Wilson & Associates v. Director, Employment Security Division and Rita Austin

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

ROBERT J. GLADWIN, JUDGE

DIVISION I

WILSON & ASSOCIATES

APPELLANTS

V.

DIRECTOR, ARKANSAS EMPLOYMENT SECURITY DIVISION and RITA AUSTIN

APPELLEES

E 02-155

February 19, 2003

APPEAL FROM THE STATE OF ARKANSAS BOARD OF REVIEW

[NO. 2002-BR-00659]

AFFIRMED

This is an Employment Security Division case in which the claimant was awarded benefits. The appellant-employer contends that the claimant left her work voluntarily and without good cause connected to her work. Because the Board of Review found that the claimant was discharged from her last work for reasons not shown to constitute misconduct connected with the work, the issue before us is whether there is substantial evidence to support the Board's decision. We find that there is substantial evidence and, accordingly, we affirm.

The claimant worked for the employer as a nanny for approximately two years and stated that her job duties included doing "whatever needed to be done," such as housekeeping, buying groceries, and running various errands, as well as seeing to the care of the children. She usually worked as many as sixty-five hours per week until she broke her arm on December 28, 2001. She testified that because of her injury she ceased to work

overtime, and that the employer thereafter exhibited a "nasty attitude" toward her and began looking for "any excuse" to discharge her.

On February 25, 2002, the claimant met with the employer's agents. It was at this meeting, the claimant testified, that she was told her services were no longer needed and to turn in her keys. She stated that when she asked for a letter so she could file for unemployment benefits, the employer's agent told her the unemployment office would have to contact him. The employer says that the claimant was not discharged but that she had resigned. There was testimony to the effect that the claimant had previously notified the employer of her intention to look for work elsewhere, although this was disputed by the claimant.

On appeal, the findings of the Board of Review are conclusive if they are supported by substantial evidence. Dillaha Fruit Co. v. Everett, 9 Ark. App. 51, 652 S.W.2d 643 (1983). Substantial evidence is valid, legal, and persuasive evidence; such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Sims v. Everett, 2 Ark. App. 336, 621 S.W.2d 229 (1981). The credibility of witnesses and the drawing of inferences from the testimony is for the Board of Review, not this court. Baker v. Director, 39 Ark App. 5, 832 S.W.2d 864 (1992). Even if there is evidence upon which the Board might have reached a different result, the scope of our review is limited to a determination of whether the Board could reasonably reach its result upon the evidence before it, and we are not privileged to substitute our findings for those of the Board even though we mighthave reached a different conclusion if we had made the original determination upon the same evidence. Grigsby v. Everett, 8 Ark. App. 188, 649 S.W.2d 404 (1983).

In its findings and conclusions, the Board thoroughly recounted the evidence and resolved the conflicts of testimony and the credibility of the witnesses in favor of the claimant, as it was entitled to do. See W.C. Lee Constr. v. Stiles, 13 Ark. App. 303, 683 S.W.2d 616 (1985). After reviewing the record, we find there is substantial evidence to support the Board's decision awarding benefits to the claimant on a finding that she was discharged for reasons other than misconduct connected with the work.

Appellant also argues that after-acquired evidence of possible misconduct by the claimant should work to limit any potential benefits she might receive, citing a United States Supreme Court case, McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995). Although there was testimony regarding the possibility of after-acquired evidence of misconduct by the claimant, it was disputed by the claimant, and the Board obviously found the claimant's testimony to be more credible. Moreover, the issue of reduction of benefits due to after-acquired evidence of misconduct was not raised below. This court does not consider issues raised for the first time on appeal. Perdrix-Wang v. Director, 42 Ark. App. 218, 856 S.W.2d 636 (1993).

Affirmed.

Pittman and Hart, JJ., agree.