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2020 Ark. App. 138
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ARKANSAS COURT OF APPEALS
Date: 2021-07-01 11:27:17
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DIVISION II
No. E-19-254
BETTY DILLINGER Opinion Delivered: February 26, 2020
APPELLANT
APPEAL FROM THE ARKANSAS
V. BOARD OF REVIEW
[NO. 2019-BR-00954]
DIRECTOR, DEPARTMENT OF
WORKFORCE SERVICES, AND
BELK
APPELLEES REVERSED AND REMANDED
RAYMOND R. ABRAMSON, Judge
Betty Dillinger appeals the Arkansas Board of Review’s decision denying her claim
for unemployment benefits on a finding that she was discharged for misconduct in
connection with the work. We reverse and remand for an award of benefits.
Dillinger worked for Belk as a salesperson. From November 9, 2018, to January 28,
2019, Dillinger was on leave under the Family Medical Leave Act (FMLA) for pneumonia.
She returned to work after January 28; however, on February 21, she informed Belk that
she needed to reinstate her FMLA leave because she was sick again. On February 23,
Dillinger reported to the human-resources office that her condition had worsened and that
she had been hospitalized with the flu. Dillinger was placed on a ventilator and underwent
a tracheotomy. While Dillinger was in the hospital, Belk sent her letters informing her that
she needed to contact Belk, and if she failed to do so, her employment would end. Belk
received confirmation that Dillinger received the first notification by certified mail. On
April 27, Dillinger was released from the hospital. On May 3, Dillinger contacted Belk, and
Belk informed her that her employment had ended for failing to maintain contact and not
returning to work.
Thereafter, Dillinger applied for unemployment benefits, and the Department of
Workforce Services (Department) issued a notice of agency determination finding that
Dillinger was disqualified from benefits pursuant to Arkansas Code Annotated section 11-
10-513(b) (Repl. 2012) for voluntarily leaving her last work without good cause and
without making reasonable efforts to preserve her job rights. Dillinger appealed the decision
to the Arkansas Appeal Tribunal (Tribunal). The Tribunal held a hearing and affirmed the
Department.
Dillinger appealed the Tribunal’s decision to the Board. Following a hearing, the
Board issued a decision modifying the Tribunal’s decision and finding that Dillinger was
disqualified from receiving benefits because she was discharged from her last work for
misconduct pursuant to Arkansas Code Annotated section 11-10-514 (Supp. 2019).
Specifically, the Board stated,
While the claimant testified that she could not contact the employer due to
her being given a tracheotomy, the employer presented testimony that it would have
accepted a text message, a letter, or a phone call from a family member as evidence
of the claimant’s intent to continue her employment. The preponderance of the
evidence indicates that the employer’s first letter to the claimant instructing her to
contact the employer by April 16, 2019, was received, and the claimant did not
respond to the employer’s letters until such time as she received a letter indicating
that she was being separated from employment. As such, it is more likely than not
that the claimant was aware of the need to contact the employer but opted not do
so until she received the separation letter. By failing to maintain contact with the
employer, the claimant demonstrated a willful disregard of duties and obligations
owed to the employer.
Therefore, the claimant was discharged from last work for misconduct in
connection with the work.
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Dillinger appealed the Board’s decision to this court.
Our standard of review in unemployment-insurance cases is well settled. We do not
conduct de novo reviews in appeals from the Board. West v. Dir., 94 Ark. App. 381,
231
S.W.3d 96 (2006). Instead, we review the evidence and all reasonable inferences deducible
therefrom in the light most favorable to the Board’s findings of fact. Rockin J Ranch v.
Dir.,
2015 Ark. App. 465,
469 S.W.3d 368. The Board’s findings of fact are conclusive if
supported by substantial evidence, which is such relevant evidence that a reasonable mind
might accept as adequate to support a conclusion.
Id. Even when there is evidence
upon which the Board might have reached a different decision, the scope of judicial review
is limited to a determination of whether the Board could have reasonably reached the
decision rendered based on the evidence presented.
Id. Credibility calls are for the finder of
fact, as is the weight to be accorded to testimony.
Id.
A claimant is disqualified from receiving unemployment benefits if the claimant is
discharged from her last work for misconduct in connection with the work. Ark. Code
Ann. § 11-10-514(a) (Repl. 2012). Misconduct includes the violation of any behavioral
policies of the employer, disregard of the employer’s rules, disregard of the standards of
behavior that the employer has a right to expect from its employees, and disregard of the
employee’s duties and obligations to the employer. Rockin J Ranch,
2015 Ark. App. 465,
469 S.W.3d 368; Cook v. Dir.,
2009 Ark. App. 454; Nibco v. Metcalf,
1 Ark. App. 114,
613
S.W.2d 612 (1981).
Our case law has long interpreted misconduct in this context not to be ordinary
negligence, good-faith errors in judgment or discretion, or mere unsatisfactory conduct
unless they are of such a degree or recur so often as to manifest wrongful intent, evil design,
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or an intentional disregard of the employer’s interests. Maxfield v. Dir., 84 Ark. App. 48,
129 S.W.3d 298 (2003). It is the employer’s burden to establish misconduct by a
preponderance of the evidence. Jones v. Dir.,
2014 Ark. App. 426,
439 S.W.3d 85. Whether
an employee’s behavior is misconduct that justifies the denial of unemployment benefits is
a question of fact for the Board to decide.
Id. There is an element of intent associated with
a determination of misconduct. Clark v. Dir.,
83 Ark. App. 308,
126 S.W.3d 728 (2003).
Having reviewed the evidence in this case, we cannot conclude that the Board’s
finding is supported by substantial evidence. The Board found that Dillinger’s failure to
maintain contact with Belk demonstrated a willful disregard of duties and obligations owed
to Belk. However, the evidence shows that Dillinger notified Belk that she could not work
due to her illness and hospitalization, and she remained hospitalized for over two months
where she was placed on a ventilator and underwent a tracheotomy. Belk sent Dillinger the
notification letters during her hospitalization, and Dillinger contacted Belk shortly after she
had been discharged. We hold that a reasonable mind would not accept this evidence as
adequate to support the conclusion that Dillinger’s conduct was of such a degree or
recurrence as to manifest culpability, wrongful intent, evil design, or an intentional or
substantial disregard of her employer’s interests or her duties and obligations. We therefore
reverse the Board’s decision and remand the case for an award of benefits.
Reversed and remanded.
GLADWIN and BROWN, JJ., agree.
Betty Dillinger, pro se appellant.
Phyllis Edwards, Associate General Counsel, for appellee.
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