Ahrend v. Director

Jane AHREND v. DIRECTOR, Employment Security
Division

E 94-191                                           ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division II
                Opinion delivered October 2, 1996


1.   Appeal & error -- arguments raised for first time on appeal
     not addressed. -- The appellate court does not address
     arguments made for the first time on appeal.

2.   Unemployment compensation -- appellant made no effort to
     preserve job rights -- Board of Review's determination not in
     error. -- Where appellant made no effort to resolve her
     problems at work through the available grievance procedures,
     the Board of Review's determination that appellant failed to
     make reasonable efforts to preserve job rights under as
     required by Ark. Code Ann.  11-10-513(b) (Repl. 1996), when
     reviewed under the substantial evidence standard, was not in
     error.    

3.   Unemployment compensation -- good cause for leaving employment
     -- what constitutes good cause a question of fact. -- Good
     cause has been defined as a cause that would reasonably impel
     the average able-bodied, qualified worker to give up his or
     her employment; it 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; what constitutes
     good cause for leaving employment is ordinarily a question of
     fact for the Board to determine from the particular
     circumstances of each case.

4.   Unemployment compensation -- finding good cause a question of
     fact -- Board's decision that appellant did not have good
     cause for leaving her employment supported by substantial
     evidence. --  Whether appellant's reaction to her perception
     that illegal acts were taking place at her place of employment
     was sufficient to give her good cause to quit was a question
     of fact; the appellant failed to take appropriate steps to
     prevent the perceived misconduct from continuing; appellant
     also failed to invoke the grievance procedure, and also waited
     ten years before taking any action other than speaking to her
     supervisor; substantial evidence supported the Board's
     decision that appellant did not leave her work for good cause.
     
5.   Unemployment compensation -- appellant's situation did not
     constitute personal emergency -- condition precedent to making
     such a determination not met. -- Appellant's argument that her
     situation constituted a personal emergency or an illness as
     contemplated by Section 11-10-513(b) was without merit where
     appellant failed to fulfill a condition precedent to both
     exceptions, that the employee must make reasonable efforts to
     preserve her job rights; the Board of Review expressly
     included a finding that appellant did not make reasonable
     efforts and there was substantial evidence to support this
     legal conclusion.

6.   Appeal & error -- argument made without citation to authority
     -- standard of review used by appellant inapplicable. --
     Appellant's argument that her good cause for leaving and her
     good-faith effort to preserve her job was proven under a
     totality of the circumstances was meritless; she failed to
     cite to any employment security cases that employed a
     totality-of-the-circumstances test; the proper standard of
     review was substantial evidence.  


     Appeal from the Arkansas Board of Review; affirmed.
     Stephen Tedder, for appellant.
     Allan Pruitt, for appellees.

     Wendell L. Griffen, Judge.
     It is undisputed that the appellant, Jane Ahrend, voluntarily
quit her work at the Arkansas Industrial Development Commission
(þAIDCþ).   She had worked for the AIDC for seventeen years.  For
about eleven years her immediate supervisor was Rob Middleton, a
boss in whom she confided and with whom she shared her frustrations
about what she considered harassment from others within the AIDC. 
In 1988 or 1989, Middleton suggested, and the appellant began to
receive, psychiatric help for her stress that was undisputedly job-
related.  The stress and the harassment appear to have stemmed from
what the appellant deemed misappropriation of funds within the AIDC
and her unsuccessful attempts to point out and correct the
problems.
     In 1993, Middleton was fired and replaced by Kathryn
Leapheart.  On Friday, January 7, 1994, the end of the first week
of reporting to her new boss, the appellant had a meeting with
Leapheart during which the appellant questioned the purchase of
some office furniture as well as other expenditures.  According to
appellant, Leapheart condoned the questioned purchases.  Leapheart
denied sanctioning any unlawful expenditures.  The next day
(Saturday, January 8) a friend (Deborah Pipkins) found appellant
sitting in a fetal position at home in a chair, tearful and almost
incoherent.  Pipkins eventually gave notice to the director of the
AIDC of the appellantþs inability to work and her intent not to
come back, and it was Pipkins who actually cleaned out appellantþs
desk at work. 
     The appellant applied for unemployment benefits and was
denied.  Both the Appeal Tribunal and the Board of Review affirmed
the denial of benefits, finding that she voluntarily left her last
work without good cause under Ark. Code. Ann.  11-10-513 (1987). 
She filed a timely appeal to this court raising five points for
reversal.  We find no merit in any of the five points and affirm. 
     In her first point, the appellant challenges the
voluntariness of her decision to quit.  She argues that she was
incapable of making a rational decision due to her extreme
emotional distress.  Her testimony, however, belies this
argument.  Appellant testified that she sent word to her employer
through Pipkins that she was quitting due to emotional distress
and the strain of harassment.  Although her emotional state may
have been extremely poor, she has never contended, until now,
that this somehow affected the voluntariness of her decision. 
Rather, it seems that her emotional distress, heightened by her
January 7 meeting with Leapheart, helped solidify her decision to
leave.  We do not address arguments made for the first time on
appeal.  Sinks v. State, 44 Ark. App. 1, 864 S.W.2d 879 (1993).  
     The appellant contends in her second point that she should
have been excused from attempting to resolve her problems at work
through the available grievance procedures because the same
individuals responsible for her harassment were in charge of the
grievance procedure.  This violates the clear statutory language
of the Arkansas Employment Security Law. 
          No individual shall be disqualified under this
     section if, after making reasonable efforts to preserve
     his job rights, he left his last work due to a personal
     emergency of such nature and compelling urgency that it
     would be contrary to good conscience to impose a
     disqualification or if, after making reasonable efforts
     to preserve job rights, he left his last work because
     of illness, injury, pregnancy, or other disability.    

