IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2015-CC-01287-COA LINDA J. WINDHAM APPELLANT

v. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY APPELLEE DATE OF JUDGMENT: 08/10/2015 TRIAL JUDGE: HON. MARCUS D. GORDON COURT FROM W HICH APPEALED: NEW TON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: ROBERT M. LOGAN JR. ATTORNEYS FOR APPELLEE: ALBERT B. W H ITE ANNA CRAIN CLEMMER NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES TRIAL COURT DISPOSITION: AFFIRMED THE DECISION OF THE BOARD OF REVIEW

OF THE MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY, AND DENIED AND DISMISSED THE APPEAL DISPOSITION: AFFIRMED: 01/03/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: EN BANC. GRIFFIS, P.J., FOR THE COURT: ¶1. Linda W indham appeals t he denial of u nem ploy m e nt benef

its. U pon review, we f

ind no abuse of

discretion and af

f irm

. FACTS AND PROCEDURAL HISTORY ¶2. W i ndham was e m

ploy ed with Pioneer C o m m unity Hospital i n N ewton, M ississippi,

as a purchasing clerk beginning January 1, 2 010. In Decem ber 2013, Pioneer im

plem ented

a new com

puter sy stem

. W i ndham

was trained on the new sy s tem in Novem ber 2013, andreceived additional training i n Decem b er 2013. In January 2014, W indham was issued a verbal warning f

o r her job perf

orm ance and received f

urther training on the sy stem

. ¶3. On January 31, 2014, W indham received a written warnin g a f ter an audit revealed inventory errors. According to t he Em ploy ee Corrective Action Form , s t o c k r e q u isitions were not being f

illed, and non-stock orders were not being f illed and sent to corporate in a tim ely m a nner. W indham was advised to f ollow p rocedures as outlined in training.
W i ndham was f

urther advised that stock r equisitions sho uld b e f illed prom

p tly , and nonstock requests should be sent to co r p orate in order to not cause a s hortage and jeopardize patient care. ¶4. On February 13, 2015, W indham was discharged f or h er f ailure to p erf

orm assigned duties a n d procedures and to f ollow requests f

rom m anagem ent. W indham s u bsequently f iled an initial claim f

or benef i ts with the Mississippi Departm ent of E m ploy m ent Security (MDES). ¶5. The claim s exam iner f ound W indham was discharged f or m isconduct connected to her work and was disqualif ied f rom receivi n g u n e mploy

m ent benef

its b eginning February 14, 2015, until she w a s r e em ploy ed and earned eight tim e s her weekly benef it am ount. W i ndham appealed the decision to the adm i nistrative-law judge (ALJ). ¶6. A telephonic hearing was held bef o re the A LJ, during which W indham , W indham ’s attorney , a Pioneer r epresentative, and a Pioneer witness parti c i p a ted. The ALJ f ound
W i ndham was d ischarged f or p oor job perf

orm a nce and af

f irm ed the d ecision of the claim s

exam iner. W indham appealed to the MDES Board of Review, which af f irm ed the decision

2of

the ALJ. ¶7. On July 14, 2 0 15, W indham appealed the Board of Review’s decision to the circuit
court. W indham a lso f

iled a “m otion to set aside tim e f or brief ing” and requested suf

f icient tim e to f ile a brief

. O n August 10, 2015, the record and transcript were f iled. That s am e day , the circuit court entered a n order, which af f i rm ed the decision of

the Board of

Review and den i e d and dism issed t he appeal. W indham now appeals the circuit court’s decision and argues Pioneer f

ailed to prove m i sconduct by substantial, clear, and convincing evidence. S TANDARD OF REVIEW ¶8. “The standard of review in cases where this Court exam ines the circuit court’s judgm ent af

f irm ing the Board’s decision is abuse of discretion.” C annon v. Miss. Dep’t of Emp’t Sec ., 88 So. 3d 809, 811 (¶7) (Miss. Ct. A pp. 2012). “[ A]n a gency ’s f indings should
not be disturbed unless its order is: (1) not supported by substantial eviden ce, ( 2) arbitrary

or capricious, (3) bey o n d t he s cope or power granted t o the a g ency , or (4) [ v iolative of ] the claim ant’s constitutional rights.” Id

