Clark v. Director

Sondra O. CLARK v. DIRECTOR, Employment
Security Department, and Northwest Arkansas
Radiation Therapy Institute, Inc.

E 95-193                                           ___ S.W.2d ___

                  Court of Appeals of Arkansas
                        Divisions I & II
                 Opinion delivered June 4, 1997


1.   Unemployment compensation -- review of Board of Review's
     decision -- substantial evidence defined. -- On appeal, the
     Board of Review's findings of fact 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; review is
     limited to a determination of whether the Board could
     reasonably reach its decision upon the evidence before it.  

2.   Unemployment compensation -- misconduct -- factors
     constituting. -- Mere inefficiency, unsatisfactory conduct,
     failure of good performance as a result of inability or
     incapacity, inadvertence, and ordinary negligence or good-
     faith errors in judgment or discretion are not considered
     misconduct for unemployment insurance purposes 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.

3.   Unemployment compensation -- substantial evidence supported
     Board's findings -- decision affirmed. -- There was
     substantial evidence to support the Board's finding that
     appellant was discharged for misconduct connected with the
     work on account of dishonesty where, after the gauge was
     replaced and the new gauge consistently registered 75-76
     p.s.i., appellant continued to chart the gauge readings at 60
     p.s.i; the discrepancies between the actual readings and
     appellant's log entries constituted substantial evidence that
     appellant's actions surpassed those of mere misreadings to
     those of not reading the gauges at all and logging false
     numbers; such misconduct demonstrated an intentional or
     substantial disregard of an employer's interests or of an
     employee's duties and obligations.


     Appeal from the Arkansas Board of Review; affirmed.
     Stephen Lee Wood, P.A., by:  Stephen Lee Wood, for appellant.
     Phyllis Edwards, for appellee Phil Price.
     Cypert, Crouch, Clark & Harwell, by:  Charles L. Harwell, for
separate appellee Robert Reyerson.

     John F. Stroud, Jr., Judge.
     This is an employment security case in which appellant, Sondra
Clark, was denied unemployment benefits because she was discharged
for misconduct in connection with her work.  The Appeals Tribunal
denied appellant benefits for a period of eight weeks.  The Board
of Review denied benefits for a period of ten weeks, finding that
the misconduct involved dishonesty.  We affirm the Board of Review.
     Appellant had been employed by appellee, Northwest Arkansas
Radiation Therapy Institute, for more than nine years when she was
discharged in February 1995.  Her duties as a senior staff
radiation therapist and clinical supervisor included taking and
logging daily equipment readings on six machines.  The readings
numbered between 150 to 200 each day. 
     One of the machines monitored by appellant was used to deliver
high energy radiation in the treatment of cancer patients. 
Appellant took twenty-one readings each day on this machine,
including one with respect to the machineþs water pressure.  It was
important that the readings not vary from day to day because any
deviation from the normal operation of the equipment could affect
the delivery of the radiation treatment, conceivably altering the
treatment outcome.  Appellant had performed this task since October
1985.
     On January 11, 1995, the water-pressure gauge on this machine
was replaced by an engineer employed by NARTI.  Prior to
replacement, the old gauge had consistently read 60 p.s.i.  The
engineer performed a preventive maintenance inspection on the
machine between January 23, 1995, and February 4, 1995.  The
inspection included a review of the logbook.  In making the
inspection, he noticed a discrepancy between the actual reading on
the newly installed water-pressure gauge and the readings that were
recorded in the log book.  The new gauge measured 75-76 p.s.i.,
rather than the 60 p.s.i. that registered on the old gauge. 
However, appellant continued to record the readings at 60 p.s.i. 
She was terminated on February 14, 1995, for þfalsifying records,þ
an offense calling for immediate termination under NARTIþs
progressive discipline policy.  
     Appellant filed a claim for unemployment benefits.  The
Appeals Tribunal denied her benefits for a period of eight weeks,
and the Board of Review denied her benefits for a period of ten
weeks, finding that her misconduct involved dishonesty.  On appeal
to this court, appellant argues that the Board of Reviewþs finding
that she engaged in misconduct by intentionally falsifying company
records was not supported by substantial evidence.  We disagree.
     On appeal, the Board of Reviewþs findings of fact are
conclusive if they are supported by substantial evidence.  Rucker
v. Director, 52 Ark. App. 126, 915 S.W.2d 315 (1996).  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 Boardþs findings.  Id.  Our review is
limited to a determination of whether the Board could reasonably
reach its decision upon the evidence before it.  Id.  
     Arkansas Code Annotated section 11-10-514 (Repl. 1996)
provides in pertinent part:
          (a)(1) If so found by the Director of the Arkansas
     Employment Security Department, an individual shall be
     disqualified for benefits if he is discharged from his
     last work for misconduct in connection with the work.

                              . . .

          (3) Except as otherwise provided in this section,
     disqualification for misconduct shall be for eight (8)
     weeks of unemployment as defined in  11-10-512.

          (b) If he is discharged from his last work for
     misconduct in connection with the work on account of
     dishonesty, . . . or willful violation of the rules or
     customs of the employer pertaining to the safety of
     fellow employees or company property, he shall be
     disqualified from the date of filing his claim until he
     shall have ten (10) weeks of employment in each of which
     he shall have earned wages equal to at least his weekly
     benefit amount.

