Pamela Foushee v. Director, Arkansas Employment Security Department, and Pilgrims Pride

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

E 04-161

FEBRUARY 23, 2005

PAMELA FOUSHEE

APPELLANT

v. AN APPEAL FROM THE ARKANSAS

BOARD OF REVIEW

DIRECTOR, ARKANSAS

EMPLOYMENT SECURITY

DEPARTMENT, AND PILGRIMS

PRIDE

APPELLEES AFFIRMED

Olly Neal, Judge

Appellant Pamela Foushee appeals the Board of Review's denial of her claim for employment-security benefits. She advances the following argument on appeal: "Whether the Board of Review erred in denying appellant unemployment benefits based on its application of Ark. Code Ann. §§ 11-10-514(a)(1) and 11-10-514(b). Specifically, whether the appellant manifested wrongful intent or evil design and whether the Board of Review failed to consider appellant's ten-year period of service for the employer." We affirm.

Appellant worked as a "fill-in QC" for Pilgrims Pride. Appellant's job duties included the removal of air sac and fecal matter from poultry. Following an investigation into a complaint from a coworker alleging that appellant had said that she had deliberately left air sac and fecal matter in her birds, appellant was terminated on January 19, 2004. Appellant subsequently filed a claim for unemployment benefits. The Employment Security Department denied her claim for benefits. Appellant appealed the Department's determination to the Appeal Tribunal, and a telephone hearing was held on March 3, 2004.

At the hearing, Deanne Taylor, Human Resources Supervisor at Pilgrims Pride, testified that appellant was terminated after a coworker informed a supervisor that appellant had told him that she had "left little fecal on the birds, that she left an air sac in one buggy and fecal matter on the other buggy." She said that during the investigation into the complaint, appellant admitted leaving air sac and fecal on her birds. Ms. Taylor testified that she did not conduct the initial investigation but had interviewed appellant during a review of the initial investigation. She said that appellant told her that the reason she had left air sac and fecal matter on the birds was because, the day before, her birds had failed USDA inspection and she wanted to see if quality control would catch the birds. Ms. Taylor also testified that appellant said she was joking when she made the statement. She said that, if appellant's statement was true, then her actions violated company policy.

Randy Long, superintendent at Pilgrims Pride, testified that appellant began working for Pilgrims Pride on July 13, 1993. He described appellant as an experienced employee. Long said that appellant's job duties included the removal of air sac and fecal matter. He explained that an air sac was an infection in the cavity of a poultry carcass. He stated that fecal matter was a safety hazard and that the USDA had zero tolerance for fecal matter. He said that appellant knew that she was required to remove air sac and fecal matter. Long testified that the birds that appellant said she "infected" with air sac and fecal matter were checked and actually passed inspection. He said that if appellant had in fact left air sac and fecal matter, they would have had to recall all product produced that day. Long testified that when questioned, appellant said that she was joking when she made the statement.

Appellant admitted that she had told two coworkers that she had left air sac and fecal matter in her birds. She said that the statement was made in jest and that she and the two coworkers had a history of joking around together. She did not know what made her coworker take her statement seriously. Appellant explained that, if air sac and fecal matter had been left, her birds would have failed inspection and her birds would have to be reworked. She stated that, the day before this incident, her birds had failed inspection and had to be reworked. During her testimony, appellant stated that she had worked ten and one-half years for Pilgrims Pride and was aware of company procedure.

The following evidence was also established during the hearing: (1) that "harming in any way the integrity and quality of company product" was against company policy; and (2) in a letter dated February 23, 2004, it is indicated that appellant's actions could have cost her employer $76,000 in lost revenue, resulted in fines and bad press.

The Appeal Tribunal found that appellant's actions were dishonest and that she was discharged from last work for misconduct in connection with the work on account of dishonesty. Appellant then filed an appeal with the Board of Review. The Board of Review affirmed the decision of the Appeal Tribunal. From that decision comes this appeal.

On appeal, we review the evidence and all reasonable inferences 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. Clark v. Director, 83 Ark. App. 308, 126 S.W.3d 728 (2003). Substantial evidence is such evidence as a reasonable mind might accept as adequate to support a conclusion. Brooks v. Director, 62 Ark. App. 85, 966 S.W.2d 941 (1998). 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. Steinert v. Director, 64 Ark. App. 122, 979 S.W.2d 908 (1998).

Arkansas Code Annotated section 11-10-514 (a)(1) (Repl. 2002) provides that an individual shall be disqualified for benefits if he or she is discharged from his or her lastwork for misconduct in connection with the work. Misconduct is defined as: (1) disregard of the employer's interests; (2) violations 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. Maxfield v. Director, 84 Ark. App. 48, 129 S.W.3d 298 (2003). There is an element of intent associated with a determination of misconduct on the part of the employee. Id. To constitute misconduct, 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 error in judgment or discretion. Clark v. Director, supra. There must be an intentional or deliberate violation, a willful or wanton disregard, or carelessness or negligence of such degree or recurrence as to manifest wrongful intent or evil design. Id. 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. Maxfield v. Director, supra.

Appellant's conduct clearly meets the definition of misconduct. Her conduct was not only intentional, it also called into question the quality of her employer's goods, violated the employer's rules, and was a blatant disregard of her duties to her employer. Therefore, when we view the evidence in a light most favorable to the Board of Review, we cannot say that the Board's decision is not supported by substantial evidence. We hold that appellant's conduct constituted misconduct and, thereby, affirm the decision of the Board of Review.

Affirmed.

Hart and Glover, JJ., agree.