Bonnie Richmond v. Mississippi Department of Human Services

IN THE SUPREME COURT OF MISSISSIPPI
NO. 96-CT-00667-SCT
BONNIE RICHMOND
v.
MISSISSIPPI DEPARTMENT OF HUMAN SERVICES
ON WRIT OF CERTIORARI
DATE OF JUDGMENT: 05/16/96
TRIAL JUDGE: HON. JAMES E. GRAVES, JR.
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: SUSAN M. BREWER
ATTORNEYS FOR APPELLEE: GLORIA J. GREEN
EDUARDO V. MARTINEZ
NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES
DISPOSITION: REVERSED AND REMANDED - 7/29/1999
MOTION FOR REHEARING FILED: 08/13/99; denied 10/07/99
MANDATE ISSUED: 10/14/99

EN BANC.

PITTMAN, PRESIDING JUSTICE, FOR THE COURT:

¶1. Bonnie Richmond was dismissed from her employment as a social worker with the Department of
Human Services (DHS) for a comment made during a meeting with two high level officials of the
department. Richmond appealed her dismissal to the Mississippi Employee Appeals Board (EAB) where a
hearing officer reinstated her to her previous position with back pay. The EAB sitting en banc, affirmed the
decision of the hearing officer, and DHS filed for certiorari in the Circuit Court of Hinds County,
Mississippi. The circuit court found the decision of the board was arbitrary and capricious and reversed the
decision of the EAB. Bonnie Richmond appealed, and the case was assigned to the Court of Appeals. The
Court of Appeals found that the decision of the EAB was not arbitrary and capricious and reinstated the
decision of the board. DHS filed a timely Petition for Writ of Certiorari, which was granted. Finding error,
we reverse and remand.

FACTS

¶2. On May 23, 1994, Bonnie Richmond and her co-worker, Renee Elmore, met with Joyce Johnson, the
Director of DHS' Division of Family and Children Services, and Jerald Everett, a personnel officer for
DHS. During the conference, Bonnie Richmond indicated that she would like to discuss other office
concerns with Ms. Johnson which were not on the agenda. Johnson had another previously scheduled
matter to attend to, but informed Richmond and Elmore that she would speak with them later in the day.

¶3. Later that day, when Bonnie Richmond and Elmore were speaking to Johnson and Everett regarding
their concerns with their local office in DeSoto County, Johnson inquired why Varrie Richmond,(1) who was
assigned to DHS' Tate County office, was traveling to DHS' office in DeSoto County to review cases.
Bonnie Richmond replied, "all I can say about Varrie, she's a good ole nigger." The meeting ended shortly
thereafter, and Bonnie Richmond and Renee Elmore left to return to the DeSoto County office, at which
point Johnson and Everett discussed Richmond's comment. Johnson and Everett then pulled out a
dictionary to look up the meaning of the word. Johnson told Everett to think about the situation since he
was in personnel and let her know what came about.

¶4. The next morning, Tuesday May 24, 1994, Varrie Richmond went to the DeSoto County DHS office
to review cases, as she had done in the past. She was informed during a conversation with Bonnie
Richmond and Renee Elmore that there might be a problem with her coming from the Tate County office to
review cases in the DeSoto County office. At some point during the conversation, Elmore said something to
the effect of, "guess what Bonnie said about you," or "you will never believe what Bonnie said to Ms.
Johnson about you." There is a dispute in the testimony as to who then told Varrie Richmond about Bonnie
Richmond's comment to Johnson. Elmore testified that Bonnie Richmond told Varrie Richmond the contents
of the statement, while Varrie Richmond and Bonnie Richmond testified that Elmore actually told her the
contents of the statement. Varrie Richmond informed Bonnie Richmond that she thought that the word was
derogatory and that did not appreciate being referred to in that manner. Bonnie Richmond apologized to
Varrie Richmond and told her that she did not mean it in a derogatory manner.

¶5. The next day, calls began coming into Ms. Johnson's office inquiring as to whether she approved of
Bonnie Richmond's comment. Johnson testified that she assured the callers that the comments were not
condoned. She further testified that approximately sixty percent of the four to five thousand workers in her
agency are of African American descent, and that it was felt by her and others that the perception or
appearance that the agency condoned the comment could cause, "a very severe, very critical problem."

