Anthony C. Foots v. Director, Employment Security Department

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

ANTHONY C. FOOTS

APPELLANT

V.

DIRECTOR, EMPLOYMENT

SECURITY DEPARTMENT

APPELLEE

E05-47

December 7, 2005

APPEAL FROM THE BOARD OF

REVIEW [2004-AT-09750]

AFFIRMED

David M. Glover, Judge

This is an ESD case involving appellant, Anthony Foots, who began his employment with appellee Trefilarbed Arkansas, Inc., in December 1997, working as a senior maintenance technician. Mr. Foots received a three-day suspension for the period of August 13, 16, and 17, 2004, and he was discharged on August 31. He appeals from the Board of Review's denial of his claims for unemployment benefits with respect to both his suspension and his discharge. We affirm.

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. Oliver v. Director, 80 Ark. App. 275, 94 S.W.3d

362 (2002). Substantial evidence is such relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Id. Even when there is evidence upon which the Board of Review might have reached a different decision, the scope of our review is limited to a determination of whether the Board reasonably could have reached the decision it did based upon the evidence before it. Id.

Three-Day Suspension

For his first point of appeal, appellant challenges the Board's denial of unemployment benefits for his three-day period of suspension, August 13, 16, and 17, based upon misconduct connected with the work. Appellant contends that his actions did not constitute misconduct. We disagree.

Arkansas Code Annotated section 11-10-514(c) (Repl. 2002) provides:

(c)(1) If so found by the director, an individual shall be disqualified for benefits if he or she is suspended from his or her last work for misconduct in connection with the work.

(2) Except as otherwise provided, the disqualification shall be for the duration of the suspension or eight (8) weeks, whichever is the lesser.

(Emphasis added.)

Whether an employee's actions constitute misconduct in connection with the work sufficient to deny unemployment benefits is a question of fact for the Board, and our standard of review of the Board's findings of fact is well settled:

We do not conduct a de novo review in appeals from the Board of Review. In appeals of unemployment compensation cases we instead review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board of Review's findings. The findings of fact made by the Board of Review are conclusive if supported by substantial evidence; 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 have reasonably reached its decision based on the evidence before it. Substantial evidence is such evidence as a reasonable mind might accept as adequate to support a conclusion.

Pacheco v. Director, ____ Ark. App. ____, ____, ____ S.W.3d ____, _____ ( June 29, 2005). Additionally, the credibility of witnesses and the weight to be accorded their testimony are matters to be resolved by the Board of Review. Id.

"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, and (4) disregard of the employee's duties and obligations to his employer. 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 errors in judgment or discretion. Id. Instead, there is an element of intent associated with a determination of misconduct. Id. 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. Id. 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. Id.

Here, Jimmy Prince, the maintenance supervisor, testified that on August 12, 2004, he originally instructed Mr. Foots to perform a task a certain way; that Mr. David Wolfe, the maintenance manager, walked by and informed Mr. Prince that the task needed to be performed in a different fashion; that he, Prince, went to Mr. Foots to redirect him in the task; and that Mr. Foots got upset, started slamming things down around the machine that he was working on, got in Prince's face "in a very threatening manner," raised his voice, and called Prince a liar. He testified that Mr. Foots "took a good hard step toward me and I took a step back." He stated that he reported the incident to Mr. Wolfe and that they discussed what theyneeded to do about the situation. He then wrote his statement and gave Wolfe a list of names of others who witnessed the incident.

David Wolfe, Mr. Prince's supervisor, testified that on August 12 Prince told him about the confrontation with Mr. Foots; that he had Mr. Foots come to his office; that he asked Foots if he had a problem doing the work; that Foots said, "no"; that Foots returned to work; and that he, Wolfe, interviewed the other witnesses. He explained that he next discussed the matter with Dave Lunsford, the vice president of the company; and that after reviewing the witnesses' statements, they decided to suspend Mr. Foots for insubordination. In support, he said that after interviewing the witnesses, he decided that Foots was intimidating Prince "by yelling, slamming stuff, and taking steps down toward him and calling him a liar." He explained that Prince was a small guy, about 5'8 ½" or 5'9" and 160 pounds, and that Foots was probably 6' or 6'1" and between 200 and 300 pounds.

David Lunsford testified that there had been an incident between Prince and Foots about a year prior to the August 12 incident; that in discussing what to do about the August 12 incident, he and other company officials weighed whether to terminate or suspend Foots; and that they decided on a suspension, making it "real clear that if it happened one more time he wouldn't have a job any longer."

Anthony Foots testified that when he came to work on August 12, Mr. Prince gave him a daily maintenance work report. He said that after he had worked approximately two hours on that job assignment, Prince told him that he did not need the head stocks, which he earlier had told him to remove and had given him permission to bring the equipment to the shop necessary to remove them because they were heavy and he needed a crane. Foots claimed that Prince told him, "I did not give you permission to bring these in the shop," and that he told Prince that was a lie. He denied using any gestures to show anger, slammingdown any equipment, moving toward Prince, or raising his voice. He explained that the maintenance shop is loud and that you have to elevate your voice to be heard.

