James DRAY v. DIRECTOR, Employment Security
Department, and City of Bentonville
E 94-171___ S.W.2d ___
Court of Appeals of Arkansas
Division I
Opinion delivered October 2, 1996
1. Employment security -- standard of review. -- The appellate
court reviews 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; substantial evidence is such evidence that a
reasonable mind would find adequate to support a conclusion.
2. Employment security -- misconduct defined. -- Misconduct in
connection with one's work is more than mere inefficiency or
unsatisfactory judgment; it is some act of wanton or willful
disregard of the employer's interest, a deliberate violation
of the employer's rules, or a disregard of the standard of
behavior the employer has a right to expect of its employees.
3. Employment security -- misconduct -- how established. -- For
an employer to establish that his employee's off-duty
activities rise to the level of misconduct in connection with
the employment, the employer must show by a preponderance of
the evidence that the employee's conduct (1) had some nexus
with her work; (2) resulted in some harm to the employer'sinterest, and (3) was in fact conduct that was (a) violative
of some code of behavior impliedly contracted between employer
and employee and (b) done with intent or knowledge that the
employer's interest would suffer.
4. Employment security -- employer's rules or regulations not
part of record -- impossible to ascertain whether appellant
violated any. -- While the record was sufficient to support
the findings that an implied contract prohibiting certain
behavior existed between appellant, a former police sergeant,
and his employer, appellee police department, no copy of any
of the specific rules or regulations was made part of the
record; it was, therefore, impossible for the appellate court
to ascertain what the exact prohibitions were and whether
appellant violated any of them; also, appellee offered nothing
to refute appellant's contention that he had no intention of
harming his employer's interest when he struck his son, who
had been arrested on a charge of public intoxication, at the
police station.
5. Employment security -- employer failed to show that actual
harm resulted from appellant's conduct. -- Although the
employer had the burden of showing that some actual harmresulted from appellant's conduct, the only evidence offered
in that regard was that some of appellant's subordinate
officers and one civilian were present in the same building in
which the incident occurred; there was no evidence that the
civilian witnessed the incident or that any of the officers
present interpreted the act as having any implications toward
their own dealing with prisoners or inmates to whom they had
no lawful responsibility by nature of a parent-child
relationship.
6. Employment security -- appellant's contention that he had no
intention of adversely affecting employer's interest supported
by record. -- Where the record reflected that appellant had
been called to the police station to take his son out of the
employer's custody, appellant's son had impliedly been
released and was not in the employer's custody; this tended to
support appellant's contention that he had no intention of
adversely affecting the employer's interest.
7. Employment security -- Board of Review's decision not
supported by substantial evidence -- reversed. -- Where
appellee employer failed to prove that appellant possessed the
requisite intent when he violated a rule, regulation, oroccupational standard of the employer, the appellate court
reversed the Board of Review's decision, holding that it was
not supported by substantial evidence.
Appeal from Board of Review of the Arkansas Security
Department; reversed.
Conrad T. Odom, for appellant.
Allan Pruitt, for appellees.
Olly Neal, Judge.
Appellant James Dray, a former sergeant of the Bentonville
Police Department, takes this appeal from an order affirming the
denial of his request for unemployment benefits entered by the
Arkansas Board of Review on June 29, 1994. The Board agreed with
the Arkansas Appeal Tribunal in its findings that the Appeal
Referee presiding at the hearing on appellant's claim correctly
found that appellant was discharged for misconduct connected with
his employment. We disagree and reverse the Board's decision.
Appellant's alleged work-related misconduct occurred about
2:00 a.m., December 20, 1993, at the Bentonville Police Department.
On that date, appellant was notified by one of his fellow officers
that appellant's 15-year-old son, Casey, had been arrested on a
charge of public intoxication, and would only be released to a
parent or legal guardian. When appellant arrived at the policestation, his son was very intoxicated, argumentative, and
belligerent toward the police officers who arrested him and toward
his father. Appellant slapped his son on the face twice in
response to the conduct. Appellant was terminated effective
January 25, 1994, and on March 2, 1994, was notified by the
Arkansas Employment Security Department of his disqualification to
receive benefits.
At the hearing before the Appeal Tribunal, appellant testified
that prior to his termination he had been employed by the City of
Bentonville as a police officer for almost ten years. Mr. Dray
stated that when he received the call from the police department
concerning his son's arrest, he was off duty on sick leave due to
an accident he had in November 1993. Appellant was not in uniform
when the incident occurred. According to Mr. Dray, he had no
responsibilities that called for contact with juveniles and would
not have been at the police station if the juvenile who was
arrested had not been his son. Mr. Dray admitted that he struck
his son in the face and testified that he did so because his son
"smarted off" to him after being admonished for being disrespectful
to other officers.