¶6. The agency made the decision to terminate Bonnie Richmond from her employment, and a termination
notice was given to Bonnie Richmond. The termination letter charged Bonnie Richmond with a Group III
Offense, Number 11 which provides:

Acts of conduct occurring on or off the job which are plainly related to job performance and are of
such nature that to continue to employee in the assigned position could constitute negligence in regard
to the agency's duties to the public or other state employees.

The termination letter also charged her with a Group III Offense, Number 16 which is a "[w]illful violation
of State Personnel Board policies, rules and regulations. In support of the charges, the pre-termination letter
to Bonnie Richmond alleged:

On May 23, 1994, while in a conference with Joyce Johnson, Division Director of Family and
Children's Services and Jerald Everett of the Division of Human Resources, you referred to one of our
black employees as a "good ole nigger." Further on May 24, 1994, upon return to DeSoto County
Office, you approached this black employee and told her that you had been in a meeting in Mrs.
Joyce Johnson's office and had told them that she was a "good ole nigger." Your conduct in referring
 to a minority employee of the Mississippi Department of Human Services (MDHS) as a "good ole
nigger" was offensive. It further has created a hostile, harassing and offensive environment for the
subject employees and other MDHS employees and administrators. Your conduct in returning to the
DeSoto Office and repeating the phrase "a good ole nigger" as though it was acceptable MDHS
behavior has created a distraction within the DeSoto Office and surrounding areas, causing employees
to question whether the Department condones the use of racial slurs and indignities and, thereby,
calling into question the integrity of the Department. To allow you to continue in this position would
discredit the agency, impair the agency's ability to provide services, violate the agency's responsibility
to the public to administer non-discriminatory services, violate the agency [sic] duty to administer [a]
working environment free of discriminatory practices and procedures and subject the Department to
potential liability for unlawful discrimination.

¶7. Bonnie Richmond appealed the matter, and a hearing was held before Hearing Officer Falton O.
Mason, Jr. on November 16, 1994. At the hearing, in addition to the facts previously set forth, Varrie
Richmond testified that she found the comment offensive and that it "denotes everything negative in regards
to an individual." She further testified, "it was not like there was any real big problem associated with the
incident. I guess it could have been a real big problem as far as I was concerned, but it's not how I deal
with things." She went on to say, "I tend to withdraw from things of that nature and I really don't take issue
with them, and I have a hard time being overtly ugly to anybody even when I have been -- when my feelings
have been hurt."

¶8. Bonnie Richmond testified in her own behalf regarding the incident. She admitted to making the
statement, but denied that it was racially motivated. She stated, "[t]hat phrase was meant not to have to do
with a person's color, but it was kind of an office joke referring to Varrie Richmond's inability to assert
herself." She stated, "I would never say anything derogatory that I thought someone would take in that
manner. You know, I thought that we had used that terminology previously and Varrie didn't seem to have
a problem with it, nor anyone else." Bonnie Richmond further testified that she had been referred to as a
"honkie" and a "redneck", but that she did not take that personally. Finally, as to the setting in which the
comment was made, Bonnie Richmond testified, "[t]hat setting was very I felt informal and Ms. Johnson
was very good at making us feel welcomed and relaxed, and, yes, I was very open. If she had not, I
probably would have been more on guard and not said that."

¶9. The hearing officer reinstated Richmond with backpay, and in his order equated the comment to calling
a person a teacher's pet. DHS appealed to the full Mississippi Employee Appeals Board, which affirmed
the decision of the Hearing Officer. DHS then filed a petition for writ of certiorari in the Circuit Court of the
First Judicial District of Hinds County, Mississippi. The circuit court, Hon. James E. Graves, Jr. presiding,
reversed the decision of the EAB-finding the decision to be arbitrary and capricious and not supported by
substantial evidence.

