McCuller-Silverman v. Director, Department of Workforce Services ( 2017 )

Cite as 2017 Ark. App. 606
ARKANSAS COURT OF APPEALS
DIVISION II
No. E-17-3
SHARON MCCULLER-SILVERMAN Opinion Delivered: November 8, 2017
APPELLANT
APPEAL FROM THE ARKANSAS
V. BOARD OF REVIEW
[NO. 2016-BR-01705]
DIRECTOR, DEPARTMENT OF
WORKFORCE SERVICES, AND
TRINITY VILLAGE, INC.
APPELLEES AFFIRMED
KENNETH S. HIXSON, Judge
Appellant, Sharon McCuller-Silverman, appeals from an order mailed by the
Arkansas Board of Review (Board) on December 7, 2016, denying the claimant benefits in
favor of appellees, Daryl Bassett, director of the Department of Workforce Services
(Department), and Trinity Village, Inc. (Trinity Village). On appeal, appellant’s arguments
can be summarized as (1) the Board exceeded its authority and abused its discretion in
reviewing the decision of the Arkansas Appeal Tribunal (Tribunal), (2) substantial evidence
does not support the Board’s findings, and (3) the Tribunal’s decision that appellant should
repay benefits that were paid to her was premature and unfounded. We affirm.
Appellant was employed by Trinity Village as an administrator for assisted living prior
to her termination. After she applied for unemployment-compensation benefits, Trinity
Village filed a statement that appellant had been discharged for insubordination, specifically
stating the following:
Cite as 2017 Ark. App. 606
1. A#54[1] Ms. Silverman not only failed to promptly initiate the protocols and
actions necessary to address the deficiencies from the May 2–4, 2016 Assisted
Living survey, but on 6/27/2016 refused to complete and sign the plan of
correction. This is the Administrator’s responsibility.
2. A#57 As Assisted Living Administrator, it is Ms. Silverman’s responsibility to
review, monitor, and utilize her departmental financial and budget reports as a
primary tool in the management of her area. On 6/22/2016 she stated to me
that they did not make sense to her and did not tell her anything, so she puts
them straight in the shredder. I have personally instructed her in the
interpretation and use of these reports on numerous occasions.
3. B#37 Ms. Silverman informed at least one staff member of the fiscal year end
unaudited net income of Trinity Village. It was made clear by me in the staff
meeting with only department managers, during which she was present that this
was not to be repeated outside the meeting. Ms. Silverman also informed the
same staff member as well as at least one additional staff member that she had a
meeting with another manager where the manager shook her finger in her face.
This is a confidential personnel issue that should not have been discussed.
4. A#34 Ms. Silverman exhibited anger and even hostility to a nurse aide in her
department when discussing a possible worker’s compensation injury. She was
confrontational and exhibited a lack of good judgment in dealing with a sensitive
issue.
5. B#23 With no proof, Ms. Silverman has stated to me and at least one other
employee that another Trinity Department Manager “slashed her tires.” This is
a malicious statement with no substantiation.
6. B#34 Ms. Silverman frequently handles herself in an argumentative, accusatory,
unprofessional manner with fellow managers as well as the assisted living staff,
thus creating an unacceptable and frequently hostile environment.
Appellant also filed a statement. In her statement, appellant denied that she was fired
for insubordination. Instead, she claimed the following:
I know they said I was fired for refusal to do an action plan but that is not true, the
executive director told me that she was going to write it. She did tell me in the
future that she wanted the administrators to write them from now on and I told her
I would be hap[p]y to. I had a supervisor threaten me and yell and point her finger
1
A#54, A#57, B#37, A#34, B#23, and B#34 are references to the paragraphs in
the employee handbook that appellant allegedly violated by the conduct described.
2
Cite as 2017 Ark. App. 606
in my face. It cause[d] me to have an anxiety attack. My blood pressure spiked and
my Dr[.] put me on a new anxiety medication and bp medication. I went to EEOC
due to the supervisor threatening me. I did it for my own protection. My Doctor
put me off work through 07/11/16. I went back to work on the 11th was there for
30 minutes and was called into the conference room, with Donna Stone and their
attorney. Donna told me I was being terminated due to insubordination and I said
for what. I didn’t do anything. Then the attorney told me they would offer me 3
months of severance plus a neutral reference in exchange for my resignation. I did
not accept their offer. They gave me a whole list of stuff I supposedly did but not a
bit of it was true. I still believe I was discharged in retaliation for filing an EEOC
charge.
The Department found that appellant was not disqualified from receiving benefits in a
Notice of Agency Determination mailed on August 24, 2016. Trinity Village timely
appealed that decision to the Tribunal, and a telephone hearing was held on October 17,
2016.
At the hearing, Lea Reed testified that she was an RN consultant at Trinity Village
and that appellant was her immediate supervisor. Reed recalled a meeting in which the
executive director, Donna Stone, discussed the financial situation of Trinity Village with
Reed and appellant present. Despite Stone’s instruction that the information was
confidential, appellant subsequently discussed the employer’s specific profits and losses with
Margie Smith and Reed. Smith was not present at the prior staff meeting.