. ANALYSIS ¶9. On appeal, W i ndham adm its the record ref

lects def iciencies in her job perf

orm ance and does “not contest the right of [ Pioneer] to t erm i nate [ her].” However, W indham argues her def icient job perf

orm ance did not am ount to m isconduct. Instead, W indham asserts she sim ply “could not operate [ the new sy stem ] successf ully despite her best ef

f o rts.” ¶10. An individ u a l shall be d i squalif ied f rom unem

ploy m ent benef

its when “he was discharged f

or m isconduct connected w ith his work.” Miss. Code Ann. § 71-5-513(A)(1)(b)

3(Supp. 2016). Misconduct has been def ined as: [ C]onduct evincing s u c h w illf ul and wanton d isregard of the e m ploy e r’s interest as is f

o und in deliberate violations or disregard of s t a n d a r d s of behavior which the em

ploy er has the right to expect f rom his em

ploy ee. Also, carelessness a nd negligence of such degree, or recurrence thereof , a s to m anif est culpability , wrongf

ul intent or evil desig n , a

n d s h owing an i ntentional or s ubstantial disregard of the em ploy er’s interest o r of t he em p loy ee’s duties an d o b ligations to his em ploy er, [ com e] within the term

. Mere inef f i ciency , unsatisf actory conduct, f

a i l u r e in good perf

orm ance as the r esult of inability or incapacity , or inadvertences and ordinary negligence in isolated incidents, and good f

aith erro r s i n j u dgm e nt o r discretion [ are] not considered “m isconduct” within the m eaning of the statute.
W heeler v. Arriola , 408 S o. 2d 1381, 1383 (Miss. 1 9 8 2 )

. “In m isconduct cases, ‘the

em ploy e r bears the burden t o prove by substantial, clear, and convincing evidence that a f o r m er em ploy ee’s conduct warrants d isqualif ication of benef

its.’” Over the Ra i n b o w Daycare v. Miss. Dep’t of Emp’t Sec ., 188 So. 3d 1249, 1251 (¶7) (Miss. Ct. App. 2016). ¶11. The record indicates W i ndham was aware of her job duties and o b l i g a t i o n s, and acknowledged her responsibility to f ollow the c orrective instru c t i o n s as outlined in the
Em ploy e e Corrective Action Form

. However, despite training on m u ltiple occasions, as well

as two warnings , Wi n d ham continuously f ailed to properly perf

o rm t he r equired tasks.
W i ndham ’s poor job p erf orm ance was n ot d

ue to her inability t o p e r f orm , as W indham adm itted to m anagem ent she knew how to perf orm her job tasks. W indham ’s repeated errors, taken as a whole, dem onstrate a substantial disregard of Pioneer’s interests or o f W indham ’s duties and obligations to Pioneer. ¶12. In W

heeler, “m iscondu c t ” w as d ef ined broadly

. W

heeler , 408 So. 2d at 1383. The
court specif

ically included in the def

inition “ carelessness and negligence of such degree, or

4recurrence thereof , as to m anif

est c ulpability , w rongf

ul i ntent or evil design, and showing an intentional or substantial disregard of the em ploy e r ’s interest or of t he em ploy ee’s duties and obligations t o his em

p loy er.” Id. W e f

ind such is the case here. The r ecord supp orts this f inding. W e af

f irm

. ¶13. THE JUDGMENT OF THE NEWTON COUNTY CIRCUIT COURT IS AFFIRMED. LEE, C.J., BARNES, ISHEE, CARLTON, FAIR, W ILSON AND GREENLEE, JJ., C ONCUR. I RVING, P.J., D ISSENT S W I T H OUT SEPARATE WRITTEN OPINION. WESTBROOKS, J., NOT PARTICIPATING.

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