Travis Chaney v. Artee Williams, Director, Department of Workforce Services and Wal-Mart Associates, Inc.

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

E05-256

April 5, 2006

TRAVIS CHANEY

APPELLANT AN APPEAL FROM THE BOARD

v. OF REVIEW (2005-BR-01616)

ARTEE WILLIAMS, DIRECTOR

DEPARTMENT OF WORKFORCE

SERVICES & WAL-MART ASSOCIATES,

INC. REVERSED and REMANDED

APPELLEES

Olly Neal, Judge

In this unbriefed unemployment compensation case, appellant Travis Chaney appeals from the decision of the Arkansas Board of Review disqualifying him from receiving unemployment compensation benefits based on a finding that he was discharged for misconduct connected with the work. The issue before us is whether the Board's decision is supported by substantial evidence. We hold that it is not, and we reverse and remand for an award of unemployment benefits.

Appellant worked for his employer Wal-Mart as a department manager. On the tenth anniversary of appellant's employment, the employer sought to present appellant his ten-year service award during the regular morning meeting. When the store manager called appellant's name to come forward and accept his award, appellant did not come forward. When the store manager called appellant's name again, appellant again refused to come forward, and he said something; however, the store manager could not hear what was said. The store manager then placed the certificate down on a desk and continued with the meeting.

Following this incident, the store manager visited with his district manager, and the decision was made to terminate appellant. The store manager testified that the basis for the termination was that appellant:

put [me] in a very awkward position in front of the other associates in the store by not giving me the courtesy to come up front to receive his award, which is what we have done with every other associate that, that reaches those milestones. So it was a very awkward situation. It put me in a very difficult situation and, uh, we considered that to be lack of respect for the individual.

The "exit interview" following the decision to terminate contained the following statement from the store manager: "On 7/7/05 Travis refused to come forward to accept his 10-year service award. He stated he did not want the award and I should not have the privilege to give it to him. This is a lack of respect for the individual."

Arkansas Code Annotated section 11-10-514 (a)(1) (Repl. 2002) provides 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. "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. Fulgham v. Director, 52 Ark. App. 197, 918 S.W.2d 186 (1996). 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. Johnson v. Director, 84 Ark. App. 349, 141 S.W.3d 1 (2004). Instead, there is an element of intent associated with a determination of misconduct. Id. There must be an intentional and deliberate violation, a wilful 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 wilful or wanton disregard of an employer's interest as is manifested in the deliberate violation or disregard of these standards of behavior which the employer has a right to expect from its employees. Id.

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. Thomas v. Director, 55 Ark. App. 101, 931 S.W.2d 146 (1996). 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.

Johnson v. Director, supra (citing Snyder v. Director, 81 Ark. App. 262, 263, 101 S.W.3d 270, 271 (2003)). Additionally, the credibility of witnesses and the weight to be accorded their testimony are matters to be resolved by the Board of Review, id., but that is not to say that our function on appeal is merely to ratify whatever decision is made by the Board of Review. See Carraro v. Director, 54 Ark. App. 210, 924 S.W.2d 819 (1996). Further, we are not at liberty to ignore our responsibility to determine whether the standard of review has been met. Id. When the Board's decision is not supported by substantial evidence, we will reverse. Id.

Here, the decision to terminate appellant came following appellant's failure to come forward to accept the ten-year service award and was prior to the exit interview. At the time the store manager and his district manager decided to terminate appellant, the employer did not have before it appellant's exit interview.

In Board of Trustees of University of Arkansas v. Director, ___ Ark. App. ____, ___ S.W.3d ___ (Apr. 27, 2005), Tena Farver received, on November 19, 2003, a letter dated November 18, 2003, informing her that her job would end on December 18, 2003, due to her inability to enlist the required minimum of low-income families into a basic-nutrition program. An audit of Farver's work took place November 24 through November 28 wherein Farver was found to have falsified records. Because Farver was terminated for other causes, the subsequent finding of falsifying records could not serve as a basis to deny employment compensation. See also Bradford v. Director, 83 Ark. App. 332, 128 S.W.3d 20 (2003).

Here, appellant was terminated for failure to come forward and accept his ten-year service award. We hold that such failure standing alone does not amount to misconduct in connection with his work. Accordingly, we reverse and remand for an award of benefits.

Reversed and remanded.

Gladwin and Griffen, JJ., agree.