Joshua-Paul Anderson v. Director, Employment Security Department

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

JOSHUA-PAUL ANDERSON

APPELLANT

V.

DIRECTOR, ARKANSAS EMPLOYMENT SECURITY DEPARTMENT

APPELLEE

E03-280

November 3, 2004

APPEAL FROM THE ARKANSAS BOARD OF REVIEW

[NO. 2003-BR-1356]

AFFIRMED

John Mauzy Pittman, Judge

The appellant in this unemployment compensation case filed a claim for benefits that was denied. The Board of Review upheld the denial, finding that appellant voluntarily left his last employment without good cause connected with the work. This appeal followed.

For reversal, appellant contends that the Board's finding that he voluntarily quit is not supported by the evidence, and that the hearing officer denied him due process by not allowing him to confront and cross-examine adverse witnesses. Because the first argument is without merit and the second argument is not preserved, we affirm.

Arkansas Code Annotated § 11-10-513(a)(1) (Repl. 2002) provides in pertinent part that a person shall be disqualified from receiving unemployment benefits if he left his last work "voluntarily and without good cause connected with the work." Good cause is a cause that reasonably would impel the average able-bodied, qualified worker to give up his or her employment; it is dependent not only on the good faith of the employee involved, which includes the presence of a genuine desire to work and to be self-supporting, but also on the reaction of the average employee. Teel v. Daniels, 270 Ark. 766, 606 S.W.2d 151 (Ark. App. 1980). What constitutes good cause is ordinarily a question of fact for the Board to determine from the particular circumstances of each case. Perdrix-Wang v. Director, 42 Ark. App. 218, 856 S.W.2d 636 (1993). On appeal, the findings of fact of the Board of Review are conclusive if they are supported by substantial evidence. Id. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Owens v. Director, 55 Ark. App. 255, 935 S.W.2d 285 (1996). In determining whether there is substantial evidence to support the finding of the Board, we review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board's findings. Id. Issues of credibility of witnesses and the weight to be afforded their testimony are matters for the Board of Review to determine. Bradford v. Director, 83 Ark. App. 332, 128 S.W.3d 20 (2003). 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. Owens v. Director, supra.

In the present case, the Board's finding that appellant voluntarily left his last employment was based on evidence that appellant told his employer's District Manager, Cecil Elrod, that he was going to look for another job beginning the next week. Subsequently, the decision was made to discharge appellant immediately. Although the appellant testified to the contrary, the Board found his testimony to lack credibility, and we think that it could, on the evidence before it, reasonably find that appellant stated that he intended to quit as soon as he could find another job. Insomuch as the phrase "voluntarily leaving" includes voluntary action indicating an intention to terminate employment, notwithstanding that the immediate cause of separation was discharge or replacement, Middleton v. Arkansas Employment Security Division, 265 Ark. 11, 576 S.W.2d 218 (1979), we cannot say that the Board erred in finding that appellant voluntarily left his employment.

Nor do we agree with appellant's contention that the Board erred in finding that he left his employment without good cause connected with the work. Appellant testified that his departure from his employment was prompted by his distaste for his manager's alleged practices of telling ribald jokes to female employees, fraudulently hiding the manager's income from the Social Security Administration, and not permitting people with baggy trousers to come into the store. Appellant stated that he believed that the manager was practicing racial discrimination because the people with baggy pants who were asked to leave were black. However, appellant conceded in his testimony that no one had filed a complaint about the alleged joke-telling, and that the manager stated that it was store policy to deny admission to all people dressed in baggy clothing to prevent shoplifting. Appellant also stated that he had not expressed his concerns to the manager "because he's too argumentative," and offered evidence to show that the manager had once been involved in a physical altercation following a traffic accident outside the workplace. Noting that appellant had not presented his concerns regarding sexual harassment, fraud, or racial discrimination to governmental authorities in advance of his separation from work, the Board found appellant's testimony was not a credible explanation of his actual reasons for leaving his employment. Failure to take steps to alleviate problems before quitting is evidence of a lack of good faith, see Magee v. Director, 75 Ark. App. 115, 55 S.W.3d 321 (2001), and we cannot say that the Board was required to believe that appellant actually quit his employment for the reasons stated in his testimony.

Appellant also argues that the hearing officer denied him due process by not allowing him to confront and cross-examine adverse witnesses. However, appellant never raised this issue before the Board, and cannot raise it for the first time on appeal. Perdrix-Wang v. Director, supra.

Affirmed.

Stroud, C.J., and Crabtree, J., agree.