Opinion
No. E12-634
02-20-2013
SHARON GARRETT APPELLANT v. DIRECTOR, ARKANSAS DEPARTMENT OF WORKFORCE SERVICES, and DAVITA APPELLEES
Sharon Garrett, pro se appellant. Phyllis Edwards, Associate General Counsel for Artee Williams, Director, Department of Workforce Services.
APPEAL FROM THE ARKANSAS
BOARD OF REVIEW
[NO. 2012-BR-01101]
AFFIRMED
RITA W. GRUBER , Judge
Sharon Garrett appeals the denial of her employment benefits after she was discharged from her job as a dialysis patient-care technician for failing to timely meet a federal requirement to become certified. We affirm the Arkansas Board of Review's conclusion that she was discharged from last work for misconduct in connection with the work, thus disqualifying her from receiving benefits under Arkansas law.
A person shall be disqualified from receiving unemployment benefits if it is found that the person was discharged from his or her last work on the basis of misconduct in connection with the work. Ark. Code Ann. § 11-10-514(a)(1) (Supp. 2011); Valentine v. Director, 2012 Ark. App. 612. "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 the employer has a right to expect of its employees, and (4) disregard of the employee's duties and obligations to the employer. Fulgham v. Director, 52 Ark. App. 197, 199, 918 S.W.2d 186, 188 (1996). For unemployment-insurance purposes, the definition of misconduct requires more than mere inefficiency, unsatisfactory conduct, failure in good performance as a 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, 352, 141 S.W.3d 1, 2 (2004). An element of intent is also required: mere good-faith errors in judgment or discretion and unsatisfactory conduct are not misconduct unless of such a degree or recurrence as to manifest culpability, wrongful intent, evil design, or intentional disregard of an employer's interest. Id.
Garrett's application for certification, which she submitted several weeks before the eighteen-month federal deadline expired, was rejected because her employer had incorrectly completed its required portion. The application was resubmitted once the employer corrected the paperwork, but the delay prevented Garrett's receiving a timely test date. The Board found that Garrett was ultimately responsible for not submitting the application in a timely manner, reasoning as follows: "Although the paperwork had to be corrected and resubmitted, the claimant had eighteen (18) months to submit the paperwork," and, as such, her actions were a willful disregard of her employer's interests.
Appellate review is limited to determining whether the Board could reasonably reach its decision upon the evidence before it. White v. Director, 54 Ark. App. 197, 924 S.W.2d 823 (1996). We review the Board's findings in the light most favorable to the prevailing party, reversing only where those findings are not supported by substantial evidence. Ballard v. Dir., Dep't of Workforce Servs., 2012 Ark. App. 371. Issues of credibility of witnesses and weight to be afforded their testimony are matters for the Board to determine. Id.
Here, reasonable minds could agree with the Board's findings that it was Garrett's ultimate responsibility to submit the required paperwork within the eighteen months and that her failure to fulfill this responsibility was a willful disregard of her employer's interest—constituting misconduct that was sufficient to disqualify her from unemployment benefits.
Affirmed.
WYNNE, WHITEAKER, and VAUGHT, JJ., agree.
HARRISON and GLOVER, JJ., dissent.
BRANDON J. HARRISON, Judge, dissenting. This case is before us because of Davita's oversight, not Sharon Garrett's misconduct. Davita told Garrett that she only had to schedule a certification test date within eighteen months of her hire date, and Garrett would have had done so but for Davita's mistake in completing Garrett's application. Given the undisputed material facts this case presents, I would reverse the Board of Review's decision to deny Garrett's claim for benefits. Because the majority has chosen to affirm the Board's denial, I respectfully dissent.
The majority has not cited a case that directly supports its decision. I have not found one either. In fact, had Garrett taken the test under a good-faith effort, failed it, and then been discharged, she would likely have been entitled to receive benefits under existing precedent. Washington Reg'l Center Bd. of Review v. Director, Employment Sec. Dep't., 64 Ark. App. 41, 46, 979 S.W.2d 94, 96 (1998) (employee's failure to pass a certification test was not misconduct). But today the majority affirms the denial of Garrett's claim because she did not procure a test date in the first place—and the reason why she did not do so was due to Davita's error.
As my colleagues correctly point out, Garrett worked as a patient-care technician at Davita. As part of her job requirements, she had to become certified under federal regulatory law within eighteen months of becoming employed at Davita. But Davita, in practice, only required that Garrett schedule a certification test date within that time. When Garrett did not meet the deadline because Davita failed to complete a necessary part of Garrett's application, the company fired her. Garrett then applied for benefits.
The Department of Workforce Services denied the claim. Garrett appealed. During the Appeal Tribunal hearing, Davita's facility administrator, Viola Love-Taylor, and Andrew Rhodes, Davita's director of operations, testified. So did Garrett and another former employee. Love-Taylor told the hearing officer that she reminded Garrett in August 2011 and in early December 2011 about the January 2012 deadline. Love-Taylor also made it clear that Garrett only needed a test date, not actual certification, before the deadline.
Davita did not say that its reminders were part of a disciplinary policy or process. The Appeal Tribunal did not find that Garrett violated any disciplinary policy. In fact, Davita did not raise any other issues regarding Garrett's work-related conduct. The one-time application-process snafu was the sole reason Garrett was fired.
