Luretha O. Bivins v. Ellisville State School and Mississippi Department of Mental Health

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2024-SA-01098-COA

LURETHA O. BIVINS APPELLANT

v.

ELLISVILLE STATE SCHOOL AND APPELLEES
MISSISSIPPI DEPARTMENT OF MENTAL
HEALTH

DATE OF JUDGMENT: 02/13/2024
TRIAL JUDGE: HON. DAL WILLIAMSON
COURT FROM WHICH APPEALED: JONES COUNTY CIRCUIT COURT,
FIRST JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT: MICHAEL ADELMAN
ATTORNEY FOR APPELLEES: OFFICE OF THE ATTORNEY GENERAL
BY: LINDSAY THOMAS DOWDLE
NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES
DISPOSITION: AFFIRMED - 11/25/2025
MOTION FOR REHEARING FILED:

BEFORE CARLTON, P.J., McDONALD AND McCARTY, JJ.

McCARTY, J., FOR THE COURT:

¶1. A state employee was terminated after recording a co-worker with her phone, which

was a violation of department policy. On appeal, the employee argues her termination was

error because the record did not contain substantial evidence and she was denied due process.

Finding substantial evidence supported the termination, we affirm.

¶2. Luretha Bivins was an employee of Ellisville State School, a facility operated by the

Mississippi Department of Mental Health. Part of her job entailed training new employees.

In the fall of 2022, she was tasked with training new hire DeVone Hughes. On the second

day of training, Hughes became frustrated with Bivins and picked up a wooden spoon,
waving it around in the kitchen.

¶3. In Hughes’ witness statement, she recounted, “I asked [Bivins] to pass me a spoon,”

but “she completely told me NO because she was sitting down.” Hughes then said that she

snapped and that Bivins “video[ed] me, but she really provoked me.”

¶4. In Bivins’ witness statement, she recalled that Hughes started to call her names while

waving the spoon; “[s]he used other cuss words and I told her no this is unacceptable and that

[a resident] was looking at her,” and “she asked me if I was recording her and she threw the

spoon down.”

¶5. The incident happened on a Friday. The following Monday morning, Bivins’

supervisors reached out to her to discuss the witness statement she submitted. After their

meeting, one of the supervisors filled out a report recounting that “[Bivins] said ‘I got a video

and I’m going to use it; I’m going to put it on YouTube.’”

¶6. A week later, Bivins wrote a 3-page letter addressed to the Mississippi State Personnel

Board. She faxed a copy of the document to her supervisor. In this letter, Bivins asserted

several grievances, specifically writing,

On day two of the training Ms. Hughes abandoned the kitchen duties . . . . I
was able to get some of this on video.
....
A few minutes later Ms. Hughes picked up a long handle spoon and started
moving it back and forth, she dropped the spoon and raised the middle fingers
on both hands. When she could not get me to respond to her, she said she was
quitting.
....
I have been on the record regarding some matters on the campus . . . .
....

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I was forced to leave [my] building get in my car and travel to another building
to use the restroom. I was placed in a room with lots of peeling paint and when
I took videos and pictures, I vowed to go the media—the matter was corrected.

¶7. Two weeks later, Bivins received a “Notice of Due Process Hearing” letter from the

Director at ESS. The letter informed Bivins that a “hearing is scheduled for September 14,

2022” to determine “whether inefficiency or other good cause exists which warrants possible

disciplinary action.” The letter notified Bivins that the hearing was an opportunity for her to

respond to the following specific allegation:

On August 22, 2022, you faxed to Stephen Smith, ESS HR Director, admitting
that you made a video of your co-worker while on a Department of Mental
Health worksite. This is considered to be a violation of the Telephone and
Social Media Policy as outlined on Page 22 of the Addendum of the
Department of Mental Health which states that ‘use of mobile phones, cameras
or other electronic devices to record or photograph individuals, employees and
workplace premises is a violation of DMH security.’

The letter concluded by stating, “[o]nce a determination is made concerning this matter, you

will be notified of a final decision.”

¶8. The hearing occurred as scheduled and lasted approximately ten minutes. The

following day, on September 15, 2022, the ESS Director sent a letter to Bivins with the

subject line “RE: Disciplinary Action Decision.” This letter informed her, “Your actions

constitute inefficiency or other good cause, and pursuant to Chapter 7 of the Mississippi State

Employee Handbook your employment is terminated effective September 15, 2022.”

¶9. ESS cited three points in the letter it claimed constituted good cause. First, the failure

to comply with agency policies for reporting neglect. Second, the refusal to cooperate during

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an administrative investigation. Third, the violation of the telephone and social media policy

by filming a co-worker.

¶10. Bivins’ termination letter further informed her that the School’s “disciplinary decision

may be appealed to the Mississippi Employee Appeals Board (MEAB).” She filed a notice

of appeal to the MEAB shortly after.

¶11. A hearing officer conducted a review of the appeal. This hearing lasted nearly four

hours. The sole witness for Bivins’ claims was herself. She submitted over a dozen exhibits.