¶10. Bonnie Richmond appealed, and the case was assigned to the Court of Appeals which, in an
unpublished 5 - 4 decision, reversed the circuit court and reinstated the decision of the Mississippi
Employee Appeals Board. The majority held:

In this case, the EAB decided that this one use of a racial epithet, when viewed in the context in which
it was said, did not constitute sufficient basis to terminate an employee whose service, over a number
of years, was shown to have been satisfactory in all other respects. We conclude that there was
 evidence in the record to support this conclusion. The authority for judicial intervention does not exist
in this case. Therefore when the circuit court proceeded to do so, it erred and that action must be set
aside.

Richmond v. Mississippi Dep't of Human Servs., No. 96-CC-00667-COA, slip op. at 10-11(Miss. Ct.
App. Aug. 4, 1998). A Motion for Rehearing was filed by DHS and denied by the Court of Appeals. DHS
subsequently filed a Petition for Writ of Certiorari, which was granted by this Court.

LAW

¶11. Miss. Code Ann. § 25-9-131(1) (1991) provides in relevant part:

The employee appeals board may modify the action of the department, agency or institution but may
not increase the severity of such action on the employee. Such appointing authority shall promptly
comply with the order issued as a result of the appeal to the employee appeals board.

¶12. In Johnson v. Mississippi Dep't of Corrections, 682 So. 2d 367 (Miss. 1996), we set forth the
Employee Appeal Board's standard of review regarding an agency's personnel decision.

Rule 20(b) mandates that the EAB shall not alter the action taken by the agency, if the agency has
acted in accordance with the published rule and if the personnel action taken by the agency is allowed
under the guidelines. That is exactly what happened here. MDOC acted within the rules under which
termination was allowed. There is no finding to the contrary. Johnson, having the burden of proof,
failed to establish that good cause did not exist for her termination.

Johnson at 370-371.

¶13. In Holly v. Mississippi Dep't of Corrections, 722 So. 2d 632 (Miss. 1998), we spoke further on the
standard of review.

Section 25-9-127, governing appeals to the EAB, requires the appealing party "to furnish evidence
that the reasons stated in the notice of dismissal or action adversely affecting his compensation or
employment status are not true or are not sufficient grounds for the action taken." Miss. Code Ann. §
25-9-127(1) (1994).

No employee of any state agency may be dismissed unless there is good cause and after written
notice and hearing. Miss. Code Ann. § 25-9-127 (Supp.1990). 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 this Court. Miss. Code Ann. §§ 25-9-131 and
25-9-132 (Supp.1990). Review by the circuit court is limited to determinations of whether the EAB's
actions are supported by substantial evidence, are arbitrary or capricious, or are in violation of some
statutory or constitutional right of the employee. Miss. Code Ann. § 25-9-131 (Supp.1990). Hood
v. Miss. Dep't of Wildlife Conservation, 571 So.2d 263, 267 (Miss. 1990).

Holly at 636.

¶14. Finally, regarding the burden of proof in such cases, we have stated:

The statute and administrative regulations clearly place the burden of persuasion on the aggrieved
 employee to demonstrate that the reasons given are not true. Rule 17, Administrative Rules of the
Mississippi Employee Appeals Board; Rules Miss.Code Ann. § 25-9-127 (1972). . . . .This is not
mere semantics. Under our scheme, in a nutshell, ties go to the appointing authority. That is, unless the
employee carries the burden of persuasion that the alleged conduct did not occur, the employee has
no right to have the employment decision overturned. Mississippi Employment Security
Commission v. Collins, 629 So.2d 576, 580 (Miss.1993); Miss.Code Ann.§ 25-9-127.

Mississippi Dep't of Corrections v. McClee, 677 So.2d 732, 735 (Miss. 1996).

¶15. In the present case, Bonnie Richmond was an employee of over five years with an otherwise
acceptable employment record. The case in question arose out of a single use of a racial slur. Varrie
Richmond, the person in which the word was used in reference to, seemingly accepted the apology offered
by Bonnie Richmond and did not feel it necessary to report the incident to her superiors. We find that
Bonnie Richmond's use of the slur on a single occasion does not rise to the level of creating a hostile
environment. See Vaughn v. Pool Offshore Co., 683 F.2d 922 (5th Cir. 1982). Therefore, the unique
circumstances of this case do not warrant imposition of the ultimate penalty of dismissal of Bonnie
Richmond from her employment with the DHS.

