Kimble v. Director

Vivian A. KIMBLE v. DIRECTOR, Arkansas
Employment Security Department, 
and Willis Shaw Express

E 97-50                                            ___ S.W.2d ___

                  Court of Appeals of Arkansas
                        Divisions I & II
               Opinion delivered December 22, 1997


1.   Unemployment compensation -- misconduct -- what constitutes. -
     - 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 the right to
     expect; and (4) disregard of the employee's duties and
     obligations to her employer; 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 interest or of an employee's duties and
     obligations. 

2.   Unemployment compensation -- issue of misconduct for Board to
     determine -- factors on review. -- The issue of misconduct is
     a question of fact for the Board of Review to determine; on
     appeal, the findings of fact made by the Board are conclusive
     if they are supported by substantial evidence; substantial
     evidence is defined as such evidence as a reasonable person
     might accept as adequately supporting 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 where 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 -- denial of benefits to employee-
     driver based in finding of misconduct -- accidents occurring
     with consistent regularity chargeable to negligence. --
     Unemployment benefits may be denied a discharged employee-
     driver based on a finding of misconduct where motor vehicle
     accidents are chargeable to negligence which has occurred
     periodically or with consistent regularity; but even numerous
     accidents will not support a finding of misconduct where
     evidence is lacking that the accidents were due to the
     employee's negligence.
 

4.   Unemployment compensation -- appellant had five preventable
     accidents within six-month period -- denial of benefits
     supported by substantial evidence. -- Where the appellant had
     five "preventable" accidents in a brief, six-month period for
     which she admitted fault, yet appellant had performed her job
     without incident prior to the spate of accidents, the
     appellate court held that, despite appellant's claim that she
     did not deliberately set out to have accidents, the number,
     frequency, and nature of the accidents satisfied the elements
     necessary to support a finding of misconduct; the evidence
     showed a recurring pattern of carelessness from which the
     Board was permitted to infer a manifest indifference that
     constituted a substantial disregard of her employer's
     interests, as well as a substantial disregard of her duties
     and obligations to the employer; there was substantial
     evidence to support the denial of benefits.


     Appeal from the Arkansas Board of Review; affirmed.
     No brief filed.
     No brief filed.

     Judith Rogers, Judge.   
     This is an appeal from a decision of the Board of Review
denying unemployment compensation benefits based on a finding that
appellant, Vivian Kimble, was discharged for misconduct connected
with the work.  At issue in this case, which is submitted without
supporting briefs, is whether the Board's finding of misconduct is
supported by substantial evidence.  We affirm the decision of the
Board.
     Appellant worked for Willis Shaw Express as a long distance
truck driver from January 26, 1996, to October 18, 1996.  It is
undisputed that she was discharged after having had five accidents
in a six-month period, the first occurring on April 4 and the last
on October 14.  There was testimony that the employer characterized
each of the accidents as "preventable."  In at least two of the
accidents, appellant hit stationary objects.  In the first, she
made a turn too sharply and damaged the trailer she was hauling. 
In the second accident, she hit a parked vehicle.  She next damaged
some pavement while making a turn.  In the fourth accident, she
backed into a vehicle that was parked at a fuel pump.  Last,
appellant struck another vehicle while making a right-hand turn.  
     The employer had written policies governing the standards of
conduct expected of its employees.  One such policy warned that the
failure to safely operate equipment entrusted to an employee's care
could result in disciplinary action or the loss of one's job. 
After the fourth accident, appellant was placed on probation, and
she was warned that another incident could result in the
termination of her employment.  In her testimony, appellant
admitted that each of the accidents was her fault, but she denied
that she had "deliberately set out to have accidents."
     "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 the right to expect; and (4) disregard of
the employee's duties and obligations to her employer.  Rucker v.
Director, 52 Ark. App. 126, 915 S.W.2d 315 (1996).  There is an
element of intent associated with a determination of misconduct. 
Fulgham v. Director, 52 Ark. App. 197, 918 S.W.2d 186 (1996).  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 interest or of an employee's duties and
obligations.  Willis Johnson Co. v. Daniels, 269 Ark. 795, 601 S.W.2d 890 (Ark. App. 1980).  See also Shipley Baking Co. v.
Stiles, 17 Ark. App. 72, 703 S.W.2d 465 (1986); Arlington Hotel v.
Director, 3 Ark. App. 281, 625 S.W.2d 551 (1981).  
     In the present case, the Board concluded that a preponderance
of the evidence established a pattern of recurring negligence
rising to the level of misconduct.  The Board predicated its
decision on the number of accidents that occurred in a short time
span and appellant's own testimony that she was at fault.
     The issue of misconduct is a question of fact for the Board of
Review to determine.  Tenenbaum v. Director, 32 Ark. App. 43, 796 S.W.2d 348 (1990).  On appeal, the findings of fact made by the
Board are conclusive if they are supported by substantial evidence. 
George's Inc. v. Director, 50 Ark. App. 77, 900 S.W.2d 590 (1995). 
Substantial evidence is defined as such evidence as a reasonable
person might accept as adequately supporting a conclusion.  Calvin
v. Director, 31 Ark. App. 74, 787 S.W.2d 701 (1990).  We review the
evidence and all reasonable inferences deducible therefrom in the
light most favorable to the Board's findings.  Perdrix-Wang v.
Director, 42 Ark. App. 218, 856 S.W.2d 636 (1993).  Even where
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.
     It is generally recognized that unemployment benefits may be
denied a discharged employee-driver based on a finding of
misconduct where motor vehicle accidents are chargeable to
negligence which has occurred periodically or with consistent
regularity.  76 Am. Jur. 2d, Unemployment Compensation  84.  But
even numerous accidents will not support a finding of misconduct
where evidence is lacking that the accidents were due to the
employee's negligence.  Id.  The case of B.J. McAdams v. Daniels,
269 Ark. 693, 600 S.W.2d 418 (Ark. App. 1980), is illustrative of
this latter point.  There, the claimant had three accidents in an
eleven-month period.  We affirmed the Board's award of benefits
based on the lack of evidence demonstrating recurring negligence
from which misconduct could be inferred, when the last accident was
attributable to weather conditions, and not the negligence of the
claimant.  
     By contrast here, however, the appellant had five
"preventable" accidents in a brief, six-month period for which she
admitted fault.  We also note that appellant performed her job
without incident prior to the spate of accidents.  On this record,
we hold that, despite appellant's claim that she did not
deliberately set out to have accidents, the number, frequency, and
nature of the accidents satisfy the elements necessary to support
a finding of misconduct.  Quite apart from isolated instances of
ordinary negligence, the evidence shows a recurring pattern of
carelessness from which the Board was permitted to infer a manifest
indifference that constitutes a substantial disregard of her
employer's interests, as well as a substantial disregard of her
duties and obligations to the employer.  Therefore, we cannot say
that there is no substantial evidence to support the denial of
benefits.   
     Affirmed.  
     Pittman, Jennings, and Meads, JJ., agree.
     Robbins, C.J., and Neal, JJ., dissent.

