REPLY BRIEF OF APPELLANT

Transcription

1 E-Filed Document Jun :28: CC COA Pages: 6 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI LINDA WINDHAM v. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY APPELLANT NO.2015-CC APPELLEE REPLY BRIEF OF APPELLANT Robert M.Logan MS Bar No Logan & Mayo, P.A. P. 0. O. Box 218 Newton, MS (fax) rlogan@newtonmslaw.com

2 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI LINDA WINDHAM v. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY APPELLANT NO. 201S-CC APPELLEE TABLE OF CONTENTS Table of Contents Table of Cases, Statutes and Other Authorities Argument Conclusion Certificate of Service Page 2 Page 3 Page 4 Page 5 Page 6 2

3 TABLE OF CASES. STATUTES. AND OTHER AUTHORITIES CASES Claiborne v. ME.S.C., 872 So.2d 698 (Ms.Ct.App. 2004) Shavers v. ME.S.C., 763 So.2d 183 (Ms.Ct.App. 2000) Page 4 4 3

4 ARGUMENT The Commission relies primarily on two cases to support the Windham discharge: Claiborne v. ME.S.C., 872 So.2d 698 (Ms.Ct.App. 2004) and Shavers v. ME.S.C., 763 So.2d 183 (Ms.Ct.App. 2000). Each of these involves discharge of a short-term employee for repeated failure to perform menial tasks. In Shavers the claimant had been employed for about six months by a printing company to do silk screening. In that period of time she received at least five reprimands for failing to properly clean the equipment. The Court, in affirming the discharge, stated that these incidents were unrelated to an inability to perform, and constituted repeated neglect of the employer's interest. Id at 186. In Claiborne, a two-year casino employee was discharged for a long list of failures to carry out duties such as locking a slot machine door, over-filling a slot machine hopper and failure to respond to a radio call. Id. at 700. Because the record reflected a "prolonged and persistent failure to perform routine duties that the employer is capable of performing properly" the discharge was affirmed. Id. In the case before the Court today we have an employee who worked in the same hospital for 19 years (Rec. 103). She had a responsible position as purchase clerk that required extensive training, and the use of a computer program that was only introduced to the company in December of 2013 (Rec. 60). Not every employee is tech-savy. Some have a hard time catching on. The record reflects this was true for Linda. She was not a slacker, but rather a helpful and cooperative person who worked in other departments whenever asked, and who was recognized (with the administrator's blessing) as employee of the quarter just before she was fired. It seems 4

5 unjust that she had not stored up more goodwill in the organization for all the good she had done so that she would not be denied her much-needed unemployment benefits. Linda obviously had a complicated and demanding position. Her shortcomings did not involve menial tasks, but rather jobs that required extensive training and technological expertise. We note also that Linda received only one written warning prior to her termination (Rec. 50) even though the hospital policies and procedures normally call for three warnings (Rec. 135; Ex. 2). The policy on termination allows acceleration in "rare cases" involving "more serious problems or violations of company policy." (Rec. 135) The administrator, Mr. Norman, could not produce evidence that Linda was ever given an employee handbook (Rec. 56) and Linda confirmed she did not receive one (Rec. 103). CONCLUSION This is not a run-of-the mill denial of benefits to an employee who disregarded the interests of her employer. The discharged employee here was helpful ad cooperative and well regarded in the organization. She got in trouble due to her inability to handle a new system. The record reflects that the company took advantage of her poorly worded defense to deprive her of benefits she deserved. reversed. The decision of the Employment Security Commission and the Circuit Court should be Respectfully submitted, LINDA WINDHAM Appellant BY: lsi Robert M. Logan ROBERT M. LOGAN Attorney for Appellant 5

6 CERTIFICATE OF SERVICE I, ROBERT M. LOGAN, attorney for Plaintiff/Appellant, do hereby certify that I have this date caused to be delivered, via U. S. Mail, a true and correct copy of the above and foregoing Reply Brief of Appellant to the following: Honorable Anna Crain Clemmer, Staff Attorney Mississippi Department of Employment Security P. 0. Box 1699 Jackson, MS THIS the 1st day of June, Isl Robert M Logan ROBERT M. LOGAN 6