Decisions – Miss.Ct. App. – Nov. 4, 2014 – part 2

Zelma Johnson v. Miss.Dep’t of Employment Securityunemployment/allegation of insubordination – Johnson had been employed with Washington County’s  “Head Start” program for 38 years  until she was fired in September  2012, for insubordination. The Employer claims Johnson repeatedly refused to follow an order to transfer a special needs child from a 3-year-olds’ class to a class for 4 years’ old.  The child had transferred from another center and the transfer slip incorrectly listed her as a 3 year old. When Johnson realized the child was 4, Johnson’s supervisor, Lena Berry,asked her to relocate the child to her four-year-old class, but Johnson told Berry her four-year-old class was already full with the maximum capacity of twenty
children. Berry then told her to place the child in a classroom. Johnson stated that she needed the other workers’ permission to place a child in their classroom, and asked Berry in which classroom to place the child. Berry did not respond; so Johnson asked her coworkers who did not have full classrooms if they would take the child. One coworker said yes but then changed his mind.  . He in turn gave the child’s information folder to another coworker  and asked if she could take the child, but she declined as her classrooms were full. The child ended up in “family services” just “sitting in a stroller.” Johnson maintained that once she passed the child to another caseworker who had space in his classroom to take the child, the matter was out of her hands, and she had done as she was told to do. She was denied benefits and appeals pro se.  The Miss.Ct. of Appeals reverses.

     The record indicates Johnson made an attempt to place the child with one of her coworkers. Smith initially took the child, but changed his mind, without reason. Smith then asked Nelson to
take the child, but Nelson’s classrooms were full. Johnson was no more insubordinate than
her other coworkers were, who did not accept the child, one without reason. Further, we fail
to see how, as the circuit court’s order states, Johnson was insubordinate because she knew
Smith changed his mind about placing the child. No one has explained how Johnson was
to have placed the child when her classrooms were full and her coworkers declined to accept
the child.
However, Johnson did apparently misrepresent to Berry that the child had been placed
after Smith rejected the child. Johnson claims that procedures are such that when Smith
assented to taking the child and she handed him her folder, she “was out of it.” This
evidence does not arise to a wilful and wanton disregard for the Employer’s interest. Nor
do we find Johnson’s conduct during this one incident – the only incident in the record – the
equivalent of “a constant or continuing intentional refusal to obey a direct or implied order.”
See Hudson, 757 So. 2d at 1014 (¶12). Accordingly, the Board’s decision is not supported
by substantial evidence, and it is necessary for this Court to reverse the Board’s decision and
remand this case to the MDES for a computation of unemployment benefits.

Carl Houston v. State –  prison contraband/SIM card –  Houston  was convicted and sentenced for the possession of contraband in a correctional facility.  On appeal he argues that MCA sect. 47-5-193 (Rev. 2011) is unconstitutionally vague and that the court erred in sentencing him.  Houston was awaiting trial  at the Leake County Regional Correctional Facility. After visiting his girlfriend, he was searched and a Subscriber Information Module (SIM) card, which is used in cellular phones, was found in his back pocket.  A SIM card is contraband under the facility’s rules.  He argues that the statute is unconstitutionally vague because Houston, as an arrestee, was not an offender under the statute.  “However, section 47-5-193 makes it unlawful “for any . . . person or offender” to possess a SIM card in a correctional facility. Accordingly, we find no merit to this issue.”  He next claims he should have been sentenced as a non-offender under Sect.  47-5-192 (Rev. 2011). “Because we hold that Houston was in violation of Mississippi Code Annotated section 47-5-193, the circuit court did not err in sentencing him under Mississippi Code Annotated section 47-5-195 (Rev. 2011) rather than section 47-5-192. Section 47-5-195 provides that “[a]ny person who violates any provision of Section 47-5-193 . . . shall be guilty of a felony and upon conviction shall be punished by confinement in the Penitentiary for not less than (3) years nor more than (15) years[.]” Houston was sentenced to serve fifteen years with five years suspended. We find no error in his sentence.”

Molly Brown v. State –   biased juror/ineffective assistance  – Brown was convicted of the sale of Hydrocodone and Acetaminophen and sentenced to ten years in the custody of the Mississippi Department of Corrections.  On appeal she argues she was denied a a fair trial because one of the jurors, during voir dire, stated she thought she could not be fair but was seated as a juror anyway. The  juror, Dena Bishop, revealed her nephew was a DEA agent.  Further questioning revealed that she would find it hard to be fair in a drug case.  Inexplicably, she was chosen as a juror.  The Court of Appeals reverses finding that it was ineffective assistance of trial counsel to have seated the juror. “[T]he State conceded during oral argument that if a biased juror serves, then the court has committed reversible error. The State also conceded that the circuit court has
an obligation to ensure a fair trial.”