Reed further testified that the Office of Long Term Care found deficiencies during
an audit. The deficiencies needed to be corrected, and a plan of correction needed to be
submitted to the Office of Long Term Care. Reed testified that during the meeting about
the deficiencies, Stone stated that she would assist April Boosier, the dietary manager, with
correcting the deficiencies. Reed did not recall whether anything was said about who would
prepare the plan of correction. However, Reed testified that she was in appellant’s office
3
Cite as 2017 Ark. App. 606
when appellant received a call from Stone. According to Reed, Stone had instructed
appellant to prepare the plan of correction, but appellant refused.
Phyllis Offut, an LPN employed at Trinity Village, testified that appellant had told
her that she thought she was in charge of the plan of correction. Appellant additionally told
Offut that she was not going to complete it. Appellant further told Offut that Boosier would
have to complete the plan of correction.
Stone testified that appellant was responsible for reviewing and understanding
monthly financial reports. However, during one conversation, appellant told Stone that she
did not understand them and would simply shred them each month. Stone additionally
testified that she had discussed confidential information in a managerial-staff meeting and
specifically instructed that the information not be discussed outside that meeting. However,
Reed informed Stone that appellant had subsequently discussed the information with Smith
present.
Stone further testified that another one of appellant’s job responsibilities was to
complete a plan of correction when deficiencies are discovered. Appellant had prepared
and signed a previous plan of correction in 2015. During the meeting regarding the recent
deficiencies, Stone stated that she would assist Boosier with correcting the deficiencies, but
Stone did not state that she would prepare the plan of correction. In a telephone
conversation on June 27, 2016, Stone inquired how appellant was doing with preparing the
plan. However, appellant stated that she was not going to prepare the plan and further
refused to do so after Stone had instructed appellant to prepare the plan. Stone testified that
appellant’s actions were in violation of Trinity Village’s written policy. Appellant was
4
Cite as 2017 Ark. App. 606
medically excused from work from June 28, 2016, through July 11, 2016. During that time,
appellant filed an EEOC complaint, and appellant was discharged the day she returned to
work.
Appellant did not testify at the hearing. Smith testified on appellant’s behalf. Smith
testified that she had recalled that Stone and Boosier had agreed to prepare the plan of
correction at the meeting regarding the deficiencies.
The Tribunal mailed a written decision affirming the Department’s decision to award
benefits on October 20, 2016, and Trinity Village timely appealed to the Board. The Board
did not accept any additional evidence. The Board reversed the Tribunal’s decision. After
summarizing the evidence presented at the hearing before the Tribunal, the Board
specifically found that
[i]n this instance, Reed testified that the claimant discussed confidential financial
information of the employer in the presence of an employee who was not present in
a meeting discussing the financial information, despite being told not to discuss the
information. Additionally, both Stone and Reed testified that the claimant had a
phone conversation with Stone on June 27, 2016, in which Stone asked about the
status of the Plan of Correction, told the claimant to complete the Plan of Correction,
and was told by the claimant that she would not complete the plan. Stone indicated
that preparing the plan was one of the claimant’s job duties as administrator. Further,
the claimant completed and signed the Plan of Correction for the employer in 2015.
Although Margie Smith testified that she believed that Stone told the claimant in a
meeting that she and April Boosier would prepare the plan, the Board does not find
this testimony to be more persuasive than the testimony of Stone and Reed. Stone
did testify that she told Boosier she would assist her with correcting the deficiencies
during the meeting, but that she did not state that she would prepare the plan.
Although the claimant indicated in her statements to the Department that she was
not told to prepare the plan and that she was discharged due to retaliation for an
EEOC claim, the claimant did not provide any testimony at the hearing, and as such
did not provide sufficient evidence to show that she was discharged for any other
reason than what was stated by the employer. Therefore, the most credible testimony
that the Board has to consider is the first-hand testimony of Stone and Reed.
Pursuant to the testimony of Stone that one of the claimant’s job responsibilities was
preparing the Plan of Correction and that the claimant prepared the plan in 2015,
5
Cite as 2017 Ark. App. 606
and Stone and Reed’s testimony that the claimant was instructed to prepare the plan
and refused, the Board finds it more likely than not that the claimant was responsible
for preparing the plan and did not prepare it although instructed to do so by Stone.
The claimant’s failure to prepare the plan was a violation of the employer’s policy
and constituted insubordination. Therefore, the decision of the Appeal Tribunal in
Appeal No. 2016-AT-07387 is reversed on finding that the claimant was discharged
from last work for misconduct in connection with the work on account of
insubordination.
This appeal followed.
On appeal, appellant first argues that the Board exceeded its authority or abused its
discretion in reviewing the Tribunal’s decision. However, appellant’s arguments lack merit.
Arkansas Code Annotated section 11-10-525 (Repl. 2012) permits the Board to review a
decision as follows:
(a) An appeal filed by any party shall be allowed as of right if the determination was
not affirmed by the appeal tribunal.