ESS presented testimony from two human resources employees, including the HR Director

who testified about the existing videotaping policy and its enforcement against other

employees in the past.

¶12. The hearing officer examined whether Bivins met her burden to show the reasons

stated in the termination letter were untrue or were not sufficient for the termination. The

hearing officer found the first two instances were not sufficient grounds to justify terminating

Bivins’ employment.

¶13. However, the hearing officer concluded that Bivins had indeed violated the School’s

policy by recording a fellow employee. As a result, the hearing officer affirmed the

termination of Bivins on the sole ground of the violation of the policy against videotaping.

¶14. The order on behalf of the MEAB found:

[T]he agency indicates Bivins was terminated for taking a video of a coworker
during working hours. In her testimony, Bivins admits the video was taken at
the Ellisville State School during working hours. Bivins indicates the video
was taken to show that she was being harassed by a co-worker; however, the

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agency presented evidence that taking videos of co-workers is against policy.
Specifically, the policy states:

Use of mobile phones, cameras, or other electronic devices to
record or photograph, individuals, employees, and workplace
premises is a violation of DMH security, and may result in
termination.

Smith testified that during his tenure with the Mississippi State Department of
Mental Health all individuals which videoed other co-workers while on duty
were terminated by the agency. As such, Bivins termination for the same
offense which was admitted by her is true and sufficient grounds for the
agency’s decision considering the agency’s presumption of correctness in
personnel decisions.

The hearing officer concluded, “[C]onsidering Bivins bears the burden of proof that the

action of agency was either not true or not sufficient grounds for the action taken the hearing

officer finds that the agency’s decision regarding termination was sufficient.”

¶15. Bivins subsequently appealed the MEAB order for judicial review by the circuit court.

In her petition for review, Bivins claimed that she made the video-recording in self-defense

against a threat of violence, which justified her action. Bivins argued she did not violate any

ESS rules. She asked the circuit court to reverse her termination and reinstate her

employment with ESS.

¶16. On appeal, the circuit court conducted a review of the MEAB order. That court

ultimately affirmed, finding that the hearing officer’s decision was supported by substantial

evidence, was not arbitrary and capricious, and was not in violation of a statutory or

constitutional right of Bivins. Aggrieved, Bivins appeals.

DISCUSSION

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¶17. “Employees affected by adverse decisions may appeal to the Employee Appeals Board

(EAB) for de novo hearing, then to circuit court for judicial review on the record, and finally

to [our Supreme] Court.” Richmond v. Miss. Dep’t of Hum. Servs., 745 So. 2d 254, 257 (¶13)

(Miss. 1999) (quoting Holly v. Miss. Dep’t of Corr., 722 So. 2d 632, 363 (Miss. 1998)); see

also Miss. Code Ann. § 25-9-131 (Rev. 2024).

¶18. “[R]eview of an order from an administrative agency’s proceedings is limited to the

record and findings of the agency, [so] it follows that the reviewing court ‘may neither

substitute its own judgment for that of [the] administrative agency which rendered the

decision nor reweigh the facts of the case.’” Miss. Forestry Comm’n v. Oglesby, 105 So. 3d

375, 383 (¶22) (Miss. Ct. App. 2012) (quoting Miss. Transp. Comm’n v. Anson, 879 So. 2d

958, 964 (¶18) (Miss. 2004)).

¶19. “In appeals from the EAB, our review is complicated by the involvement of two

administrative agencies, the employing agency [ESS] and the EAB.” Bynum v. Miss. Dep’t

of Educ., 906 So. 2d 81, 90-91 (¶17) (Miss. Ct. App. 2004). While there may be two or more

decisions in the record, “[o]ur precedent establishes that the decision which we are

examining for support of substantial evidence is that of the EAB.” Id. at 91 (¶17) (citing

Anson, 879 So. 2d at 964 (¶¶18-19)). In other words, “[r]egardless of the conclusion of the

circuit court, our review focuses on the agency decision” from the MEAB. Id. at (¶19).

I. The hearing officer’s order affirming termination was not
arbitrary and capricious and was supported by substantial
evidence.

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¶20. Bivins argues the decision to terminate her must be reversed.

¶21. “The decision of an employee appeals board will be upheld upon judicial review

unless it is: ‘(a) not supported by substantial evidence; (b) arbitrary or capricious; or (c) in

violation of some statutory or constitutional right of the employee.’” Oglesby, 105 So. 3d at

379 (¶10) (quoting Pannell v. Tombigbee River Valley Water Mgmt. Dist., 909 So. 2d 1115,

1120 (¶11) (Miss. 2005); Miss. Code Ann. § 25-9-132 (Rev. 2010)). And “[t]he burden of

proof is on the appealing employee.” Miss. Dep’t of Corr. v. Pennington, 59 So. 3d 636, 639

(Miss. Ct. App. 2011) (citing Miss. Code Ann. § 25-9-127(1) (Rev. 2010)).

