Southland Metals, Inc. v. Director, Arkansas Employment Security Department and Tammy L. Alsup

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e04-230

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

SOUTHLAND METALS, INC.

APPELLANT

V.

DIRECTOR, ARKANSAS EMPLOYMENT SECURITY DEPARTMENT and TAMMY L. ALSUP

APPELLEES

E04-230

April 6, 2005

APPEAL FROM THE ARKANSAS BOARD OF REVIEW

[NO. 2004-BR-00863]

AFFIRMED

Robert J. Gladwin, Judge

The Arkansas Appeal Tribunal affirmed the Employment Security Department's determination that appellee Tammy Alsup should not receive benefits under Ark. Code Ann. § 11-10-514(a) (Repl. 2002) because she was discharged from her employment with appellant Southland Metals, Inc., for misconduct connected with her work, specifically, excessive absenteeism. The Board of Review, however, reversed that decision and awarded benefits to appellee. On appeal to this court, appellant argues that the Board's decision is not supported by substantial evidence. We affirm.

On January 5, 2004, appellee began working for appellant as an accounting clerk and was discharged one month later on February 5, 2004. Brandi Caruthers, the controller who discharged appellee, testified that appellee was discharged for excessive absenteeism and several instances of tardiness. Appellee was tardy by ten minutes or less during her first week of employment; she missed nine and a half days because she had gallstones that required surgery; she was absent six days because either she or her child was sick; and she was gone for two hours for a dental appointment. Caruthers stated that she tolerated both the tardiness and absences until February 3, 2004, when she issued the first written warning to appellee about her absenteeism. Appellee then failed to work on February 4, 2004. On February 5, 2004, when appellee did not show up for work, she was discharged. According to appellee, her child was sick on February 4, and both she and her child were sick on February 5.

Both the Department and the Appeal Tribunal found that appellee was discharged for her absenteeism and her failure to properly notify her employer of absenteeism or tardiness, which amounted to misconduct. In reversing that decision, the Board found that appellee had been discharged for reasons other than misconduct. The Board found that appellee was discharged for excessive absenteeism but that the employer's presentation did not indicate that inadequate notice of her absences was a significant cause for the discharge. The Board found that appellee's absences were clearly excessive but that approximately half of the missed days was due to a serious health problem requiring surgery. The Board further found that there was no evidence that appellee was absent at any time when she was able to be at work. Accordingly, the Board determined that appellant failed to meet its burden of proving that appellee was discharged because of a willful disregard of her employer's interest or of her duties and obligations to her employer.

On appeal, the findings of the Board of Review are conclusive if they are supported by substantial evidence. Love v. Director, 71 Ark. App. 396, 30 S.W.3d 750 (2000). 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. Kilpatrick v. Director, 55 Ark. App. 193, 934 S.W.2d 232 (1996). 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. Walls v. Director, 74 Ark. App. 424, 49 S.W.3d 670 (2001).

Arkansas Code Annotated section 11-10-514(a)(1) provides that an individual "shall be disqualified for benefits if he is discharged from his last work for misconduct in connection with the work." 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 interest; (2) violation of the employer's rules; (3) disregard of the standards of behavior which the employer has a right to expect of its employees; (4) disregard of the employee's duties and obligations to the employer. 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 v. Director, 80 Ark. App. 275, 94 S.W.3d 362 (2002). 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 interest. 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. Oliver, supra. 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).

Appellant argues that the Board gave no weight to appellee's attendance record and based its decision solely upon the reasons for the absences. To the contrary, the Board found that appellee's absences were excessive; however, the Board found that appellee had valid reasons for her absences and found no evidence that appellee was absent at a time when she was able to be at work. Clearly, the Board took both aspects into consideration and then determined the weight of the evidence, which was within the Board's province to do. See Niece, supra.

Appellant contends that appellee admitted that Caruthers had instructed her to call Caruthers at home prior to being tardy or absent and had even given appellee the phone number written on a piece of paper but that she failed to properly contact Caruthers at home. Again, the Board determines the credibility and weight to be given to a witness's testimony. Appellee testified that she had inadvertently left the number on her desk at work and called Caruthers's voice mail, instead, to inform her that she was going to the emergency room. Appellee further explained that she did not understand that calling Caruthers at home was mandatory. According to appellee, she properly contacted Caruthers, and the Board was entitled to believe her.

Appellant argues that the Board used the incorrect standard by requiring it to prove that inadequate notice of absences was a significant cause of appellee's discharge. In the telephone conference, Caruthers stated, "[Appellee] was discharged because she was never here." The hearing officer asked, "Was there any other reason?" to which Caruthers answered, "No." Considering Caruthers's own testimony, we conclude that there was substantial evidence to support the Board's factual determination that appellee's behavior did not amount to misconduct under these circumstances.

Affirmed.

Pittman, C.J., and Vaught, J., agree.