ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

SAM BIRD, JUDGE

DIVISION I

JEFFREY H. BROWN,

APPELLANT

v.

DIRECTOR, EMPLOYMENT SECURITY DEPARTMENT AND CITY OF EUDORA

APPELLEES

E02-77

FEBRUARY 5, 2003

APPEAL FROM THE BOARD OF REVIEW

AFFIRMED

The appellant, Jeffrey Brown, challenges the Arkansas Board of Review's decision to deny him unemployment compensation benefits. Brown contends that there was not substantial evidence to support the Board's finding that he was discharged from his job for misconduct connected with the work. We disagree and affirm the Board's denial of benefits.

In this case, the hearing officer heard testimony from Brown, Eudora Mayor Charlotte Hilgee, Brown's supervisor Ken Roper, and the Eudora City Clerk, Marilyn Nunnelle. We shall briefly lay out a summary of the testimony that was before the hearing officer.

On September 10, 2001, Brown was employed as a foreman with the water, sewer, and street department for the city of Eudora. Early in the morning, prior to his scheduled work time, Brown called his supervisor, Mr. Roper, and asked to take the day as a vacation day. This action was contrary to the policy of the city of Eudora, which required that two

weeks notice be given when requesting to use a vacation day.

Brown testified that he told Roper that he was taking the day off to check on the payment of a fee to take a test with the health department, with the hope that if he passed the test, he would receive a $1,000 pay raise. Brown further testified that he had inquired about the city paying the test fee numerous times and was told that it would be paid. He said he told Roper during this conversation that he needed to take the day off because he might have to drive to Little Rock to make sure that the fees were paid before the deadline, which was either that day or the following day. Roper informed Brown that he did not think he had any vacation days left for the year because he had used his five vacation days when he took off a week to care for his wife and his child following an emergency C-section earlier that year. Brown told Roper that he was wrong because he had used sick leave. According to Roper, Brown told him that he did not know anything and hung up the telephone on Roper.

Brown arrived at work at approximately 8:00 a.m., dressed in his usual city uniform and driving a city truck. After dumping some garbage from the truck, Brown approached Roper about the vacation time and words were again exchanged. Roper threatened to call police if Brown did not leave and, subsequently, according to Roper, told Brown to meet him in the mayor's office at 9:00 a.m. During this conversation, Roper used profanity toward Brown in front of other employees.

Once in the mayor's office, Brown requested that Roper be disciplined for his use of profanity in front of the other employees. The mayor denied this request and a discussion about the vacation time began. Brown testified that he told the mayor he had a week ofvacation time and why he needed the day off. Brown admitted in the hearing that he had told the mayor that he was going to take the day off regardless, because he needed it.

The mayor denied that Brown gave him any reason for wanting the day off. In fact, the mayor testified that Brown refused to give a reason why. With respect to the test fee, the mayor testified that she never intended to allow Brown to take the test, but could not remember if this was ever communicated to him. The mayor terminated Brown at the conclusion of the meeting.

Marilyn Nunnelle, the city clerk, was not present during this particular meeting; however, she testified regarding previous interaction between the mayor and Brown. Nunnellee testified that the mayor had on occasion yelled at Brown and that she had encouraged the mayor to counsel Brown, rather than yell at him.

The Appeals Tribunal found that Brown was terminated for misconduct, specifically for his admission in the hearing that he had told the mayor that he was going to take the day off regardless, because he needed it. Furthermore, the Appeals Tribunal found that Brown's conduct was insubordinate and that management had a reasonable right to expect that instructions will be followed. The Board of Review affirmed and adopted the decision of the Appeals Tribunal. This appeal followed.

On appeal, we review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board's findings, and we will affirm the Board's decision if it is supported by substantial evidence. Hiner v. Director, 61 Ark. App. 139, 965 S.W.2d 785 (1998). Substantial evidence is such relevant evidence that a reasonable mind mightaccept as adequate to support a conclusion. Perdrix-Wang v. Director, 42 Ark. App. 218, 856 S.W.2d 636 (1993). Even when there is evidence upon which the Board of Review might have reached a different decision, the scope of our review is limited to a determination of whether the Board reasonably could have reached the decision it did based upon the evidence before it. Id.

Arkansas Code Annotated section 11-10-514(a)(1) (Repl. 2002) provides in relevant part that an individual will be disqualified for benefits if that individual is discharged from work for misconduct in connection with that work. For the 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 the right to expect; and (4) disregard of the employee's duties and obligations to the employer. Rucker v. Director, 52 Ark. App. 126, 915 S.W.2d 315 (1996). There is an element of intent associated with a determination of misconduct. Fulgham v. Director, 52 Ark. App. 197, 918 S.W.2d 186 (1996). Therefore, for an individual's actions to constitute misconduct sufficient to disqualify him or her from benefits, the actions must be deliberate violations of the employer's rules or acts of wanton or willful disregard of the standard of behavior that the employer has a right to expect of its employees. Kimble v. Director, 60 Ark. App. 36, 959 S.W.2d 66 (1997).

Given these standards stated above, we affirm the decision of the Board of Review. Brown's admission in the hearing that he had told the mayor that he was going to take the day off regardless, because he needed it, is sufficient evidence that he manifested a willfuldisregard of his employer's interest. The city's written policy stated that employees should notify their department heads at least two weeks in advance of being absent for vacation time; it is undisputed that the notification took place on the morning of the day that Brown wanted to be absent. Therefore, the Board reasonably could have reached its decision based upon the evidence before it.

Affirmed.

Vaught and Baker, JJ., agree.