Ark. Code Ann.  11-10-513(b) (Repl. 1996) (emphasis added).  The
Board of Review adopted the findings and conclusions of the
Appeal Tribunal and specifically added a new conclusion that þthe
evidence fails to establish that the claimant made reasonable
efforts to preserve her job rights.þ   
     The undisputed proof was that, while appellant shared her
concerns with her new boss, she never asked for a leave of
absence, actually turned down an offer for a different job within
the department, and left after working only one week under her
new boss.  In addition, in the final meeting with appellant,
Leapheart encouraged her to put her concerns in writing and told
her they would be shared with the director of the AIDC and the
governor.  Leapheart testified that she never received the
appellantþs complaints in writing. 
     We hold that an attempt at the employerþs grievance
procedure is part and parcel of the þreasonable efforts to
preserve job rightsþ under the statute.  This is so even if the
prospects for resolution under the available grievance procedure
may not appear promising from the employeeþs perspective.  The
Board of Review held that the appellant had failed to make these
reasonable efforts.  Applying the substantial evidence standard
of review as we must to the Boardþs decision, we cannot say the
Board erred on this point.  Perdrix-Wang v. Director, 42 Ark.
App. 218, 856 S.W.2d 636 (1993).  The appellant has not directed
us to any new facts or law that convinces us otherwise. 
     In her third point, the appellant contends that there is no
substantial evidence to support the Boardþs conclusion that the
AIDC was not misappropriating funds.  Therefore, appellant
further contends, there is no substantial evidence to support the
conclusion that she left the AIDC without good cause.  As an
initial matter, we note that neither this court nor the Board of
Review need decide in this unemployment matter whether the AIDCþs
actions were legal.  Our sole focus is on the Board of Reviewþs
decision and, in this particular case, its decision with respect
to good cause.
     Good cause has been defined as a cause that would reasonably
impel the average able-bodied, qualified worker to give up his or
her employment.  Teel v. Daniels, 270 Ark. 766, 606 S.W.2d 151
(1980).  It 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.  (Emphasis added.)   What constitutes good
cause for leaving employment is ordinarily a question of fact for
the Board to determine from the particular circumstances of each
case.  Perdrix-Wang, supra.  
     Whether the appellant perceived that illegality had
occurred, or continued to occur, at the AIDC, and whether her
reaction to that perception was within the parameters of good
cause was a question of fact.  We find no reason to overturn the
conclusion from that factual inquiry by the Board under the
substantial-evidence standard.  The taking of appropriate steps
to prevent a perceived misconduct from continuing is an element
to be considered in determining whether an employee had good
cause to quit work.  Brown v. Director, 54 Ark. App. 205, 924 S.W.2d 492 (1996).  The Board appeared to base its holding not
only on the appellantþs failure to invoke the grievance
procedure, but also on her ten-year delay in taking any action
other than speaking to her supervisor.  These factors seemed to
weigh at least as heavily in the good-cause determination as any
perception the appellant might have had of wrongdoing within the
AIDC. 
     Fourthly, the appellant argues that her situation
constituted a þpersonal emergencyþ or an þillnessþ contemplated
by Section 11-10-513(b).  We disagree.  A condition precedent to
both exceptions is that the employee must make reasonable efforts
to preserve her job rights.  The Board of Review expressly
amended the Appeal Tribunalþs opinion to include a finding that
appellant did not make reasonable efforts.  As discussed above,
there is substantial evidence to support this legal conclusion. 
If, for example, we consider appellantþs illness or emergency to
have begun when her psychiatrist diagnosed her with depression
(at least three years before she left her employment), her only
efforts to preserve her job rights after that point was to talk
with her supervisor.  If we consider her illness or emergency to
have begun on January 7th (her last meeting with Leapheart) or
January 8th (when Ms. Pipkins discovered her emotionally
distraught at home), she did nothing after either date to
preserve her rights.  Instead, she quit without notice. 
Accordingly, we do not reach the question of whether the
appellant's plight rises to the level of an emergency or an
illness because the Board of Review's finding that she did not
first make reasonable efforts to preserve her job rights is
supported by substantial evidence. 
     Finally, appellant urges that her good cause for leaving and
her good-faith effort to preserve her job is proven under a
totality of the circumstances.  We are cited to no employment
security cases that employ a totality-of-the-circumstances test,
and we are aware of none.  The standard of review is substantial
evidence.  We hold that substantial evidence exists in this case
to support the Boardþs decision regarding good cause, good faith,
and every other issue raised on appeal.  Brown, supra; Perdrix-
Wang, supra.  
     Affirmed.
     Robbins and Stroud, JJ., agree.