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Burch v. Bassett

Court of Appeals of Arkansas, Division I

October 5, 2016

LYDIA BURCH APPELLANT
v.
DARYL BASSETT, DIRECTOR, DEPARTMENT OF WORKFORCE SERVICES, AND WELDON, WILLIAMS & LICK, INC. APPELLEES

         APPEAL FROM THE ARKANSAS BOARD OF REVIEW [NO. 2015-BR-01802]

          Taylor & Taylor Law Firm, P.A., by: Andrew M. Taylor and Tasha C. Taylor, for appellant.

          Gregory Ferguson, for appellee.

          RAYMOND R. ABRAMSON, Judge

         Lydia Burch appeals from a decision of the Arkansas Board of Review (Board of Review) denying her claim for unemployment benefits on account of misconduct in connection with the work. She argues that the evidence is insufficient to support the finding. We affirm.

         On July 13, 2015, Weldon, Williams & Lick, Inc. ("WWL"), terminated Burch after she had exceeded the absences allowed for sick leave by WWL's written attendance policy. On July 8, 2015, her supervisor advised her to talk to the human resources department (HR) about the possibility of using intermittent Family Medical Leave Act (FMLA) leave to reduce one of her absences.[1] However, she did not immediately do so, and she was discharged for attendance violations the following week.

         After her termination, Burch timely applied for unemployment benefits; a notice of agency determination denying benefits was mailed to Burch on August 3, 2015. She then timely filed a petition for appeal to the Appeal Tribunal on August 6, 2015, and a hearing was held on September 1, 2015. The Appeal Tribunal denied benefits in a September 2, 2015 decision. The following day, Burch filed a petition for appeal to the Board of Review. In an October 8, 2015 decision, the Board of Review affirmed the Appeal Tribunal. Burch appeals to our court now.

         On appeal, Burch argues that (1) her illness-related absences do not rise to the level of misconduct required to deny unemployment benefits; (2) WWL has not presented substantial evidence that she violated a written policy because WWL did not introduce into evidence the written policy that it alleges she violated; and (3) even if WWL did have a written policy, she did not violate the policy because her supervisor had previously stated in writing that vacation leave could be used without prior approval in special circumstances, such as illness.

         The standard of review to be followed in such cases is clear. We do not conduct a de novo review in appeals from the Board of Review. Snyder v. Dir., 81 Ark.App. 262, 101 S.W.3d 270 (2003). 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. Id. The findings of fact made by the Board of Review are conclusive if supported by substantial evidence; even when there is evidence on which the Board of Review might have reached a different decision, the scope of judicial review is limited to a determination of whether the Board of Review could have reasonably reached its decision based on the evidence before it. Id. If fair-minded persons could reach the Board of Review's conclusions on the same evidence, then we must affirm its decision. Id.

         Substantial evidence is such evidence as a reasonable mind might accept as adequate to support a conclusion. Barnard v. Dir., 2013 Ark.App. 143, at 2 (quoting Valentine v. Dir., 2012 Ark.App. 612, at 3). It is also clear that the credibility of the witnesses and the weight to be accorded their testimony are matters to be resolved by the Board of Review. Barnard, supra. Like a jury, an administrative body is free to believe or disbelieve the testimony of any witness. Gunter v. Dir., 82 Ark.App. 346, 107 S.W.3d 902 (2003).

         The employer must prove misconduct by a preponderance of the evidence. Grigsby v. Everett, 8 Ark.App. 188, 191, 649 S.W.2d 404, 406 (1983). Arkansas Code Annotated section 11-10-514 provides, in pertinent part,

(a)(2) In cases of discharge for absenteeism, the individual shall be disqualified for misconduct in connection with the work if the discharge was pursuant to the terms of a bona fide written attendance policy, regardless of whether the policy is a fault or no-fault policy.

Ark. Code Ann. § 11-10-514(a)(2) (Repl. 2015).

         Our case law has long interpreted misconduct to include "(1) disregard of the employer's interests, (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." Nibco, Inc. v. Metcalf, 1 Ark.App. 114, 118, 613 S.W.2d 612, 614 (1981). But whether an employee's behavior is misconduct that justifies the denial of unemployment benefits is a question of fact for the Board of Review to decide. Smith v. ...


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