DIVISION I

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

E01-108

February 20, 2002

GEORGE F. COOPER AN APPEAL FROM ARKANSAS

APPELLANT BOARD OF REVIEW [NO. 00-AT-09490]

V.

DIRECTOR, ARKANSAS

EMPLOYMENT SECURITY

DEPARTMENT, and

COLSON CASTER CORPORATION

APPELLEES AFFIRMED

George F. Cooper appeals from the order of the Arkansas Board of Review (Board) denying him unemployment benefits. He argues that the Board's finding that he was discharged for misconduct is not supported by substantial evidence. We disagree and affirm.

Appellant was employed by appellee Colson Caster Corporation from April 27, 1999, until October 18, 2000, when he was terminated for absenteeism. He subsequently applied for and was denied unemployment compensation benefits by the Employment Security Department (ESD). The ESD found that appellant was not entitled to receive benefits because he was terminated for absenteeism constituting misconduct, pursuant to Arkansas Code Annotated section 11-10-514(a) (Supp. 2001).

Appellant appealed to the Appeal Tribunal, which reversed the ESD and awarded him benefits, finding that 1) he was absent from work due to an illness; 2) he presented Colson with a doctor's excuse for his absence and was subsequently admitted to a health care facility for his illness; and 3) he was discharged for absenteeism. The hearing officer concluded that failing to report to work because of an illness is not an intentional disregard of an employer's best interest. The ESD appealed to the Board, which reversed the decision of the Appeal Tribunal, again denying appellant benefits.

Appellant testified that he suffered a nervous breakdown in the early 1990s and has since been hospitalized and treated for alcoholism and depression. He further testified that shortly before October 16, 2000, he began experiencing major depression and stopped taking his medication for high blood pressure. This caused him to experience high blood pressure and heart palpitations. He maintains that he called each day that he was absent from October 16-20 and reported to his shift supervisor, Hank Pfriemer.

Appellant also stated that he had problems getting transportation to seek medical help, but he finally saw Dr. Lack on October 23. He admitted that he told Dr. Lack he was a recovering alcoholic and had a "few drinks" over the weekend. Dr. Lack arranged for appellant to go to a residential treatment facility, where he stayed for seven days.

Appellant admitted that he was aware of his employer's attendance policy. He testified that he went to the plant on November 2, 2000, and spoke with Darrell Pickney, one of appellee's human resource managers, who informed him that Dr. Lack had mentioned to him (Pickney) that appellant had an alcohol problem and had rescinded the doctor's noteexcusing him from work October 16-20. Appellant said Pickney told him that he would have to check with some people about the situation and would contact him. Because appellant had not heard from Pickney as of November 6, he called and was told to come to the plant. He met with Pickney, who gave him disciplinary forms dated October 16-18 and informed him that he had been terminated. Appellant denied that he was ever counseled or warned about his absences prior to his termination.

Pickney testified that in early November 2000, he discussed appellant's absences with him. He stated that appellant offered no explanation as to why he had not consulted a doctor on October 16 or at any other time before October 23, other than the reasons offered by appellant during the hearing. Pickney further stated that, to his knowledge, appellant did not call in during the week of October 16-20. Pfriemer (the shift supervisor) also testified that appellant did not call in sick during his absences of October 16-20.

The Board reversed the order of the Appeal Tribunal, stating:

Obviously, the time taken off work for `personal reasons' led the claimant to be farther down the employer's attendance ladder than he would have been had he worked those days, and gave him less leeway for potential future attendance problems. The evidence presented indicates the claimant's absences from October 16, through 20, 2000, and possibly even beyond that, were caused by his own actions, although they may not have been volitional, due to his recurring problems with depression and alcoholism [citation omitted]. However, those absences are only part of the reason for the discharge. A review of the twelve months prior to discharge also includes the three days taken for personal reasons and one, December 30, 1999, most likely taken for a court appearance. Thus, the last days of absence, while contributing to the employer's grounds for discharging the claimant, were not dispositive of the willfulness of his conduct.

(Emphasis added). The Board indicated that it reversed the Appeal Tribunal based upon a review of the totality of his circumstances. This appeal followed.

We review the findings of fact of the Board of Review in the light most favorable to the prevailing party, only reversing where the findings are not supported by substantial evidence. See Niece v. Dir., Emp. Sec. Dep't, 67 Ark. App. 109, 992 S.W.2d 169 (1999). Substantial evidence is such evidence that a reasonable mind would find adequate to support a conclusion. See id. The credibility of the witnesses and the weight to be accorded their testimony are matters to be resolved by the Board. See id. Even when there is evidence upon which the Board might have reached a different decision, our review is limited to a determination of whether the Board could reasonably reach its decision upon the evidence before it. See id.

