Burch v. Bassett

Cite as 2016 Ark. App. 456

ARKANSAS COURT OF APPEALS
DIVISION I
No. E-15-649

Opinion Delivered: October 5, 2016
LYDIA BURCH
APPELLANT

V. APPEAL FROM THE ARKANSAS
BOARD OF REVIEW
DARYL BASSETT, DIRECTOR, [NO. 2015-BR-01802]
DEPARTMENT OF WORKFORCE
SERVICES, AND WELDON, WILLIAMS
& LICK, INC.

APPELLEES AFFIRMED

RAYMOND R. ABRAMSON, Judge

Lydia Burch appeals from a decision of the Arkansas Board of Review (Board of

Review) denying her claim for unemployment benefits on account of misconduct in

connection with the work. She argues that the evidence is insufficient to support the finding.

We affirm.

On July 13, 2015, Weldon, Williams & Lick, Inc. (“WWL”), terminated Burch after

she had exceeded the absences allowed for sick leave by WWL’s written attendance policy.

On July 8, 2015, her supervisor advised her to talk to the human resources department (HR)

about the possibility of using intermittent Family Medical Leave Act (FMLA) leave to reduce

ome of her absences. 1 However, she did not immediately do so, and she was discharged for

attendance violations the following week.

1
In 2010, Burch was diagnosed with anal cancer. After successfully completing that
treatment, she was diagnosed with lung cancer and liver cancer the following year.
Cite as 2016 Ark. App. 456

After her termination, Burch timely applied for unemployment benefits; a notice of

agency determination denying benefits was mailed to Burch on August 3, 2015. She then

timely filed a petition for appeal to the Appeal Tribunal on August 6, 2015, and a hearing

was held on September 1, 2015. The Appeal Tribunal denied benefits in a September 2,

2015 decision. The following day, Burch filed a petition for appeal to the Board of Review.

In an October 8, 2015 decision, the Board of Review affirmed the Appeal Tribunal. Burch

appeals to our court now.

On appeal, Burch argues that (1) her illness-related absences do not rise to the level

of misconduct required to deny unemployment benefits; (2) WWL has not presented

substantial evidence that she violated a written policy because WWL did not introduce into

evidence the written policy that it alleges she violated; and (3) even if WWL did have a

written policy, she did not violate the policy because her supervisor had previously stated

in writing that vacation leave could be used without prior approval in special circumstances,

such as illness.

The standard of review to be followed in such cases is clear. We do not conduct a

de novo review in appeals from the Board of Review. Snyder v. Dir., 81 Ark. App. 262, 101

S.W.3d 270 (2003). In appeals of unemployment-compensation cases, we instead review

the evidence and all reasonable inferences deducible therefrom in the light most favorable

to the Board of Review’s findings. Id. The findings of fact made by the Board of Review

are conclusive if supported by substantial evidence; even when there is evidence on which

the Board of Review might have reached a different decision, the scope of judicial review

is limited to a determination of whether the Board of Review could have reasonably reached

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Cite as 2016 Ark. App. 456

its decision based on the evidence before it. Id. If fair-minded persons could reach the Board

of Review’s conclusions on the same evidence, then we must affirm its decision. Id.

Substantial evidence is such evidence as a reasonable mind might accept as adequate

to support a conclusion. Barnard v. Dir., 2013 Ark. App. 143, at 2 (quoting Valentine v. Dir.,

2012 Ark. App. 612, at 3). It is also clear that the credibility of the witnesses and the weight

to be accorded their testimony are matters to be resolved by the Board of Review. Barnard,

supra. Like a jury, an administrative body is free to believe or disbelieve the testimony of

any witness. Gunter v. Dir., 82 Ark. App. 346, 107 S.W.3d 902 (2003).

The employer must prove misconduct by a preponderance of the evidence. Grigsby

v. Everett, 8 Ark. App. 188, 191, 649 S.W.2d 404, 406 (1983). Arkansas Code Annotated

section 11-10-514 provides, in pertinent part,

(a)(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.

