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Cely v. Dir., Div. of Workforce Servs.

Court of Appeals of Arkansas, Division I
Oct 5, 2022
2022 Ark. App. 384 (Ark. Ct. App. 2022)

Opinion

E-21-460

10-05-2022

SILVER LEIGH CELY APPELLANT v. DIRECTOR, DIVISION OF WORKFORCE SERVICES; AND GREENE COUNTY APPELLEES

Larry J. Steele PLC, by: Larry J. Steele, for appellant. Cynthia L. Uhrynowycz, for appellee.


APPEAL FROM THE ARKANSAS BOARD OF REVIEW [NO. 2021-BR-01649]

Larry J. Steele PLC, by: Larry J. Steele, for appellant.

Cynthia L. Uhrynowycz, for appellee.

RITA W. GRUBER, JUDGE.

Appellant Silver Leigh Cely appeals from the Arkansas Board of Review's ("Board's") July 15, 2021 decision finding her ineligible to receive unemployment benefits under Ark. Code Ann. § 11-10-513(a) (Supp. 2021). On appeal, she argues that substantial evidence does not support the Board's decision. We affirm.

Appellant filed her initial application for unemployment benefits on April 3, 2020, and cited her separation from work as "Laid Off - Lack of Work." The employer's response to appellant's initial application for benefits listed appellant's separation from work as "Quit - General." On October 19, 2020, appellant filed an application for continued unemployment benefits and cited her separation from work as "Quit - General." The Division of Workforce Services ("Division") investigated the discrepancy following her October 19 application for continued benefits. On November 6, 2020, the Division issued a notice of agency determination to the parties disqualifying appellant from receiving unemployment benefits under Ark. Code Ann. § 11-10-513(a) on the ground that she voluntarily left last work without good cause connected with the work. On the same day, the Division issued a separate notice of agency determination disqualifying appellant from receiving unemployment benefits on a different ground under Ark. Code Ann. § 11-10-519(a)(1) (Supp. 2021) finding that she made a false statement or misrepresentation of material fact in her initial claim for benefits. She timely appealed both notices to the Appeal Tribunal ("Tribunal"), which conducted one hearing on March 29, 2021, for both appeals.

Appellant appealed this separate denial of benefits under Ark. Code Ann. § 11-10-519(a)(1) in Cely v. Director, 2022 Ark.App. 385, which we also hand down today.

The employer did not participate in the hearing, leaving appellant as the sole witness to provide testimony. Appellant testified that she worked as a deputy clerk at the Greene County District Court beginning in October 2018. On Monday, February 3, 2020, appellant asked her mother to call appellant's supervisor, Jamie McClelland, to request a personal day off work for the following day, February 4. McClelland denied the request, and appellant's mother told the supervisor that appellant would likely be submitting a letter of resignation the following day. Appellant did not report for work February 3 or 4. When appellant did not come to work on the morning of February 4, McClelland sent her a text telling her to turn in her keys and pick up her things from the office. Appellant asked if she had been fired. McClelland said she was not fired, but she had been informed the day before that appellant planned to resign and then failed to come to work that morning.

Appellant then sent a text message to Greene County District Judge Dan Stidham, McClelland's supervisor, describing her poor working relationship with McClelland and explaining that, although her mother had told McClelland that she planned to resign, that was not her intent. However, in the same message, appellant also told Judge Stidham, "If you want to draw up termination papers that is fine." Appellant concluded by saying that, although her mother told McClelland she would be resigning, that was not her intent, and she believed she had been fired when McClelland told her to turn in her keys.

Following the hearing, the Tribunal affirmed the Division's determinations on both grounds. Appellant timely appealed the Tribunal's decisions, and the Board affirmed the decisions of the Tribunal. Appellant timely appealed both of the Board's decisions.

This court affirms the decision of the Board when it is supported by substantial evidence. Rodermund v. Dir., 2021 Ark.App. 458, 637 S.W.3d 291. Substantial evidence is such relevant evidence as reasonable minds might accept as adequate to support a conclusion. Id. We view the evidence and all reasonable inferences in the light most favorable to the Board's findings. Id. Even if the evidence could support a different decision, our review asks whether the Board could have reasonably reached its decision on the basis of the evidence presented. Id. The credibility of witnesses and the weight to be accorded their testimony are matters to be resolved by the Board. Gieringer v. Dir., 2022 Ark.App. 280, 646 S.W.3d 692.

In this appeal, appellant argues that the evidence did not support the Division's findings that, under the circumstances, she voluntarily left last work without good cause connected with the work. She argues that she did everything she could to preserve her job, and that the Board's decision was made based on facts taken out of context without consideration of the evidence as a whole. We disagree. The Board's decision that appellant left her last work without good cause is supported by substantial evidence.

Appellant also argues that the evidence did not support the finding that she was discharged from her last work for misconduct in connection with the work under Ark. Code Ann. § 11-10-514 (Supp. 2021). However, the Board's decision affirmed the Division's determination under Ark. Code Ann. § 11-10-513 only. The Board's mention of misconduct in its analysis is clearly dicta.

