Nan B. BLACKFORD v. ARKANSAS EMPLOYMENT
SECURITY DEPARTMENT and the National Medical
Rental
E 95-227___ S.W.2d ___
Court of Appeals of Arkansas
En Banc
Opinion delivered December 23, 1996
1. Unemployment compensation -- scope of appellant review --
substantial evidence defined. -- In unemployment compensation
cases, the scope of review by an appellate court is governed
by the substantial evidence rule; substantial evidence is
defined as such relevant evidence as a reasonable person might
accept as adequately supporting the conclusion; whether the
findings of the Board of Review are supported by substantial
evidence is a question of law, and the court of appeals may
reverse a finding of the Board of Review which is not
supported by substantial evidence.
2. Unemployment compensation -- discharge for misconduct
connected with work -- what constitutes 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 degree or
recurrence as to manifest culpability, wrongful intent, evil
design, or an intentional or substantial disregard of anemployer's interests or an employee's duties and obligations;
misconduct which precludes benefits for unemployment
compensation contemplates willful or wanton disregard of an
employer's interest as is manifested in the deliberate
violation or disregard of those standards of behavior which
the employer has a right to expect from its employees; there
is an element of intent associated with a determination of
misconduct, and mere inefficiency or poor performance does
not, in itself, constitute misconduct; the Board of Review
must determine that there was 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 in order to find misconduct.
3. Unemployment compensation -- discharge for misconduct not
supported by substantial evidence -- decision of Board of
Review reversed and remanded. -- Where appellant was
discharged because she routed a delivery driver to the home of
a customer who had been released from hospitalization, but who
was not home two-and-a-half hours after the driver arrived to
make the medical-supply delivery; appellant informed the
delivery driver about the customer's recent release, so she
did not intentionally withhold information vital to theemployer's interest; nor was she deliberately inefficient or
guilty of such negligence as to be deemed in deliberate
violation of the employer's rules, the Board of Review's
decision that appellant was discharged from her last job
because of misconduct connected with the work was not
supported by substantial evidence; therefore, the case was
reversed and remanded the case to the Board of Review so that
an order could be issued granting appellant's unemployment
benefits.
Appeal from the Arkansas Board of Review; reversed and
remanded.
Appellant, pro se.
Allan Pruitt, for appellee.
Wendell L. Griffen, Judge.
Nan B. Blackford has appealed the decision of the Arkansas
Board of Review concerning her claim for unemployment insurance
benefits arising out of her employment with The National Medical
Rental of Dardanelle, Arkansas. The Board of Review adopted the
decision of the Appeal Tribunal upon the finding that Blackford was
discharged from her job with National Medical Rental for misconductconnected with the work, and, therefore, held her disqualified from
receiving unemployment benefits for eight weeks of unemployment
pursuant to Ark. Code Ann. § 11-10-514(a) (Repl. 1996).
Blackford's appeal requires us to determine whether the finding of
misconduct connected with the work is supported by substantial
evidence. Because we hold that substantial evidence is not present
to support the finding, we reverse and remand to the Board of
Review so that Blackford's benefits can be awarded.
Appellant was discharged from her position as a customer
service representative on May 16, 1995, after having worked for
National Medical Rental for eleven years. During the fall of 1994,
she began falling behind in her work without apparent cause. She
was counseled concerning this problem in January 1995, and her
employer temporarily relieved her of some work duties so that she
could bring her paperwork current. However, after appellant became
current on the paperwork and resumed her regular workload she again
fell behind. The record contains clear proof that appellant's work
in customer service had been substandard, including proof that she
informed customers on several occasions that items would be
delivered when she had not first verified that the items were
available.
The proverbial last straw appears to have occurred on May 10,
1995, when appellant directed a delivery driver to a customer'sresidence in Clinton, Arkansas. The customer was being released
from hospitalization on that date, and was supposedly en route
home. Although appellant informed the delivery driver about that
situation, the customer had not arrived home two and a half hours
after the driver arrived to make the delivery. After this
incident, appellant was discharged due to poor job performance.
Her claim for unemployment benefits was denied on the finding that
she had been discharged for misconduct connected with the work.
In unemployment compensation cases, the scope of review by an
appellate court is governed by the substantial evidence rule.
Substantial evidence is defined as such relevant evidence as a
reasonable person might accept as adequately supporting the
conclusion. Haig v. Everett, 8 Ark. App. 255, 650 S.W.2d 593
(1983). Whether the findings of the Board of Review are supported
by substantial evidence is a question of law, and the Court of
Appeals may reverse a finding of the Board of Review which is not
supported by substantial evidence. St. Vincent Infirmary v.
Arkansas Emp. Sec. Div., 271 Ark. 654, 609 S.W.2d 675 (Ark. App.
1980).
This standard of judicial review requires us to determine
whether the Board of Review's finding that appellant was discharged
from her last job because of misconduct connected with the work is
supported by such relevant evidence as a reasonable person mightaccept as adequately supporting that conclusion. In doing so, we
are guided by the long-standing principle 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
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.