¶16. However, the Hearing Officer made no finding that DHS did not act in accordance with the published
rules of the State Personnel Board or the decision was not allowed under the guidelines. In addition, the
EAB erred by not making sufficient findings on the record as to why there should be no penalty. This is
contrary to the holdings of the Court in Johnson, McClee, and Holly, discussed previously herein. We
therefore remand the present case to the EAB in order for the board to impose an appropriate penalty less
than dismissal, or to make detailed findings as to why no penalty should be imposed.

¶17. By our decision today, we do not condone the use of slurs--racial, ethnic, or otherwise--in the
workplace. We are not insensitive to the fact that the use of such words can penetrate to the deepest realms
of one's emotions. Terms such as "nigger," "honkie," "redneck," and the like are unprofessional,
inappropriate, and uncalled for in the workplace and should not be used either directly or indirectly. We
therefore limit our holding to the unique set of circumstances in this particular case, i.e., a first offense, an
otherwise good work performance record, and an apology by the offending employee. Given other
circumstances, we might very well find that the single use of a racial slur warrants dismissal of an employee
from his or her employment. However, in this case, we find that the harsh penalty of dismissal of Bonnie
Richmond from her employment is not warranted under the circumstances.

CONCLUSION

¶18. Under the particular circumstances of this case, Bonnie Richmond's use of a racial slur on a single
occasion does not rise to level of creating a hostile work environment, and therefore does not warrant
dismissal of her from employment with DHS. However, we remand this matter back to the Employee
Appeals Board for the imposition of a lesser penalty, or to make detailed findings on the record why no
penalty should be imposed. Finally, we limit our holding to the unique circumstances of this particular case.

¶19. REVERSED AND REMANDED.

PRATHER, C.J., MILLS AND WALLER, JJ., CONCUR. BANKS, J., CONCURS IN PART
AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED IN PART BY
SULLIVAN, P.J., AND SMITH, J. SMITH, J., CONCURS IN PART AND DISSENTS IN
PART WITH SEPARATE WRITTEN OPINION JOINED BY BANKS, J. McRAE AND
COBB, JJ., NOT PARTICIPATING.

BANKS, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:

¶20. I agree that the Court of Appeals erred in reversing the circuit court's ruling that the board's decision to
reinstate Bonnie Richmond was arbitrary and capricious. However, I am of the opinion that this matter
should be reversed and rendered, as opposed to being remanded to the Employee Appeals Board.

¶21. In Johnson v. Mississippi Dep't of Corrections, 682 So. 2d 367 (Miss. 1996) the Court set forth the
Employee Appeal Board's standard of review regarding an agency's personnel decision.

Rule 20(b) mandates that the EAB shall not alter the action taken by the agency, if the agency has
acted in accordance with the published rule and if the personnel action taken by the agency is allowed
under the guidelines. That is exactly what happened here. MDOC acted within the rules under which
termination was allowed. There is no finding to the contrary. Johnson, having the burden of proof,
failed to establish that good cause did not exist for her termination.

Johnson at 370 -71.

¶22. Regarding the burden of proof in such cases, the Court has stated:

The statute and administrative regulations clearly place the burden of persuasion on the aggrieved
employee to demonstrate that the reasons given are not true. Rule 17, Administrative Rules of the
Mississippi Employee Appeals Board; Rules Miss. Code Ann. § 25-9-127 (1972). . . . This is not
mere semantics. Under our scheme, in a nutshell, ties go to the appointing authority. That is, unless the
employee carries the burden of persuasion that the alleged conduct did not occur, the employee has
no right to have the employment decision overturned. Mississippi Employment Security
Commission v. Collins, 629 So. 2d 576, 580 (Miss. 1993); Miss. Code Ann. § 25-9-127.

Mississippi Dep't of Corrections v. McClee, 677 So. 2d 732, 735 (Miss. 1996).

¶23. In McClee, the Court reversed and remanded the case back to the Employee Appeals Board because
the burden of proof was improperly allocated. In so doing the Court stated:

To be sure, there was evidence that the phone did not work and the witnesses did express some slight
equivocation on whether McClee was in fact asleep. That is to say only that upon a correct allocation
of the burden of proof, the decision of the EAB could, perhaps, pass muster.

