Esther GREENBERG v. DIRECTOR, Employment
Security Department, and Checkbureau, Inc.
E 95-181___ S.W.2d ___
Court of Appeals of Arkansas
En Banc
Opinion delivered May 22, 1996
1. Employment security -- misconduct defined. -- A person is
disqualified from benefits if she is discharged from her last
work for misconduct in connection with the work; "misconduct,"
for purposes of unemployment compensation, involves: (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 his employees, and
(4) disregard of the employee's duties and obligations to his
employer.
2. Employment security -- misconduct -- element of intent
involved. -- There is an element of intent associated with a
determination of misconduct; mere inefficiency, unsatisfactory
conduct, failure of good performance as the result of
inability or incapacity, inadvertencies, ordinary negligence
or good-faith errors in judgment or discretion are not
considered misconduct for unemployment insurance purposes
unless it is of such a degree or recurrence as to manifest
culpability, wrongful intent, evil design, or an intentional
or substantial disregard of an employer's interests or anemployee's duties and obligations; whether the employee's acts
are willful or merely the result of unsatisfactory conduct or
unintentional failure of performance is a fact question for
the Board of Review to decide.
3. Employment security -- standard of review. -- On appeal, the
findings of fact of the Board of Review are conclusive if they
are supported by substantial evidence; substantial evidence is
such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion; the appellate court will
determine whether the Board could reasonably reach its results
upon the evidence before it but will not replace its judgment
for that of the Board even though the appellate court might
have reached a different conclusion based upon the same
evidence that the Board considered; however, the appellate
court is not at liberty to ignore its responsibility to
determine whether the standard of review has been met; when
the Board's decision is not supported by substantial evidence,
the appellate court will reverse.
4. Employment security -- Board's finding not supported by
substantial evidence. -- After reviewing the evidence, the
appellate court could not conclude that the Board's findingwas supported by substantial evidence; the court held that a
reasonable mind would not accept evidence of appellant's
failure to mark her employer's calendar on at least two
occasions and her failure to include certain documents in a
letter sent to an insurance company as adequate to support the
conclusion that appellant's conduct was of such a degree or
recurrence as to manifest culpability, wrongful intent, evil
design, or an intentional or substantial disregard of her
employer's interests or her duties and obligations; the case
was reversed and remanded to the Board.
Appeal from the Arkansas Board of Review; reversed and
remanded.
Appellant, pro se.
Allan F. Pruitt, for appellees.
John F. Stroud, Jr., Judge.
*ADVREP*CA4* EN BANC
ESTHER GREENBERG,
APPELLANT
V.
DIRECTOR, EMPLOYMENT SECURITY
DEPARTMENT, AND CHECKBUREAU,
INC.,
APPELLEES
E 95-181
May 22, 1996
APPEAL FROM THE ARKANSAS BOARD
OF REVIEW [95-BR-851]
REVERSED AND REMANDED
John F. Stroud, Jr., Judge.
Appellant, Esther Greenberg, applied for unemployment
compensation benefits after she was discharged by her employer,
Checkbureau, Inc., for poor job performance. The Arkansas
Employment Security Department determined that appellant was
entitled to benefits under Ark. Code Ann. § 11-10-514 (Supp. 1995)
because she was discharged from her last work for reasons other
than misconduct. Checkbureau appealed that determination to the
Arkansas Appeal Tribunal, which affirmed the Department's finding.
Checkbureau then appealed the Tribunal's decision to the Board of
Review, and the Board reversed the Tribunal's findings and found
that appellant was disqualified for benefits because she was guilty
of misconduct connected with her work. We reverse.
A person is disqualified from benefits if she is discharged
from her last work for misconduct in connection with the work.
Ark. Code Ann. § 11-10-514(a)(1) (Supp. 1995). "Misconduct," for
purposes of unemployment compensation, involves: (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 his employees, and (4) disregard of the
employee's duties and obligations to his employer. George's, Inc.V. Director, 50 Ark. App. 77, 900 S.W.2d 590 (1995). There is an
element of intent associated with a determination of misconduct.
Id. In Willis Johnson Co. v. Daniels, 269 Ark. 795, 601 S.W.2d 890
(Ark. App. 1980), this Court stated that:
Mere inefficiency, unsatisfactory conduct, failure of
good performance as the result of inability or incapacity,
inadvertencies, ordinary negligence or good faith errors in
judgment or discretion are not considered misconduct for
unemployment insurance purposes unless it is of such a
degree or recurrence as to manifest culpability, wrongful
intent, evil design, or an intentional or substantial
disregard of an employer's interests or an employee's duties
and obligations. [Citation omitted.]
Whether the employee's acts are willful or merely the result of
unsatisfactory conduct or unintentional failure of performance is
a fact question for the Board to decide. George's, Inc., supra.
On appeal, the findings of fact of the Board of Review are
conclusive if they are supported by substantial evidence. Id.
Substantial evidence is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion. Id. This Court
will determine whether the Board could reasonably reach its results
upon the evidence before it, but will not replace its judgment for
that of the Board even though this Court might have reached a
different conclusion based upon the same evidence the Board
considered. Sadler v. Stiles, 22 Ark. App. 117, 735 S.W.2d 708
(1987). However, we are not at liberty to ignore our
responsibility to determine whether the standard of review has been
met. Riceland Foods, Inc. V. Director, 38 Ark. App. 269, 832S.W.2d 295 (1992). When the Board's decision is not supported by
substantial evidence, this court will reverse. Sadler, supra.