Appellant also presented documentary evidence consisting of
his own Employment Security Department Worksheet and Statement
concerning his discharge, the statement of City of Bentonville's
Mayor, John W. Fryer, concerning the discharge and transcripts of
interviews with the police officers who witnessed the incident.
Appellant's worksheet reflected that appellant had been issued amanual containing rules and regulations of the employer in 1991 and
that at the time of the issuance, appellant's supervisor indicated
he was not happy with the manual and was only passing them out
because everyone "was complaining about no set of rules and
regulations." Appellant claimed in his statement that he had never
been warned that his type of behavior could result in his
termination and that he was not aware of the employer's policy on
the subject.
Mayor Fryer, on the other hand, acknowledged in his statement
that appellant had never received any warnings concerning his
specific behavior, but claimed that appellant was aware of the
general policy against striking "handcuffed prisoners" by virtue of
his nine and one-half years of employment as a police officer.
A transcription of a December 22, 1993, interview with
appellant regarding the slapping incident was also introduced as
evidence. During the interview, appellant admitted that he struck
his son in the police station, but claimed he wasn't trying to hurt
him. Appellant stated that he only slapped the boy hard enough "to
get his attention because he was mouthy and cussing." Appellant
also stated that the slap did not leave any marks or imprints or
bruises. After the incident, appellant immediately took his son
home.
Appellant's statement was somewhat corroborated by the
testimony of Lieutenant Jerry Williams in a separate interview
which occurred on December 21, 1993, the day before appellant was
interviewed. Lieutenant Williams stated that Casey Dray wascompletely uncooperative and "mouthing and carrying on and yelling
and screaming" from the time he was picked up until he was
confronted by appellant. Williams stated that no bruises or other
marks resulted from the slapping and that no serious damage was
done.
On appeal, 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. Roberson v. Director of Labor, 28 Ark. App. 337, 775
S.W.2d 82 (1989). Substantial evidence is such evidence that a
reasonable mind would find adequate to support a conclusion.
Misconduct has been defined as "more than mere inefficiency"
or unsatisfactory judgment; it is "some act of wanton or willful
disregard of the employer's interest, a deliberate violation of the
employer's rules, or a disregard of the standard of behavior the
employer has a right to expect of its employees." Baker v.
Director of Labor, 39 Ark. App. 5, 832 S.W.2d 864 (1992); Feagin v.
Everett, Director, 9 Ark. App. 59, 652 S.W.2d 839 (1983); Ark.
Code Ann. § 11-10-515(b) (1987). In order for an employer to show
that his employee's off-duty activities rise to the level of
misconduct in connection with the employment, the employer must
show by a preponderance of the evidence:
[T]hat the employee's conduct (1) had some nexus with her
work; (2) resulted in some harm to the employer's interest,
and (3) was in fact conduct which was (a) violative of some
code of behavior impliedly contracted between employer and
employee, and (b) done with intent or knowledge that the
employer's interest would suffer.
Feagin, supra, at 68.
In the case at bar, the record is sufficient to support the
findings that an implied contract prohibiting certain behavior
existed between appellant and his employer. However, no copy of
any of the specific rules or regulations is a part of the record.
It is, therefore, impossible on appeal to ascertain what the exact
prohibitions were and whether appellant was guilty of violating any
of them. Also, appellant testified that when he struck his son he
was reacting as a parent to the boy's behavior, and didn't think
that his conduct would reflect adversely on the department.
Appellee offered nothing to refute appellant's contention that he
had no intention of harming his employer's interest.
The employer also had the burden of showing that some actual
harm resulted from appellant's conduct. The only evidence offered
in this regard is that some of appellant's subordinate officers and
one civilian were present in the same building in which the
incident occurred. There is no evidence that the one civilian
witnessed the incident or that any of the officers present
interpreted the act as having any implications toward their own
dealing with prisoners or inmates to whom they had no lawful
responsibility by nature of a parent-child relationship.
Finally, the Board's decision indicates that its decision was
partially based on the fact that "the employer's rules for the use
of physical force reasonably extended to the claimant's off-duty
activities towards a person in the employer's custody." The record
reflects, however, that appellant had been called to the police
station for the very purpose of taking his son out of theemployer's custody; the son therefore had impliedly been released,
and was not in the "employer's custody." This tends to support
appellant's contention that he had no intention of adversely
affecting the employer's interest.
In sum, because appellee failed to prove that appellant
possessed the requisite intent when he violated a rule, regulation,
or occupational standard of the employer, we cannot say the Board's
decision is supported by substantial evidence.
Reversed.
Mayfield, J., agrees.
Rogers, J., concurs in result.
_________________________
NEAL, J.- 8