What the hearing officer said was that he was not convinced that McClee was asleep. That is not the
issue. The hearing officer must be convinced that McClee was not asleep in order to overturn the
action of the appointing authority. The hearing officer went on to uphold the discharge on grounds not
specifically asserted in the charge. The EAB accepted the hearing officer's findings and modified the
punishment. Neither the hearing officer nor the EAB is shown to have properly allocated the burden
 of proof.

We are therefore compelled to reverse the order of the EAB and remand the matter to it for a
decision based on the proper allocation of the burden of proof.

Id. at 735-736.

¶24. In the present case, the Court of Appeals found:

The primary thrust of DHS's argument in favor of termination, supported in large part by Johnson's
testimony, appears to be that Richmond's termination was necessary as a means of forcefully
demonstrating that high-level DHS officials did not, in fact, condone such behavior. . . . If we
concede, for sake of argument only, that Richmond's right to continued employment may properly be
made to hinge on the collective reaction of other DHS employees to her conduct without regard to
whether the reaction was or was not warranted on the facts, we are still faced with the proposition
that the actual disruptive effect of Richmond's remark was a matter that was subject to
proof. The mere fact that such a remark could cause substantial problems within an agency does not
necessarily translate into the proposition did, in fact, cause a disruption. The only evidence in the
record on this point is Joyce Johnson's testimony that the state office was receiving numerous calls
from county workers all over the state expressing distress with the agency's leadership over the
matter. However, on cross-examination, Johnson was asked to give any concrete proof of any such
calls. She was unable to do so, saying only that should would "have to go back and check my phone
log." The total absence from the record of any credible proof that Richmond's remark was
causing wide-spread consternation among DHS employees must be seen as damaging to
DHS' position that Richmond's continued employment was an act of negligence. (Court of
Appeals Opinion at p. 8) (emphasis added) (italics in original).

¶25. It appears that the Court of Appeals and the Employee Appeals Board improperly applied the burden
of proof in this case by requiring DHS to prove that Bonnie Richmond's remark caused a disruptive effect.
Johnson's undisputed testimony was that she had received telephone calls from other employees concerning
the use of the word "nigger" and whether the agency condoned the use of such terms. Bonnie Richmond put
on no evidence to the contrary; and therefore, she did not meet her burden of proof. In addition, the hearing
officer made no finding that DHS did not act in accordance with the published rules of the State Personnel
Board or the decision was not allowed under the guidelines.

¶26. Furthermore, it is clear that DHS had an interest in terminating Bonnie Richmond because not to have
taken some sort of action regarding the comment made by her, could possibly have subjected the agency to
a claim of a racially hostile environment claim under federal law, and therefore retaining Bonnie Richmond
could constitute negligence.

¶27. As previously stated, one of the reasons assigned for terminating Bonnie Richmond was the
commission of a Group III Offense, Number 11 which provides:

Acts of conduct occurring on or off the job which are plainly related to job performance and are of
such nature that to continue to employee in the assigned position could constitute negligence in regard
 to the agency's duties to the public or other state employees.

¶28. In Johnson, the Court spoke regarding this type of offense.

There are currently no cases that address the right of a state agency's right to dismiss a person when it
appears that retention would be negligent. However, this situation is analogous to those where
employers have been held liable to third parties for negligently retaining the employee. In Eagle
Motor Lines v. Mitchell, 223 Miss. 398, 78 So. 2d 482 (1955), this Court stated:

Retaining in employment a servant who is, or should be, known to be incompetent, habitually
negligent, or otherwise unfit, is such negligence on the part of the master as will render him liable for
injuries to third persons resulting from the acts of the incompetent servant, whether the master's
knowledge of the servant's incompetency was actual, or direct, or constructive; the master is
chargeable with knowledge of the competency of the servant if by the exercise of due or reasonable
care or diligence he could have ascertained such incompetence.

Mitchell, 223 Miss. at 412, 78 So. 2d 482.