Willis Johnson Co. v. Daniels, 269 Ark. 795, 601 S.W.2d 890 (Ark.
App. 1980). We have repeatedly stated that misconduct which
precludes benefits for unemployment compensation contemplates
willful or wanton disregard of an employer's interest as is
manifested in the deliberate violation or disregard of those
standards of behavior which the employer has a right to expect from
its employees. Sadler v. Stiles, 22 Ark. App. 117, 735 S.W.2d 708
(1987). As we stated in A. Tennenbaum Co. v. Director, 32 Ark.
App. 43, 796 S.W.2d 348 (1990), there is an element of intent
associated with a determination of misconduct, and mere
inefficiency or poor performance does not, in itself, constitute
misconduct. The Board of Review must determine that there was an
intentional or deliberate violation, a willful or wanton disregard,
or carelessness or negligence of such degree or recurrence as tomanifest wrongful intent or evil design in order to find
misconduct. For example, in St. Vincent Infirmary v. Ark. Emp.
Sec. Div., supra, we reversed a finding by the Board of Review that
two day care center workers had been discharged for "reasons other
than misconduct" where the undisputed proof was that the workers
left their workplace without permission during the busy period of
the workday, and their absence placed the day care center in
violation of regulations concerning the ratio of adult employees to
the number of children present. In that case, we concluded that
the actions of the discharged employees were intentional and
displayed a substantial disregard of the employer's interests as
well as their duties and obligations as employees.
This case is fundamentally different. The parties do not
dispute that appellant was discharged in the wake of the May 10,
1995, incident when she routed a delivery driver to the home of a
customer who had been released from hospitalization, but who was
not home two and a half hours after the driver arrived to make the
medical supply delivery. Appellant's evidence that she had spoken
with the hospital and been informed that the customer was en route
home was not contradicted. Appellant informed the delivery driver
about the customer's recent release, so it cannot fairly be said
that she intentionally withheld information vital to the employer's
interest, or that she was deliberately inefficient, or guilty ofsuch negligence as to be deemed in deliberate violation of the
employer's rules. Indeed, it is difficult to fathom how appellant
could have been more dutiful in the situation, considering that the
customer apparently desired or needed the ordered item shortly
after being released from the hospital.
Based upon our review of the record consistent with the
substantial-evidence standard, we hold that the Board of Review's
decision that appellant was discharged from her last job because of
misconduct connected with the work is not supported by substantial
evidence. Therefore, we reverse that decision, and remand the case
to the Board of Review so that an order can be issued granting
appellant's unemployment benefits.
Reversed and remanded.
Robbins, Stroud, and Neal, JJ., agree.
Pittman and Rogers, JJ., dissent.
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John Mauzy Pittman, Judge, dissents.
I dissent from a reversal of the Board's decision because it
represents a departure from our standard of review. The focus of
the Board's finding of misconduct was on the recurring deficiencies
in appellant's performance of her duties over an extended period of
time. As stated by the majority, misconduct can be found when the
failure of good performance is of such a degree or recurrence as to
manifest an intentional disregard of the employer's interest. That
is what the Board found to constitute misconduct in this case.
While the majority recognizes that the final delivery incident was
the "last straw," it treats this as an isolated incident rather
than the last occurrence in a series of events demonstrating
unsatisfactory performance in all of her duties. By focusing on
this one incident involving one aspect of her duties, the majorityhas succumbed to the temptation of substituting its judgment for
that of the Board in a misguided effort to decide this case as if
it were the trier of fact. That this is so is further demonstrated
by the majority's mention of only the decision of the Board, but
not the findings of fact made by the Board in support of that
decision.
It is for the Board to translate the evidence before it into
findings of fact, and it is our function, upon review, only to
determine whether those findings are supported by substantial
evidence. As noted by the Board in its findings, appellant, a
long-term employee, possessed the demonstrated ability to do her
job, but for reasons appellant did not explain (in her "uncontradicted" testimony), her performance declined and continued on a
downward slope despite the warnings and the opportunities afforded
by her employer to improve her performance. Thus, the Board
reasoned that this was not a case of mere inefficiency or the
failure of good performance as the result of inability, but rather
a case where the evidence revealed a pattern of poor performance of
such a degree as to manifest an intentional disregard of her
employer's interest.
This case is similar to Perry v. Gaddy, 48 Ark. App. 128, 891
S.W.2d 73 (1995), in which we affirmed the Board's finding of
misconduct when a ten-year employee, who had a proven ability to
perform the job, inexplicably and recurrently over a period of time
began to fail to meet the employer's minimal standards.
Whether an 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. Rucker v. Director, 52
Ark. App. 126, 915 S.W.2d 315 (1996). The Board's denial of
unemployment compensation based on a finding of misconduct is fully
supported by substantial evidence and should be affirmed.
Rogers, J., joins in this dissent.
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GRIFFEN, J. -9