Johnson v. Director, Department of Workforce Services

a

2015 Ark. App. 389

ARI(ANSAS COURT OF APPEALS

DIVISION I

No. E-15-53

Opinion Delivered June 17,2075

CASSIE JOHNSON APPEAL FROM THE ARKANSAS

APPELLANT BOARD OF REVIEW

lNo. 2014-BR-030241

V.

DIRECTOR, DEPARTMENT OF

WORKFORCE SERVICES AND

ARKANSAS DEPARTMENT OF

CORRECTION REVERSED AND REMANDED

APPELLEES

BRANDON J. HARRISON, Judge

Cassie Johnson appeals the Arkansas Board of Review's decision to deny her

unemployment benefits. Johnson missed three days of work after being out on workers'

compensation leave for a work-related injury for almost a year and was discharged as a

result. The issue is whetherJohnson's absence was misconduct.

I.

Johnson worked as a securiry corporal with the construction division of the

Arkansas Department of Correction from 8 December 2003 until 23 September 2014,

when she was discharged. The circumstances surrounding the discharge were discussed

before the Appeal Tribunal during a hearing in December 2014. A summary of the

testimony goes this way. Johnson said that she injured her back at work in July 2013 and

took workers' compensation leave in August 2013. She took FMLA leave from l January

201,4 untll 25 March 2014; she then went back to worken' compensation leave, which

2015 Ark. App. 389

she remained on until the Department of Correction discharged her on 23 September

20'14.

Shortly before her discharge, Johnson's treating doctor at The Spine Clinic sent

word to the Public Employee Claims Division that she was being released from treatment.

Johnson stated that she was never informed that her treating doctor had ofEcially released

her to work. She stated that she didn't know that she had been released to retum to work

until after she had already been terminated. Johnson contacted human resources on

September 24 because her workers' compensation check "wasn't the right amount." That

is when she was "advised that [her] termination letter was in the mail." Johnson dso

testified that

on the 24th is when I found out that I was released to go back to work, and

then that's when I called the doctor's office to try to clarifr because I

wsuldn's-l didn't know, so when I did find out, I did go back up there

even after I was terminated to try and get the job essential form filled out

because I knew I had to have that to return to work, and [my doctor] was

out of the country and he couldn't 6ll it out until the 15th of the next

month.

Her bottom line appears to be that she was guided by "the FMLA paperwork that says that

you have to have [the job essential fo.rr] to return to work" and she never received one.

Stefanie Glasscock, a payroll administrator, appeared on behalf of the employer and

said that Johnson was discharged because she was released from workers' compensation on

17 September 2014 and failed to call her supervisor or appear for work on September 18,

19, or 22. According to Glasscock,Johnson violated Conduct Code 1233,4E; and "if an

employee fails to call or report to supervisor for three working days," then her

2015 Ark. App. 389

employment may be terminated. Glasscock also said that the Department of Correction

allows employees ro "ride their leave out" until a doctor releases them to work.

Johnson did not have an expected return date. Instead, the Department of

Correction employs a "worker's comp employee" who maintains contact with employee

physicians through the Public Employee Claims Division. The Spine Clinic that treated

Johnson communicates with the Department of Correction through the Public Employee

Claims Division.

Throughout her leave, Johnson admittedly did not maintain regular contact with

her supervisor, or any other employee of the Department of Correction. On the other

hand, Glasscock stated: "we don't have anything rhat specifically says you have to call and

check in every week or every month or anythingi we kept up with her through the

Public Employee's Claims Division."

II.

In this case the Appeal Tribunal's decision, which the Board of Review adopted,

stated thatJohnson violated Ark. Code Ann. $ 11-10-514(a) because she "had obligations

to contact the employer to inform them of results of seeing the doctor and knowing

whether she would be released to work. Her failure to do so was a willful disregard of the

employer's interest." The Department of Correction must prove misconduct by a

preponderance of the evidence. Cigsby u. Everett,8 Ark. App. 188, 197,649 S.W.2d 404,

406 (1983). The relevant statute, Ark. Code Ann. $ 11-10-514(a) (Repl. 201,2), provides

in part:

(2) In cases of discharge for absenteeism, the individual shall be disqualified

for misconduct in connection with the work if the discharge was pursuant

2015 Ark. App. 389

to the terrns of a bona fide written attendance policy, regardless of whether

the policy is a fault or no-fault policy.

(3XA) 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

@) Without limitation:

(r) Disregard of an established bona fide written rule known to the

employee; or

(ii) A willful disregard of the employer's interest.

We have consistently defined misconduct to require "more than mere inefEciency,

unsatisfactory conduct, failure in good performance as the result of inabiliry or incapaciry,

inadvertencies, ordinary negligence in isolated instances, or good-faith errors in judgment

or discretion." Pacheco u, Dir., Employment Sec. Dep't,92 Ark. App. 122, 123,211 S.W.3d

569, 571 (2005). "[A], intentional and deliberate violation, a willful and wanton

disregard, or carelessness or negligence of such a degree or recurrence as to manifest

wrongful intent or evil design" must be proven. Id. Whether an employee's conduct is

misconduct is a question of fact for the Board of Review. Carrett u. Dir., Dep't of

Workforce 9erus.,2014 Ark. 50. We view all inferences rn the light most favorable to the

Board's findings and afErm if the decision is supported by substantial evidence. Id. \Ve

only ask whether the Board could have reasonably reached its decision based on the

evidence presented. Id. But we do not "rubber stamp" its decisions. Clark u. Dir.,

Employment Sec. Dep't, 83 Ark. App. 308, 371,126 S.W.3d 728,7.30 (2003).

III.

The Board's decision in this case is unreasonable. Tt ere is no evidence that

Johnson "intentionally violated the rules so as to manifest wrongful intent or evil design."

Walls u. Dir., Employmint Sec. Dep't,74 Ark. App. 424, 427, 49 S.W.3d 670, 672 (2001).

2015 Ark. App. 389

According to the employer's own testimony, a treating doctor contacts the Public

Employee Claims Division directly when an employee is released to work. No evidence

was presented that Johnson's treating doctor, or the Department of Correction, told

Johnson what to do, or what process she must follow, when released to work. More to

the point, there was no evidence thatJohnson was in fact told that she had been released.

True, Glasscock stated that Johnson should have known that she should retum to

work that Thunday because "her regular days are Monday through Friday[.]" But that

presumes Johnson knew she had been released in the first place. Johnson's treating

doctor's office did not provide Johnson, henelf;, with a release paper; moreover, there was

testimony that Johnson's treating doctor had mentioned a surgical referral. Even the

Board candidly observed that "there may have been a misunderstanding on the claimant's

Part[.]"

This case boils down to a single misunderstanding berween Johnson and the

Department of Correction-the sort of miscue that does not justify the denial of benefits.

The Board's denial is therefore revened and the case remanded for an award of benefits.

Reversed and remanded.

KINRRo and GrovER,JJ., agree.

Cassie Johnson, pro se appellant.

Phyllis Edwards, Associate General Counsel, for appellee.