As we pointed out in Perry v. Gaddy, 48 Ark. App. 128, 891 S.W.2d 73 (1995):
          Mere inefficiency, unsatisfactory conduct, failure
     of good performance as a result of inability or
     incapacity, inadvertence, and ordinary negligence or good
     faith errors in judgment or discretion are not considered
     misconduct for unemployment insurance purposes unless
     they are of such degree or recurrence as to manifest
     culpability, wrongful intent, evil design, or an
     intentional or substantial disregard of an employerþs
     interests or of an employeeþs duties and obligations.

(Emphasis added.)

     Here, the Board of Review could reasonably reach the decision
it did based upon the evidence that was before it.  There was
substantial evidence to support the Boardþs finding that appellant
was discharged for misconduct connected with the work on account of
dishonesty.  After the gauge was replaced and the new gauge
consistently registered 75-76 p.s.i., appellant continued to chart
the gauge readings at 60 p.s.i.  Once the problem was brought to
the employerþs attention, the gauges and logs were monitored on a
daily basis and compared to appellantþs readings.  The
discrepancies between the actual readings and appellantþs log
entries constituted substantial evidence that appellantþs actions
surpassed those of mere misreadings to those of not reading the
gauges at all and logging false numbers.  Such misconduct
demonstrates an intentional or substantial disregard of an
employerþs interests or of an employeeþs duties and obligations.
     Affirmed.
     Pittman, Arey, Bird, and Meads, JJ., agree.
     Neal, J., dissents.


                  Olly Neal, Judge, dissenting.


     I respectfully dissent from the majority's decision to affirm. 
The majority adequately set out the facts; however, there are a few
that I believe merit additional discussion.  Mel Cheney, the
director of patient services, testified that an old gauge on one of
the machines that appellant consistently charted as reading 60
p.s.i. was replaced with a gauge that consistently read 75 or 76
p.s.i.  After installation of the new gauge, appellant, who had not
been informed that the old gauge had been replaced, continued to
chart that the gauge read 60 p.s.i.  Cheney testified that once the
discrepancy in the readings was brought to his attention, the
readings charted on the particular gauge were monitored on a daily
basis.  According to Cheney, any deviation from the normal
operation of the equipment could affect the delivery of the
radiation treatment and alter the outcome of the patients'
treatment as well as the safety of anyone working around the
equipment.  Although discrepancies in the readings were first noted
in January, 1995, appellant was not made aware of the discrepancies
until February 13, 1995, when she was placed on suspension and
eventually terminated from her employment.  The majority found that
the facts support the Board's finding that the discrepancies
between the log entries and actual readings demonstrate an
intentional or substantial disregard of an employer's interests or
of an employee's duties and obligations, and support a finding of
misconduct due to dishonesty.  I disagree.
     On review of employment compensation cases, the factual
findings of the Board of Review are conclusive if they are
supported by substantial evidence; but that is not to say that our
function on appeal is merely to ratify whatever decision is made by
the Board of Review.  See Carraro v. Director, 54 Ark. App. 210,
924 S.W.2d 819 (1996).  Further, we are not at liberty to ignore
our responsibility to determine whether the standard of review has
been met.  Id.  When the Board's decision is not supported by
substantial evidence, we will reverse.  Id.
     Arkansas Code Annotated  11-10-514 (a)(1) (Repl. 1996)
provides that an individual shall be disqualified for benefits if
he is discharged from his 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.  Greenberg v. Director, 53 Ark. App.
295, 922 S.W.2d 5 (1996); George's Inc. v. Director, 50 Ark. App.
77, 900 S.W.2d 590 (1995).  However, as the court explained in
Carraro:
          To constitute misconduct, however, the definitions
          require more than mere inefficiency, unsatisfactory
          conduct, failure in good performance as the result
          of inability or incapacity, inadvertancies, ordinary
          negligence in isolated instances, or good faith
          error in judgment or discretion.  There must be 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.
54 Ark. App. 210, 924 S.W.2d 819 (1996).
     It is my belief that the standard of review has not been met. 
In Perry v. Gaddy, 48 Ark. App. 128, 891 S.W.2d 73 (1995), we found
that the employee's recurring negligence amounted to misconduct. 
There, the appellant had worked for her employer for twelve years;
however, her error rating consistently exceeded the standard error
rate during the years that preceded her termination.  In addition,
the appellant in Perry had been evaluated and warned of poor
performance prior to her termination.  I think it is of particular
importance that although Cheney and others in management were aware
that appellant's log of gauge readings was approximately 15 p.s.i.
below the readings charted by other employees, appellant received
no warning of poor performance prior to the decision to terminate. 
The facts indicate that simple negligence may be inferred from
appellant's misreading of the gauges, but such negligence does not
amount to an intentional or substantial disregard of the employer's
interests or of her duties or obligations. 
      Additionally, appellant read the gauge in question with
Cheney looking over her shoulder, and charted the gauge as reading
65 p.s.i.  Cheney testified that he made a mental note that he was
reading the gauge at 75 p.s.i., and that he did not inform
appellant of the discrepancy in the readings.  I believe the fact
that appellant charted a lower reading with her supervisor present
belies the Board of Review's finding that her actions were the
result of dishonesty.
     For the reasons set forth above I would reverse.