The issue in this case is whether appellee's absenteeism constituted misconduct warranting his termination. Section 11-10-514(a)(1) provides that a person shall be disqualified for benefits if the Board determines that the person is discharged from his last employment due to misconduct in connection with his work. For purposes of unemployment compensation, misconduct is defined as (1) disregard of the employer's interest, (2) violation of the employer's rules, (3) disregard of the standards of behavior which the employer has a right to expect of its employees, and (4) disregard of the employee's duties and obligations to his employer. See Greenberg v. Dir., 53 Ark. App. 295, 297, 922 S.W.2d 5, 6 (1996). Misconduct does not include ordinary negligence, unsatisfactory performance, or an unintentional failure to perform. See id. Instead, misconduct requires willful acts that are performed with the purpose of intentionally disregarding the employer's interest or the employee's duties. See id. The burden of showing by a preponderance of the evidence thatappellant's absenteeism constituted misconduct is on the employer. See Grigsby v. Everett, 8 Ark. App. 188, 649 S.W.2d 404 (1983).

Appellant was fired for missing work from October 16 through October 18, 2000. However, before examining the merits of each party's arguments, an explanation of Colson's attendance policy and the chronology of events surrounding appellant's termination are instructive. When an employee is first hired, he begins at step five. He loses a complete step if he misses more than four hours in a given day; he loses one-half of a step if he misses four hours or fewer in a given day. For each two-month period that he does not have any absences, he gains a step. The highest step an employee can reach is step nine. If an employee falls to step zero, he is terminated. If an employee misses more than one day and brings in a valid doctor's excuse, he only loses a step for the first day.1 It is not disputed that appellant was aware of Colson's attendance policy.2

Appellant's last day to work for Colson was Saturday, October 13, 2000. At that time, he was at step three. He missed work on October 16-20 and again on October 23.3 According to Pickney and Pfriemer, appellant did not call in on any of these days. However, appellant provided a note from Dr. Lack, which appellee received on October 23, 2000, excusing him from work for the prior week of October 16-20. After appellant missedagain on October 23, he requested and received a leave of absence from October 24 through November 6. During this period, he spent seven days in a residential drug rehabilitation center.

At some point prior to the date in early November when appellant came in to talk with his employer, Pickney discovered that Dr. Lack had not authorized the note that appellant had given excusing him from work October 16-20. Pickney testified that the doctor orally rescinded the note.4 Thus, each of appellant's three absences for October 16-18 brought him down one step, and ultimately put him at step zero, the termination step. The actual date the decision was made appears to be November 16, the date on the disciplinary forms. However, it is clear that appellant's termination was effective as of October 18, 2000, the day he reached the termination step.

We affirm the Board's order. Whether the acts of an employee are willful and wanton so as to constitute misconduct is a question of fact for the Board to determine. See Dillaha Fruit Co. v. Everett, Dir., 9 Ark. App. 51, 652 S.W.2d 643 (1983). It is clear that absenteeism may constitute misconduct to preclude an employee from receiving unemployment benefits. See, e.g., Victor Indus. Corp. v. Daniels, Dir., 1 Ark. App 6, 611 S.W.2d 794 (1981) (affirming denial of benefits where employee had been put on notice that his attendance was essential because his skills made it difficult to replace him on short notice). Further, a single incident of absenteeism may constitute misconduct when the failure to report and appear for work involves a disregard of the standard of behavior which the employer has a right to expect. See Jeffreys v. Everett, Dir., 6 Ark. App. 265, 640 S.W.2d 465 (1982)(affirming where claimant was fired after reporting four hours late for his shift where he had previously been discharged for absenteeism, but was rehired with the warning that unexcused absences and tardiness would not be tolerated); see also Parker v. Ramada Inn, 264 Ark. 472, 572 S.W.2d 409 (1978).

However, in order to find that an employee has committed misconduct, 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. See Nibco, Inc. v. Metcalf, 1 Ark. App. 114, 118, 613 S.W.2d 612, 614 (1981). The mere fact that an employee fails to report for work does not necessarily evidence such an intent. See, e.g., Dillaha Fruit Co. v. Everett, Dir., supra. There is substantial evidence in this case, as noted by the Board, to support its finding that appellant wilfully or wantonly disregarded hisemployer's interests by not following its attendance policy.