(b) The Board of Review, on its own motion and within the time specified in § 11-10-
524, may initiate a review of the decision of an appeal tribunal or determination of a special
examiner or may allow an appeal from the decision on application filed within the time by
any party entitled to notice of the decision.
(c)(1) Upon review on its own motion or upon appeal and on the basis of evidence
previously submitted in the case, or upon the basis of any additional evidence as it
may direct be taken, the board may affirm, modify, reverse, dismiss, or remand the
case.
(Emphasis added.) We conclude that the Board was entitled to review the Tribunal’s
decision in the case before us under subsection (b).
Next, appellant argues that substantial evidence does not support the Board’s findings.
She more specifically argues that Trinity Village failed to establish misconduct or present
any other evidence showing that the Tribunal’s decision was in error. She further argues
6
Cite as 2017 Ark. App. 606
that the Board’s decision was not supported by the law or relevant evidence that a reasonable
person might accept as adequate to support its conclusion. We disagree.
In unemployment cases, findings of fact by the Board are conclusive if supported by
substantial evidence, and substantial evidence is relevant evidence that a reasonable mind
might accept as adequate to support a conclusion. Holmes v. Dir., 2015 Ark. App. 337, 463
S.W.3d 744; Ivy v. Dir., 2013 Ark. App. 381. We review the evidence and all reasonable
inferences deducible therefrom in the light most favorable to the Board’s findings, and even
when there is evidence on which the Board might have reached a different decision, the
scope of our judicial review is limited to a determination of whether the Board could have
reasonably reached its decision on the evidence before it. Ivy, supra. This court may not
substitute its findings for the Board’s, even though this court might have reached a different
conclusion had it made the original determination on the same evidence. Holmes, supra.
Furthermore, the credibility of witnesses and the weight to be afforded their testimony are
matters to be resolved by the Board. Id.
Pursuant to Arkansas Code Annotated section 11-10-514(a) (Supp. 2015), if an
individual is discharged from last work for misconduct in connection with the work, the
individual is disqualified from benefits until, subsequent to filing a claim, he or she has had
at least thirty days of covered employment. Section 11-10-514(a) further provides in part,
(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.
7
Cite as 2017 Ark. App. 606
(Emphasis added.)
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 his or her employer. Zenaro v. Dir., 2017 Ark. App. 290, 521 S.W.3d 164.
Mere unsatisfactory conduct, ordinary negligence, or good-faith errors in judgment or
discretion are not considered misconduct unless it is of such a degree or recurrence as to
manifest wrongful intent or an intentional or substantial disregard of an employer’s interests
or the employee’s duties and obligations. Whitmer v. Dir., 2017 Ark. App. 367, 525 S.W.3d
45. It is the employer’s burden to establish misconduct by a preponderance of the evidence.
Id. There is an element of intent associated with a determination of misconduct. Id. When
the employer has no written policy 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. Id. Whether an employee’s actions constitute misconduct in
connection with the work sufficient to deny unemployment benefits is a question of fact for
the Board. Id.
Here, there was evidence presented by the employer that appellant had divulged
confidential information despite having been instructed not to do so and that appellant had
refused to prepare a plan of correction despite having been told to do so. Although Margie
Smith testified that she believed that Stone told appellant in a meeting that she and April
Boosier would prepare the plan, the Board specifically found Stone’s and Reed’s testimony
more persuasive. It is within the Board’s province to resolve conflicting evidence. See Clark
8
Cite as 2017 Ark. App. 606
v. Dir., 2015 Ark. App. 491, 469 S.W.3d 808. The Board further found that the “most
credible testimony” that it had to consider was Stone’s and Reed’s first-hand testimony.
Stone testified that one of appellant’s job responsibilities was to prepare a plan of correction
and that appellant had prepared a plan in 2015. Both Stone and Reed testified that appellant
was specifically told to prepare the plan in 2016 but that appellant refused. Misconduct
includes, without limitation, the “[d]isregard of an established bona fide written rule known
to the employee”; here, the employer presented evidence that insubordination was
specifically prohibited in the employer’s written policy. Ark. Code Ann. § 11-10-514(a).
Thus, we conclude that reasonable minds could have reached the same decision as that of
the Board and that the Board’s decision is therefore supported by substantial evidence.
Accordingly, we affirm appellant’s denial of unemployment benefits.
Finally, appellant argues that the Tribunal’s separate finding em dash that she should
repay benefits (em dash) was premature and should be reversed by this court. However,
this decision, if it does exist, is not properly before us at this time. Repayment of benefits
was not addressed in either the Tribunal’s or the Board’s decision before us, and any separate
determination would be the subject of a separate appeal from that decision. See generally
Holloway v. Dir., 2012 Ark. App. 635; Ziegler v. Dir., 2012 Ark. App. 595. Therefore, we
do not address these arguments in this appeal.
Affirmed.
GRUBER, C.J., and MURPHY, J., agree.
Cross & Kearney, PLLC, by: Jesse L. Kearney, for appellant.
Phyllis Edwards, for appellee.
9