¶22. Substantial evidence “is such evidence that ‘reasonable minds might accept as

adequate to support a conclusion.’” Oglesby, 105 So. 3d at 380 (¶14) (quoting Delta CMI v.

Speck, 586 So. 2d 768, 773 (Miss. 1991)). And “[i]f an administrative agency’s decision is

based on substantial evidence, it is not arbitrary and capricious.” Id.

¶23. Crucially, “this Court does not act as an initial fact-finder.” Id. at 379-80 (¶11). “The

EAB is the trier of fact as well as the judge of the witnesses’ credibility.’” Bynum, 906 So.

2d at 90 (¶14) (quoting Miss. Bureau of Narcotics v. Stacy, 817 So. 2d 523, 526 (¶9) (Miss.

2002)). We must “determine whether the agency [MEAB] could properly have evaluated the

contested evidence in a manner that supports the agency decision.” Oglesby, 105 So. 3d at

379-80 (¶11) (quoting Miss. Dept. of Corr. v. Harris, 831 So. 2d 1190, 1192 (¶6) (Miss. Ct.

App. 2002)).

¶24. We find ample support in the record for the EAB’s decision. First, there is no

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question that ESS had a policy prohibiting one employee from filming another. Bivins

provided the hearing officer with a page from the employee handbook that contains the

policy: “Use of mobile phones, cameras, or other electronic devices to record or photograph

individuals, employees and workplace premises is a violation of DMH security and may

result in termination.”

¶25. Second, Bivins herself repeatedly admitted that she had filmed her co-worker while

they were in the kitchen working. Indeed, her supervisors later recounted Bivins told them

that she had the recording and that she was going to post it on YouTube. In and of itself, this

constitutes substantial evidence to affirm the agency’s decision.

¶26. As to whether the termination was arbitrary or capricious, Bivins alleges that the

evidence does not show “all individuals which videotaped other co-workers while on duty

were terminated.” However, the HR director for ESS testified that the agency had repeatedly

enforced the policy prohibiting video-recording. His testimony was ESS had fired “[a]t least

three or four [employees] that I can remember. At least. Maybe more.” Therefore, the

evidence shows Bivins was not singled out and was not the only employee who was fired for

recording another co-worker with her phone. As a result, her termination was not arbitrary

or capricious.

¶27. For these reasons, we affirm the decision of the MEAB upholding the termination of

Bivins for violating the video-recording policy.

II. Bivins received due process in her termination proceedings.

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¶28. In the alternative, Bivins claims she was deprived of due process because “there [was]

no evidence that Ms. Bivins or any other employee . . . was ever provided with a copy” of the

video-recording policy before her termination. She essentially argues that ESS did not give

her notice that filming a co-worker could result in her termination.

¶29. “[W]hether a party received due process is a question of law, which an appellate court

reviews de novo.” Thompson v. Pub. Emps.’ Ret. Sys. of Miss., 297 So. 3d 267, 271 (¶8)

(Miss. Ct. App. 2019) (quoting Holt v. Miss. State Bd. of Dental Exam’rs, 131 So. 3d 1271,

1276 (¶7) (Miss. Ct. App. 2014)).

¶30. “Due process requires simply the opportunity to be heard at a meaningful time and in

a meaningful manner.” Id. at 274 (¶19) (quoting Holt, 131 So. 3d at 1279-80 (¶27)). The

usual “formalities of practice, procedure, and evidence are relaxed in all administrative

proceedings, including those concerning licenses.” Id. Instead, “due process requires notice

reasonably calculated, under all the circumstances, to apprise interested parties of the

pendency of the action and to afford them an opportunity to present their objections.” Id.

¶31. We find there is no support for Bivins’ argument in the record. During the HR

director’s testimony, he presented an “Acknowledgment of Personnel Policies” that Bivins

had signed in September 2021. The acknowledgment stated, “I further understand that I am

responsible for reading and adhering to the personnel policies on the various rules,

regulations and benefits in the DMH Addendum[.]”

¶32. Also, Bivins testified that the Addendum containing the prohibition was publicly

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available by going to a state employee website. Furthermore, she was provided ample

opportunities to respond to the disciplinary allegations and to appeal her termination,

including a lengthy hearing where she submitted multiple exhibits and testified.

Consequently, Bivins was not denied due process throughout the course of her termination

proceedings.

CONCLUSION

¶33. Bivins bore the burden of showing the MEAB’s order was not supported by

substantial evidence or was arbitrary and capricious, but she has failed to do so. The evidence

establishes that she used her phone to record her co-worker, that video-recording was against

ESS policy, and that a violation of this policy subjected her to termination. Therefore, we

affirm the order upholding Bivins’ termination.

¶34. AFFIRMED.

BARNES, C.J., CARLTON AND WILSON, P.JJ., WESTBROOKS,
McDONALD, LAWRENCE, EMFINGER, WEDDLE AND LASSITTER ST. PÉ, JJ.,
CONCUR.

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