During the last twelve months of appellant's employment he missed at least twenty days of work, exclusive of leaves of absence. While acknowledging that the Board is required to consider his attendance record for the twelve-month period immediately preceding the discharge under section 11-10-514(a)(2), appellant maintains that the Board improperly focused on his absences occurring prior to the absences for which he was discharged. He argues that he missed work on those dates resulting in his discharge due to illness. He further argues that failing to report to work due to illness is not an intentional disregard of an employer's best interests and therefore, does not constitute misconduct. See Walls v. Dir., 74 Ark. App. 424, 49 S.W.2d 670 (2001)(reversing where employee was fired for violating the employer's attendance policy by failing to report and failing to provide a doctor's note where there was no evidence that she intentionally violated the rules with a wrongful intent or evil design). Finally, appellant maintains that appellee presented no evidence to show that his absenteeism was due to any reason other than illness.

We disagree that the Board improperly focused on appellant's absences prior to October 16-20. While the Board noted that appellant's absences from October 16-20 may not have been volitional due to his recurring problems with depression and alcoholism, the Board clearly did not base its decision solely on those absences. In its order, it stated, "[t]he last days of absence, while contributing to the employer's grounds for discharging the claimant, were not dispositive of the willfulness of his conduct."

The Board also considered appellant's attendance for the twelve months prior todischarge, as it is required to do under section 11-10-514(a)(2). Three of these days were reported as absences due to personal reasons. Appellant did not explain the reasons for these three absences, leading the Board to conclude that "they were within his control to have avoided." Further, appellant admitted during the Board hearing that he had not worried about one specific absence because he had not accumulated enough attendance points at that time to cause him concern. This evidence, when considered with appellant's failure to seek treatment until seven days after he failed to show for work on October 16, readily supports a finding of intentional disregard for appellee's attendance policy.

Finally, appellant testified that he missed work on December 30, 1999, due to illness, but he admitted that he also appeared in court on that day to plead to a DWI charge. While the effect on his attendance record would have been the same had he merely called in for personal reasons instead of illness, the fact that he misrepresented the reason for his absence certainly evidences a wilful disregard of his employer's interests. Although appellant testified that he in fact was sick that day and only reported to court because he was informed by the "county attorney" that he would need to be "dead" not to show up, whether to believe his testimony was a matter for the Board to determine. See Niece v. Dir., Emp. Security Dep't, supra. The Board apparently did not believe appellant's testimony, as it noted that this absence was "most likely taken for a court appearance." Nor was the Board required to believe appellant's testimony that he did not intend to mislead the staff at Dr. Lack's office, who provided the doctor's note at his request.

Thus, because there was evidence that appellant intentionally violated the rules withdisregard for his employer's interests, his reliance upon Walls, supra, is misplaced. Even if we would have reached a different conclusion than the Board, reasonable minds could have reached the Board's decision. Therefore, we affirm.

Affirmed.

Hart and Vaught, JJ., agree.

1 There are exceptions to the policy that are not applicable in this case.

2 Colson also allows its employees leaves of absences for rehabilitation purposes. Colson was unaware that a leave of absence appellant took for October through November 1999, was for treatment of alcoholism and depression.

3 October 21 and 22, 2000, were on a Saturday and Sunday. Apparently, appellant was not scheduled to work on those days.

4 Appellant provided a written excuse dated October 23, excusing appellant from work for October 16-20. Pickney testified that he became suspicious because the excused days predated appellant's October 23 visit. Pickney stated that he personally went to Dr. Lack's office and questioned him in this regard. Pickney testified that Dr. Lack stated that he did not authorize the note and rescinded the note.

The original doctor's note was submitted into evidence at the hearing before the Appeals Tribunal, but no one from Colson testified at this hearing. Thus, the hearing examiner never heard testimony regarding the rescission of the doctor's note. However, at the subsequent hearing before the Board, Pickney testified that Dr. Lack rescinded the note. A copy of the original note with handwritten notations is part of the record on appeal, but was not admitted as evidence before the Board. The handwritten notation by a P.W. indicates that the dates of October 16-20 "were not approved by Dr. Lack." A handwritten notation by Dr. Lack indicates "no excuse given" and "clerical error." However, this note was not dated until February 1, 2001, well after appellant was terminated. Thus, whether appellant presented a valid doctor's excuse is an issue of credibility. Notably, appellant testified that when he met with Pickney on November 2, 2000, Pickney informed him that the note had been rescinded.