FROM THE ARKANSAS BOARD OF REVIEW [NO. 2016-BR-01538]
Ragon Owen, P.A., by: Peter D. Mann, for appellant.
Phyllis Edwards, for appellee.
D. VAUGHT, JUDGE.
Brown appeals the Arkansas Board of Review's (the Board)
decision affirming the Appeal Tribunal's denial of her
request for unemployment benefits based on its finding that
she was discharged from her last work for misconduct in
connection with that work. We affirm.
was a professor at Pulaski Technical College (Pulaski Tech)
in Little Rock for approximately twelve years prior to her
termination. For the majority of that time, she received
excellent performance evaluations. In July 2015, she
requested and was approved for intermittent leave under the
federal Family Medical Leave Act (FMLA) to be taken as
needed, one to two days at a time, once or twice a month.
Brown testified that she suffers from serious health
conditions including anxiety, major depression, and
stress-related gastrointestinal pain.
2015, numerous students complained about Brown, alleging that
she was not on campus during required office hours, did not
respond to student emails in a timely manner, and failed to
post grades within a reasonable amount of time. Brown then
used a class period to request that her students write
letters to the dean to support her. On November 3, 2015,
Brown received written warnings for addressing the grievances
in class and changing the format of her class from an
on-campus course to an online course without prior approval.
In December and January, Brown received verbal counseling
about the deficiencies that had led to the student
complaints. Brown's direct supervisor, Rebecca Sterling,
observed one of Brown's classes and found it
unsatisfactory. The observation occurred on the
fourth class meeting of the semester, but Brown
was still going over the syllabus with her students and had
not yet begun to teach substantive material. The evidence
also revealed that Brown had a pattern of failing to respond
to emails and meeting requests, responding in an untimely
manner, and responding in an unacceptable way.
received verbal counseling on December 11, 2015, and January
11, 2016. On February 12, 2016, Brown received a written
counseling record that formally placed her on a performance
improvement plan (PIP) that required her to submit weekly
lesson plans to her supervisor for approval, designate and
adhere to specific on-campus office hours, and promptly and
courteously respond to all communications from her
supervisor. In both the hearing testimony and the appellate
briefs, Brown and the representatives of Pulaski Tech
repeatedly referred to Brown's status under the PIP as
being "on probation." Brown appealed her probation
to the school's vice president for learning, Mary Ann
Shope, who denied the appeal.
after Brown had been placed on probation, Pulaski Tech
received a faxed note hand-written on a physician's
prescription pad stating that Brown would not be working
until further notice. Her supervisor testified that at
approximately this time, Brown would soon run out of FMLA
leave time but did have paid sick leave available. Brown did
not return to work and did not respond to calls, emails, and
certified letters from Pulaski Tech requesting additional
information about her medical need for leave, which Pulaski
Tech sought because she was originally approved for
intermittent leave and was taking prolonged continuous leave.
Neither Brown nor her doctor ever advised Pulaski Tech when
or if Brown would be able to return to work. In late April,
Pulaski Tech sent Brown a certified letter informing her that
when her current contract expired in late May, it would not
be renewed. Brown acknowledged receipt of that letter
(although she claims that she never received the previous
certified letters Pulaski Tech had sent to her at the same
address requesting additional information about her FMLA
leave), and she emailed Pulaski Tech objecting to her
applied for unemployment benefits from the Arkansas
Department of Workforce Services (Department) and was denied
based on findings that she had been terminated due to
misconduct related to her work and that she was unable to
perform suitable work. The Appeal Tribunal affirmed the
finding of misconduct but reversed as to whether Brown was
able to perform suitable work. The Board affirmed the finding
that Brown was ineligible for benefits because she had been
terminated from her last work for misconduct related to the
work. This appeal follows.
court has set forth the standard of review in unemployment
On appeal, the findings of fact of the Board of Review are
conclusive if they are supported by substantial evidence.
Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion. We review the evidence and all reasonable
inferences deducible therefrom in the light most favorable to
the Board's findings. Even when there is evidence upon
which the Board might have reached a different decision, the
scope of judicial review is limited to a determination of
whether the Board could reasonably reach its decision upon
the evidence before it.
Rivas v. Dir., 2013 Ark.App. 91, at 1-2.
appeal, Brown argues that there was insufficient evidence to
support the finding that she was terminated for misconduct
related to her work. A claimant is disqualified from
receiving unemployment benefits if the claimant is discharged
from his or her last work for misconduct in connection with
the work. Ark. Code Ann. § 11-10-514(a) (Repl. 2012).
Misconduct includes the violation of any behavioral policies
of the employer, disregard of the employer's rules,
disregard of the standards of behavior that the employer has
a right to expect from its employees, and disregard of the
employee's duties and obligations to his or her employer.
McAteer v. Dir., 2016 Ark.App. 52, at 4, 481 S.W.3d
776, 779; Nibco v. Metcalf, 1 Ark.App. 114, 613
S.W.2d 612 (1981). Our case law has long interpreted
misconduct in this context not to be ordinary negligence,
good-faith errors in judgment or discretion, or mere
unsatisfactory conduct, unless they are of such a degree or
recur so often as to manifest wrongful intent, evil design,
or an intentional disregard of the employer's interests.
Maxfield v.Dir., 84 Ark.App. 48, 129
S.W.3d 298 (2003). It is the employer's burden to
establish misconduct by a preponderance of the evidence.