Owens v. Director

Dena OWENS v. DIRECTOR, Arkansas Employment
Security Department

E 96-22                                            ___ S.W.2d ___

                  Court of Appeals of Arkansas
                             En Banc
               Opinion delivered December 18, 1996


1.   Unemployment compensation -- burden of proving good cause for
     leaving employment -- what constitutes good cause. -- A
     claimant bears the burden of proving good cause by a
     preponderance of the evidence; good cause is a cause that
     would reasonably impel the average able-bodied, qualified
     worker to give up his or her employment; what constitutes good
     cause is ordinarily a question of fact for the Board to
     determine from the particular circumstances of each case.

2.   Unemployment compensation -- review of Board's determination
     on appeal -- factors on review. -- On appeal, the findings 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 reviews the evidence
     and all reasonable inferences deducible therefrom in the light
     most favorable to the Board's findings; even when there is
     evidence upon which the Board might have reached a different
     decision, the scope of judicial review is limited to a
     determination of whether the Board could reasonably reach its
     decision upon the evidence before it.  

3.   Unemployment compensation -- Board's findings supported by
     substantial evidence -- decision affirmed. -- Where the Board
     found that the training for the manager trainee would have
     ended in approximately thirty days and that rumors that the
     trainee might stay at the store beyond that time were
     unconfirmed, and that appellant's situation was not such that
     she could not have requested a leave of absence or waited
     until the manager trainee left, the Board's conclusion that
     appellant's situation would not have impelled the average,
     able-bodied qualified worker to leave her employment was
     supported by substantial evidence; the decision was affirmed.


          Appeal from the State of Arkansas Board of Review;
affirmed.
     Appellant, pro se.
     Phyllis Edwards, for appellee.

     John Mauzy Pittman, Judge.
     Appellant Dena Owens appeals from an order of the Arkansas
Board of Review denying her claim for unemployment benefits based
on a finding that she left her last employment without good cause
connected with the work.  Appellant contends that the decision of
the Board of Review is not supported by substantial evidence.  We
disagree and affirm.
     Arkansas Code Annotated  11-10-513(a)(1) (Repl. 1996)
provides that an individual shall be disqualified from receiving
unemployment benefits if he or she left his or her last work
voluntarily without good cause connected to the work.  A claimant
bears the burden of proving good cause by a preponderance of the
evidence.  Perdrix-Wang v. Director, 42 Ark. App. 218, 856 S.W.2d 636 (1993).  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.  Id.  What constitutes good cause is
ordinarily a question of fact for the Board to determine from the
particular circumstances of each case.  Id.  On appeal, the
findings of the Board of Review are conclusive if they are
supported by substantial evidence.  Ark. Code Ann.  11-10-
529(c)(1) (Repl. 1996); Feagin v. Everett, 9 Ark. App. 59, 652 S.W.2d 839 (1983).  Substantial evidence is such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion.  Id.  We review the evidence and all reasonable
inferences deducible therefrom in the light most favorable to the
Board's findings.  Id.  Even when there is evidence upon which the
Board might have reached a different decision, the scope of
judicial review is limited to a determination of whether the Board
could reasonably reach its decision upon the evidence before it. 
Id.
     Appellant testified that she had worked as a cashier for the
Family Dollar Store for approximately one year when an individual
was hired by the store to be trained as a manager.  The training
program was to last approximately three months.  Appellant said
that the manager trainee falsely accused her of stealing from the
store and of permitting others to take merchandise from the store. 
Appellant also stated that she was harassed by the manager trainee
because of appellant's interracial marriage.  She stated that she
had told her employer that she could not work alone with the
manager trainee.  She testified that she gave a two-week notice to
quit because she could no longer tolerate the manager trainee's
harassing and embarrassing her in the presence of customers.  Two
co-workers testified that they had observed the manager trainee's
harassment of appellant and heard the accusations of theft. 
Appellant testified that shortly after giving notice, she walked
out, but returned to work the following day when the manager
persuaded her to do so.  Appellant said that she worked another
week but left because she was scheduled to work alone with the
manager trainee.
     Appellant said that she spoke with the manager, about two to
three weeks before she gave her notice of resignation, about the
problems involving the manager trainee and was assured that the
problem would be corrected.  Appellant said that she had also
spoken with the district manager regarding this problem.  The Board
noted appellant's testimony that she was never reprimanded by her
employer concerning the theft accusations, nor was she in danger of
losing her job.
     The Board found that the training for the manager trainee
would have ended in approximately thirty days and that rumors that
the trainee might stay at the store beyond that time were
unconfirmed.  The Board also found that appellant's situation was
not such that she could not have requested a leave of absence or
waited until the manager trainee left.  The Board concluded that
appellant's situation would not have impelled the average, able-
bodied qualified worker to leave her employment.  Upon our review
of the record, we cannot conclude that those findings and
conclusion are not supported by substantial evidence.
     Affirmed.
     Jennings, C.J., and Cooper, J., agree.
     Robbins, Mayfield, and Griffen, JJ., dissent.

=================================================================
              Wendell L. Griffen, Judge, dissents.

