FROM THE ARKANSAS BOARD OF REVIEW [NO. 2017-BR-00242]
Follett, pro se appellant.
Phyllis Edwards, Associate General Counsel, for appellee.
MARK KLAPPENBACH, Judge.
Follett appeals the decision of the Arkansas Board of Review
(Board) denying her unemployment benefits upon finding that
she was discharged for misconduct in connection with the
work. We hold that substantial evidence does not support the
Board's finding of misconduct under Arkansas
unemployment-compensation law. Therefore, we reverse and
was employed by Quality Inn & Suites for two years as a
breakfast attendant. She prepared and served breakfast for
hotel guests. Follett was discharged in December 2016, and
her claim for unemployment benefits was denied by the
Department of Workforce Services. Follett appealed to the
Appeal Tribunal, which found that she was entitled to
benefits, but the Board reversed that decision.
Brewer, the employer's general manager, testified about
the circumstances of Follett's discharge at the hearing
before the Appeal Tribunal, although Brewer was not the
manager during Follett's employment. Brewer gave several
reasons for Follett's discharge: two prior warnings based
on complaints of rude behavior made by guests reviewing the
hotel online; Follett's refusal to sign the second
warning; and a determination that Follett had failed to clean
a milk pitcher. The Board found, however, that Follett
"provided credible testimony that she was not rude and
had not failed to properly clean the milk containers."
Instead, the Board relied on Follett's testimony
"that she felt she was discharged for not signing the
write up regarding the milk containers not being properly
cleaned." The Board found that the refusal to sign the
reprimand constituted misconduct.
review the Board's findings in the light most favorable
to the prevailing party and affirm the Board's decision
if it is supported by substantial evidence. Jones v.
Dir., 2015 Ark. App. 479, 470 S.W.3d 277. Substantial
evidence is such relevant evidence that a reasonable mind
might accept as adequate to support a conclusion.
Id. Even when there is evidence upon which the Board
might have reached a different decision, the scope of our
review is limited to a determination of whether the Board
reasonably could have reached the decision it did based on
the evidence before it. Id. Our function on appeal,
however, is not merely to rubber stamp decisions arising from
the Board. Id.
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. 2015).
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. Jones,
supra. To constitute misconduct, however, there must
be the element of intent. Id. 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 do not constitute misconduct.
Id. There must be an intentional or deliberate
violation, a willful or wanton disregard, or carelessness or
negligence of such degree or recurrence as to manifest
wrongful intent or evil design. Id. It is the
employer's burden to establish misconduct by a
preponderance of the evidence. Rockin J Ranch, LLC v.
Dir., 2015 Ark. App. 465, 469 S.W.3d 368.
there is no reprimand in the record, Follett testified that
she had been asked to sign a paper about her failure to wash
the milk container. She replied that she had washed the
container and would not sign the paper because it was not
true. The two prior warnings issued to Follett and the
guests' complaints upon which the warnings were based are
included in the record. The two warnings state the following:
By signing this form, you confirm that you understand the
information in this warning. You also confirm that you and
your manager have discussed the warning and a plan for
improvement. Signing this form does not necessarily indicate
that you agree with this warning.
warnings contain spaces for the employee and manager to sign
and date the warning and a third space for "Witness
Signature (If employee understands warning, but refuses to
sign)." The first warning is dated February 2, 2016, and
is signed by Follett and a manager. The second warning is
signed only by the manager and is dated September 8, 2016.
Follett testified that she was not aware of the September
complaint and warning. As the Board noted, the corresponding
guest complaint for the September 2016 warning indicates that
the complaint was made in 2015. Although no witness signature
appears on the September 2016 warning, the phrase "but
refuses to sign" is circled.
milk-container warning contained the same language as the
prior warnings, the "witness signature" line shows
that the employer specifically anticipated that employees
would refuse to sign the warning. The employer's list of
"Company Policies" does not contain any policies
about signing warnings; nor was there any testimony that
Follett had ever been informed that refusing to sign would
result in disciplinary action. According to the employer,
Follett had refused to sign such a warning in September 2016,
but she was not terminated at that time and there is no
evidence that she was disciplined for her refusal. Her
refusal to sign the final reprimand was based on her
assertion that it was not ...