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Blanton v. Director, Department of Workforce Services

Court of Appeals of Arkansas, Division IV

April 10, 2019

GAYLE BLANTON APPELLANT
v.
DIRECTOR, DEPARTMENT OF WORKFORCE SERVICES, AND SAINT JEAN INDUSTRIES, INC. APPELLEES

          APPEAL FROM THE ARKANSAS BOARD OF REVIEW [NO. 2018-BR-01179]

          Gayle D. Blanton, pro se appellant.

          Phyllis Edwards, Associate General Counsel, for appellee.

          BART F. VIRDEN, JUDGE

         Gayle Blanton appeals from the Arkansas Board of Review's (Board's) decision denying him unemployment benefits. The Board found that Blanton was discharged for misconduct in connection with the work. We hold that substantial evidence does not support the Board's finding of misconduct; therefore, we reverse and remand.

         Board decisions are upheld if they are supported by substantial evidence. Martinez v. Dir., 2015 Ark.App. 717, 478 S.W.3d 276. Substantial evidence is such relevant evidence that reasonable minds might accept as adequate to support a conclusion. Id. We view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board's findings. Id. Even if the evidence could support a different decision, our review is limited to whether the Board could have reasonably reached its decision based on the evidence presented. Id. However, our function on appeal is not merely to rubber stamp Board decisions. Taylor v. Dir., 2018 Ark.App. 442, 558 S.W.3d 420. Whether a claimant undertook an act of misconduct sufficient to prevent the receipt of unemployment benefits is a question of fact. Martinez, supra. In the unemployment-compensation context, misconduct is defined as "(1) disregard of the employer's interests; (2) violation of the employer's rules; (3) disregard of the standards of behavior which the employer has a right to expect of his employees; or (4) disregard of the employee's duties and obligations to the employer." Id. (quoting Moody v. Dir., 2014 Ark.App. 137, at 6, 432 S.W.3d 157, 160). To constitute misconduct, however, there must be the element of intent. Taylor, supra. 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. Id.

         At the September 26, 2018 telephone hearing, Blanton represented himself and presented no other witnesses. Saint Jean Industries, the employer, did not participate. The issue was whether the circumstances of the separation entitled Blanton to unemployment benefits within the meaning of Arkansas Code Annotated section 11-10-513 or -514 (Repl. 2012 & Supp. 2017).

         Blanton testified that he worked as a sweeper/scrubber in Building 1, that he began his employment on July 5, 2017, and that his last day on the job was Friday, July 13, 2018. The following weekend he injured his back, his wife took him to the doctor on Monday (July 16), and he received a steroid shot and a prescription for muscle relaxers. The doctor's note reflected a return-to-work date of July 18. Blanton stated the medications did not work, and the pain seemed to get worse. He called the doctor on Tuesday (July 17); the doctor gave him another prescription and wrote another note, explaining Blanton needed to be off work until Wednesday, July 25. Blanton testified he was not getting any better, so his doctor ordered an MRI, which took place on Tuesday, July 24, and referred him to a neurosurgeon in Little Rock for a steroid shot in his "spine" rather than in his hip.

On July 24, Blanton and his immediate supervisor, Ashley, texted each other:
[From Blanton at 5:11 p.m.:] Hey Buddy, no news yet. Got MRI and say I need to go to a back specialist. Trying to get in to see a Little Rock but haven't called back yet. Don't know how long I will be off, do you need a note from doctor all along or wait till I can come back.
[Ashley's response at 6:51 p.m.:] Ten fo bubba. And I really don't know about the papers and stuff ..... darrin the 1 that okays LOA and stuff like that …

         Blanton explained that his wife works at the same place he did, and she took the first two doctor's notes to his immediate supervisor the day after receiving them. Blanton said Darren was Ashley's boss; Blanton never contacted Darren but believed that Darren knew what was going on.

         Blanton testified that on Monday, July 30, he was released to return to work, but his wife came home that day and told him they hired another guy for his job. He said that this was how he found out he had been fired. He said he called the Human Resources office, and they confirmed he had been replaced.

         He said he then signed up for unemployment and learned two or three weeks later that he had been fired for "no call/no show," which he said was totally wrong. The hearing officer asked him if he had called in each day he was absent, and he repeated that he had talked to Ashley on July 24, never heard back from anybody, and assumed everything was fine and he would just bring in the release note when the doctor told him he could return to work. He explained that he assumed this would be okay ...


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