Margaret Moeller v. Mississippi Department of Human Services
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2006-CC-00073-COA
MARGARET MOELLER
APPELLANT
v.
MISSISSIPPI DEPARTMENT OF HUMAN
SERVICES
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
12/13/2005
HON. BOBBY BURT DELAUGHTER
HINDS COUNTY CIRCUIT COURT
JONATHAN B. FAIRBANK
KATHERINE JANE CALDWELL
CIVIL - STATE BOARDS AND AGENCIES
AFFIRMED DECISION OF THE MISSISSIPPI
EMPLOYEE APPEALS BOARD.
REVERSED AND REMANDED – 05/01/2007
BEFORE MYERS, P.J., IRVING AND BARNES, JJ.
IRVING, J., FOR THE COURT:
¶1.
Margaret Moeller was terminated from her employment with the Mississippi Department of
Human Services (MDHS) for a Group III, Number 11 offense. Aggrieved, she appealed the decision
to the Mississippi Employee Appeals Board, which assigned an administrative law judge to hear
Moeller’s case. The judge upheld Moeller’s termination. Moeller then appealed to the full board,
who again affirmed Moeller’s termination. Thereafter, Moeller appealed that decision to the Circuit
Court of Hinds County, which affirmed the decision of the board. Moeller now appeals to this
Court, asserting that her termination was in error. We agree.
FACTS
¶2.
Moeller began working for MDHS in November 1992. Her specific position within the
department changed several times during her tenure. In 1999, Moeller was assigned to work in the
office of a county director.1 Moeller indicated that she was lifting a typewriter in December 1999
when she injured her left rotator cuff, her right rotator cuff, and possibly her spine. Moeller was
scheduled to have surgery for these injuries on April 19, 2000. Moeller took off from work on that
date for her surgery, and she never returned to work. She was compensated by worker’s
compensation for total temporary disability from April 19, 2000, until her termination by MDHS
on March 6, 2002.2
¶3.
Additional facts, if necessary, will be related during our analysis and discussion.
ANALYSIS AND DISCUSSION OF THE ISSUE
¶4.
We do not review the decision of the lower courts de novo; “rather, this Court (and any
reviewing court) determines whether ‘the Board’s decision was (1) unsupported by substantial
evidence, (2) arbitrary and capricious, (3) beyond the powers of the Board to make, or (4) violative
of a statutory or constitutional right of [the complaining party].’” Harris v. Miss. Dep’t of Corrs.,
831 So. 2d 1105, 1107 (¶6) (Miss. 2002) (quoting Rowzee v. Pub. Employees’ Ret. Sys., 777 So. 2d
664, 666-67 (¶12) (Miss. 2000)).
¶5.
Moeller was terminated for a Group III, Number 11 offense. According to the Mississippi
State Employee Handbook, Group III is for offenses “of the most serious nature.” Number 11
prohibits: “an act or acts of conduct occurring on or off the job which are plainly related to job
1
Moeller contends that although her job titled her a “secretary,” she was assigned to work
in a supply room, which she was reorganizing at the time of her injury.
2
Much of Moeller’s appeal before this Court concerns the computation of her time off from
work and whether her time under the Family Medical Leave Act and her personal leave should have
been applied during her absence. Because we find that Moeller’s termination was improper, we do
not address the computation of her leave.
2
performance and are of such nature that to continue the employee in the assigned position could
constitute negligence in regard to the agency’s duties to the public or to other state employees.”
MDHS maintained that termination under this section was appropriate because it could not replace
Moeller, and her work therefore was not being done during the years that she was gone.
¶6.
As support, MDHS cites Mississippi Code Annotated section 25-3-93(2) (Rev. 2006), which
reads in part: “Leaves of absence granted by the appointing authority for one (1) year or less shall
be permitted without forfeiting previously accumulated continuous service.” MDHS argues: “It has
been established that MDHS policy is to terminate an employee that has been absent from
employment for a period which exceeds twelve (12) months. This is not only the policy of MDHS,
but is expressly mandated by § 25-3-93(2) of the Mississippi Code of 1972, Annotated.” Likewise,
the decisions affirming Moeller’s termination cite this statute as support for her termination.
¶7.
However, the Mississippi State Employee Handbook makes clear that section 25-3-93(2)
does not apply to Moeller’s situation. The handbook expressly references the section and then
explains that a leave of absence, which is addressed by section 25-3-93(2), “should not be confused
with leave without pay. A leave of absence is for the purpose of accepting another position in nonstate service.” There is no evidence whatsoever in the record before us to indicate that Moeller was
absent from work for the purpose of obtaining non-state employment. Therefore, section 25-3-93(2)
cannot work as support for her termination. Regardless, testimony by MDHS employees maintained
that it is the policy of MDHS to terminate employees who are absent from work for more than one
year. This Court has been unable to find any written policy to such end, other than those addressing
leaves of absence under section 25-3-93(2), and none was included in the record.
¶8.
It is clear to this Court that Moeller should not have been terminated for a Group III offense.
In fact, there is nothing about Moeller’s conduct that would make it an “offense.” By way of
3
example, some of the offenses prohibited by Group III are: going to work intoxicated, breaching
agency security, violating established safety rules “where there exists a threat to life or human
safety,” unauthorized possession of “dangerous weapons,” falsification of records, and “acts of
physical violence.” Notably, Group III, Number 1 prohibits: “unauthorized absence or leave in
excess of three (3) consecutive working days without proper notification and satisfactory
explanation to the supervisor or the appointing authority in a timely manner.” However, MDHS
could not use this section to terminate Moeller because she clearly provided notification and a
satisfactory explanation to her employer.
¶9.
Moeller suffered serious injuries while working that left her totally temporarily disabled, as
shown by the full payments she received from worker’s compensation during the entire time of her
absence from MDHS. This circumstance is clearly not the sort of “offense” that is contemplated by
Group III of the State Employee Handbook.3 Therefore, we find that the decision to terminate
Moeller was not based on substantial evidence. Therefore, we reverse and remand to MDHS for
proceedings consistent with this opinion.
¶10. THE JUDGMENT OF THE CIRCUIT COURT OF THE FIRST JUDICIAL
DISTRICT OF HINDS COUNTY IS REVERSED AND THIS CASE IS REMANDED TO
THE MISSISSIPPI DEPARTMENT OF HUMAN SERVICES FOR PROCEEDINGS
CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED
TO THE APPELLEE.
KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, BARNES, ISHEE,
ROBERTS AND CARLTON, JJ., CONCUR.
3
We note, however, that Section 10 of the handbook does allow for involuntary dismissal of
a state employee who fails “to continue to meet the eligibility criteria for the position held or [who
is unable] to perform the essential functions of the job.”
4
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