                            IN THE SUPREME COURT OF MISSISSIPPI
                                     NO. 1998-SA-01318-SCT
LOIS YOUNG
v.
MISSISSIPPI EMPLOYMENT SECURITY COMMISSION

DATE OF JUDGMENT:                                 08/11/1998
TRIAL JUDGE:                                      HON. V. R. COTTEN
COURT FROM WHICH APPEALED:                        NESHOBA COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                          LAUREL G. WEIR

                                                  THOMAS L. BOOKER, JR.
ATTORNEYS FOR APPELLEE:                           MARK D. RAY
                                                  ALBERT B. WHITE
NATURE OF THE CASE:                               CIVIL - STATE BOARDS AND AGENCIES
DISPOSITION:                                      AFFIRMED - 11/18/1999
MOTION FOR REHEARING FILED:                       11/23/99; denied 01/27/2000
MANDATE ISSUED:                                   2/3/2000



      BEFORE PITTMAN, P.J., McRAE AND SMITH, JJ.
      McRAE, JUSTICE, FOR THE COURT:
¶1. On May 20, 1998, Lois Young was fired from her job as a slot floorperson at the Silver Star Casino.(1)
She applied for unemployment compensation but was denied benefits because she had committed
misconduct by failing to turn over her employee identification badge upon suspension. Young appealed the
denial of benefits. The decision of the claims examiner, however, was upheld by the appeals referee, the
review board, and, finally, the Neshoba County Circuit Court. Young appealed to this Court, and, because
we find that Young's act of failing to turn over her badge was sufficient to constitute misconduct pursuant to
Miss. Code Ann. § 71-5-513 (Supp. 1999), we affirm.

                                FACTS AND PROCEEDINGS BELOW

¶2. There was never any hearing in this case(2) and the only facts available are those contained in the report
by MESC interviewer Karen Love:

      Employer's statement: Mary Roberts, Human Resources, was interviewed on 5/26/98 and she stated
      claimant was discharged because she refused to turn in her badge, keys, etc. at suspension. On the
      last day of work, the claimant went to a slot manager and asked to trade breaks with another
      employee. The slot manager said no, it was not allowed. The claimant then went to a supervisor, with
      another person, and said she needed to trade breaks. The supervisor was unaware that the request
      had previously been denied by the slot manager and said yes. When the employer realized what the
     claimant had done, she was suspended. When employees are suspended their badges, keys, etc. are
     requested by the employer. The claimant refused to turn in her badge. This coupled with the initial
     incident caused her discharge.

     Claimant's statement: The claimant was interviewed on 5/29/98 and she stated she was told she was
     discharged for insubordination. The claimant said she wanted to take her break at an earlier time.
     Most people on the floor are allowed to switch breaks. The slot manager said no, but the supervisor
     okayed it. After her break was okayed, she asked another supervisor why a certain employee was
     always allowed to have a 10 a.m. break. She was suspended for asking questions, not for changing
     her break. The claimant said she turned her keys in, but refused to turn in her badge because she
     needed it to pick up her check.

¶3. Despite the many appeals that were taken in this case, the only substantive opinion is that of the Claims
Examiner.

     You were separated from your employment with Silver Star on May 20, 1998. Investigation reveals
     you were discharged because you refused to turn in your badge when the employer was suspending
     you for trading breaks with another employee after your initial request to do so had been denied. It is,
     therefore, determined that you were discharged for misconduct connected with your work.

                                               DISCUSSION

¶4. On appeal, Lois Young contends that the "decision of the lower court is contrary to the overwhelming
weight of the evidence and not supported by any law or evidence and any reasonable reading of the Record
will show that Plaintiff-Appellant was wrongfully discharged and was not guilty of any misconduct."

¶5. Great deference is accorded an administrative agency's findings and decisions. The Trading Post,
Inc. v. Nunnery, 731 So.2d 1198, 1200 (Miss. 1999). On appeal, an employee challenging the Board's
decision has the burden of overcoming a rebuttable presumption in favor of the Board's decision. Miss.
Code Ann. § 71-5-531 (Supp.1999) (requiring that the Board's factual findings, if supported by evidence,
be viewed as conclusive and confining judicial review to questions of law); City of Clarksdale v.
Mississippi Employment Sec. Comm'n, 699 So.2d 578, 580 (Miss. 1997); Allen v. Mississippi
Employment Sec. Commission, 639 So.2d 904, 906 (Miss. 1994). The denial of benefits may be
disturbed only if the denial is (1) unsupported by substantial evidence, (2) arbitrary or capricious, (3)
beyond the scope of power granted to the agency, or (4) in violation of the employee's constitutional rights.
Mississippi Comm'n on Envtl. Quality v. Chickasaw County Bd. of Supervisors, 621 So.2d 1211,
1215 (Miss.1993).

¶6. Under Miss. Code Ann. § 71-5-513A(1)(c) (Supp. 1999), the employer bears the burden of
proving misconduct by clear and convincing evidence. The Trading Post, Inc., 731 So. 2d at 1201;
Richardson v. Mississippi Employment Sec. Comm'n, 593 So.2d 31, 34 (Miss.1992). There is no
dearth of Mississippi case law with respect to what is required to prove misconduct.

     [T]he 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 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 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.

City of Clarksdale, 699 So.2d at 581 (emphasis in original) (police officer's failure to pass physical fitness
test required to receive certification was misconduct) (quoting Wheeler v. Arriola, 408 So.2d 1381, 1383
(Miss.1982)). See also Mississippi Employment Sec. Comm'n v. McGlothin, 556 So.2d 324 (Miss.
1990).

¶7. Insubordination may amount to misconduct. Halbert v. City of Columbus, 722 So.2d 522, 525-27
(Miss. 1998); Mississippi Employment Sec. Comm'n v. McGlothin, 556 So.2d at 328; Shannon
Eng'g & Constr., Inc. v. Mississippi Employment Sec. Comm'n, 549 So.2d 446, 449 (Miss. 1989).
In Halbert, the employee worked as a truck driver in the city sanitation department. The city's drug abuse
policy required the random drug testing of half the city's employees each year. An employee randomly
selected for testing was given, upon notification, three hours in which to submit to testing. When the
employee in Halbert was advised that she had been selected for the test, she failed to comply and was
fired. This Court held that the employee's failure to submit to drug testing within three hours of notification
constituted misconduct disqualifying her from unemployment benefits. Halbert, 722 So.2d at 527.

¶8. In this case, the employer had a legitimate security interest in keeping unauthorized persons away from
the casino premises. Given our scope of review, Young's refusal to turn over her badge pursuant to the
Casino's policy merits a finding of misconduct. Accordingly, we affirm the judgment of the circuit court
denying benefits.

¶9. JUDGMENT IS AFFIRMED.

      PRATHER, C.J., SULLIVAN AND PITTMAN, P.JJ., BANKS, SMITH,
      MILLS, WALLER AND COBB, JJ., CONCUR.
1. Silver Star is owned by the Mississippi Band of Choctaw Indians and is managed by Boyd Mississippi,
Inc. See Harrison v. Boyd Mississippi, Inc., 700 So.2d 247, 251 n.3 (Miss. 1997).

2. A hearing was scheduled before the Appeals Referee but Young was late because she was trying to get
her phone turned on. A representative and a witness for the employer showed up but the Referee did not
take their testimony. No doubt, as MESC argues, the Referee determined that they would testify consistent
with the record made by the Claims Examiner.
