Opinion

Clark v. Director, Department of Workforce Services

  • 469 S.W.3d 808
  • 2015 Ark. App. 491
  • 2015 Ark. App. LEXIS 573
Court
Court of Appeals of Arkansas
Filed
Sep 16, 2015
Status
Published
Author
Hoofman
On the bench
Cliff Hoofman
Cited by
1 cases
Authority
More cited than 52.3%

The opinion

Cite as 2015 Ark. App. 491

ARKANSAS COURT OF APPEALS

DIVISION II

No. E-14-925

TIMOTHY CLARK Opinion Delivered September 16, 2015

APPELLANT

V. APPEAL FROM THE ARKANSAS

BOARD OF REVIEW

[NO. 2014-BR-02501]

DIRECTOR, DEPARTMENT OF

WORKFORCE SERVICES, and

GREATER RIVER MEDICAL

CENTER

APPELLEES AFFIRMED

CLIFF HOOFMAN, Judge

Appellant Timothy Clark appeals from an order of denial of application for appeal

mailed by the Arkansas Board of Review (Board) on October 15, 2014, in favor of appellees,

Director, Department of Workforce Services (Department), and Greater River Medical

Center (Greater River). On appeal, appellant’s sole contention is that the Board’s decision

was contrary to the facts and the law and not supported by substantial evidence. We affirm.

Appellant had been employed by Greater River Medical Center for approximately

seven years as a maintenance person prior to his termination on August 5, 2014. After he

applied for unemployment-compensation benefits, the Department issued a “Notice of

Agency Determination” on August 27, 2014, denying benefits pursuant to Arkansas Code

Annotated section 11-10-514 (Supp. 2013) on finding that appellant was discharged from his

last work for misconduct in connection with the work. Appellant appealed the decision to

Cite as 2015 Ark. App. 491

the Arkansas Appeal Tribunal (Tribunal), and a telephone hearing was held on September 24,

2014.

At the hearing, Cheri Blurton, Human Resource Director for Greater River, testified

that appellant was discharged by Greater River’s CEO, Ralph Beaty, and her because he

engaged in some “threatening behavior” and made some “threatening remarks” in reference

to a coworker. She further explained that on August 1, 2014, appellant was involved in a

scuffle with Ron Lucius, a painter for Greater River. After the scuffle, Beaty met with

appellant and Lucius, and Beaty told appellant that he was giving him a final warning before

terminating him. At that meeting, appellant stated, “I’m glad you’re sharing this with me

because if anything more happens, I do have a knife in my pocket and I will use it.” Beaty

specifically informed appellant not to repeat his statements and that he was overlooking them

that time. However, Blurton explained that appellant subsequently repeated his statements

to other coworkers and again to Blurton. Blurton specifically testified that appellant told her

that “if I’m cornered by Mr. Lucius, I will pull out my knife out of my pocket and I will use

it.” She explained that appellant’s repetition of the threatening statements after being

informed not to repeat them led to appellant’s termination.

Appellant denied that he had made any threatening statements at the hearing and

argued that he had been wrongfully terminated. He admitted that Lucius pushed him on

August 1, 2014, and that he pushed him back. That said, appellant explained that he did not

know why Lucius reacted the way he did toward him. Furthermore, appellant testified that

he carried a knife in his pocket for his job and that the majority of other maintenance workers

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Cite as 2015 Ark. App. 491

carried one also.

After the hearing, the Tribunal affirmed the Department’s decision to deny benefits.

The Tribunal specifically found the following in pertinent part:

The claimant, who believed he was attacked without provocation, had a basis for being

upset with a co-worker. The claimant carried a knife to assist him with his job. Based

upon the sworn testimony provided by the employer, the claimant’s admission that he

was upset with the co-worker, and the additional testimony about the statement’s

being initially made to the CEO and then co-workers, it is found that the claimant

made the threatening statement which led to his discharge. The conduct was willfully

engaged in and it was against the employer’s best interests. Therefore, the claimant

was discharged from last work for misconduct in connection with the work.

Appellant timely appealed to the Board. However, the Board mailed an order of

denial of application for appeal pursuant to Arkansas Code Annotated section 11-10-525

(Repl. 2012), and the Tribunal’s decision was deemed to be the decision of the Board for

purposes of judicial review. This appeal followed.

Appellant’s sole contention is that the Board’s decision was contrary to the facts and

the law and not supported by substantial evidence. Specifically, appellant argues that he did

not threaten his coworker or employer. Instead, he argues that he sought management’s help

in keeping his coworker from attacking him and that his conduct did not rise to misconduct

under the statute. 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

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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), 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,

(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.

(4)(A) Misconduct in connection with the work shall not be found for instances of

poor performance unless the employer can prove that the poor performance was

intentional.

(B) An individual’s repeated act of commission, omission, or negligence despite

progressive discipline constitutes sufficient proof of intentional poor performance.

(C) An individual who refuses an alternate suitable job rather than being terminated

for poor performance shall be considered discharged for misconduct in connection

with the work.

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Cite as 2015 Ark. App. 491

This court has consistently stated that an employee’s actions constitute misconduct

sufficient to warrant denial of unemployment benefits if they deliberately violate an

employer’s rules or if they wantonly or willfully disregard the standard of behavior that the

employer has a right to expect of its employees. Holmes, supra. 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. 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.

Although appellant disputed the fact that he made threatening statements, the Board

resolved the conflicting evidence by affording the employer’s testimony greater weight, as

it was within its province to do. Holmes, supra. Appellant continued to repeat the threatening

statements concerning a coworker despite being specifically told by the CEO that he would

be terminated if he did so. Appellant deliberately violated the employer’s rules and willfully

disregarded the employer’s interest when he repeated his threatening statements to Blurton

and other coworkers after being warned by management. Therefore, the Board reasonably

reached its decision based on the evidence before it. Accordingly, substantial evidence

supports the Board’s findings, and we affirm its denial of unemployment benefits.

Affirmed.

GLADWIN, C.J., and WHITEAKER, J., agree.

Bill E. Bracey, Jr., ESQ, for appellant.

Phyllis Edwards, for appellee.

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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