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McCuller-Silverman v. Director, Department of Workforce Services

Court of Appeals of Arkansas, Division II

November 8, 2017

SHARON MCCULLER-SILVERMAN APPELLANT
v.
DIRECTOR, DEPARTMENT OF WORKFORCE SERVICES, AND TRINITY VILLAGE, INC. APPELLEES

         APPEAL FROM THE ARKANSAS BOARD OF REVIEW [NO. 2016-BR-01705]

          Cross & Kearney, PLLC, by: Jesse L. Kearney, for appellant.

          Phyllis Edwards, for appellee.

          KENNETH S. HIXSON, JUDGE.

         Appellant, Sharon McCuller-Silverman, appeals from an order mailed by the Arkansas Board of Review (Board) on December 7, 2016, denying the claimant benefits in favor of appellees, Daryl Bassett, director of the Department of Workforce Services (Department), and Trinity Village, Inc. (Trinity Village). On appeal, appellant's arguments can be summarized as (1) the Board exceeded its authority and abused its discretion in reviewing the decision of the Arkansas Appeal Tribunal (Tribunal), (2) substantial evidence does not support the Board's findings, and (3) the Tribunal's decision that appellant should repay benefits that were paid to her was premature and unfounded. We affirm.

         Appellant was employed by Trinity Village as an administrator for assisted living prior to her termination. After she applied for unemployment-compensation benefits, Trinity Village filed a statement that appellant had been discharged for insubordination, specifically stating the following:

1. A#54[[1] Ms. Silverman not only failed to promptly initiate the protocols and actions necessary to address the deficiencies from the May 2-4, 2016 Assisted Living survey, but on 6/27/2016 refused to complete and sign the plan of correction. This is the Administrator's responsibility.
2. A#57 As Assisted Living Administrator, it is Ms. Silverman's responsibility to review, monitor, and utilize her departmental financial and budget reports as a primary tool in the management of her area. On 6/22/2016 she stated to me that they did not make sense to her and did not tell her anything, so she puts them straight in the shredder. I have personally instructed her in the interpretation and use of these reports on numerous occasions.
3. B#37 Ms. Silverman informed at least one staff member of the fiscal year end unaudited net income of Trinity Village. It was made clear by me in the staff meeting with only department managers, during which she was present that this was not to be repeated outside the meeting. Ms. Silverman also informed the same staff member as well as at least one additional staff member that she had a meeting with another manager where the manager shook her finger in her face. This is a confidential personnel issue that should not have been discussed.
4. A#34 Ms. Silverman exhibited anger and even hostility to a nurse aide in her department when discussing a possible worker's compensation injury. She was confrontational and exhibited a lack of good judgment in dealing with a sensitive issue.
5. B#23 With no proof, Ms. Silverman has stated to me and at least one other employee that another Trinity Department Manager "slashed her tires." This is a malicious statement with no substantiation.
6. B#34 Ms. Silverman frequently handles herself in an argumentative, accusatory, unprofessional manner with fellow managers as well as the assisted living staff, thus creating an unacceptable and frequently hostile environment.

         Appellant also filed a statement. In her statement, appellant denied that she was fired for insubordination. Instead, she claimed the following:

I know they said I was fired for refusal to do an action plan but that is not true, the executive director told me that she was going to write it. She did tell me in the future that she wanted the administrators to write them from now on and I told her I would be hap[p]y to. I had a supervisor threaten me and yell and point her finger in my face. It cause[d] me to have an anxiety attack. My blood pressure spiked and my Dr[.] put me on a new anxiety medication and bp medication. I went to EEOC due to the supervisor threatening me. I did it for my own protection. My Doctor put me off work through 07/11/16. I went back to work on the 11th was there for 30 minutes and was called into the conference room, with Donna Stone and their attorney. Donna told me I was being terminated due to insubordination and I said for what. I didn't do anything. Then the attorney told me they would offer me 3 months of severance plus a neutral ...

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