Cook v. Director, Department of Workforce Services , 2016 Ark. App. LEXIS 18 ( 2016 )

Cite as 2016 Ark. App. 12
ARKANSAS COURT OF APPEALS
DIVISION IV
No. E-15-533
Opinion Delivered January 13, 2016
MARILYN COOK
APPELLANT APPEAL FROM THE ARKANSAS
BOARD OF REVIEW
V. [NO. 2015-BR-01409]
DIRECTOR, DEPARTMENT OF
WORKFORCE SERVICES
APPELLEE REVERSED AND REMANDED
M. MICHAEL KINARD, Judge
Appellant Marilyn Cook appeals from the decision of the Arkansas Board of Review
(Board), which affirmed and adopted the opinion of the Appeal Tribunal (Tribunal) finding
that she was disqualified from receiving unemployment benefits. Cook’s disqualification was
based on the finding that she was discharged from her last work for misconduct connected
with the work on account of dishonesty. On appeal, Cook argues that her actions did not
constitute misconduct. We agree.
The employer, the Arkansas Department of Correction (ADC), was represented by
Stephanie Glasscock, a payroll administrator, at the Tribunal hearing. Glasscock testified that
Cook was terminated for changing a historical document without noting the change. Cook
worked as an agency controller in the construction division of the ADC for about three years
under the supervision of Leon Starks. In May 2014, Cook was promoted to the position of
audit manager and worked under the supervision of the ADC director. However, Cook also
Cite as 2016 Ark. App. 12
continued to work in her former position because her replacement in the construction
division was not hired until November 2014. After this employee’s hiring, Cook trained and
assisted him. Cook testified that the agreement with the then-director was that her work in
the construction division would remain under the supervision of Starks. Cook took medical
leave in December 2014, and when she returned in January 2015, a new director, Wendy
Kelley, was in place. Cook was told to catch up on her work as audit manager and that she
could assist in the construction division in her extra time.
In March 2015, Cook was assisting in providing construction-division documents to
a legislative auditor, including a construction-budget status report dated August 14, 2013.
This report had been previously provided to the Board of Corrections, but it was later found
to contain an error. The budget for one project was listed as $2,000,000 instead of $200,000.
Cook testified that this error was corrected in a September 2013 budget status report. Before
sending the August 2013 report to the legislative auditor, Starks instructed Cook to correct
the error. Cook said that she told Starks that the correction required an explanation of the
change, but Starks was insistent that it be done his way. Cook relented, and the report was
sent with the corrected figure.
The auditor noted the discrepancy between the August 2013 document provided by
Cook and the same document previously provided to the Board of Corrections. The Board
of Corrections and Kelley were notified. Cook then provided the original version to the
auditor. A review was undertaken by the compliance division, which “did not reveal any
purpose for modifying the August 14, 2013 Budget Report, other than because of error or
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omission.”
Cook believed that Starks’s way was flawed but not deceitful. She maintained that
her intent was to correct a typographical error, not to falsify a document or to deceive. She
said that her actions bestowed no benefit on herself or on anyone else. Cook testified that
she did not talk to Kelley about the situation because Cook was acting as agency controller
in the construction division, and pursuant to the chain of command and prior practice,
Starks, not Cook, reported to the director. Cook said that Starks told her that he would tell
anyone who needed to be told.
Glasscock testified that, as audit manager and as an accountant, Cook should have
known that it was unethical to make the change without noting it or letting anyone know.
Noting Kelley’s termination letter to Cook, Glasscock testified that at the time of the
incident, Cook was no longer assigned to the construction division under Starks’s supervision
but reported directly to Kelley. Glasscock noted that Cook tried to persuade Starks to
include a notation, and despite knowing Starks’s way was wrong, she still did not inform
Kelley. The Board concluded that Cook’s actions were dishonest because she was aware that
she was required to note the change with an explanation, and she was aware that she
answered to Kelley as audit manager.
The standard of review is well settled. We do not conduct de novo review in appeals
from the Board of Review. Rockin J Ranch, LLC v. Director, Department of Workforce Services,
2015 Ark. App. 465, 469 S.W.3d 368. Instead, we review the evidence and all reasonable
inferences deducible therefrom in the light most favorable to the Board’s findings of fact. Id.
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The Board’s findings of fact are conclusive if supported by substantial evidence, which is such
relevant evidence that a reasonable mind might accept as adequate to support a conclusion.
Id. Even when there is evidence upon which the Board might have reached a different
decision, the scope of judicial review is limited to a determination of whether the Board
could have reasonably reached the decision rendered based on the evidence presented. Id.
A claimant is disqualified from receiving unemployment benefits if she is discharged
from her last work for misconduct in connection with the work on account of dishonesty.
Ark. Code Ann. § 11-10-514(b) (Supp. 2015). Our appellate jurisprudence makes clear that
to constitute misconduct, there must be the element of intent. Hubbard v. Director,
Department of Workforce Services, 2015 Ark. App. 235, 460 S.W.3d 294. Misconduct requires
more than mere inefficiency, unsatisfactory conduct, failure in good performance as the result
of inability or incapacity, inadvertencies, ordinary negligence in isolated instances, or
good-faith errors in judgment or discretion. Id. To constitute misconduct, there must be
an intentional or deliberate violation, a willful or wanton disregard, or carelessness or
negligence of such degree or recurrence as to manifest wrongful intent or evil design. Id.
In unemployment-compensation jurisprudence, dishonesty is defined as “a disposition to lie,
cheat or defraud; untrustworthiness; lack of integrity.” King v. Director, Employment Security
Department, 80 Ark. App. 57, 92 S.W.3d 685 (2002).
It was undisputed that Cook acted at the direction of Starks in making the change to
the document and that the only purpose was to correct an error. We hold that the ADC’s
position that Cook should have consulted Kelley does not demonstrate that Cook committed
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an act of dishonesty or an intentional violation of employee standards, but rather a good-faith
error in judgment. In King, we held that there was no substantial evidence of dishonesty
because the claimant had a good-faith belief that his assertion was true and did not make it
with the intent to deceive. Here, Glasscock acknowledged that the ADC had not alleged
any personal gain by Cook, and there was no evidence of an intent to deceive. Under these
circumstances, we cannot say that there is substantial evidence of dishonesty. Accordingly,
we reverse the decision of the Board of Review and remand for a determination of benefits.
Reversed and remanded.
HARRISON and HOOFMAN, JJ., agree.
Marilyn Cook, pro se appellant.
Phyllis Edwards, Associate General Counsel, for appellee.
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