The opinion
Cite as 2020 Ark. App. 427
Reason: I attest to the accuracy
and integrity of this document ARKANSAS COURT OF APPEALS
Date: 2021-07-12 11:01:58
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DIVISION I
9.7.5 No. E-20-53
Opinion Delivered September 23, 2020
VIVIAN ANDERSON
APPELLANT
APPEAL FROM THE ARKANSAS
V. BOARD OF REVIEW
[NO. 2020-BR-00045]
DIRECTOR, DEPARTMENT OF
WORKFORCE SERVICES, AND
INSPIRATION DAY TREATMENT,
INC.
APPELLEES
REVERSED AND REMANDED
BRANDON J. HARRISON, Judge
In 2017, Vivian Anderson was hired as a driver for Inspiration Day Treatment, Inc.
Her employer terminated the relationship in November 2019 after Anderson had been in
multiple traffic accidents, which resulted in the employer’s automobile insurance carrier
canceling coverage for her. Anderson then applied for unemployment benefits. She was
denied, and her attempt to reverse that decision has landed here.
After Anderson’s claim was initially denied, she pursued an administrative appeal
before the Appeal Tribunal. Anderson and Roe Garcia, Inspiration’s chief operating officer,
testified during the appeal. When asked by the hearing officer why Anderson was
discharged, Garcia said, “She had multiple accidents in our vehicles, and our insurance
company could not continue to have—provide coverage for her to drive. . . . I believe it
was three [wrecks].” Garcia said that Anderson admitted that a November 2019 accident
that led to her discharge was her fault. Curiously, and in contradictory fashion, Inspiration’s
employer-discharge statement that it submitted to the agency contains a yes check-mark
next to the questions: “Did the claimant perform his/her job duties to the best of his/her
ability?” and “Did the claimant perform his/her job duties satisfactorily in the past?” The
stated reason for discharge was “Staff had a 3rd wreck in the company vehicle.” The box
next to “Did the claimant violate company policy” was also marked yes.
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As seen above, the following questions were also answered by the employer in the
statement (our emphasis).
QUESTION: “What policy did the claimant violate?”
ANSWER: “Driver allowed only one ‘at fault’ wreck”
QUESTION: “Was the claimant aware of the policy?”
ANSWER: “No”
A single performance-improvement plan dated 11 November 2019, which was after the
accident at issue, states that termination was Anderson’s discipline. When asked about the
performance-improvement plan and if the November 2019 wreck “violate[d] any of your
policies for drivers,” Garcia replied:
Yes. We had—you know, our insurance company determines what drivers
are covered and looks at the vehicle history. And we can’t have that many
accidents and still be covered. The insurance company will say, We—we
can’t cover them anymore because of the multiple accidents.
A November 2019 endorsement from the employer’s insurance carrier identified Anderson
as an excluded driver.
Anderson denied that anyone had informed her of Inspiration’s policy of allowing
only one “at fault” wreck before the date she was dismissed. And she disputed that there
were three accidents; she said there were two, and she took “responsibility” for them.
The hearing officer denied Anderson’s claim for benefits, after which she wrote a
letter to the agency disputing that she had “three at fault accidents on my driving record”
and attached a copy of her driving record. The Board of Review rejected Anderson’s
request to consider additional information and issued a written decision, which is now
before us. Here is how the Board ruled during the administrative appeal:
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While the employer presented no evidence concerning the
circumstances of the traffic accidents caused by the claimant’s negligent
actions, the Board finds that the claimant’s admission that two of the accidents
were her fault establish that her actions were negligent to such a degree or
reoccurrence as to manifest wrongful intent or evil design and therefore,
misconduct which would disqualify her from receiving unemployment
insurance benefits.
Because no substantial evidence supports the Board’s finding of misconduct and
Anderson’s consequential denial of benefits, we reverse its decision and remand for an award
of benefits.
Misconduct for purposes of unemployment compensation involves a disregard of the
employer’s interest, a willful violation of the employer’s rules, a disregard of the standards
of behavior the employer has a right to expect of its employees, and a disregard of the
employee’s duties and obligations to his or her employer. Garrett v. Dir., 2014 Ark. 50, at
6. There is an element of intent associated with misconduct. Id. 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. There must be an intentional or deliberate
violation, a willful or wanton disregard, or carelessness or negligence of such a degree or
recurrence as to manifest wrongful intent or evil design. Id.
There was no such showing here. There was no showing that Anderson’s discharge
was pursuant to a written policy or progressive-disciplinary system. Moreover, the Board
itself noted that the record contains “no information” about the circumstances underlying
Anderson’s accidents. It didn’t miss anything; there’s just nothing there. Nothing of record
provides any context to the incidents. Nothing about the extent of property damage, if any.
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Nothing about whether there was any personal injury to anyone. No police reports. No
internal investigative reports. Just one big evidentiary hole.
This is not good enough. That two or perhaps three wrecks were Anderson’s “fault”
shows, at most, that she may have been a negligent driver on those occasions. That does
not equate to misconduct. Anderson’s job was to transport people all day long, in a van,
which she did for more than two years. With no further details on how the accidents
occurred and under what circumstances—a road-rage incident is not the same as a blind-
spot problem, for example—we cannot say that there was substantial evidence of a willful
disregard of the employer’s interest. Clark v. Dir., 83 Ark. App. 308, 126 S.W.3d 728
(2003). The caselaw backs this commonsense ruling.
In Clark, we reasoned in an analogous situation this way:
At the most, the evidence supports finding an inability of the driver to
safely back up without incident. The driver accepted full responsibility for the
first accident, saying that he was hurrying too much to get the job done. For
the second incident, he backed into a dumpster that pushed into a wall. His
undisputed testimony was that there was no damage to the wall, dumpster, or
truck from this accident. In the third accident, he backed over concrete posts
that had been recently installed in a place commonly used by the truck drivers
to turn around. In the last accident, appellant’s rear tire barely hit the bumper
of another truck and the bumper was bent back into place by the drivers.
While the employer may have acted prudently and reasonably in
deciding to terminate appellant from employment as a truck driver, there is
simply no substantial evidence to support a determination by the Board that
appellant’s conduct amounts to an intentional disregard of his employer's
interest. As such, we reverse and remand this case for an award of benefits.
Clark, 83 Ark. App. at 313–14, 126 S.W.3d at 731. Similarly, in Rodriguez v. Director, 2013
Ark. App. 361, we held that there was insufficient evidence to support a denial of benefits
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when a Walmart truck driver failed to properly secure certain trailer doors and violated a
company policy. We so held because there was no evidence that he willfully did so.
Like Clark and Rodriguez, here there is insufficient evidence to support the conclusion
that Anderson manifested a wrongful intent or an evil design toward her employer’s
interests. Not only was it undisputed that she did not know the existence of the “one ‘at
fault’ wreck” policy, the employer itself told the agency that Anderson had satisfactorily
completed her job duties to the best of her abilities prior to the particular event at issue.
* * *
Given the record before it, the Board of Review misapplied the governing legal
standard when it concluded that Anderson engaged in misconduct and denied her claim.
We therefore reverse the denial and remand for an award of benefits.
Reversed and remanded.
KLAPPENBACH and HIXSON, JJ., agree.
Vivian Anderson, pro se appellant.
Cynthia L. Uhrynowycz, for appellee.
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