Vickie D. McLeod King v. Mississippi Department of Corrections
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 96-CC-01040 COA
VICKIE D. MCLEOD KING
v.
MISSISSIPPI DEPARTMENT OF CORRECTIONS
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:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLANT
APPELLEE
08/26/96
HON. BILL JONES
GREENE COUNTY CIRCUIT COURT
MICHAEL ADELMAN
OFFICE OF THE ATTORNEY GENERAL
BY: JOSEPH A. GOFF
CIVIL - STATE BOARDS AND AGENCIES
(OTHER THAN WORKERS'
COMPENSATION)
AFFIRMED THE ORDER OF THE
EMPLOYEE APPEALS BOARD
AFFIRMED - 9/1/98
9/22/98
BEFORE McMILLIN, P.J., HINKEBEIN, AND SOUTHWICK, JJ.
McMILLIN, P.J., FOR THE COURT:
¶1. Vickie McLeod King appeals from the decision of the Circuit Court of Greene County which
upheld the order of the Mississippi Appeals Board finding that McLeod was properly terminated
from her employment with the Mississippi Department of Corrections.
¶2. On appeal McLeod raises the issue of whether her termination was a denial of fundamental
fairness and, therefore, a denial of substantive due process. We find no error and affirm the decision
of the circuit court.
FACTS
¶3. McLeod was employed by the Mississippi Department of Corrections in 1994. She submitted a
request for leave of absence without pay for the period March 14, 1994, through September 30,
1994, indicating that she desired to join her new husband in Georgia where he was working on a
construction job. The request was denied because her absence could not be satisfactorily covered by
the one other employee stationed at the warehouse where McLeod worked.
¶4. McLeod then filed a request for unpaid leave of absence for approximately one month under the
Family and Medical Leave Act. She supported her request with a note from her physician stating that
McLeod was "[e]xcused from work for medical reasons for one month." Department of Correction
officials told McLeod that more specific information was needed from her regarding the nature of her
illness so that a proper determination of eligibility for medical leave could be made. She was provided
with a certification form that required the physician to state the diagnosis and reason the employee
was absent, the course of treatment, whether the employee could or could not work in any capacity
during the absence, and other pertinent information. The certification form was designed to be signed
by both the physician and the employee; each thereby certifying to the accuracy of the information.
Alton Ellis, a personnel officer for the Department of Corrections, testified that he gave the
certification form to McLeod on March 10 and explained the form to her again by telephone the next
day. McLeod was told that the certification had to be returned within fifteen days of her original
request for medical leave. McLeod, without returning the form, elected to absent herself from work
immediately, apparently on the assumption that her leave request would ultimately be ruled on
favorably.
¶5. McLeod delivered the required form to the Department on the fifteenth day; however, it was not
signed by the physician or McLeod. The Department returned the form to the absent McLeod by
certified mail with a letter explaining that, in its present state, the request form was unacceptable. The
letter gave her until March 30, 1994, to properly complete and return the form.
¶6. On April 11, 1994, the Department received the return receipt showing delivery of the certified
letter. The receipt indicated that the letter, addressed to McLeod's address in Leaksville, had been
forwarded to a Georgia address. On April 13, 1994, nearly two weeks after the deadline, the
Department finally received the completed form, certifying that McLeod was suffering from
depression.
¶7. However, prior to that time, on April 1, 1994, the manager of the warehouse where McLeod
worked requested disciplinary action against McLeod. As a result of that request, McLeod was sent a
notice of administrative review hearing charging her with violating Group III, Subparagraph Number
1 of the State Personnel Manual of Policies, Rules and Regulations; specifically, "[a]bsence or leave
in excess of five (5) working days without satisfactory explanation." An administrative disciplinary
hearing was held on April 19, 1994, and the hearing officer conducting the hearing recommended that
McLeod be terminated.
¶8. McLeod appealed to the Employee Appeals Board, and a hearing was held before one member of
the Board designated as the Hearing Officer. The Hearing Officer entered an order reversing
McLeod's termination. He found "[t]hat while the Appealing Party did not technically comply with
the provisions of the Family [and] Medical Leave Act , she did provide the Department with an
explanation for her absence. As such I find that her explanation, under the circumstances, was
satisfactory."
¶9. The Department appealed that decision to the full Employee Appeals Board. The Board reversed
the Hearing Officer's decision finding that McLeod had failed to sustain the burden of proof that
rested on her to show that the facts relied upon to terminate her employment were not true. The full
Board concluded that the Department of Corrections had "acted in accordance with published
policies, rules and regulations of the State Personnel Board" and therefore there was no basis to alter
the action taken by the agency. McLeod appealed the Board's decision to the Circuit Court of Greene
County. That court affirmed the action of the Employee Appeals Board.