Foots stated that he did not meet with Lunsford until about 3:30 that afternoon; that he denied there was an "incident"; that he described it as a miscommunication between Wolfe and Prince; and that he told Lunsford he never refused to perform any job. He explained that company officials told him the incident was under investigation; that they instructed him to go home for three days; and that when he returned to work on August 18, they gave him the corrective-action statement.

Reviewing the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board of Review's findings, we conclude that the findings are supported by substantial evidence. Even though there is evidence upon which the Board might have reached a different decision, the scope of this court's judicial review is limited to a determination of whether the Board could have reasonably reached its decision based on the evidence before it. We hold that reasonable minds could accept the testimony presented to the Board as adequate to support the Board's decision.

Discharge

Appellant contends under his remaining point of appeal that the Board's decision to deny him benefits with respect to his discharge was not supported by substantial evidence. Again, we disagree.

In its decision, the Board explained:

Based on the evidence, the Board of Review finds that the claimant was discharged from last work for misconduct connected with the work. The employer has the burden of proving misconduct by a preponderance of the evidence. "Misconduct," for purposes of unemployment compensation, involves: (1) disregard of theemployer'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, and (4) disregard of the employee's duties and obligations to his employer. The claimant asserted that the maintenance supervisor instructed him to visit his primary care physician to obtain a release to return to work; however, the maintenance supervisor did not recall such a conversation. The claimant denied receiving the Family Medical Leave forms mailed on August 9, 2004, but at the Appeal Tribunal hearing he admitted that his wife had received the forms, and he apparently knew the forms were present, but he did nothing to comply with the employer's request to complete the forms. Also, the claimant never offered any explanation why he did not attempt to comply with the employer's request to complete the Family Medical Leave forms, nor did he inform the employer why he could not do so. Because the claimant did not complete the leave forms, the employer discharged him for excessive absenteeism pursuant to its policy. If he had completed the forms, as the employer requested, his absences would have been considered excused and he would not have lost attendance points. Facing the choice of completing forms to preserve his job or losing his job, the claimant inexplicably chose the latter. The claimant's failure to complete the Family Medical Leave forms, which would have excused his absences, resulted in his exhausting the allowed number of points and was an intentional disregard of the employer's rules. Therefore, the decision of the Appeal Tribunal, which affirmed the Department determination, is affirmed on the finding that the claimant was discharged from last work for misconduct connected with the work.

Arkansas Code Annotated section 11-10-514(a)(1) (Repl. 2002) states that a person shall be disqualified from receiving unemployment benefits if the Director of the Employment Security Department finds that the person is discharged from his or her last work for misconduct in connection with the work. Pacheco v. Director, supra. We set forth the definition of misconduct in the preceding section of this opinion, and therefore it is not necessary to repeat it.

Here, it was not disputed that on August 3, 2004, appellant blacked out at work and had to be taken to the hospital. He missed several days of work between that date and the date that he was discharged.

Stacy Browning testified that Mr. Foots was told to fill out workers' compensation paper work, but that he refused to sign anything. She said that they ended up having to use information from witnesses and from his doctor's note, which did not really specify what was wrong with Foots, in order to complete the workers' compensation papers. She stated that on August 9, she sent Foots a Certificate of Healthcare Provider form "so he could get startedto cover his absences with an FMLA certification." She stated that Foots was instructed to have his physician complete the form and return it by August 24 so that Trefilarbed could determine if he was eligible for FMLA. She said that they did not receive the form by August 24; that she called Foots in to see if he had it with him; that he told her he "never received nothing"; that she and his wife had discussed the form by telephone; and that she gave him another copy of the form on August 26 and told him to have it competed by the close of business on Monday, August 30 or his absences would be counted as unexcused. She said that "he told me when he walked up that he wouldn't be bringing me anything." She explained that when Foots did not return the FMLA form by the requested date, that the company treated him like any other employee and let him go due to the attendance policy.

Mr. Foots testified that on August 26, Mr. Wolfe brought him a hand-delivered letter from Ms. Browning saying that she had sent him paper work on August 9; that the document Mr. Wolfe delivered said, "Received by Anthony Foots on 8/26/04 to be completed and turned in by [August] 30"; and that it was written by Browning. He said that he went to Ms. Browning and told her he had not read the letter that she alleged to have sent him August 9. He testified that on August 31, he was called into the office at approximately 10:30 or 11:00 a.m.; that Lunsford, Browning, and Wolfe were present; and that Lunsford told him he was going to be terminated for violating the attendance policy. Foots acknowledged that he had the FMLA papers but said that he had not had the opportunity to get the papers completed.

The Board found that appellant's failure to complete the FMLA forms as directed by his employer was "an intentional disregard of the employer's rules" and constituted misconduct. The scope of our review is limited to a determination of whether the Board reasonably could have reached the decision that it did based upon the evidence before it, and reviewing the evidence and all reasonable inferences deducible therefrom in the light mostfavorable to the Board's findings, we conclude that those findings are supported by substantial evidence.

Affirmed.

Neal and Vaught, JJ., agree.