William T. Harris, Jr., D.D.S. v. Director, Employment Security Department and Lori Armstrong

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

ANDREE LAYTON ROAF, JUDGE

DIVISION II

WILLIAM T. HARRIS, JR., D.D.S.

APPELLANT

v.

DIRECTOR, ARKANSAS EMPLOYMENT SECURITY DEPARTMENT and LORI ARMSTRONG

APPELLEES

E02-312

JUNE 18, 2003

APPEAL FROM ARKANSAS BOARD OF REVIEW

[NO. 2002-BR-01600]

AFFIRMED

Appellant William Harris, Jr., D.D.S., the former employer of Lori Armstrong, appeals from a decision of the Arkansas Board of Review ("Board"), which reversed the Appeal Tribunal and awarded Armstrong unemployment benefits. On appeal, Harris argues that the Board's decision that Armstrong was discharged for reasons other than misconduct in connection with the work is not supported by substantial evidence. We disagree and affirm.

Armstrong was employed by Harris as a receptionist in his dental practice from November 10, 2001, until July 1, 2002. At the hearing, Harris testified that he discharged Armstrong on July 1, 2002, because of her excessive absenteeism and her failure to properly notify him of her last two absences. Harris stated that Armstrong had missed eight days of work from January 1, 2002, through July 1, 2002. According to Harris, the office policy manual requires employees who are going to be absent to notify him at his house before 7:00 a.m. The morning of July 1, Harris testified that Armstrong contacted the office at 7:40 a.m., stating that she was sick and would notbe able to work. Harris indicated that on June 3, Armstrong also failed to contact him to report her absence due to illness and instead contacted the office. He reported that she was also absent on April 1, March 4, February 21, and January 7, 2002. Harris testified that he had given her permission to be absent on March 4, for her husband's surgery, and on January 7, to take her daughter back to college. In addition, Harris stated that Armstrong was three hours late on May 28, for personal reasons, and was thirty minutes late on April 26. Armstrong also left early on April 29 and February 20, due to illness. Harris further stated that he thought Armstrong had too many personal telephone calls, although he never talked to her one-on-one about it.

Harris testified that he did not reprimand Armstrong for failing to follow the proper notification procedure pursuant to the office policy manual. He recalled that in April 2002, he had a discussion with Armstrong regarding her absences and that she assured him that her attendance would improve, as her husband had recuperated from his surgery. Harris admitted that all of the absences were for illness or personal reasons and that he gave his approval for some of them. Harris testified that he did not know why Armstrong had been late or why she had not contacted him pursuant to the office policy. According to Harris, there were only two full-time employees that worked at the front desk with Armstrong, and the amount of time that she was absent was causing problems with the work getting done.

Armstrong testified that she had never been given a policy manual and that she had been told personally by Harris to call her co-workers, Donna or Pam, if she was going to be absent. On June 3, 2002, Armstrong stated that she had a stomach virus and that she left a message on Donna's machine before 7:00 a.m. and then called Pam at home. She stated that her tardiness on May 28 was due to a gynecologist appointment and that she left early on April 29 to go to the chiropractor. According to Armstrong, all of her doctor's appointments had been approved by Harris. She statedthat she was absent on May 1 because her husband was having surgery and that Harris had given her permission to be absent that day. She testified that Harris also gave her permission to be absent on January 7 so that she could take her daughter to college. On March 4, Armstrong testified that she missed work due to her husband's medical problems. She explained that she was absent one-half of the day on February 20 and the next day, February 21, because she had a migraine headache. Armstrong did not recall being thirty-minutes late on April 26. She testified that if she was tardy on any other occasions, it was due to road construction and traffic, but she stated that she was typically on time for work.

On July 1, the day she was discharged, Armstrong testified that she had bronchitis and was too ill to call her co-workers by 7:00 a.m. Instead, she stated that she called the office at approximately 7:30 a.m. Armstrong testified that she knew about the policy manual, but that it was never given to her. She stated that she was told by her co-worker, Donna, that it was not that important to read. Although she testified that she assumed she needed to read the manual, she stated that it was not available every time she asked to see it. Armstrong further testified that she did not receive or make many personal telephone calls because she was too busy making appointments or answering the phone. She believed that the real reason for her discharge was that Harris had overheard her complaining about a neck injury she received in a car accident five years earlier and that he thought she might have to have surgery.

Armstrong filed a claim for unemployment benefits on July 2, 2002. The Employment Security Department determined that she was not entitled to benefits, finding that she had been discharged from her last work due to misconduct in connection with the work. Armstrong appealed to the Appeal Tribunal, who affirmed the Agency's determination. Armstrong then appealed to the Board, who reversed the Appeal Tribunal and awarded her unemployment benefits, finding that shewas not discharged from her last work due to misconduct.