During the hearing Garrett testified that she sent in her application and fee on December 13, 2011, approximately one month before the mid-January 2012 deadline. No one disputed this fact. Garrett's problem arose, as the majority acknowledges, when Davita failed to correctly complete part of the application. Love-Taylor specifically told the hearing officer that she had failed to place the number of hours on the application. It is unclear precisely what "hours" refers to, but the parties understood that the information was vital to the application process. The parties also understood that Davita's omission was the only reason why Garrett did not receive a timely test date.
Hearing Officer: Ms. Garrett indicated earlier that - that that application was returned because it was not completed correctly by you.
Love-Taylor: There was - I filled out one area of the application and they sent it back and said that I did not complete the other - a second area on the application where I needed to put the hours.
Hearing Officer: Okay. Did that hinder her receiving a test date?
Love-Taylor: Yes.
Hearing Officer: Did anything else hinder her for having a test date other than the incomplete application?
Love-Taylor: Not that I know of . . . . Oh, there is one other thing. If [Garrett] could get the certification date, I could have kept her on my schedule for 30 days until she [had] taken her test and not terminated her.
The hearing officer found that Garrett could not pay for the application fee earlier than when she said she could have done so. This is an important finding because the delay in getting a test date was partly caused by some confusion between Garrett and Davita on whether the company or Garrett had to pay the fee. The hearing officer also found that "[Davita] completed the application incorrectly" and, most importantly, that "the application was returned due to [Davita's] failure to complete the form correctly."
The Appeal Tribunal upheld the denial. Garrett then appealed to the Board of Review. The Board adopted the Appeal Tribunal's findings of fact and conclusions of law. It then affirmed the denial of benefits: "Although the paperwork had to be corrected and resubmitted, the claimant had eighteen (18) months to submit paperwork, and the Board finds that the claimant was ultimately responsible for not submitting the application in a timely manner." The denial was based on the misconduct provision in Ark. Code Ann. § 11-10-514(a)(1) (Repl. 2012), which states, "If so found by the Director of the Department of Workforce Services, an individual shall be disqualified for benefits if he or she is discharged from his or her last work for misconduct in connection with the work." Garrett then appealed to this court.
The majority correctly states that we must review the Board's decision in a light most favorable to it. "This is not to say, however, that our function on appeal is merely to ratify whatever decision is made by the Board." Thomas v. Director, 55 Ark. App. 101, 104, 931 S.W.2d 146, 147 (1996); see also Clark v. Director, 83 Ark. App. 308, 311, 126 S.W.3d 728, 730 (2003) ("[W]e are not limited to a 'rubber stamp' review of decisions arising from the Board of Review.") (reversing for benefits and collecting numerous cases where the Board was reversed and benefits awarded).
We have consistently defined misconduct this way:
"Misconduct," for purposes of unemployment compensation, involves: (1) disregard of the employer's interest, (2) violation of the employer's rules, (3)Pacheo v. Director, Employment Sec. Dept., 92 Ark. App. 122, 123, 211 S.W.3d 569, 571 (2005) (reversing to award benefits).
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. 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. Instead, there is an element of intent associated with a determination of misconduct. 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. 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.
There was no misconduct. First, Davita clearly gave Garrett eighteen months to get the test date scheduled. Garrett would have in fact met the deadline but for Davita's error. Second, a technician must apparently wait at least six months before she can even take the certification exam. Third, there was some misunderstanding between Garrett and Davita on who was going to pay for the test. Garrett also had some trouble getting the application fee together, and Davita knew it. She eventually asked someone to loan her the money to cover the application fee. It was undisputed, however, that Garrett submitted the application and fee approximately one month before the deadline. And, as I mentioned earlier, the Board bound itself to the Appeal Tribunal's factual finding that Garrett "did not have the money to pay for the certification" until December 2011.
In my view, the notion that Garrett manifested a wrongful intent or evil design towards Davita is not substantially supported by this record. And there is no credibility dispute given the undisputed facts on which this case turns. Davita expressly agreed during the hearing that its mistake cost Garrett a timely test date. Garrett trusted that Davita would complete her application correctly. That was a good-faith, albeit mistaken, judgment call on Garrett's part. In hindsight, she should have anticipated that Davita might make a mistake during the application process that would take time to correct. We may characterize Garrett's conduct a number of ways, but it cannot be reasonably called misconduct. Further, paying Garrett's claim, on this record, would not offend the purpose of our unemployment-security statutes: "to protect the state unemployment compensation fund against claims of individuals who would prefer benefits to jobs." Garrett v. Cline, 257 Ark. 829, 832, 520 S.W.2d 281, 284 (1975).
Decades ago, this court directed that "the statutory misconduct provision of the Law must be given an interpretation in keeping with that of the declared policy. It should not be so literally construed as to affect a forfeiture of benefits by an employee except in clear instances of misconduct." Willis Johnson Co. v. Daniels, 269 Ark. 795, 800, 601 S.W.2d 890, 893 (Ark. Ct. App. 1980) (internal citations omitted). There was no clear instance of misconduct in this case.
The Board of Review misapplied the governing legal standard of misconduct to this case's core facts, all of which are undisputed. Because we are not reversing the Board's decision and directing the Arkansas Department of Workforce Services to pay Garrett, I respectfully dissent.
GLOVER, J., joins
Sharon Garrett, pro se appellant.
Phyllis Edwards, Associate General Counsel for Artee Williams, Director, Department of Workforce Services.