After reviewing the evidence in the present case, we cannot
conclude that the Board's finding is supported by substantial
evidence. The employer stated that appellant was discharged for
poor job performance, and the evidence showed that appellant was
incompetent as a legal secretary. She failed to properly spell
check documents, failed to mark dates on her employer's calendar,
and failed to include important documents with a letter sent to an
opposing party. In addition, the employer had documented instances
of absenteeism and tardiness.
The Board found that appellant's failure to mark her
employer's calendar on at least two occasions and her failure to
include certain documents in a letter sent to an insurance company
indicated an intentional disregard of the employer's interests. We
hold that a reasonable mind would not accept this evidence as
adequate to support the conclusion that appellant's conduct was of
such a degree or recurrence as to manifest culpability, wrongful
intent, evil design, or an intentional or substantial disregard of
her employer's interests or her duties and obligations. The case
is reversed and remanded to the Board for such further proceedings
as may be necessary to determine the appellant's eligibility for
benefits and the amount and duration of those benefits.
Reversed and remanded.
Mayfield, Neal, and Griffen, JJ., agree.
Pittman and Cooper, JJ., dissent.
*ADVREP*CA4-A*
EN BANC
E95-181
May 22, 1996
ESTHER GREENBERG APPEAL FROM THE ARKANSAS BOARD
APPELLANT OF REVIEW
[NO. 95-BR-851]
VS.
DIRECTOR, EMPLOYMENT SECURITY DISSENTING OPINION
DEPARTMENT, and CHECKBUREAU,
INC.
APPELLEES
James R. Cooper, Judge.
Ordinarily, I would not write a dissent to an opinion in an
unbriefed Employment Security Department case, but the majority's
decision to reverse the Board's factual determination is so radical
a departure from the scope of our appellate review, and is premised
upon such an extreme deviation from the standard to which we are
obliged to adhere, that it should not pass without comment.
Our review of Board of Review decisions is defined by Ark.
Code Ann. § 11-10-529 (1987). Our jurisdiction is statutorily
confined to questions of law and, if supported by the evidence and
in the absence of fraud, the findings of the Board of Review as to
the facts are conclusive. Ark. Code Ann. § 11-10-529(c)(1). The
majority states this standard of review correctly, then ignores it
and summarily reverses the Board's finding of misconduct.
An individual is disqualified for benefits if he is discharged
from his last work for misconduct in connection with the work.
Ark. Code Ann. § 11-10-514(a)(1) (1987). Ordinary negligence or
errors are not considered misconduct under this statute unless they
are of such degree or recurrence as to "manifest culpability,
wrongful intent, evil design, or an intentional or substantial
disregard of an employer's interests or of an employee's duties and
obligations." Perry v. Gaddy, 48 Ark. App. 128, 891 S.W.2d 73
(1995). Whether the employee's acts are willful or merely the
result of unsatisfactory performance is a fact question for the
Board to decide. George's Inc. v. Director, 50 Ark. App. 77, 900
S.W.2d 590 (1995).
As noted above, the Board's fact findings are conclusive on
judicial review if supported by substantial evidence. In
determining whether substantial evidence exists to sustain the
Board's findings, we are required to give the successful party the
benefit of any inference that can be drawn from the testimony.
Arlington Hotel v. Employment Security Division, 3 Ark. App. 281,
625 S.W.2d 551 (1981).
Far from giving the successful party in this case "the benefit
of every inference," the majority has strained to reverse. The
majority opinion notes that the appellee, employed as a legal
secretary, failed to properly spell-check documents, failed to mark
dates on her employer's calendar, and failed to include important
documents with a letter sent to an opposing party.
What the majority opinion does not reveal is that these were
not isolated instances. The record shows that the appellant
repeatedly failed to spell-check documents as she typed. The
appellant claimed to have spell-checked the documents and blamed
the recurrent errors on a computer malfunction. However, an
employer representative testified that he watched as the appellant
spell-checked a document which she claimed to have spell-checked
previously, and observed that the computer stopped at the errors he
had noted on his printed copy. Nor was the failure to mark dates
on her employer's calendar an isolated event. The record shows
that, despite being repeatedly instructed that her first priority
was to ensure that scheduled court appearances were marked on her
employer's calendar, the employer missed two court hearings because
the appellant failed to mark his calendar. The majority fails
altogether to note evidence that the appellant repeatedly made
errors in billing clients, and that such errors continued to occur
even after the problem was brought to the appellant's attention.
The Board specifically found that the appellant was discharged
for misconduct in connection with the work, reasoning that the
instances of the appellant's failure to follow specific
instructions were so numerous that her actions indicated more than
a mere inability to perform the work in a satisfactory manner.
This conclusion that recurrent negligence may warrant a finding of
misconduct is supported by our decisions. See, e.g., Perry v.
Gaddy, supra; Nibco, Inc. v. Metcalf, 1 Ark. App. 114, 613 S.W.2d
612 (1981).
I dissent.
Pittman, J., joins in this dissent.
E95-181