DIVISION IV

E04-91

December 15, 2004

CAROL A. HOLMES AN APPEAL FROM ARKANSAS

APPELLANT BOARD OF REVIEW

[No. 03-BR-02795]

V.

DIRECTOR OF ARKANSAS

EMPLOYMENT SECURITY

DEPARTMENT and

M. SHANNON FOSTER AFFIRMED

APPELLEES

Wendell L. Griffen, Judge

Carol A. Holmes appeals from a decision denying her unemployment benefits. She argues that she met her burden of proof that she was constructively discharged from her employment. She further argues that the Arkansas Board of Review refused to apply the appropriate standard that an employee is not required to make a futile gesture to resolve a problem with her employer, or alternatively, that her employer had constructive notice of her mistreatment. We affirm.

At a hearing in front of the Arkansas Appeals Tribunal on December 10, 2003, Holmes testified that she had been working for her employer, M. Shannon Foster, from April 7, 2003, to October 24, 2003, with one break in the employment. Holmes was an administrative assistant at Foster's law practice. Her duties included taking messages from clients, scheduling appointments, organizing files, bookkeeping, typing, and running errands. She testified that she quit because Foster was verbally abusing her by making derogatory comments toward her. Holmes testified that, when she quit the first time on July 21, 2003,she left her key to the office and parking pass in the mail slot along with a note that stated, "Shannon, I can no longer work in such an environment that you create here, with your fit throwing, rude, disrespectful derogatory comments and actions toward me." The letter was neither signed nor dated.1 Holmes testified that she went back to work after Foster reassured her that it would not happen again. She testified that the "last straw" was on October 21, 2003, after returning to the office from running errands:

She yelled, "Get in here," so I come in there. I set the coffee and cream down. She goes, "Shut the door," and so I shut the door. Then she just went completely off, hollering, yelling. She just got so much work. She needs so much, she needs help and all I'm doing is just standing there so calm, and she is fixing to lose it and she loses it. "We'll go down," and she goes, "If I go down we all go down," and right then I said, "This is not worth all this abuse," and I had made my decision. I was quitting after that because she knew I was not going to take her, how she treated me, her abuse, any longer, her bullingness, and I finished out the week because I knew I would not get paid. I wanted my money for the week, the part of the week that I had worked.

Holmes testified to several other incidents. She testified that on July 16, 2003, while she was helping a client, Foster came out of her office and told her to get the dictaphone; that Holmes told Foster that the dictaphone was broken; that Holmes yelled "Get it out" and slapped a tape in her hand; and that Foster grabbed the papers from Holmes hand that the client had just given to her. Holmes testified that on one occasion Foster yelled at her through the intercom in front of a client that she (Foster) did not want her giving out prices on contested divorces. At another point, she testified that Foster yelled at her because Foster was trying to make a call on the line that Holmes was using, and that the call rolled onto the fax machine line, which they did not answer. On cross-examination, Holmes said that she was trying her best to save the relationship but that it was impossible. She also testified that, in July 2003, Foster said that she was sorry about how Holmes felt because she (Foster) did not realize that was how Holmes felt. She testified that she never discussed the situations where she had to change a motion so many times that it was making her upset or that she discussed the situations where Holmes was treating her poorly. At the end of the cross-examination, Holmes testified that she felt forced to leave in October and that she felt that she was going to have a nervous breakdown. She also testified that she gave Foster no indication that she was going to return to work on Monday.

Rick Holmes, Holmes's husband, testified that his wife no longer worked for Foster because of verbal abuse and erratic behavior. He testified that he personally never saw any of the abuse but that Holmes would come home and tell him stories about Foster's behavior.

Foster then testified that Holmes never gave her a reason for quitting other than the note found in the chair and that she was surprised because Holmes had not discussed the problems with her. When Holmes quit the first time, Foster quickly found someone to replace her, but after Foster called Holmes and the two talked, Holmes agreed to come back to work. Foster also testified that on October 21, 2003, she talked to Holmes about hiring someone else because the amount of work was too hard on her. At that point, Kimberly Brooks, a friend of Holmes and at the time eight-months pregnant, had come into the office, as Holmes asked Brooks to help.

The Arkansas Employment Security Department denied Holmes benefits, finding that she made no effort to resolve the problems before leaving and that she failed to show that she was treated in an unreasonable manner or that her only alternative was to quit. The Arkansas Appeal Tribunal made the same findings and also denied benefits. The Board of Review affirmed the findings of fact and conclusions of law of the Arkansas Appeal Tribunal. This appeal followed.

We affirm the findings of the Board of Review if they are supported by substantial evidence. Billings v. Director, 84 Ark. App. 79, 133 S.W.3d 399 (2003). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. We view the evidence and all reasonable inferences therefrom in the light of the Board's findings. Id. Like a jury, an administrative body is free to accept or reject the testimony of witnesses. Gunter v. Director, 82 Ark. App. 346, 107 S.W.3d 902 (2003). Even if there is evidence that could lead the Board to reaching a different decision, our review is limited to whether the Board could have reasonably reached its decision based upon the evidence presented. Billings, supra.

Holmes argues that the Board erred in finding that she failed to meet her burden of proof that she was constructively discharged from her employment. Under employment security law, a person shall be denied benefits "if he or she voluntarily and without good cause connected with the work left his or her last work." Ark. Code Ann. § 11-10-513(a)(1) (Supp. 2003). The test for whether or not an employee has "voluntarily quit" is "whether the individual has exercised his own free will or choice in the separation." Billings, 84 Ark. App. at 82, 133 S.W.3d at 402. "Good cause," on the other hand, is defined as "a cause that would reasonably impel the average able-bodied, qualified worker to give up his or her employment." Id. at 83-84, 133 S.W.3d at 402. Good cause "is dependent not only on the reaction of the average employee, but also on the good faith of the employee involved, which includes the presence of a genuine desire to work and to be self-supporting." Id. at 84, 133 S.W.3d at 402-03.

