Adams v. Director, Department of Workforce Services , 2016 Ark. App. LEXIS 209 ( 2016 )

Cite as 2016 Ark. App. 200
ARKANSAS COURT OF APPEALS
DIVISION III
No. E-15-773
Opinion Delivered: April 6, 2016
SHAWN ADAMS
APPELLANT APPEAL FROM THE ARKANSAS
BOARD OF REVIEW
V. [NO. 2015-BR-02306]
DIRECTOR, DEPARTMENT OF
WORKFORCE SERVICES, and
QCA HEALTH PLAN, INC. REVERSED AND REMANDED
APPELLEES
WAYMOND M. BROWN, Judge
Shawn Adams (hereinafter, “appellant”) appeals the decision of the Arkansas Board
of Review (Board) in which she was disqualified from receiving unemployment benefits
pursuant to Arkansas Code Annotated section 11-10-513(b), finding that she voluntarily
left last work without good cause connected with the work due to illness but without
making reasonable efforts to preserve her job rights. We hold that substantial evidence
does not support the Board’s decision and reverse for an award of benefits.
On appeal from the Board of Review, we do not conduct a de novo review;
instead, we review the evidence and all reasonable inferences deducible therefrom in the
light most favorable to the Board’s findings of fact. 1 We will affirm the Board’s findings if
they are supported by substantial evidence, which is such relevant evidence as a reasonable
1
West v. Dir., 94 Ark. App. 381, 231 S.W.3d 96 (2006).
Cite as 2016 Ark. App. 200
mind might accept as adequate to support a conclusion. 2 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 it could have reasonably reached its
decision based upon the evidence before it. 3 We are not here to merely ratify the decision
of the Board, but to ensure that the standard of review has been met. 4
In the instant case, appellant was employed as a Utilization Review Nurse for the
employer for approximately two years. In a letter attached to her appeal to our court, she
stated that the employment was detrimental to her health “because of an over abundant
amount of mismanagement, hostility, devaluing, social exclusion, innuendos, sarcasm,
intimidation and the administration of unsustainable workloads.” She applied for
unemployment benefits on September 8, 2015, after leaving her job with the employer.
The Department of Workforce Services disqualified her from receiving unemployment
benefits upon a finding that she voluntarily left last work without good cause connected
with the work due to illness but without making reasonable efforts to preserve her job
rights. 5
Our statute providing for disqualification of benefits for voluntarily leaving work
2
Id.
3
Id.
4
Boothe v. Dir., 59 Ark. App. 169, 954 S.W.2d 946 (1997).
5
The Department also found that she was disqualified pursuant to Arkansas Code
Annotated section 11-10-507(3)(A) because she was not able and available to perform
suitable work. However, the Appeal Tribunal found that she was “able and available” and,
therefore, such determination is not pertinent for purposes of this appeal.
2
Cite as 2016 Ark. App. 200
and the law cited by the Board in reaching its decision provides, in pertinent part, as
follows:
(a)(1) If so found by the Director of the Department of Workforce Services,
an individual shall be disqualified for benefits if he or she, voluntarily and without
good cause connected with the work, left his or her last work.
(b) No individual shall be disqualified under this section if after making
reasonable efforts to preserve his or her job rights, he or she left his or her last
work:
(1) Due to personal emergency of such nature and compelling urgency that
it would be contrary to good conscience to impose a disqualification. 6
Good cause, for the purpose of unemployment benefits, is defined as a cause that
would reasonably impel the average able-bodied, qualified worker to give up his or her
employment. 7
Appellant appealed the Department’s determination to the Appeal Tribunal, which
conducted a hearing on October 22, 2015, at which she appeared to testify, but the
employer did not. The Appeal Tribunal, in its findings of fact, stated that appellant felt
“that the company was unorganized and that there was tension between herself and her
supervisor. [She] did not address such feelings regarding the behavior.” The Board
affirmed the Appeal Tribunal’s denial of benefits, but specifically noted, in making its
decision, that appellant answered “No” when asked whether she requested a change of
duties or hours and when asked if she requested a leave of absence before quitting. It,
6
Ark. Code Ann. § 11-10-513.
