Glenn E. Alexander v. Director, Employment Security Department

DIVISION II

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

E02-192

December 23, 2002

GLENN E. ALEXANDER AN APPEAL FROM ARKANSAS

APPELLANT BOARD OF REVIEW [NO. 02-BR-902]

V.

DIRECTOR, ARKANSAS

EMPLOYMENT SECURITY

DEPARTMENT REVERSED AND REMANDED

APPELLEE

Glenn Alexander challenges the Arkansas Board of Review's finding that he was discharged from his job for misconduct connected with the work, and its consequent decision to deny him unemployment compensation benefits. Appellant contends that there was not substantial evidence to support the Board's finding of misconduct. We agree and reverse and remand, ordering the payment of benefits.

Appellant worked for eighteen months as a pickup and delivery truck driver for Hill Courier, Inc. On February 13, 2002, appellant was discharged from his job for "violation of a reasonable and known policy." The employer claimed that appellant acted unprofessionally in handling a confrontational encounter between him and the manager of one of its largest customers. Appellant filed a claim for unemployment benefits with the Employment Security Department. The Department awarded benefits to appellant, as didthe Appeal Tribunal. However, the Board of Review reversed the decision of the Appeal Tribunal upon a finding that appellant had been discharged from work because of his misconduct in connection with the work.

At the hearing, Herb Moore, the employer's operations manager, testified on behalf of the employer that he had decided to terminate appellant's employment because of an incident between appellant and a customer and because of the conversations that he had with appellant after the incident. Moore, however, testified that his knowledge of what actually transpired between appellant and the customer was limited to what appellant told him, which was that appellant made a comment about the customer's workplace and was confronted by the customer's manager. Moore also testified that when he spoke with appellant after the incident, appellant was very agitated and made "threatening" remarks about what could happen the next time if similar circumstances arose between him and the customer, but he could not remember the exact words used by appellant. However, Moore acknowledged that appellant probably did not mean half of the things he said after the incident and that to his knowledge, there had not been any similar incident between appellant and another of the employer's customers.

Appellant testified that on the day of the incident, he was engaged in a conversation with one of the customer's employees about the working conditions on the dock at the customer's workplace. According to appellant, someone must have overheard the conversation and reported it to the manager. Appellant stated that shortly thereafter, the manager, accompanied by four other people, approached him in a loud and confrontationalmanner about the conversation he had with the employee. He claimed that the manager said, "Since you feel that way about my warehouse over here, it can be made that you don't have to come over here anymore." Appellant testified that he did not attempt to have a conversation with the manager, but instead told her that he "didn't have time," raised his hand as if to say "whatever," and left. After leaving, appellant immediately called Moore to report the incident. Appellant admitted that he was upset when he spoke to Moore over the telephone and that because he was still upset when he returned to the office later that day, he declined to speak with Moore further about the incident. However, as instructed by Moore, appellant stayed and worked late as he usually did on Tuesdays, to complete "sensitive account" work for the employer. Appellant testified that when he returned to work the next day, Moore informed him that he was terminated because of the incident that happened between him and the customer the day before.

The Board of Review determined that appellant's "conduct at the customer's premises and in subsequent conversations with the employer's operations manager displayed a disregard of the standard of behavior which the employer has the right to expect of its employee and a disregard of the employee's duties and obligations to his employer." As such, the Board denied appellant's claim for unemployment benefits.

On appeal, we review the evidence and all reasonable inference deducible therefrom in the light most favorable to the Board's findings, and we will affirm the Board's decision if it is supported by substantial evidence. Hiner v. Director, Ark. Empl. Sec. Dep't, 61 Ark. App. 139, 965 S.W.2d 785 (1998). Substantial evidence is such relevant evidence that areasonable mind might accept as adequate to support a conclusion. Perdrix-Wang v. Director, Employment. Sec. Dep't, 42 Ark. App. 218, 856 S.W.2d 636 (1993). Even when there is evidence upon which the Board of Review might have reached a different decision, the scope of our review is limited to a determination of whether the Board reasonably could have reached the decision it did based upon the evidence before it. Id.

Arkansas Code Annotated section 11-10-514(a)(1) (Repl. 2002) provides in relevant part that an individual will be disqualified for benefits if that individual is discharged from work for misconduct in connection with that work. For the purposes of unemployment compensation, misconduct is defined as (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 the employer. Rucker v. Price, 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, Employment Sec. Dep't, 52 Ark. App. 197, 918 S.W.2d 186 (1996). Therefore, for an individual's actions to constitute misconduct sufficient to disqualify him or her from benefits, the actions must be deliberate violations of the employer's rules or acts of wanton or willful disregard of the standard of behavior that the employer has a right to expect of its employees. Kimble v. Director, Ark. Empl. Sec. Dep't, 60 Ark. App. 36, 959 S.W.2d 66 (1997).

Based on the testimony at the hearing, we hold that the Board's decision was not supported by substantial evidence. The Board concluded that appellant was disqualified from benefits because the "employer had the right to expect the claimant to conduct himselfprofessionally and in a non-threatening manner while performing his duties." While this statement may be true, there was not substantial evidence presented that appellant behaved unprofessionally or in a threatening manner toward the employer's customer or its office manager. First, Moore had no independent knowledge of the incident at the customer's premises outside of what appellant told him, and the appellant stated that the customer's manager initiated the contact, that he said very little, and that he quickly left the scene to avoid a confrontation. Second, although Moore mentioned that appellant made "threatening" remarks to him about what may happen the next time, none of these comments were made to or in the presence of the customer, and even Moore admitted that appellant probably did not mean half the things he said. Third, even though appellant was very upset by the incident, he continued to make his pickups and deliveries that day, and he even stayed late to perform additional duties for the employer. Clearly, the record in this case reflects that there was not substantial evidence that appellant's conduct amounted to an intentional or willful disregard for the standards of behavior which the employer had a right to expect nor a disregard of his duties and obligations to his employer. Therefore, we reverse the Board of Review and remand for entry of an order awarding unemployment benefits.

Reversed and remanded.

Pittman and Neal, JJ., agree.