Whitmer v. Director, Department of Workforce Services , 2017 Ark. App. LEXIS 395 ( 2017 )

Cite as 2017 Ark. App. 367
ARKANSAS COURT OF APPEALS
DIVISION I
No. E-17-66
Opinion Delivered: June 7, 2017
TAYIA WHITMER
APPELLANT
APPEAL FROM THE ARKANSAS
V. BOARD OF REVIEW
[NO. 2017-BR-00116]
DIRECTOR, DEPARTMENT OF
WORKFORCE SERVICES, AND
SYSTEMS CONTRACTING
APPELLEES
REVERSED AND REMANDED
BART F. VIRDEN, Judge
Appellant Tayia Whitmer appeals from the decision of the Arkansas Board of Review
(Board) that affirmed and adopted the opinion of the Appeal Tribunal (Tribunal) denying
her unemployment benefits on the basis that she was discharged from last work for
misconduct connected with the work. We agree with her and reverse and remand.
Whitmer began her employment as an accounts-payable clerk for Systems
Contracting on August 26, 2015. She was scheduled to work on November 10, 2016, but
she did not report to work or notify her employer prior to the start of her shift because she
had been arrested at midnight the previous night and was incarcerated. As a result of her
absence and failure to give proper notice, she was terminated the following day for
misconduct connected with the work and was consequently denied unemployment benefits.
She filed a timely appeal to the Tribunal.
Cite as 2017 Ark. App. 367
At the Tribunal hearing, Renee Gaston, human-resource assistant for Systems
Contracting, testified that the company does not have a written attendance policy but that
employees are instructed to call in before the start of the shift if they will be absent. Whitmer
testified that there was no way to call her employer ahead of time to let them know that she
would be absent because she was allowed only one phone call, which she used to call her
mother in order to make arrangements to get out of jail and check on her kids.
The Tribunal concluded that although Whitmer was incarcerated, she did not make
a reasonable effort to notify the employer, she could have used her phone call from jail to
ask her mother to contact her employer, and her actions of being arrested and not reporting
to work were within her control; thus, she was discharged for misconduct connected with
the work and properly denied unemployment compensation. Whitmer timely appealed, and
the Board adopted and affirmed the Tribunal’s decision. Whitmer now appeals the Board’s
decision.
The standard of review is well settled. We do not conduct de novo review in appeals
from the Board. Cook v. Dir., 2016 Ark. App. 12, at 3–4, 480 S.W.3d 194, 196–97. Instead,
we review the evidence and all reasonable inferences deducible therefrom in the light most
favorable to the Board’s findings of fact. Id. 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.
2
Cite as 2017 Ark. App. 367
Credibility calls are for the finder of fact as is the weight to be accorded to testimony.
Rockin J Ranch, LLC v. Dir., 2015 Ark. App. 465, at 2, 469 S.W.3d 368, 370. Our function
on appeal, however, is not to merely rubber stamp decisions issued by the Board. Id.
Arkansas Code Annotated section 11-10-514(a) (Repl. 2012) provides in part:
(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 is discharged from his or her
last work for misconduct in connection with the work.
(2) In cases of discharge for absenteeism, the individual shall be disqualified for
misconduct in connection with the work if the discharge was pursuant to the terms
of a bona fide written attendance policy, regardless of whether the policy is a fault or
no-fault policy.
(3)(A) Misconduct in connection with the work includes the violation of any
behavioral policies of the employer as distinguished from deficiencies in meeting
production standards or accomplishing job duties; and
(B) Without limitation:
(i) Disregard of an established bona fide written rule known to the employee; or
(ii) A willful disregard of the employer’s interest.
Misconduct includes the violation of any behavioral policies of the employer,
disregard of the employer’s rules, disregard of the standards of behavior that the employer
has a right to expect from its employees, and disregard of the employee’s duties and
obligations to her employer. Rockin J Ranch, supra; Cook, supra; Nibco v. Metcalf, 1 Ark. App.
114, 613 S.W.2d 612 (1981). Our case law has long interpreted misconduct in this context
not to be ordinary negligence, good-faith errors in judgment or discretion, or mere
unsatisfactory conduct, unless they are of such a degree or recur so often as to manifest
wrongful intent, evil design, or an intentional disregard of the employer’s interests. Rockin J
Ranch, supra. It is the employer’s burden to establish misconduct by a preponderance of the
3
Cite as 2017 Ark. App. 367
evidence. Id. Whether an employee’s behavior is misconduct that justifies the denial of
unemployment benefits is a question of fact for the Board to decide. Id. There is an element
of intent associated with a determination of misconduct. McAteer v. Dir., 2016 Ark. App.
52, at 4, 481 S.W.3d 776, 779; Clark v. Dir., 83 Ark. App. 308, 126 S.W.3d 728 (2003).
When the employer has no written policy, such as in the case at bar, or fails to follow
its written policy, then the facts must be evaluated to determine whether the employee’s
behavior was a willful disregard of the employer’s interest. Hernandez v. Dir., 2015 Ark.
App. 290, at 5, 461 S.W.3d 708, 711.
Whitmer’s absence and failure to notify her employer that she would be absent
occurred only one time. When asked if there had been any other problems with Whitmer’s
attendance, Gaston testified that she did not have any disciplinary notices or write-ups in
her file. Undoubtedly, multiple continued absences and no-shows may amount to disregard
of an employee’s duties and obligations sufficient for misconduct warranting disqualification
of unemployment benefits. See Hernandez, supra. However, Whitmer’s single incident of
purported misconduct in these circumstances does not rise to the level of willful disregard
of her employer’s interest and does not indicate the requisite intent.
Because substantial evidence does not support the Board’s conclusion, we reverse
and remand for an award of benefits.
Reversed and remanded.
WHITEAKER and MURPHY, JJ., agree.
Tayia Whitmer, pro se appellant.
Phyllis Edwards, Associate General Counsel, for appellee.
4