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555 P.2d 696 Supreme Court of New Mexico. Zelma M. MITCHELL, Plaintiff-Appellee, v. LOVINGTON GOOD SAMARITAN CENTER, INC., Defendant-Appellant. No. 10847.Oct. 27, 1976. Appeal was taken from an order of the District Court, Bernalillo County, Richard B. Traub, D.J., reversing a decision of the Unemployment Security Commission and awarding benefits to discharged employee. The Supreme Court, Sosa, J., held that employee’s insubordination, improper attire, name calling and other conduct evidencing wilful disregard of employer’s interests constituted ‘misconduct’ disqualifying her from receiving certain unemployment benefits. Reversed.

Attorneys and Law Firms *576 **697 Heidel, Samberson, Gallini & Williams, Jerry L. Williams, Lovington, for defendant-appellant. Gary J. Martone, J. Richard Baumgartner, Joseph Goldberg, Albuquerque, for plaintiff-appellee.

OPINION SOSA, Justice. This case presents the issue of whether petitioner’s actions constituted misconduct so as to disqualify her from certain unemployment compensation benefits. On June 4, 1974, petitioner-appellee Zelma Mitchell was terminated for alleged misconduct from the Lovington Good Samaritan Center, Inc. On June 12, 1974, Mrs. Mitchell applied for unemployment compensation benefits. Finding that Mrs. Mitchell’s acts constituted misconduct, a deputy of the Unemployment Security Commission disqualified Mrs. Mitchell from seven weeks of benefits pursuant to s 59-9-6(B), N.M.S.A.1953. On July 24, 1974, Mrs. Mitchell filed an appeal. The referee of the Appeal Tribunal reversed the deputy’s decision and reinstated these benefits to Mrs. Mitchell on August 28, 1974. On September 13, 1974, the Center appealed the decision of the Appeal Tribunal to the whole Commission pursuant to s 59-9-6(E), N.M.S.A.1953. The Commission overruled the Appeal Tribunal and reinstated the seven week disqualification period. Mrs. Mitchell then applied for and was granted certiorari from the decision of the Commission to the District Court of Bernalillo County pursuant to s 59-96(K), N.M.S.A.1953. On January 16, 1976, the District Court reversed the Commission’s decision and ordered it to reinstate the benefits to Mrs. Mitchell. From the judgment of the District Court, the Center appeals. The issue before us is whether Mrs. Mitchell’s actions constituted misconduct under s 59-9-5(b), N.M.S.A.1953. Mrs. Mitchell started work at the Center in Lovington on July 4, 1972 as a nurse’s aide. After approximately one year on the job in addition to her normal duties she also served as a relief medications nurse two days per week. On June 4, 1974, she was terminated. The testimony concerning the events leading up to her termination that day is somewhat contradictory but basically is the following. Mrs. Mitchell arrived punctually to work at three p.m. The director of the Center, Mr. Smith, questioned her about why she was already filling in her time card. Mrs. Mitchell answered that she filled in eight hours, which she would work that day as long as she did not ‘break a leg or die.’ Mr. Smith replied, ‘Well, I’m not so sure about that.’ Mrs. Mitchell then became defensive and stated that she had supported him when the Director of Nurses, Mrs. Mary Stroope, sought to have him fired as director. Mrs. Stroope, in the vicinity, overheard this comment, denied it, and called Mrs. Mitchell a liar. At various times during this exchange Mrs. Mitchell referred to Mr. Smith, Mrs. Stroope, and others as ‘birdbrains.’ This occurred in a crowded area where the Center’s employees were checking in and out, so Mr. Smith told both to go into his office. There,

Mrs. Stroope apologized to Mrs. Mitchell for calling her a liar and Mrs. Mitchell apologized for saying that Mrs. Stroope had circulated a petition to replace Mr. Smith. However, tempers soon flared again and Mr. Smith resolved to fire Mrs. Mitchell. Mrs. Mitchell then demanded her check. Mr. Smith paid her for that day, a week’s vacation, and another week’s...
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