DISCUSSION
¶10. Miss. Code Ann. § 25-9-132 (Rev. 1991) provides that the scope of review of the circuit court
is limited to a review of the record to determine if the action of the appeals board was "(a) [n]ot
supported by any substantial evidence; (b) [a]rbitrary or capricious; or (c) [i]n violation of some
statutory or constitutional right of the employee." The statute and administrative regulations clearly
place the burden of persuasion on the aggrieved employee to demonstrate that the reasons given for
dismissal are not true. Miss. Code Ann. § 25-9-127 (Supp. 1997); Rule 17, Administrative Rules
of the Mississippi Employee Appeals Board. Unless the employee carries the burden of persuasion
to show that the alleged conduct did not occur, the employee has no right to have the employment
decision overturned. Mississippi Employment Sec. Comm'n v. Collins, 629 So.2d 576, 580 (Miss.
1993).
¶11. McLeod was charged with violating Group III, Subparagraph Number 1 of the State Personnel
Manual of Policies, Rules and Regulations. That provision provided that "[a]bsence or leave in excess
of five (5) working days without satisfactory explanation" constituted a terminable offense. McLeod
argues that she "made a good faith effort to comply with the policies and procedures of the agency,
and although she did not meet the agency's time deadline, her Certification of Physician was in full
compliance with the Family and Medical Leave Act." We are not satisfied that McLeod's apparently
half-hearted attempts to comply with the Department's instructions on obtaining medical leave
demonstrated a good faith effort at compliance on her part. Her apparent willingness to absent herself
from work for a period approaching one month without prior permission, relying on nothing more
than an unsigned medical "certification" does not suggest good faith in the view of this Court.
Further, her act of removing herself from the only residence known to her employer, thereby
rendering timely communication impossible does not go towards excusing her delay in finally
submitting the necessary forms. The Department, when it sent her a certified letter to the only known
address for McLeod, was entitled to expect prompt delivery and a prompt response. The ensuing
delay approaching two weeks was directly attributable to McLeod's failure to inform the Department
of her relocation to Georgia at a time when she reasonably should have understood the need to stay
in close touch with her employer. That neglectful conduct does not demonstrate good faith dealing
on McLeod's part.
¶12. McLeod writes sarcastically in her brief that she had "the audacity" to ask for medical leave after
having been denied administrative leave and suggests that she is being unfairly punished for her
audacity. Her real audacity, in our view, was in taking such an extended leave without following the
proper procedure for doing so.
¶13. McLeod characterizes her issue as one of "fundamental fairness" and "a violation of substantive
due process." Substantive due process protects individual liberty against "certain government actions
regardless of the fairness of the procedures used to implement them." Daniels v. Williams, 474 U.S.
327, 331 (1986). Substantive due process prohibits governmental infringement of fundamental liberty
interests "unless the infringement is narrowly tailored to serve a compelling state interest." Reno v.
Flores, 507 U.S. 292, 302 (1993). Where a right is either explicitly or implicitly guaranteed by the
constitution, that right is "fundamental." San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1,
33-34 (1973). Where no fundamental right is infringed by state action, yet a substantive due process
challenge is lodged, the statute (or rule) will be upheld so long as it is reasonably related to a
legitimate state purpose. Turrentine v. Brookhaven, Miss. Sch. Dist., 794 F. Supp. 620, 624 (S.D.
Miss.1992). McLeod does not show that any statutory or constitutional right was infringed upon or
violated. We do not believe that an employee has a fundamental liberty interest or other
constitutionally protected right to unilaterally absent herself from work for over one month without
permission and then cure the problem, after the fact, by belatedly filing the forms to obtain a medical
leave. The Department of Corrections had a legitimate purpose in requiring that an employee be
present for work unless the absence was permitted under the rules and regulations governing leaves
of absence.
¶14. McLeod cites Bowman v. Ferrell, 627 So. 2d 335 (Miss. 1993) as supporting her case that she
was denied due process. In that case a school teacher appealing her proposed suspension was not
afforded a full opportunity to present evidence in her case. There is no apparent parallel to the
present case. McLeod was given every opportunity to comply with her employer's leave policy and to
argue her case on each level of appeal. We find nothing in this case which shows a violation of
McLeod's right to substantive due process in the adverse personnel action that resulted in her
termination from employment.
¶15. THE JUDGMENT OF THE CIRCUIT COURT OF GREENE COUNTY IS AFFIRMED.
ALL COSTS OF APPEAL ARE ASSESSED TO THE APPELLANT.
BRIDGES, C.J., THOMAS, P.J., COLEMAN, DIAZ, HINKEBEIN, KING, PAYNE, AND
SOUTHWICK, JJ., CONCUR. HERRING, J., NOT PARTICIPATING.
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