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Hopkins v. Director, Department of Workforce Services

Court of Appeals of Arkansas, Division II

February 13, 2019

TAMICA HOPKINS APPELLANT
v.
DIRECTOR, DEPARTMENT OF WORKFORCE SERVICES, AND WYNNE SCHOOL DISTRICT APPELLEES

          APPEAL FROM THE ARKANSAS BOARD OF REVIEW [NO. 2018-BR-00879] REVERSED AND REMANDED

          Tamica L. Hopkins, pro se appellant.

          Phyllis Edwards, Associate General Counsel, for appellee.

          Klappenbach and Whiteaker, JJ., agree.

          BART F. VIRDEN, Judge

         Appellant Tamica Hopkins appeals from the decision of the Arkansas Board of Review (Board), which affirmed and adopted the opinion of the Appeal Tribunal (Tribunal) denying her unemployment benefits on the basis that she was discharged from last work for misconduct connected with the work. Appellant alleges the Board and the Tribunal erred in finding that her firing was for misconduct and therefore finding her disqualified from receiving benefits. We reverse and remand.

         Hopkins was employed by the Wynne School District as a teacher's aide. On June 19, 2018, the school board voted to discharge Hopkins due to her attendance. She was denied unemployment by the Department of Workforce Services (Department) and appealed the denial to the Tribunal, which held a telephone hearing on July 20, 2018.

         Robbie Roach, principal of the junior high school, testified that the school district has an attendance policy, that the school district provided the policy to Hopkins, and that the policy indicates that an employee must "follow the protocol of being absent" and must not be absent over the permitted number of days. Roach further testified that Hopkins had not filed for leave pursuant to the Family Medical Leave Act, that Hopkins had accumulated eighteen and a half absences for the school year as of January 9, 2018, that she had received reprimands regarding her attendance, and that after the reprimands, she was absent an additional thirty-one days. Hopkins also testified, asserting that her absences were all due to personal illness and, therefore, were beyond her control and not willful.

         The Tribunal affirmed the Department's denial of unemployment benefits under Arkansas Code Annotated section 11-10-514(a)(2) (Repl. 2015), finding that Hopkins was discharged for violating the employer's attendance policy. Hopkins timely appealed, and the Board affirmed and adopted the Tribunal's decision. Hopkins now appeals the Board's decision.

         We 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. Wilson v. Dir., 2017 Ark.App. 171, 517 S.W.3d 427. Substantial evidence is such relevant evidence that a reasonable mind might accept as adequate to support the 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 is not merely to "rubber stamp" decisions arising from the Board. Id.

         Arkansas Code Annotated section 11-10-514(a) (Supp. 2017) provides in part:

(a)(1) If so found by the Director of the Department of Workforce Services, an individual shall be disqualified for benefits if he or she is discharged from his or her last work for misconduct in connection with the work.
(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.
(3)(A) Misconduct in connection with the work includes the violation of any behavioral policies of the employer as distinguished from deficiencies in meeting production ...

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