Herman Hampton v. Director ( 2023 )

Cite as 2023 Ark. App. 352ARKANSAS COURT OF APPEALS
DIVISION I
No. E-22-601
HERMAN HAMPTON Opinion Delivered August 30, 2023
APPELLANT
APPEAL FROM THE ARKANSAS
BOARD OF REVIEW
V.
[NO. 2022-BR-00238]
DIRECTOR, DIVISION OF AFFIRMED
WORKFORCE SERVICES, AND
UNCLE CHARLIE’S AUTO
APPELLEES
BART F. VIRDEN, Judge
Appellant Herman Hampton appeals the denial of his claim for unemployment
benefits. We affirm.
On July 7, 2021, the Division of Workforce Services (DWS) issued a determination
denying Hampton’s application for unemployment benefits. DWS found that Hampton was
discharged from work for misconduct in connection with work pursuant to Ark. Code Ann.
§ 11-10-514 (Supp. 2021) because he was absent from work and failed to properly notify his
employer. Hampton appealed the agency’s denial to the Appeal Tribunal (Tribunal). Neither
Hampton nor his employer appeared at the August 3, 2021 hearing to present testimony
regarding Hampton’s separation from work, and on the basis of the evidence provided, the
Tribunal found that Hampton had been dismissed for misconduct in connection with work.
Hampton timely appealed to the Board of Review (Board), asserting that there was new
evidence that he did not commit misconduct in connection with work, and he could not
present the evidence because the hearing officer closed the hearing before he could attend.
The Board remanded the case to the Tribunal to conduct a reopening hearing to determine
whether Hampton had good cause for failing to appear at the August hearing. The Tribunal
found that Hampton had shown good cause for failing to appear, and a new hearing was
scheduled.
Hampton was the only witness at the January 6, 2022 hearing. Hampton testified that
on September 17, 2019, he explained to his employer’s mother (who was also the business
manager) that he needed to go to California to be with his daughter who was having a
medical emergency. Hampton worked through September 19, and after work, he left for
California. When he arrived back at work on September 24, Hampton’s employer told him
that he no longer required Hampton’s services as a mechanic. The Tribunal affirmed DWS’s
decision to deny benefits, relying on Hampton’s July 6, 2021 written claimant’s statement to
DWS. The Tribunal affirmed DWS’s decision to deny benefits, finding that Hampton had
indicated that
he did not return immediately due to having problems with his car and that he could
not get back to work when he was scheduled. He further indicated that he contacted
the employer a day or so later. He then was informed by the employer that he was
discharged. Therefore, the claimant was discharged from last work for misconduct in
connection with the work on account of no call no show.
Hampton appealed the Tribunal’s decision to the Board. The Board affirmed the
Tribunal’s determination, also finding that in Hampton’s July 6 claimant’s statement, he
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explained that he was discharged in September 2019 because he “was supposed to be back
on a certain day and my car broke down and I couldn’t get back when I was supposed to. It
was a day or so later that I called them, and they said they had to let me go. I don’t remember
the exact date or anything.” The Board found that Hampton’s earlier written statement
conflicted with his later testimony at the hearing; thus, even without testimony from the
employer, Hampton’s own disqualifying statement that he missed work without notifying
his employer was most credible, and it established misconduct in connection with work.
Hampton timely filed his notice of appeal.
On appeal, Hampton asserts for the first time that he called his employer before he
was absent from work to inform his employer that he would be late getting back from
California due to car trouble; thus, Hampton asserts that he did not engage in misconduct
in connection with work. We decline to address the merits of this argument. It was not made
below, and this court does not consider issues raised for the first time on appeal. Rossini v.
Dir., 81 Ark. App. 286, 101 S.W.3d 266 (2003). Moreover, Ark. Code Ann. § 11-10-
529(c)(2)(A) (Supp. 2021) prohibits this court from receiving any additional evidence or
testimony, and this court does not consider evidence that is not a part of the record on
appeal. See Vasquez v. Ark. Dep’t of Hum. Servs., 2009 Ark. App. 575, 337 S.W.3d 552.1
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Additionally, Hampton asserts that he was fired for absenteeism; however, the record
reflects that Hamton was discharged for misconduct in connection with work regarding his
failure to inform his employer when he knew he would be absent from work.
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We now turn to Hampton’s argument that sufficient evidence does not support the
finding that he was discharged for misconduct in connection with work. Board decisions are
upheld if they are supported by substantial evidence. Blanton v. Dir., 2019 Ark. App. 205,
575 S.W.3d 186. Substantial evidence is such relevant evidence that reasonable minds might
accept as adequate to support a conclusion. Id. We view the evidence and all reasonable
inferences deducible therefrom in the light most favorable to the Board’s findings. Id. Even
if the evidence could support a different decision, our review is limited to whether the Board
could have reasonably reached its decision based on the evidence presented. Id. Issues of
credibility of the witnesses and weight to be afforded their testimony are matters for the
Board to determine. Welch v. Dir., 2019 Ark. App. 498, at 2, 588 S.W.3d 787, 788. However,
our function on appeal is not merely to rubber-stamp Board decisions. Taylor v. Dir., 2018
Ark. App. 442, 558 S.W.3d 420. Whether a claimant undertook an act of misconduct
sufficient to prevent the receipt of unemployment benefits is a question of fact. Schock v. Dir.,
2022 Ark. App. 264, 646 S.W.3d 251. In the unemployment-compensation context,
misconduct is defined as “(1) disregard of the employer’s interests; (2) violation of the
employer’s rules; (3) disregard of the standards of behavior which the employer has a right
to expect of his employees; or (4) disregard of the employee’s duties and obligations to the
employer.” Moody v. Dir., 2014 Ark. App. 137, at 6, 432 S.W.3d 157, 160. To constitute
misconduct, there must be the element of intent. Taylor, supra. 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
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discretion do not constitute misconduct. Id. 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. It is the employer’s burden to
establish misconduct by a preponderance of the evidence. Id.Viewing the evidence and all reasonable inferences deducible therefrom in the light
most favorable to the Board’s findings, we affirm. In Parker v. Ramada Inn, 264 Ark. 472,
572 S.W.2d 409 (1978), our supreme court held that the claimant, who missed work because
he overslept, violated the standard of behavior that the restaurant operator had a right to
expect. Likewise, here, we cannot say that the Board erred in relying on Hampton’s written
statement that he was absent from work without timely informing his employer. We affirm
the Board’s decision that Hampton’s conduct was a violation of a standard of behavior that
his employer had a right to expect. As stated above, our judicial review is limited to whether
the Board reached a reasonable conclusion based on the evidence before it, and here, the
Board based its conclusion on Hampton’s own statement.
Additionally, Hampton asserts that his employer did not dispute his claim or offer
conflicting evidence; thus, substantial evidence does not support the Board’s finding of
misconduct in connection with work. Hampton’s argument is not well taken. As we discuss
above, Hampton’s own written statement supports the Board’s finding of misconduct in
connection with work, and the credibility of witnesses and the weight to be accorded their
testimony are matters to be resolved by the Board. See Cely v. Dir., 2022 Ark. App. 384, 653
S.W.3d 394. We affirm.
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Affirmed.
KLAPPENBACH and WOOD, JJ., join.
Alvin L. Simes, for appellant.
Dawn R. Kelliher, for separate appellee Dr. Charisse Childers, Director, Arkansas
Division of Workforce Services.
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