On appeal, Harris argues that there is not substantial evidence to support the Board's decision that Armstrong was discharged for reasons other than misconduct in connection with the work. 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) (Repl. 2002); Walls v. Director, 74 Ark. App. 424, 49 S.W.3d 670 (2001). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Walls, supra. We review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board's findings. Id. In addition, the credibility of the witnesses and the weight to be accorded their testimony are matters to be resolved by the Board. Niece v. Director, 67 Ark. App. 109, 992 S.W.2d 169 (1999). Even where there is evidence upon which the Board might have reached a different decision, the scope of review is limited to a determination of whether the Board could reasonably reach its decision upon the evidence before it. Oliver v. Director, 80 Ark. App. 275, 94 S.W.3d 362 (2002). To establish an absence of substantial evidence to support the decision, the appellant must show that the proof was so nearly undisputed that fair-minded men could not reach the same conclusion. Singleton v. Smith, 289 Ark. 577, 715 S.W.2d 437 (1986).

Arkansas Code Annotated section 11-10-514(a)(1) (Repl. 2002) provides that an individual "shall be disqualified for benefits if he is discharged from his last work for misconduct in connection with the work." When an individual is discharged for absenteeism, "the individual's attendance record for the twelve-month period immediately preceding the discharge and the reasons for the absenteeism shall be taken into consideration for purposes of determining whether the absenteeism constitutes misconduct." Ark. Code Ann. § 11-10-514(a)(2) (Repl. 2002). The employer has the burden of proving misconduct by a preponderance of the evidence. Grigsby v. Everett, 8 Ark. App.188, 649 S.W.2d 404 (1983). Misconduct is defined as: (1) disregard of the employer's interests; (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; (4) disregard of the employee's duties and obligations to the employer. Oliver, supra; Nibco, Inc. v. Metcalf, 1 Ark. App. 114, 613 S.W.2d 612 (1981). There is an element of intent associated with a determination of misconduct on the part of the employee. Oliver, supra. Therefore, mere unsatisfactory conduct, ordinary negligence, or good faith errors in judgment or discretion are not considered misconduct unless they are of such a degree or recurrence as to manifest wrongful intent, evil design, or an intentional disregard of the employer's interests. Niece, supra. Whether an employee's acts are willful or merely the result of unsatisfactory conduct or unintentional failure of performance is a fact question to be decided by the Board. Id.

In its decision, the Board found that Harris had not established by a preponderance of the evidence that Armstrong's absences were an intentional disregard of his interests. The Board based this decision on the evidence that nearly all of Armstrong's absences were due to medical reasons, such as her illnesses, doctor's appointments, and her husband's medical problems. The only two occasions where Armstrong was absent or tardy for a non-medical reason were to take her daughter back to college, which was excused by Harris, and when she was thirty minutes late to work one day. Additionally, the Board found that Armstrong followed what she believed to be the notification policy by calling her co-workers. Although Harris argued that she did not contact him personally as required by the office manual, he acknowledged that he did not discuss the proper notification procedure with her after he realized that she was not following it.

Harris contends that Armstrong was aware of the office policy concerning the proper notification procedure to be used for absences and that she purposely violated and ignored this policy. However, Armstrong testified that she had not read the policy because every time she askedto see it, it was unavailable. She further stated that Harris had personally told her to contact her co-workers if she planned to be absent. Armstrong testified that she followed this procedure on every occasion, except on the day she was discharged, when she called the office to tell them that she was going to be absent at 7:30 a.m., thirty minutes later than she had been instructed to call. However, on this particular occasion, Armstrong explained that she was very ill and that she woke up too late to call by 7:00 a.m. Because the vast majority of Armstrong's absences were for medical reasons or were excused by Harris, and there is no proof that Armstrong intentionally failed to follow the proper notification procedure contained in the office policy manual, there is substantial evidence to support the Board's finding that Armstrong was not discharged from her last work for misconduct connected with the work. See Oliver, supra (holding that employee's absenteeism did not amount to misconduct where the majority of absences were due to her illness or a family member's illness, and there was no evidence that employee intentionally disobeyed workplace rules); Walls, supra (finding that employee was not discharged for misconduct even though she did not provide medical excuses for each absence as required by employer's attendance policy, where there was no evidence that she intentionally violated the rules so as to manifest wrongful intent or evil design).

Harris cites Parker v. Ramada Inn, 264 Ark. 472, 562 S.W.2d 409 (1978), for the proposition that a single absence from work has been held to violate a standard of behavior that an employer has a right to expect and can constitute misconduct. However, in that case, the claimant was employed as a cook and failed to show up for his shift because he overslept. Id. The claimant did not notify his employer until the next day when he reported for work, at which time he learned that the employer had already employed another cook and that he was discharged. Id. The court found that the claimant's presence at the restaurant was essential to its operation, as evidenced by the fact that a replacement was promptly employed; thus, his failure to appear for work without notice to theemployer involved a disregard of the standards of behavior that the employer had a right to expect. Id. The present case can be distinguished from Parker, supra, because Armstrong promptly notified her employer by calling her co-workers each time she was going to be absent from work, and there is no evidence in this case that Armstrong's presence was essential to the operation of the dental practice. Because substantial evidence supports the Board's decision, we affirm.

Affirmed.

Vaught and Baker, JJ., agree.