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Hubbard v. Director, Department of Workforce Services

Court of Appeals of Arkansas, Division III

April 15, 2015

KAREN HUBBARD, APPELLANT
v.
DIRECTOR, DEPARTMENT OF WORKFORCE SERVICES, and WALMART, APPELLEES

Page 295

APPEAL FROM THE ARKANSAS BOARD OF REVIEW. NO. 2014-BR-02063.

Karen Hubbard, Pro se appellant.

Phyllis Edwards, Associate General Counsel, for appellee.

M. MICHAEL KINARD, Judge. ABRAMSON and VAUGHT, JJ., agree.

OPINION

Page 296

M. MICHAEL KINARD, Judge

Appellant Karen Hubbard appeals from the Arkansas Board of Review (Board) decision denying her unemployment benefits upon finding that she was discharged from her last work for misconduct in connection with the work.[1] On appeal, Hubbard argues that the Board's decision is not supported by substantial evidence. We agree and reverse this finding. The Board's decision also found that Hubbard was not eligible for benefits from May 11, 2014, through August 5, 2014, under Arkansas Code Annotated section 11-10-507(3)(A) (Repl. 2012) because she was not available to perform suitable work due to a childcare situation. Hubbard does not challenge this portion of the decision, and the denial of benefits for these weeks is affirmed.

Hubbard was employed as a customer-service associate at Walmart for over seven years until she was discharged in May 2014 for selling alcohol to a customer prior to 7:00 a.m. in violation of company policy. Paula Burns, the store manager, testified that Hubbard had received training regarding the company's policies on the sale of alcohol. Hubbard was working the self-checkout line the day of the incident and testified that this was her first time working before 7:00 a.m. as a cashier since the store had started selling alcohol. When a customer attempting to purchase beer scanned the item, the register displayed a message stating that the " item cannot be found." Hubbard called a supervisor for assistance. When no one came to assist her and the line behind the customer grew, Hubbard decided to manually key in the price of the beer and complete the sale. She testified that she considered the fact that the customer was not a minor and that it was not a day when alcohol sales were prohibited; she thought that the barcode was simply not scanning correctly. Shortly thereafter, a supervisor arrived and informed Hubbard that the beer did not scan because it was not yet 7:00 a.m. Hubbard refunded the purchase price and retrieved the beer before the customer left the store.[2]

Burns testified that Hubbard manually overrode the safeguard in place to prevent the sale of alcohol at certain times. Hubbard testified that the register did not indicate that the item could not be sold, but instead informed her that the item was

Page 297

not found. Hubbard said that any item in the store will generate this message if the barcode is not working properly. The Board concluded that Hubbard had committed an " intentional violation of the employer's known and reasonable rules" and was discharged for misconduct.

A person shall be disqualified from receiving unemployment benefits if it is determined that the person was discharged from his or her last work for misconduct in connection with the work. Ark. Code Ann. § 11-10-514(a)(1) (Supp. 2013). The employer has the burden of proving by a preponderance of the evidence that an employee engaged in misconduct. Spencer v. Director, 2014 Ark.App. 479. " 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. Id.

Our appellate jurisprudence makes clear that to constitute misconduct, there must be the element of intent. Id. 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 errors in judgment or discretion. Id. To constitute misconduct, there must be an intentional or deliberate violation, a willful or wanton ...


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