     I respectfully dissent from the prevailing opinion which
affirms the decision by the Arkansas Board of Review that appellant
voluntarily left her last work without good cause connected with
the work.  The only evidence in the record is that appellant left
her last work after she was forced to work with a manager trainee
who wrongfully accused her of stealing from the store and allowing
others to do so.  There is undisputed proof that the manager
trainee was motivated to make those defamatory accusations out of
resentment about appellantþs interracial marriage.  Equally
undisputed is the fact that appellant had informed the district
manager of Family Dollar Store concerning the manager traineeþs
conduct, that there had been no substantiation for the manager
traineeþs accusations, that the district manager had assured
appellant that she would not be required to work alone with the 
manager trainee, and that appellant quit her job only after the
manager of the Family Dollar Store where she was working left her
to work with the manager trainee without management protection. 
Upon this record, I  cannot agree that the Board of Reviewþs
finding that appellant voluntarily left her last work without good
cause connected with the work is supported by substantial evidence. 
     What constitutes good cause for leaving work is usually a
question of fact within the province of the Board of Review. 
Harris v. Daniels, 263 Ark. 897, 567 S.W.2d 954 (1978). We have
stated that good cause is a cause that would reasonably impel the
average able-bodied and qualified worker to give up her employment,
and must be determined from the particular circumstances of each
case.  Perdrix-Wang v. Director, 42 Ark. App. 218, 856 S.W.2d 636
(1993).  The reason purported to constitute good cause for
voluntarily leaving employment must not be arbitrary or capricious,
and must be connected with the work itself, although personal
factors may be considered in determining whether there is good
cause.  Wacaster v. Daniels, 270 Ark. 190, 603 S.W.2d 907 (Ark.
App. 1980).
     We should reverse the Board of Review because the average
able-bodied and qualified worker would not voluntarily submit to
malicious and unfounded accusations of dishonesty by a management
member and agree to work in the same store with her accuser knowing
that no other management official was present to protect her.  The
employer in this case has offered no evidence, either by written
statement or through hearing testimony.  That leaves appellantþs
account of her plight uncontradicted.  Appellant produced a
witness, Becky Parker, who testified that she had worked with
appellant and the manager trainee at Family Dollar in Conway, and
that she had heard the manager trainee say that appellant was
stealing from the employer.  Another witness, Carla Rice, also
testified that she had worked with appellant and the manager
trainee at Family Dollar.  Rice testified that she had heard the
manager trainee say that appellant was stealing and was allowing
others to steal from the store.  Appellant testified that she quit
her employment with Family Dollar on August 31, 1995, because of
conflict with the manager trainee, that she had informed the store
manager and the district manager about the problem with the manager
trainee, and that the store manager had told the manager trainee to
leave her alone to no avail.  Appellant testified that the district
manager told her not to worry about her problem with the manager
trainee, and she also testified that the store manager was supposed
to have  been with her in the store so that she would not have to
work alone with the manager trainee.  
     There is no proof that appellant could have requested a leave
of absence until the manager trainee had been reassigned to a
different store.  Appellant testified that she did not know whether
the employer had a leave policy,  and no evidence that one existed
-- or that it covered this situation if it did exist -- is in the
record.  Rather, the undisputed and independently confirmed proof
is that appellant was subjected to harassment by the manager
trainee.  The undisputed proof is that she informed management
about the harassment and actually gave notice of her resignation
before being assured that the problem would be remedied.  Appellant
was assured by management that she would not be scheduled to work
alone with the manager trainee, and quit only after being left to
work alone with a person who had told store customers, appellantþs
landlady, and employees of a nearby store that appellant was
stealing.   If this undisputed proof does not establish good cause
to quit a job, it is hard to understand what additional proof is
necessary.
     Our court has held that undisputed proof similar to that
presented by appellant constitutes good cause for voluntarily
quitting a job.  In Barker v. Stiles, 9 Ark. App. 273, 658 S.W.2d 416 (1983), we reversed the Board of Reviewþs decision to deny
unemployment benefits on the finding that the appellant quit his
job without good cause connected with the work.  The appellant in
Barker was a laborer for Eichleay Corporation who quit work after
working for seven months.  He and another witness testified that
the employerþs labor foreman was prejudiced against people of
color, and that the labor foreman had assigned appellant more than
his share of unpleasant job duties.  No evidence was offered on
behalf of the employer, either by written statement or through
hearing testimony.  We reversed the Board of Reviewþs decision
denying unemployment benefits, concluded that the appellant
reasonably determined that he faced a situation that was impossible
to resolve, and that he had attempted to prevent the mistreatment
from continuing but had been rebuffed.  
     The Barker decision should be followed in this case because
the proof here is equally undisputed that appellant made reasonable
efforts to resolve her situation.  Her good faith efforts were
unsuccessful, and her trust in management to keep its assurance
that she would not be left to work alone with the manager trainee
was violated.  Quitting the job was the only way that she could be
assured that the manager trainee would not eventually compromise
her reputation as an honest employee, particularly when one
considers that she worked as a cashier.  Because appellant's proof
is both undisputed and corroborated, there can be no substantial
evidence supporting the Board of Review's decision that she quit
her job without good cause connected with the work.
     The policy aspects of this case are unsettling.  Unemployment
benefits are denied persons who quit their jobs without good cause
connected with the work because it is deemed unreasonable to
compensate people for leaving work for mere personal reasons.  Yet
this case is entirely different.  Here, a cashier is accused of
stealing from her employer.  The accusation was unfounded, and is
even traceable to racial bigotry.  The cashier was unable to obtain
relief from her supervisors, and was required to work under the
accusing eye of a manager trainee who slandered her to store
customers, other vendors, and other persons.  The cashier quit her
job to avoid what any reasonable person with normal sensitivity for
her character would consider an outright attack on her personal
integrity within the context of her employment duties.  The Board
of Reviewþs decision and our affirmance means that workers facing
similar harassment are both helpless to escape it and must be
uncompensated unemployment victims because of it.  This is wrong
policy; therefore, I dissent.
     I am authorized to state that Robbins and Mayfield, JJ., join
in this dissent.