Vickie L. Hawkins v. Director, Employment Security Department and White River Medical Center

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

TERRY CRABTREE, JUDGE

DIVISION III

VICKIE L. HAWKINS

APPELLANT

V.

DIRECTOR, ARKANSAS EMPLOYMENT SECURITY DEPARTMENT and WHITE RIVER MEDICAL CENTER

APPELLEES

E 00-103

NOVEMBER 28, 2001

APPEAL FROM THE ARKANSAS BOARD OF REVIEW

[NO. 2000-AT-00885]

AFFIRMED

The appellant, Vickie Hawkins, filed a claim for unemployment insurance benefits with the Arkansas Employment Security Department, but the Department denied her benefits under Ark. Code Ann. § 11-10-514(a) (Supp. 2001), determining that she was discharged for insubordinate actions during her annual performance appraisal. The Arkansas Appeals Tribunal reversed the Department, however the Arkansas Board of Review then reversed the Appeals Tribunal. On appeal, appellant claims that the Board lacked substantial evidence to support its finding that she was discharged from her last work for misconduct in connection with the work. We affirm the Board's denial of benefits.

The White River Medical Center employed appellant as a surgical technician. On January 17, 2000, appellant returned to work after missing approximately one week due to illness. At that time, appellant's annual performance appraisal was conducted. During theappraisal, appellant was informed that she was going to be placed on probation for one year. Her employer asked her to sign the appraisal and the constructive action form, which outlined her plans to improve her work performance and attendance. Appellant refused to sign the documents, discarded them on her supervisor's desk, and left the meeting. Appellant then returned to her job duties. Three hours later she was told to clock out and go home.

The next day appellant received a telephone call from her supervisor advising her that she was terminated and that she would receive a letter that would explain the termination. White River Medical Center terminated appellant for failing to follow her supervisor's instructions to provide plans for work performance improvement, refusing to sign her performance appraisal, throwing the documents on her supervisor's desk, and leaving her supervisor's office.

At the hearing, the human resources officer testified that appellant attended a performance evaluation meeting with her supervisor and the director of surgical services. The director of surgical services advised appellant that her absenteeism over the last year was excessive. The director also instructed appellant to develop a plan to correct this problem. The human resources officer stated that appellant refused to comply with the instruction to create an attendance plan. He confirmed that appellant abruptly walked out of the meeting after she threw the evaluation papers on the director's desk. On cross-examination, the human resources officer stated that he was not present during the evaluation

meeting and that his testimony was based on information in the employer's file. Appellant suggests that the human resources officer's testimony was hearsay. However, Ark. Code Ann. § 11-10-526(a)(1) (Supp. 2001) provides that the Board of Review is not bound by the rules of evidence.

Appellant testified that she informed the director that she would not sign the papers until she had spoken to an attorney concerning the legality of the matter. She stated that the director responded that she would not be allowed to work unless she signed the papers. On cross-examination, appellant acknowledged that she knew that her employer had a complaint procedure that she could have used if she disagreed with her employer's actions. She admitted that she did not avail herself of the procedure. She agreed that she had been placed on probation for absenteeism two or three other times.

The Board found that appellant was discharged from her last work for misconduct connected with the work. The Board noted that even if the employer's request to sign the forms was unreasonable, which it did not find, appellant had the complaint procedure to pursue if she believed that she had been treated unfairly. The Board also found that the employer proved by a preponderance of the evidence that appellant's acts of refusing to sign the form and leaving the room before the meeting concluded were intentional disregards of the employer's best interests.

On appeal, the findings of fact of the Board of Review are conclusive if they are supported by substantial evidence. Ark. Code Ann. § 11-10-529(c)(1) (Supp. 1999). Substantial evidence is such relevant evidence as a reasonable mind might accept asadequate to support a conclusion. Baldor Electric v. Director, 71 Ark. App. 166, 27 S.W.3d 771 (2000). We review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board's findings. Feagin v. Everett, 9 Ark. App. 59, 652 S.W.2d 839 (1983). 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. Perdrix-Wang v. Director, 42 Ark. App. 218, 856 S.W.2d 636 (1993).

Arkansas Code Annotated section 11-10-415 (Supp. 1999) provides that, "[i]f 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." This court has stated that misconduct requires "some act of wanton or willful disregard of the employer's interest, a deliberate violation of the employer's rules, or a disregard of the standard of behavior the employer has a right to expect of its employees." Baker v. Director, 39 Ark. App. 5, 6, 832 S.W.2d 864, 865 (1992). We have also stated that mere inefficiency, unsatisfactory conduct, failure of good performance as a result of inability or incapacity, inadvertence, ordinary negligence, or good-faith error in judgment are not considered misconduct for unemployment purposes unless they are of such a degree of recurrence as to manifest culpability, wrongful intent, evil design, or intentional disregard of an employer's interest. Baldor, supra.

Given these standards, we must affirm the decision of the Board of Review. Appellant manifested a substantial and wilful disregard of her employer's interest when sheignored the request to sign the evaluation forms and to prepare a plan for improvement and when she left the evaluation meeting before it concluded. Substantial evidence supports the Board's finding that appellant was fired for misconduct in connection with her last work.

Affirmed.

Robbins and Neal, JJ., agree.