7
Buck v. Dir., 2014 Ark. App. 685, 449 S.W.3d 705.
3
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therefore, found that she did not make an effort to preserve her job rights.
There exists an exception, however, in which an employee is not required to take
measures to resolve problems with her employer before leaving the employment if such
measures would be futile. 8 Here, contrary to the findings of the Appeal Tribunal, appellant
testified to the following instances where she attempted to rectify her unfavorable
employment situation: 9
APPELLANT: I have . . . the letter here that I presented to them in regard to
my complaints. . . I think the first one was on the 6/18/14,
where I had complained to Yvette Coleman that I’ve felt like
[my son’s] confidentiality had been broken because my
supervisor at the time, Kelly Noble, had gone into his file five
or six times and I had requested that by no means did I want
her in my son’s personal information. . . So I was sent up to
the attorney’s office. . . And I was told I was being disruptive
by complaining about my son’s possible breach. 10
....
After that I did what they asked me. I didn’t bring up any
further discussion with management or staff about. . . concerns
or complaints about my son anymore because I could see that
it was futile. . . the first letter to the Office of Civil Rights, it
was on 6/23/14, and I even stated in this letter that. . . upon
my complaint I was sent to the company’s attorney and was. .
. told that I better not complain because I was perceived as
being disruptive.
....
8
Id.
9
(Certain parts of appellant’s testimony found to be redundant or confusing are
excluded for clarity).
10
Appellant’s son, who was covered under her employer’s insurance, was at a
rehabilitation facility, and she did not want that known by her co-workers.
4
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Kathy Fleming. . . was mad because I transferred a phone call
to her without telling her before I transferred it. . . we ended
up in the supervisor[’s] office, and. . . I pointed out that I
wasn’t the only person who had complained about her
rudeness. And she told me. . . “Well, you can’t believe what
they are saying about you in the office.” I’d already felt there
was animosity. . . While we were in that meeting, [the
supervisor] told us that if there was one word said after we left
out of that meeting that we would be written up. And we
walked out of that meeting and Kathy Fleming proceeded to
call me a bitch, and I went back to [the supervisor’s] office to
tell her what she had said. And I realized that nothing was
going to be done about it.
....
So that’s when I went ahead and wrote an addendum to my
first complaint on 6/19/14.
....
I kept asking and asking if they were going to be hiring any
more utilization review nurses because there were only four of
us at the time, and they kept telling me, “No. We are not.”
And I was telling them the workload was not going to be
sustainable, and I said this in two different meetings with all
the employees in the meeting. . . after about the third time I
had mentioned it I was told. . . that I didn’t need to bring up
that subject. And I said, “Well, I just had some concerns about
it.” It was then that I was called into the office by [the
supervisor] and with Cindy Ferguson, and that was on
2/12/15. I had made several attempts to talk to them about
my concerns. . . when I went into that meeting [Ferguson’s]
attitude towards me was just hostile.
H. OFFICER: What was the final incident that made you decide to quit?
Let’s go there.
APPELLANT: It was. . . the unsustainable workload. . . I said, “I’m not
going to be able to do all this. There’s just – there’s no way.
There’s just no way.”
H. OFFICER: And what did they tell you?
APPELLANT: There was never any response. There was just never any
response. It – it was like it didn’t matter. It – it never mattered
what I had to say.
5
Cite as 2016 Ark. App. 200
Reasonable efforts to preserve job rights include taking appropriate measures to
prevent an unsatisfactory situation on the job from continuing. 11 Appellant took such
measures only to realize, over time, they were futile.
Because appellant repeatedly brought her complaints to the attention of her
superiors to no avail, and because the employer was unavailable to respond to such claims,
we hold that it was futile for her to either request a leave of absence or an adjustment of
her workload/hours. Therefore, substantial evidence does not support that she voluntarily
left last work without good cause connected with the work.
Accordingly, we reverse and remand for an award of benefits.
Reversed and remanded.
VIRDEN and HIXSON, JJ., agree.
Shawn Adams, pro se appellant.
No response.
11
Gunter v. Dir., 82 Ark. App. 346, 107 S.W.3d 902 (2003).
6