FROM THE ARKANSAS BOARD OF REVIEW [NO. 2018-BR-01179]
D. Blanton, pro se appellant.
Phyllis Edwards, Associate General Counsel, for appellee.
F. VIRDEN, JUDGE
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.
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.
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.
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 …
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.
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 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 ...