Brenda L. Gassaway v. Director, Arkansas Employment Security Department

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November 9, 2005


[NO. 2004-BR-1888]


John Mauzy Pittman, Chief Judge

The appellant was terminated from her employment with the Arkansas Foundation for Medical Care and filed a claim for unemployment benefits. The Board of Review found that appellant had been discharged for misconduct connected with the work and was therefore disqualified for eight weeks. Appellant contends on appeal that the Board erred in finding that her discharge was for misconduct connected with the work. We do not agree, and we affirm.

An employee is disqualified for unemployment benefits if he is discharged from his last work for misconduct in connection with the work. Ark. Code Ann. ยง 11-10-514(a)(1) (Repl. 1999). "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 that the employer has a right to expect of his employees; and (4) disregard of the employee's duties and obligations to his employer. Greenberg v. Director, 53 Ark. App. 295, 922 S.W.2d 5 (1996). Misconduct requires 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. Carroro v. Director, 54 Ark. App. 210, 924 S.W.2d 819 (1996). 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 for the Board to decide. Rucker v. Director, 52 Ark. App. 126, 915 S.W.2d 315 (1996).

The findings of the Board of Review are conclusive if they are supported by substantial evidence. 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. Id. On appeal from a decision of the Board of Review, we review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board's findings. Lovelace v. Director, 78 Ark. App. 127, 79 S.W.3d 400 (2002). 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. Id.

The record reflects that the Arkansas Foundation for Medical Care is a peer-review organization that determines the propriety of Medicaid services recommended by treating physicians, and that appellant was employed as a Pediatric Nurse Reviewer. During her employment, appellant became convinced that co-worker, Ms. Tilerra Coats, was altering physician records so as to shorten or deny benefits approved by the reviewing physician. Over the course of a year, appellant frequently reported her concerns to her supervisor, and was dissatisfied with the action taken to address her concerns. Subsequently, a reviewingphysician, Dr. John Whitaker, also observed alteration of charts and was authorized to inspect certain files in cases that he had originally reviewed. During the course of Dr. Whitaker's inspection, appellant was observed pulling charts - an unusual activity for her - and going back and forth between her cubicle and the one being used by Dr. Whitaker. Subsequently, a letter sent by Dr. Whitaker was found to include documents from files that he had not originally worked on and was not authorized to view pursuant to the employer's confidentiality policy. One of the documents included in the letter was identified as having been printed on appellant's computer, and others bore appellant's name. During a subsequent investigation by appellant's superiors of the breach of confidentiality, appellant was hostile, refused to answer questions regarding her role in the matter, raised her voice frequently, and shook her finger in the face of a company vice-president. On this record, we think that the Board could reasonably have inferred from the available evidence that appellant provided Dr. Whitaker with documents that he was not authorized to view in violation of express confidentiality instructions to the contrary, and that she willfully refused to cooperate in the subsequent investigation of the breach of confidentiality. We hold that these facts support the Board's finding that appellant was discharged for misconduct in connection with the work, and we affirm.


Bird and Neal, JJ., agree.