Delta Dental Plan of Arkansas, Inc. v. Director, Employment Security Department and Serena Walton

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DELTA DENTAL PLAN OF ARKANSAS, INC.

APPELLANT

V.

DIRECTOR OF ARKANSAS EMPLOYMENT SECURITY DEPARTMENT and SERENA WALTON

APPELLEES

E03-279

JUNE 2, 2004

APPEAL FROM THE ARKANSAS BOARD OF REVIEW

[NO. 2003-AT-06129]

AFFIRMED

Karen R. Baker, Judge

Appellant, Delta Dental Plan of Arkansas ("Delta Dental"), appeals from a decision by the Board of Review ("Board") reversing the Appeals Tribunal's denial of benefits due to the claimant's discharge from last work for misconduct in connection with work. On appeal, Delta Dental argues that there is not substantial evidence to support the Board's decision that the claimant did not commit misconduct and is therefore entitled to unemployment benefits under the Arkansas Employment Security Act. We affirm.

The claimant, Ms. Serena Walton, was employed by Delta Dental as a dental review specialist. However, she was eligible for a move within the company to become a billing and eligibility representative. A prerequisite to becoming a billing and eligibility representative was to pass an "Excel" test. The claimant took the test, passed it, and received the position. Teresa Heard, Director of Human Resources for Delta Dental, testified that the claimant's employment was terminated on or around May 16, 2003, after the claimant accessed others' tests and then "[lied] to [her] about it." Although Ms. Heard acknowledged that the claimant admitted to accessing the tests during her initial interview and that the claimant said that what she had done was "stupid," the claimant was terminated due to a "history of warnings in her record." The claimant's most recent warning was on June 27, 2002, and regarded an allegation of personal use of the internet in the office. Ms. Heard testified that her most recent warning for personal use of the internet also included a warning that, "any violation, no matter how minor, against any company policy would result in immediate termination."

Jennie Mundy, the billing and eligibility manager, testified that she gave the claimant and the other candidates taking the exam an instruction sheet detailing what would be tested. She stated that the candidates were not instructed to access any files. The test, which was taken on the computer, included instructions for the candidate to save his or her exam to the "public drive." As a result, Ms. Mundy could obtain the exam from the drive, grade it, and then remove the graded exam from the public drive. She admitted that she did not remove the claimant's test from the public drive after grading it. The test was in a file entitled "Serena Walton, Excel test, 42503."

The claimant admitted that she accessed her completed exam and others' exams from the public drive. However, she stated that she only did so after learning that other employees had accessed her test and had "copied off [her] test." Once she accessed their tests, she saw that the others' tests included two incorrect formulas identical to those on her exam. The claimant testified that her test and two other practice tests were left on the public drive "for weeks." She asserts that Ms. Mundy gave her a study guide before taking the exam that included an instruction sheet showing how to format Excel, the spreadsheet, what to put in bold, and how it was to be "set up." She also testified that the study guide she received included what she presumed to be a sample test. However, when she actually took the test, she realized it was exactly what was included in the study guide. She testified that she was ultimately accused by her employer of helping her friend and co-worker, Mary Grantham, cheat on the exam. The claimant denied helping Ms. Grantham cheat. Ms. Grantham testified that the claimant gave her the same study guide she had received from Ms. Mundy, which included a practice test. It was not until Ms. Grantham actually took the test that she realized she had been in possession of the actual test. She denied any allegation that she had copied off of the claimant's test. However, she admitted that she knew that the claimant's test was on the public drive and that she had accessed it the day before taking her exam.

The Appeals Tribunal found that the claimant was discharged from last work for misconduct in connection with work in that she had assisted a co-worker in obtaining test information from computer files to allow her co-worker an advantage when testing for a job promotion. The Board reversed the Tribunal and found that there was no misconduct. This appeal followed.

On appeal, the findings of fact of the Board of Review are conclusive if they are supported by substantial evidence. Rollins v. Dir., 58 Ark. App. 58, 945 S.W.2d 410 (1997) (citing George's Inc. v. Dir., 50 Ark. App. 77, 900 S.W.2d 590 (1995)). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. We review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board's findings. Id. Our review is limited to a determination of whether the Board could reasonably reach its decision upon the evidence before it. Id. The credibility of witnesses and the drawing of inferences from the testimony is for the Board of Review, not this court. Baker v. Dir., 39 Ark. App. 5, 832 S.W.2d 864 (1992).

On appeal, Delta Dental argues that there is not substantial evidence to support the Board's decision that the claimant did not commit misconduct and is therefore entitled to unemployment benefits under the Arkansas Employment Security Act. 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. "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 a right to expect of his employees, (4) disregard of the employee's duties and obligations to his employer. Rollins, supra (citing Greenberg v. Dir., 53 Ark. App. 295, 922 S.W.2d 5 (1996)).

To constitute misconduct, however, the definitions require more than mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies, ordinary negligence in isolated instances, or good-faith errors in judgment or discretion. Johnson v. Dir., ___ Ark. App. ___, ___ S.W.3d ___ (January 14, 2004) (citing Rossini v. Dir., 81 Ark. App. 286, 101 S.W.3d 266 (2003)). Instead, there is an element of intent associated with a determination of misconduct. Id. (citing Blackford v. Dir., 55 Ark. App. 418, 935 S.W.2d 311 (1996)). There must be an intentional and deliberate violation, a willful and wanton disregard, or carelessness or negligence of such a degree or recurrence as to manifest wrongful intent or evil design. Rossini v. Dir., supra. Misconduct contemplates a willful or wanton disregard of an employer's interest as is manifested in the deliberate violation or disregard of those standards of behavior which the employer has a right to expect from its employees. Johnson v. Dir., supra.

Several factors support the Board's decision in this case. First, while Ms. Heard's testimony was that the claimant had initially denied having accessed others' test files, the Board found the claimant's testimony credible that she admitted during the initial questioning what she had done. Further, the claimant was the first of the candidates to complete the exam and there were no allegations that she had in any way been dishonest while taking her exam. Moreover, evidence showed that it was common knowledge that Ms. Mundy had left the exams on the public drive. Finally, the claimant testified that the study guide given to her by Ms. Mundy included a copy of the actual test and not a mere instruction sheet. Ultimately, this is an issue of credibility, which is not for this court to decide. Accordingly, we cannot say the decision of the Board in finding that the claimant's actions did not rise to the level of misconduct is not supported by substantial evidence. We affirm.

Pittman and Neal, JJ., agree.