Although Bishop did not state with specificity that she would be biased and incapable
of fulfilling her duties, her statement that “[i]t would be hard to be impartial” and her
affirmative response when she was asked, “Would it be better for you if you didn’t sit?”
clearly are indicative of partiality and bias and, at the very least, warranted further inquiry.
Neither the circuit court nor Brown’s trial counsel did any follow-up, and counsel did not
move to strike Bishop. As noted, Miller holds that “when a juror makes a statement that she
thinks she can be fair, but immediately qualifies it with a statement of partiality, actual bias
is presumed when proper juror rehabilitation and juror assurances of impartiality are
absent[.]” Miller, 385 F.3d at 675. Therefore, in our case, bias is presumed since there was
no rehabilitation of Bishop demonstrating that, notwithstanding her partiality, she could
decide the case based solely on the evidence.

Katarina Galanis v. CMA Management Company –  premises liability denied where tenant killed by roommate – Bobby Batiste murdered his roommate, Andreas Galanis, in the apartment that they shared at 21 Apartments in Starkville, Mississippi. Andreas’s mother Katerina Galanis sued the owners and managers of the complex claiming that they negligently failed to warn Andreas of Batiste’s violent tendencies. 21 Apartments moved for summary judgment on the grounds that  there was no evidence that it had actual or constructive knowledge of Batiste’s propensity for violence, so it had no duty to warn Andreas.  The trial court granted summary judgment which was affirmed on appeal.

21 Apartments was geared toward college students. To help tenants find roommates, 21 Apartments provided a questionnaire regarding each tenant’s habits, lifestyle, etc.  It then  notified tenants of potential roommates and introduced them but it was up to the individual tenants to select a roommate. 21 Apartments introduced Andreas and Batiste because they were both football
fans, and they were both older than traditional college students. Years before, 21 Apartments instituted a policy of performing background checks.  When Batiste sought to renew his lease during 2007, his background check indicated Batiste was  convicted of credit-card fraud. 21 Apartments notified it would not renew his tenancy.  Batiste’s lawyer faxed the complex a letter explaining that Batiste was “not a convicted felon”  because he had been given non-adjudication.   21 Apartments allowed him to renew his lease.  Apparently while Baptiste was living with Galanis, he used Galanis’s debit card without Galanis’s permission.  When confronted, Baptiste   killed Galanis.

Galanis’s case was based on the fact that  Batiste had previously been roommates with two other students and he wrote to management that he was disgusted with their bad housekeeping.  In the complaint form, Baptiste wrote, “I can’t take it anymore. I don’t want to get violent. He’s had to[o] many chances” and “I hope this get[s] resolved soon because I really don’t want to take matters into my own hands.”  On appeal, the Court of Appeals writes, “Essentially, the Galanises argue that 21 Apartments should have known that Batiste was a violent person because he said he did not want to “take matters into his own hands” or use violence to resolve a dispute. However, there is no evidence that 21 Apartments had any reason to think that Batiste had been violent with his former roommate.” 

Sandra Hanson v. Dolgencorp –  workers comp –   Hanson was working for Dollar General when she fell and  received a compensable injury to her neck and back while working for Dollar General. Dollar General admitted there was a compensable injury but denied that Hanson was temporarily permanently disabled as a result.  She was denied disability benefits and appeals. Hanson ended up being diagnosed with  with unspecified peripheral vascular disease, unspecified
hypothyroidism, and unspecified hyperlipidemia unrelated to her fall.   “Regarding her admittedly compensable work injury, the AJ found that Hanson failed to prove a loss of wage-earning capacity following the date of MMI. Although she was assigned a two percent body-as-a-whole permanent partial impairment rating, she was not assigned any permanent restrictions. Hanson continued working for seven months at her regular duties.”  As far as Hanson’s argument that she is entitled to an EMG, NCS, ABI, and FCE at the employer’s expense, since those tests are related to the tingling in her  arms and legs was a result of peripheral artery disease, ” the Commission properly denied Hanson’s request for an EMG, NCS, and ABI.

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