While there was no evidence that Johnson was incompetent or habitually negligent, abundance of
credible evidence exists suggesting that Johnson is "otherwise unfit," due to her apparent propensity to
smuggle packages to criminals. We must agree with the circuit judge and his analysis of the situation.
Johnson is "otherwise unfit" to work for MDOC.

Johnson at 370.

Title VII makes it unlawful "for an employer . . . to discriminate against an individual with respect to
his compensation, terms, conditions, or privileges of employment because of such individual's race,
color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). The phrase "terms, conditions or
privileges of employment" has been interpreted by the courts to provide a cause of action to person
who works in a discriminatorily hostile environment. Harris v. Forklift Systems, Inc., 510 U.S. 17,
20, 114 S.Ct. 367, 370, 126 L.Ed.2d 295 (1993); Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir.
1971), cert. denied, 406 U.S. 957, 92 S.Ct. 2058, 32 L.Ed.2d 343 (1972).

Grant v. UOP, Inc., 972 F. Supp. 1042, 1046 (W.D. La. 1996)(footnote omitted), aff'd mem., 122
F.3d 1066 (5th Cir. 1997).

When a plaintiff presents credible direct evidence that discriminatory animus in part motivated or was
a substantial factor in the contested employment action, the burden of proof shifts to the employer to
establish by a preponderance of the evidence that the same decision would have been made
regardless of the forbidden factor. Direct evidence is evidence which, if believed, proves the fact
without inference or presumption. We conclude that Brown's evidence passes muster.

Brown v. East Miss. Elec. Power Ass'n, 989 F.2d 858, 861 (5th Cir. 1993) (footnotes omitted).

¶29. The court in Brown, also stated:

Pippen's routine use of racial slurs constitutes direct evidence that racial animus was a motivating
factor in the contested disciplinary decisions. Pippen's use of the racial epithet was not, as EMEPA
 suggests, an innocent habit. Unlike certain age-related comments which we have found too vague to
constitute evidence of discrimination, the term "nigger" is a universally recognized opprobrium,
stigmatizing African-Americans because of their race. That Pippen usually was circumspect in using
the term in the presence of African-Americans underscores that he knew it was insulting. Nonetheless,
he persisted in demeaning African-Americans by using it among whites. This is racism.

Brown at 861 (footnote omitted).

¶30. The court found the employer liable to Brown, and in so doing it stated:

EMEPA has not proven its contention that Murray was not influenced by racial factors. Louvenia
Ford testified without contradiction that Murray minimized her complaint about Pippen's use of racial
slurs. Although he ostensibly reprimanded Pippen, Murray apparently never considered that Pippen's
blatantly racist attitudes might explain his criticism of Brown and might undermine the objectivity of his
advice with respect to Brown's position with the company.

Also informing our judgment is Brown's circumstantial evidence of discrimination. In 1982 the
company received an anonymous letter complaining of mistreatment of black customers by Clarence
Nance, a white serviceman. That letter was placed in Nance's personnel file but the only discipline
Nance received was a verbal warning from his immediate supervisor. In 1990 another black customer
complained. This time Nance was warned that he would be transferred if there was another complaint
but, unlike Brown, he was not moved to a different service territory nor was any other disciplinary
action imposed.

Brown at 862-63.

¶31. An employer must take prompt remedial action "reasonably calculated" to end the harassment in
question. Garcia v. Elf Atochem North America, 28 F.3d 446, 451 (5th Cir. 1994) (citing Jones v.
Flagship Int'l, 793 F.2d 714, 719-20 (5th Cir. 1986), cert. denied, 479 U.S. 1065 (1987). The United
States Supreme Court has held that an abusive work environment need not seriously affect the employee's
psychological well-being in order to be actionable. Harris v. Forklift Systems, Inc. 510 U.S. 17, 22
(1993).

¶32. As previously stated, Varrie Richmond testified that this was not the first instance that Bonnie
Richmond had used the term "nigger" in reference to her. While the majority notes that she did not report
the incident to her supervisor, she testified that she was upset at the time and still upset at the hearing.
Bonnie Richmond and Shirley Hubbard both testified that they and other employees in that particular office
joked among themselves about the differences between black and white people or the economic status
between people. While the alleged joking in the DeSoto County office regarding the differences between
black and white people may not in and of itself be enough to constitute a racially hostile environment, see
generally Vaughn v. Pool Offshore Co., 683 F.2d 922, 924-25 (5th Cir. 1982), when coupled with the
racial slur or slurs uttered by Bonnie Richmond, such conduct may have been enough to do so.