Holmes claims that she was constructively discharged. A constructive discharge occurs when an employer intentionally renders an employee's working conditions intolerable and forces him or her to resign. Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.3d 380 (1988) (citing Harris v. Wal-Mart, 658 F. Supp. 62 (E.D. Ark. 1987)).2 Constructive discharge exists only when a reasonable person would have resigned under the same or similar circumstances. Id. (citing Harris v. Wal-Mart, supra). On these facts, the Board's ruling was supported by substantial evidence. While it is evident that Foster kept a stressful working environment, a reasonable person could find that Foster had no intention of rendering Holmes's work environment intolerable. As Holmes noted in her brief, Foster felt like she was "cracking under the pressure," that she was "under a whole lot of pressure and that it was getting to her mentally," and that "she wasn't calm and collective [sic]."

Holmes cites Gunter v. Director, supra, for the proposition that verbal attacks alone toward an employee by a supervisor can constitute good cause. In Gunter, we reversed and remanded for an award of benefits when the evidence showed that the employee quit after several instances of verbal and physical abuse, including being choked. Foster's actions come nowhere close to the abuse suffered by the employee in Gunter. The Board could have reasonably found that Holmes was not constructively discharged.

Holmes further argues that the Board erred in finding that she had to work with Foster to correct any problems Holmes had with her before quitting. In order to claim good cause for leaving employment, an employee ordinarily must show that he or she "took appropriate steps to prevent the mistreatment from continuing." Gunter, 82 Ark. App. at 350, 107 S.W.3d at 905 (quoting Teel v. Daniels, 270 Ark. 766, 606 S.W.2d 151 (Ark. App. 1980)). However, such steps are unnecessary if they would constitute nothing more than a futile gesture. Id. (citing Oxford v. Daniels, 2 Ark. App. 200, 618 S.W.2d 171 (1981)).3

The evidence shows one "attempt" to discuss the issues Holmes had with Foster. In her brief, Holmes states that Foster threw her July note away. However, there was also evidence that Foster called Holmes to figure out why she quit, and after the two talked, Holmes came back to work, even though Foster was ready to hire a replacement. Holmes also testified that, on the day she left, she waited on Foster to pay her because she had made her decision to leave and that she gave no indication that she was not going to come back the following Monday. Given the evidence in this case, we cannot say that the Board erred in not finding that an attempt to correct the situation would have been a futile gesture. Because we find no error in the rulings of the Board, we affirm.4

Affirmed.

Bird and Neal, JJ., agree.

1 The record is ambiguous as to when this letter was sent. While this testimony indicates that the letter was sent after Holmes quit in July, she states in her brief that the letter was sent after she finally quit in October.

2 This element of intent is also an element of constructive discharge in the Second Circuit cases that Holmes cites in her brief. See Terry v. Ashcroft, 336 F.3d 128 (2d Cir.2003) (reversing summary judgment in favor of the employer when there was evidence of harassment and comments such as "your days are numbered," his "life's over with," that "you're going to be brought up on more charges," and "you mean to say that he really showed up?"); Kirsch v. Fleet Street Ltd., 148 F.3d 149 (2d Cir. 1998) (affirmed denial of judgment as a matter of law in favor of the employer when the employer gave employee a forty-five percent pay cut, took away a substantial account, and predicted that the employee would not longer be with the company); Chertkova v. Connecticut General Life Ins. Co., 92 F.3d 81 (2d Cir. 1996) (reversing summary judgment in favor of the employer when there was evidence that the supervisor commented "What do you hope for? Do you think you are going to outlive us? There is no chance! You are not going to be here," and comments that she was "too expensive" despite being at the bottom of her price range for her position).

3 In its opinion, the Board distinguished the present case from Gunter v. Director, supra:

In Gunter, the findings of fact were, in effect, that the claimant's supervisor persistently, verbally and physically abused him and that at least one co-owner of the employer was aware of the abuse; but the employer did nothing to stop it. In holding that the claimant left last work with good cause connected with the work, the Arkansas Court of Appeals considered that although the claimant may have quit without having sought a remedy from the employer for his problem with the supervisor, the claimant was not required to take measures to resolve a problem, if such measures would be nothing more than a futile gesture. In this case, the claimant alleged that she quit working for the employer because of the owner's persistent verbal abuse. However, the claimant did not convincingly present that she quit because of such mistreatment. The claimant described that she endured about three month's of verbal abuse, and an instance of physical abuse, sufficient to cause her to quit working for the employer in July, 2003. However, on the owner's assurances that the abuse would stop, the claimant promptly returned to work for the employer. Then, within about two weeks, allegedly, the owner's verbal abuse of the claimant resumed, and the claimant endured about three more months of persistent abuse, without protest, until she abruptly quit the work without advance notice to the employer of any continuing problems which might cause her to quit. The claimant did not credibly present that she quit working for the employer because of the owner's mistreatment of her.

4 Holmes also claims that Foster should have had "constructive notice" of her mistreatment. We are unfamiliar with such an argument in an employment security claim, and Holmes cites no authority to support her claim. Arguments without citation or persuasive argument go unaddressed by this court. Rikard v. State, 354 Ark. 345, 123 S.W.3d 114 (2003).