A person who voluntarily leaves her employment without good cause connected to the work shall be disqualified for benefits. Ark. Code Ann. § 11-10-513(a)(1) (Supp. 2021). As a prerequisite to receiving unemployment benefits, an employee is required to make every reasonable effort to preserve his job rights before leaving employment. English v. Dir., 2020 Ark.App. 483, 611 S.W.3d 705. No individual shall be disqualified under this section if, after making reasonable efforts to preserve his or her job rights, he or she left his or her last work because of illness, injury, pregnancy, or disability. Ark. Code Ann. § 11-10-513(b)(2)(a).

Substantial evidence supports the Board's finding that appellant did not take reasonable steps to preserve her job rights before leaving her employment. The only effort she made to preserve her job rights was sending one message to Judge Stidham explaining perceived mistreatment from McClelland and arguing that she did not intend to quit. However, in the same message, appellant said she was fine with Judge Stidham filing her termination papers. She did not attempt to send any more messages to McClelland or Judge Stidham and did not return to work to potentially resolve matters.

Similarly, substantial evidence supports the Board's finding that appellant did not show a good cause which would reasonably impel the average able-bodied, qualified worker to give up her employment. When a claimant has voluntarily quit work and is seeking unemployment- insurance benefits, the burden is on the claimant to show that she had good cause connected to the work for quitting. Keener v. Dir., 2021 Ark.App. 88, 618 S.W.3d 446. Furthermore, "[g]ood cause has been defined as a cause that would reasonably impel the average able-bodied, qualified worker to give up his or her employment." Id. at 4, 618 S.W.3d at 449 (quoting Carpenter v. Dir., 55 Ark.App. 39, 41, 929 S.W.2d 177, 178 (1996)). Good cause depends not only on the good faith of the employee involved, which includes the presence of a genuine desire to work and be self-supporting, but also on the reaction of an average employee. Fowlkes v. Dir., 2017 Ark.App. 56, 512 S.W.3d 667.

Appellant testified that she did not return to work because she was told to turn in her keys by her supervisor; however, her supervisor told her this only because she had been informed that appellant was resigning, and appellant did not return to work the following day. Although appellant testified that she believed she had been fired, she also said she would be fine with Judge Stidham filing termination papers, which would suggest she did not believe she had been fired at that point. The employer substantiated this belief in its employer's response, which indicated appellant had quit for general reasons. Appellant's only allegation of good cause is her testimony that she believed she had been fired. Although appellant argues that no one testified to contradict her testimony and that the hearing officer disregarded her testimony, the credibility of witnesses and the weight to be accorded their testimony are matters to be resolved by the Board. Burgos v. Dir., 2021 Ark.App. 270.

Appellant also argues that she was denied due process and equal protection guaranteed by the Fourteenth Amendment to the United States Constitution when the hearing officer failed to consider the record as a whole and failed to make findings supported by the evidence. While appellant raised this argument below, she failed to obtain a ruling on the issue. The failure to obtain a ruling on an issue, even a constitutional one, precludes our review on appeal. Davenport v. Uselton, 2014 Ark.App. 148. When a circuit court does not provide a ruling on an issue, it is an appellant's responsibility to obtain a ruling to preserve the issue for appeal. Neal v. Sparks Reg'l Med. Ctr., 2012 Ark. 328, 422 S.W.3d 116. Because appellant did not obtain a specific ruling on the constitutional aspect of this argument as presented on appeal, we are precluded from addressing the merits of her constitutional challenge.

Appellate review is limited to determining whether the Board could reasonably reach its decision on the basis of the evidence before it, even if there is evidence on which the Board might have reached a different decision. Hourston v. Dir., 2022 Ark.App. 141, 643 S.W.3d 476. The Board found that, although appellant argued that she was discharged, the weight of evidence indicated that appellant voluntarily ended her employment. The employer was notified that appellant intended to resign, and although appellant communicated to Judge Stidham that it was not her intent to resign, she failed to return to work or communicate any further with her employer to preserve her job rights. In light of the evidence provided, the Board could reasonably have reached the conclusion that appellant voluntarily left work without good cause.

Affirmed.

Gladwin and Barrett, JJ., agree.


Summaries of

Cely v. Dir., Div. of Workforce Servs.

Court of Appeals of Arkansas, Division I
Oct 5, 2022
2022 Ark. App. 384 (Ark. Ct. App. 2022)
Case details for

Cely v. Dir., Div. of Workforce Servs.

Case Details

Full title:SILVER LEIGH CELY APPELLANT v. DIRECTOR, DIVISION OF WORKFORCE SERVICES…

Court:Court of Appeals of Arkansas, Division I

Date published: Oct 5, 2022

Citations

2022 Ark. App. 384 (Ark. Ct. App. 2022)
653 S.W.3d 394

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