Ark. Code Ann. § 11-10-514(a)(2) (Repl. 2015).

Our case law has long interpreted misconduct to include “(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, and (4) disregard of

the employee’s duties and obligations to his employer.” Nibco, Inc. v. Metcalf, 1 Ark. App.

114, 118, 613 S.W.2d 612, 614 (1981). But whether an employee’s behavior is misconduct

that justifies the denial of unemployment benefits is a question of fact for the Board of

Review to decide. Smith v. Dir., 2013 Ark. App. 360. This court affirms the Board of

Review’s decision if it is supported by substantial evidence. Garrett v. Dir., 2014 Ark. 50.

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Here, the only issue presented is the sufficiency of the evidence. From our review

of the record, we conclude that the Board of Review’s findings are supported by substantial

evidence. While we may have great sympathy for Burch, it is not the role of this court to

substitute our judgment for that of the Board of Review even though we might have

reached a different conclusion based on the same evidence. Our review is limited to

determining whether the Board of Review could reasonably reach its results on the evidence

before it. Sadler v. Stiles, 22 Ark. App. 117, 735 S.W.2d 708 (1987).

WWL had a written attendance policy contained in the employer’s handbook.

Burch, who had worked for WWL for over thirty-five years, was aware of the policy. The

policy allowed an employee eighty hours of sick leave in a rolling twelve-month period,

while the vacation leave was for the calendar year. 2 Burch had received prior disciplinary

warnings for attendance in 2005 and 2007; on March 18, 2013; on August 28, 2013, with

a one-week layoff; on June 16, 2014, with a one-week layoff; and on July 8, 2015.

Burch’s argument that her illness-related absences do not rise to the level of

misconduct required to deny unemployment benefits because she did not intentionally

violate the policy is unpersuasive. She relies heavily on Jones v. Director, Department of

Workforce Services, 2014 Ark. App. 426, 439 S.W.3d 86, a case in which this court reversed

the Board’s denial of benefits and found that a lack of a doctor’s note to excuse her illness-

related absence did not constitute misconduct. However, the case at bar is distinguishable

from Jones. In Jones, the appellant was terminated because her employer said she left work

2
At the time of her termination, Burch had approximately forty hours of vacation
leave available to use through December 31, 2015.

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without permission and she failed to return with a doctor’s excuse. In the instant case,

Burch’s intent is irrelevant because she was discharged for absenteeism based on the terms

of “a bona fide written attendance policy, regardless of whether the policy is a fault or no-

fault policy,” just as the statute requires. See Ark. Code Ann. § 11-10-514(a)(2) (Repl.

2015).

On June 16, 2014, Burch acknowledged receiving and understanding the contents

of a warning letter from her employer concerning absences in violation of the company

absence-and-tardiness policy; the letter further went on to state, “[A]ny further violations

of company policy may result in your immediate termination.” Burch signed and dated the

letter, so she clearly knew that WWL had such a policy. Therefore, Burch’s second point

that WWL did not have a written policy because the handbook was not introduced at the

hearing is wholly without merit. Under these circumstances, the existence of the company

handbook that included a written attendance policy was sufficiently proved.

Burch’s third point on appeal—that a supervisor’s email overrides company policy

—also fails. Burch’s supervisor, Ed Sifuentes, sent an email on April 7, 2015, in regard to

vacation time, not sick leave. The email indicated that requests would be approved on a

case-by-case basis. However, Burch did not make the request to HR to use vacation leave

here, nor did she request an application for FMLA leave from HR. Burch’s arguments were

considered by the Board of Review, which found against Burch and upheld the

disqualification.

We must affirm the Board of Review’s decision if it is supported by substantial

evidence. Garrett, supra. Viewing the evidence in the light most favorable to the Board of

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Review’s decision, we conclude there is substantial evidence to support its finding.

Accordingly, we affirm.

Affirmed.

KINARD and GRUBER, JJ., agree.

Taylor & Taylor Law Firm, P.A., by: Andrew M. Taylor and Tasha C. Taylor, for
appellant.

Gregory Ferguson, for appellee.

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