             John B. Robbins, Chief Judge, dissenting.
     I disagree with the prevailing opinion of this court, which
today holds that Mrs. Vivian Kimble's accidents were tantamount to
intentional misconduct and render her ineligible for unemployment
compensation benefits.
     Mrs. Kimble was employed by Willis Shaw Express as a long-
distance truck driver.  In the words of Allen Roller, vice
president of Shaw's human resources and safety departments, "She
delivered freight to all forty-eight states," in a "semi-tractor
trailer."  The record does not reflect the distance Mrs. Kimble
drove her tractor-trailer rig during the nine months that she
worked for Shaw, or the number of miles that the driver of an
eighteen-wheeler could reasonably be expected to drive without
experiencing an accident.  We only know that Mrs. Kimble was
involved in a total of five accidents over the course of her
employment, with the last accident triggering her discharge.
     There is a significant difference between the misconduct
that disqualifies a worker from unemployment compensation and
mere unsatisfactory job performance.  I will not repeat here
the definition of "misconduct" for purposes of unemployment
compensation inasmuch as the prevailing opinion has quoted the
definition we gave this term in Rucker v. Director, 52 Ark. App.
126, 915 S.W.2d 315 (1996).  It must be noted, however, that
misconduct involves an element of intent.  Fulgham v. Director, 52
Ark. App. 197, 918 S.W.2d 186 (1996).
     The prevailing opinion emphasizes that the accidents in which
Mrs. Kimble was involved were "preventable" and that Mrs. Kimble
admitted fault.  Just because an accident is "preventable," i.e.,
in hindsight something could have been done differently and the
accident would not have happened, does not alter the fact that
the accident was only an accident.  It was not disputed that
Mrs. Kimble had the five accidents.  Mrs. Kimble testified,
however, that they were "just that, they were accidents....  They
were my fault accidents, but they were, there was nothing willful
on my part."  Mr. Roller also testified that Mrs. Kimble "wasn't
intentionally trying to have the accidents," and that "Vivian's a
real fine person, but we just had to make the decision because of
the number of preventables."
     Shaw Express may have acted prudently and reasonably
in deciding to terminate Mrs. Kimble from employment as a long
distance truck driver because she may be a poor driver.  However,
there is simply no substantial evidence to support a determination
by the Board of Review that Mrs. Kimble's conduct was tantamount
to an intentional disregard of her employer's interest so as to
label her job performance "misconduct."
     I would reverse and remand this case to the Board of Review
with directions that Mrs. Kimble be awarded unemployment
compensation benefits.
     Neal, J., joins in this opinion.