denied benefits, but the facts revealed that she had been given repeated

orders to perform an authorized and reasonab le task and she said she would not even try. Ms.

Hudson repeatedly refused to perform the assignment despite the supervi sor's attempts to teach her

how to run the station ; Ms. Hudson used extreme ly vulgar obscenities; and , Ms. Hudson's conduct

disrupted two production lines. Hudson, at 1014, 1015, (~ 1 2). The all egations against Ms. Bounds

do not compare to the actions of Ms. Hudson.

II. The allegations against Ms. Hounds do not constitute insubordination that rises
to the level of misconduct connected with the work.

In Gore v. Miss. Employment Sec. Comm ' n. , 592 So.2d 1008, 1010 (Miss. 1992), the

claimant was fired for violating heremployer' s confidentiality policy by di scussing her pay rai se and

bonus. She had been instructed that if this policy was violated, it would be grounds for immediate

dismissal. In spite of this order, Ms. Gore discussed her rai se and bonus and was fired as a result.

The Mississippi Supreme Court found th is was an isolated violation of the emp loyer's poli cy and

not a "constant or continuing" intentional refusal. As such, Ms. Gore was not denied unemployment

benefits.

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 The testimony shows that Ms. Bounds was not tenninated for constant or continuing conduct.

Ms. A lexander-Stamm testified that she did not intend to fire Ms. Bounds when she approached her

in the break room. She intended to give her an option to go home and calm down. (Tr. 57). When

Ms. Bounds told her she would not discuss the matter until after her lunch break, Ms. A lexander-

Stamm demanded that she discuss the matter now. When Ms. Bounds declined a second time, she

was immediatel y fired. (Tr. 57). This does not equate with constant or continuing conduct. It was

an iso lated, brief argument in the company break room. Further, it was not a violation of an

expressed policy as was present in the Gore case.

In Gordon v. Miss. Employment Sec. Comm' n. , 864 So.2d 1013 (Miss.App. 2004), the

employee was fired fo r violating company policy and cursing hi s supervisor. Gordon, at 1014. The

Court held Mr. Gordon was not disqualified from benefits because this was an isolated incident and

constituted a single incident of insubordination. Gordon, at 10 19, ~26. The Court also distinguished

the Hudson case, supra, by noting the employee in Hudson was guilty of repeated refusals to perform

assigned tasks and her use of profanity directed towards her supervisor and a team leader. Gordon,

at I 020, ~31. The Gordon ho lding mirrors the argument of Ms. Bounds that the allegations made

against her are distinguishable fro m the egregiousness of the allegations made in Hudson.

An iso lated incident, even though it amounts to a breach of policy, generally does not

disqualify one from unemployment benefits. In Acy v. Miss. Employment Sec. Comm ' n., 960 So.

2d 592 (Miss.App. 2007), a Wal-Mart greeter admitted using profanity in the presence o f a customer.

While the Court found the conduct was a violation ofWal-Mart ' s policies, it was an isolated incident

of misconduct which generally does not disqualify one from unemployment benefits. Acy, at 595,

~ 19. Unlike the employee in Acy, Ms. Bounds was not tenninated for violation ofa policy. When

asked by the ALl if there were policies and procedures that employees are made aware of concerning

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what is expected of them , Ms. Alexander-Stamm responded, " I don ' t think so". (Tr. 53, 54).

In Gammage v. Miss. Dep ' tofEmp't Sec., 113 So. 3d 1294 (Miss.App. 2013), the employee

worked as a laundry aide in a hospital. During her day off, she received a call from the director's

assistant regarding a dispute between Ms. Gammage and another co-worker. The conversation

became confrontational and it was suggested that Ms. Gammage corne to the hospital for a meeting

which Ms. Gammage declined. The director then spoke with Ms. Gammage on the phone. The

director testified that Ms. Gammage raised her voice and would not calm down. As a result, Ms.

Gammage was fired. The Court found that even if Ms. Gammage had refused an order to come to

the hospital for a meeti ng, this would have amounted to an iso lated incident. Gammage, at 1297,

'1J 9. Additionally, Gammage's alleged behavior at most amounted to a single incident of disrespect.
Gammage was never warned that she would be fired, nor did her conduct amount to multiple

incidences of misco nduct warranting a denial of unemployment benefits. Gammage, at 1298, ~21.

The conduct of Ms. Bounds, as alleged by Sal-Liz, is nearly parallel to the conduct alleged

in Gammage. In both cases, there is a single allegation of failing to follow an order leading to a

disrespectful conversation and termination resulting without warning. Based on the holding in

Gammage, Ms. Bounds is not guil ty of insubordination to a degree which disqualifies her from

receiv ing unemployment benefits.

CONCLUSlON

Sal-Liz, Inc. failed to prove by substantial, clear and convincing evidence that the actions of

Ms. Bounds constitute misconduct connected with the work. The decision to deny benefits is not

supported by substantial evidence of constant and continuing conduct nor insubordination that

constitutes misconduct connected with the work and is therefore arbitrary and capricious. The denial

should be reversed and Ms. Bounds granted unemployment benefits.

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 Respectfully submitted,
SHELLI D. BOUNDS

BY: ls/Kyle B. Ainsworth

KYLE B. AINSWORTH, her attorney

KYLE B. AINSWORTH, MSB# 9543

Rogers, Ainsworth & Williams, PLLC
567 Highway 51 , Suite B
Ridgeland, MS 39157
(601) 969-7777

CERTIFICATE OF SERVICE

I, Kyle B. Ainsworth, certify that I have this day filed a true and correct copy of the above

and foregoing Reply Brief of Appellant electronically with service to Albert Bozeman White,

Esquire and James Randall Bush, Esquire, attorneys for MDES, Post Office Box 1699, Jackson,

Mississippi 39215- 1699 and Don Mitchell, Esquire, attorney for Sal-Liz Inc., 416 E. Amite Street,

Jackson, Mississippi 39201 and via U.S. mail to Honorable Steve Ratcliff, P.O. Box 1626, Canton,

Mississippi 39046.

This the 10th day of May, 2018.

ls/Kyle B. Ainsworth
KYLE B. AINSWORTH