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Welch v. Director, Department of Workforce Services

Court of Appeals of Arkansas, Division I, II

October 30, 2019



          Shatarra N. Welch, pro se appellant.

          Phyllis Edwards, for appellee.


         Shatarra Welch appeals from the finding of the Arkansas Board of Review that she is disqualified from receiving unemployment benefits. The Board found that Welch voluntarily left her employment at Motel 6 without good cause connected with the work. Because this finding is not supported by substantial evidence, we reverse and remand.

         On appeal, we review the findings of the Board in the light most favorable to the prevailing party, reversing only when the Board's findings are not supported by substantial evidence. Davis v. Dir., 2013 Ark.App. 515. Substantial evidence is such evidence that a reasonable mind might accept as adequate to support a conclusion. Id. Even when there is evidence on which the Board might have reached a different decision, the scope of our judicial review is limited to a determination of whether the Board could reasonably reach its decision on the evidence before it. Id. Issues of credibility of the witnesses and weight to be afforded their testimony are matters for the Board to determine. Id.

         Although the employer did not appear at the hearing before the Appeal Tribunal, the evidence submitted below by both the employer and Welch demonstrates that she was discharged and did not quit. The "discharge" form submitted by the employer states that Welch was discharged for "absence, tardy, no-call no-show, unreliable" and provides that the "final decision" was made on October 8. The employer also submitted two letters that both state Welch was "terminated due to reliability issues." One letter provides a timeline of Welch's attendance at work from October 1 to October 8 and states that "[i]n addition to above the employee used to be late to come to work quite often and due to these problems we decided to terminate the employee." The letter goes on to note that Welch reached out to one of the employer's front-desk staff on October 12, that the employer offered to meet with her, and that Welch said she could not come to the motel during the offered times. The letter states that "[i]f she wanted to be reconsidered she could have made an effort to come during daytime and speak to the owner."

         As with the employer, Welch submitted a form below stating that she was discharged for absenteeism on October 8. She wrote on the form and testified at the hearing that she received a text message from the manager on October 8 telling her "do not return to work." Welch testified that an employee who was not a member of management later proposed that Welch come in between 3:00 and 4:00 p.m. on October 12. Welch did not go because a manager had already told her not to return, and the employee did not tell her that she had spoken to management on Welch's behalf.

         Arkansas Code Annotated section 11-10-513(a)(1) (Repl. 2012) provides that an individual shall be disqualified for benefits if she voluntarily and without good cause connected with the work left her last work. The Board found that Welch did not show a good-faith effort to remain employed because she refused to meet with the owner to discuss her return to work after the October 12 communication. This finding is not supported by substantial evidence because the evidence shows that Welch had already been discharged by October 12. Both Welch and the employer stated that she was discharged on October 8; thus, her failure to meet with the employer after October 12 to be "reconsidered" is irrelevant. Accordingly, we reverse and remand for the Board to determine whether the circumstances of Welch's discharge entitle her to benefits in accordance with Arkansas Code Annotated section 11-10-514 (Supp. 2017).[1]

         Reversed and remanded.

          Abramson, Gladwin, Whiteaker, and Hixson, JJ., agree.

          Waymond M. Brown, Judge, dissenting.

         For the following reasons, I must dissent from the majority's decision to reverse and remand without an order for additional evidence to be reviewed by the Board. The plain text of Arkansas law provides that additional evidence may be ordered before the Board so that it may modify its findings of fact or conclusions.

         On her appeal to this court, Welch provided additional text messages as evidence that she had been discharged by her employer and that she had not voluntarily left her workplace. The additional text messages, dated October 8, 2018, were from her employment manager. The manager sent these messages after Welch's daughter had informed the manager that Welch would be absent from work on that day. The first message stated, "So I am aware that you won't be coming to sign the termination ...

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