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Fowlkes v. Director, Department of Workforce Services

Court of Appeals of Arkansas, Division III

February 1, 2017




          Robert S. Tschiemer, for appellant.

          Phyllis A. Edwards, for appellee.

          ROBERT J. GLADWIN, Judge

         Blake Fowlkes appeals the denial of his application for unemployment benefits, asserting four points on appeal: (1) the Arkansas Board of Review ("Board") erred in concluding that Fowlkes quit his job; (2) Fowlkes's action did not constitute misconduct and did not preclude an award of benefits; (3) the Board erred in concluding that Fowlkes was not available for work; and (4) the Board erred in finding that Fowlkes's delay in filing his initial claim was without good cause or due to extraordinary circumstances. We affirm.

         I. Facts

         On December 14, 2015, Fowlkes filed an application for unemployment-insurance benefits with appellee Daryl Bassett, Director, Arkansas Department of Workforce Services ("Department"). He stated that he had last worked for WK Contractors, Inc. ("WK"), on October 20, 2015, and that he was discharged for "general" reasons. He also noted that he was not eligible to return to work immediately. However, on a separate but identical form, Fowlkes indicated that he was available for work immediately. WK responded to the notice, alleging that Fowlkes quit for "general" reasons and that he was discharged for "insubordination."

         In an "Able and Available-Claimant Statement, " Fowlkes asserted that he was not able or available for work beginning October 20, 2015, through November 18, 2015, because of childcare/other dependent-care arrangements and a death in the family. He stated that his brother had died on October 23, 2015, and that he would not have reported to work during the time indicated if work had been available. In a "Backdating-Claimant Statement, " Fowlkes requested backdating his claim filed on December 14, 2015, to October 24, 2015, through the week ending December 12, 2015, indicating that his brother and his father had died within "a couple of weeks of each other."

         Fowlkes filed unemployment-benefit claims for the following weeks, stating that he had not been able and available to work during each of the following weeks in 2015: October 24; October 31; November 7-14; November 14-21; and November 21-28. However, for his claim for the weeks of November 28-December 5, December 5-12, and December 12-19, he indicated that he had been able and available to work.

         Fowlkes was denied benefits because he was "away from [the] labor market for personal reasons and [was] not available for suitable work." Fowlkes appealed to the Arkansas Appeal Tribunal, and a telephone hearing was held on January 25, 2016. Fowlkes testified that he was terminated from his job as an equipment operator; his work included performing labor, pouring concrete and finishing it; and he last worked for WK on October 20, 2015. He said,

My brother died October 26, and then on November 18, about a month later, my dad died of cancer, and I was helping take care of them. There is other stuff more important at the time, and I began looking for a job soon after November 26. It was not until a couple of weeks later that I applied or verbally spoke to people about jobs, in applying for the job, but no one is hiring in my positions during the winter.
I did not keep working for WK because I was fired. We had gotten in an argument . . . he was belittling one of my coworkers that morning, and I stepped in since I did not like the way he was talking to him. Andy Kelly was one of my bosses. WK stands for Chad Wyatt and Andy Kelly. Andy Kelly was belittling one of my coworkers, and I kind of stepped in and said, there is no reason to be talking to him like that. He turned on me and started cursing at me, and we were outside. Chad Wyatt, the other boss, was trying to cool things down with Andy Kelly and told us to all come in the office. We went in the office and we were talking over the situation and everything was fine, and Andy Kelly started cursing me again, and I said, I am out of here.
I just walked out of the office and was going to let him cool down and come back later. I had a company truck and on my way to the truck, he said, just leave your "f'ing truck, " and I took it that I was terminated, so I got my personal stuff out of the truck and started walking. I tried to call them later that week, but no one answered. Then, a coworker brought me my last two checks, so I took it that I was fired. No one told me I was fired. I did not tell anyone that I was quitting. When I walked out of the office, I was just going to leave the situation since I was getting cursed and I did not appreciate the way I was being talked to. I was going to let him cool down and come back. I was going to leave in the truck and come back. I did not ask to leave. I was not told I could leave. I was not told to leave. I did not ask why when they said to leave the truck. I just walked to my truck, and no one came outside and tried to stop me. I was just getting my personal things out of the truck. . . . .
I filed my initial claim on December 14. I did not file it sooner although I had not been working since October 20, because I was dealing with my dad and brother dying and things that were more important, as I thought I had worked for these people for eight years, and my work was never unsatisfactory until now, I guess, I do not know. . . . .
When I filled out the application on December 14, and a question asked if I could begin working immediately and I answered no, I think we went back and changed that because Ms. Lomerson had told me the same thing that I could begin work immediately, and I think she had me change that because I misunderstood the question. I did not understand what it was talking about after the other questions about the situation, with my dad and stuff. This was the time I was helping my dad and everything was going back and then I was able to work then, and before that is when I had meant to put no, I could not go back to work immediately and she changed that from that date on that I could go to work immediately. I talked to a couple of people verbally about jobs before I filed my unemployment claim, but no one was hiring, and I do not know the dates I did so.

         After the hearing, the administrative law judge ("ALJ") found that Fowlkes voluntarily left his work without good cause connected with the work. Further, the ALJ found that Fowlkes was not available for suitable work, and he had not shown good cause for delay in filing an initial claim. Fowlkes appealed to the Board, which affirmed the ALJ's denial. The Board found as follows:

Here, the claimant's testimony indicated that another party (the other owner) had already "cooled things down" by the time the claimant left work. By leaving work, the claimant failed to give the employer an opportunity to resolve any continuing problems. As such, the claimant did not take appropriate steps to prevent any alleged mistreatment from continuing and thus has not proven by a preponderance of the evidence that he left ...

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