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Woodland Village Nursing Center, LLC v. Mississippi Dep't of Employmet Security

Court of Appeals of Mississippi

October 29, 2013

WOODLAND VILLAGE NURSING CENTER, LLC, APPELLANT
v.
MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY AND KELSEY NOBACH, APPELLEES

Page 947

COURT FROM WHICH APPEALED: HANCOCK COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 12/27/2011. TRIAL JUDGE: HON. ROGER T. CLARK. TRIAL COURT AFFIRMED JUDGMENT OF THE MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY BOARD OF REVIEW.

FOR APPELLANT: THOMAS L. MUSSELMAN, JACKYE C. BERTUCCI.

FOR APPELLEES: ALBERT B. WHITE, DANIELLE KARIE BREWER, LEANNE FRANKLIN BRADY.

BEFORE GRIFFIS, P.J., BARNES AND JAMES, JJ. LEE, C.J., GRIFFIS, P.J., ISHEE, ROBERTS, CARLTON AND FAIR, JJ., CONCUR. IRVING, P.J., AND BARNES, J., CONCUR IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. MAXWELL, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

OPINION

Page 948

NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES

JAMES, J.

¶1) Kelsey Nobach was terminated from her position as an activity aide at Woodland Village Nursing Center LLC for violating its alleged disciplinary policy. Initially Nobach was denied benefits by a Mississippi Department of Employment Security (MDES) claims examiner. Nobach appealed to an administrative law judge (ALJ), who reversed the denial of benefits. Woodland Village appealed to the MDES Board of Review, and the Board of Review affirmed. Woodland Village next appealed to circuit court, which also affirmed. Upon review, we find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶2) Nobach was employed as an activity aide at Woodland Village from August 2008 to September 2009. Nobach was terminated when she refused to recite the Rosary [1] with a resident on September 24,

Page 949

2009. The write-up that resulted was her fifth write-up. [2] Nobach was informed that she was being terminated for receiving a fifth write-up and for her insubordination by refusing to recite the Rosary as scheduled on the activity calender.

¶3) On September 24, 2009, Nobach filed for unemployment benefits with MDES. After an investigation, the MDES claims examiner disqualified Nobach from receiving unemployment-insurance benefits, finding that Nobach was discharged for receiving five write-ups in one year, contrary to the employer's stated policy. The " Notice of Nonmonetary Determination Decision" was dated October 6, 2009. Nobach appealed on October 21, 2009, one day past the fourteen-day time limit for filing. A telephonic hearing before an ALJ was held on November 25, 2009, ...


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