¶33. DHS followed its rules and those of the Personnel Board. The material facts are not in dispute. I would
reverse and render the judgment of the Court of Appeals and reinstate the judgment of the Circuit Court.

SULLIVAN, P.J., AND SMITH, J., JOIN THIS OPINION IN PART.
 SMITH, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:

¶34. The majority opines that termination of Bonnie Richmond's employment is too harsh of a penalty in
these limited circumstances. The majority would reverse and remand, but would require that the EAB
lessen the penalty imposed on Richmond. The majority states that the record is insufficient due to the fact
that the Hearing Officer made no findings that DHS failed to act in accordance with its published rules. I
agree that the record is insufficient. However, if the record was insufficient then, it remains insufficient now.
This Court is in no better position to mandate to DHS what is the proper discipline to be imposed upon
Richmond than is the EAB. Based on the evidence before the EAB, DHS acted according to its policy and
imposed a punishment that was authorized under its guidelines. Besides, the Court of Appeals and the EAB
improperly applied the burden of proof upon DHS requiring the agency to prove that Richmond's remark
caused disruption in the agency. Accordingly, I respectfully concur in part and dissent in part to the
majority.

¶35. The majority relies upon Johnson v. Mississippi Dep't of Corrections, 682 So.2d 367 (Miss.
1996). However, Johnson does not support the majority opinion. In that case, this Court set forth the
standard of review regarding an agency's personnel decisions. The Johnson court stated that the EAB
"shall not alter the action taken by the agency, if the agency has acted in accordance with the published rule
and if the personnel action taken by the agency is allowed under the guidelines." Id. at 371. Johnson is
more appropriately supportive of this dissent. Based on this Court's ruling in Johnson, the EAB should not
have altered DHS's imposed penalty due to the fact that DHS took action that was within its guidelines.
Again, the majority tells the EAB that it must lessen the penalty. However, even if the EAB changes the
penalty imposed, that does not adhere to Johnson. The penalty should not be changed, because there
should have been no alteration by the EAB in the first place.

¶36. Secondly, the majority concludes that "Bonnie Richmond's use of the slur on a single occasion does
not rise to the level of creating a hostile environment." Yet, the record reveals that within only one day of the
incident, DHS received telephone calls from DHS employees throughout the state who expressed concerns
about Richmond's remarks. The racial slur simply supplied the vehicle whereby the courts are now involved.

¶37. The real issue here is basically, the majority is merely substituting its judgment for that of the agency.
This particular issue has been specifically addressed in the case of Arnold Line Water Ass'n, Inc. v.
Miss. Public Service Comm'n, 1999 WL 161337 (Miss. Mar. 25, 1999). In Arnold, we held in
pertinent part that, "a rebuttable presumption exists in favor of agency decisions, and an appellate court
may not substitute its judgment for that of an agency." Id. at *3 (emphasis added). Therefore,
adhering to Arnold, this Court has no authority to substitute its own judgment for that of DHS.

¶38. In conclusion, I disagree that this Court has any authority to alter the decision of EAB based on our
caselaw, by substituting what the majority believes is the only appropriate penalty. Applying Johnson, the
EAB had no authority to alter DHS's penalty in the first place. Again, the EAB "shall not alter the action
taken by the agency, if the agency has acted in accordance with the published rule and if the personnel
action taken by the agency is allowed under the guidelines." In the same way, even if the EAB's alteration
was justified, this Court would not have the authority to substitute our judgment for theirs. Arnold Line
Water Ass'n, Inc. v. Mississppi Public Service Comm'n, 1999 WL 161337, at *3 (Miss. Mar. 25,
1999).

¶39. I respectfully concur in part and dissent in part and I would reverse and render.
BANKS, J., JOINS THIS OPINION.

1. Bonnie Richmond and Varrie Richmond are not related.