Cite as 2023 Ark. App. 101 ARKANSAS COURT OF APPEALS DIVISION I No. E-22-230
ARIA LAMBERT APPELLANT Opinion Delivered February 22, 2023
V. APPEAL FROM THE ARKANSAS BOARD OF REVIEW DIRECTOR, DIVISION OF [NO. 2021-BR-04943] WORKFORCE SERVICES; AND CENTENE MANAGEMENT COMPANY APPELLEES REVERSED AND REMANDED
KENNETH S. HIXSON, Judge
Appellant Aria Lambert appeals from a decision of the Arkansas Board of Review
(Board) denying her unemployment benefits. She contends that substantial evidence does
not support the Board’s conclusion that she is disqualified from receiving benefits based on
the Board’s finding that she was discharged from her last work for misconduct connected
with the work. Alternatively, Lambert argues that error occurred because she was not
permitted to compel production of her personnel file. To determine whether Lambert was
discharged for misconduct under the circumstances presented herein, we conclude that it
was necessary to issue a subpoena to compel production of her personnel file. Therefore, we
reverse and remand for further proceedings.
On appeal of an unemployment-compensation case, we review the evidence and all
reasonable inferences deducible therefrom in the light most favorable to the Board’s findings. Jones v. Dir., 2019 Ark. App. 341, 581 S.W.3d 516. The Board’s findings of fact
are conclusive if supported by substantial evidence. Id. Substantial evidence is evidence a
reasonable mind might accept as adequate to support a conclusion. Id.
After Lambert was terminated form her employment at Centene Management
Company (Centene), she filed for unemployment benefits. The agency denied Lambert’s
claim because it found that Lambert was discharged as a direct result of her intentional poor
job performance. Lambert appealed to the Appeal Tribunal, and in advance of the hearing,
she filed a written request for a subpoena to be issued ordering Centene to produce a
complete copy of her personnel file, including all internal administrative complaints against
her. The Appeal Tribunal denied Lambert’s request.
Lambert testified at the hearing, but Centene did not appear. Lambert testified that
she began working for Centene as a concurrent medical review nurse in July 2019. Centene
is a health-insurance provider1 that operates multiple lines of businesses, including Arkansas
Total Care, Ambetter, and Allwell. Each line of business reviews different types of requests
for medical treatment to determine whether the treatment is medically necessary and,
therefore, a covered expense under the respective insurance policy. The Arkansas Total Care
line generally reviews requests for approval for medical treatment for patients in intermediate
care facilities who have mental disabilities and/or special needs. These reviews are manually
1 Due to the limited documentation submitted by Centene, it is unclear whether Centene is actually a health-insurance provider or a third-party review company that services health-insurance providers. For the purpose of this opinion the difference, if any, is not relevant.
2 performed. The Ambetter line generally reviews requests for approval for medical treatment
for patients from a larger population of patients with a wide range of diagnoses different
from the limited Arkansas Total Care line patients. The Ambetter reviews are generally
performed using a computer software program. The record does not disclose what types of
reviews were generated by the Allwell line. As a review nurse for the Arkansas Total Care
line of business, Lambert’s job required her to conduct medical-necessity reviews to
determine whether Centene would cover a proposed course of treatment.
Lambert testified that during her first year of employment with Centene as an
Arkansas Total Care review nurse, there were no complaints about her productivity.
Lambert received a good annual report, a bonus, and a pay raise. Lambert stated that, during
this time, she was conducting seven to nine reviews a day working for the Arkansas Total
Care line of business.
Lambert testified that sometime between August and October of 2020, Centene
began assigning her reviews in its Ambetter line of business in addition to her existing reviews
in the Arkansas Total Care line. Lambert stated further that, due to a high turnover of
nurses, her caseload increased from seven to nine reviews a day to fifteen to twenty reviews
a day. Lambert stated that she had not been trained to conduct reviews for Ambetter
patients, and she testified that the reviews for Arkansas Total Care and Ambetter were
markedly different as explained above.
Lambert acknowledged that she had un-assigned tasks on several occasions between
November 2019 and January 2020 pertaining to the additional Ambetter line of business.
3 Lambert explained that she “just couldn’t work those tasks . . . because they were assignments
[she] had not been trained on” and that she informed her supervisors of this. When her
supervisors admonished Lambert to stop un-assigning tasks, Lambert explained to them that
she had not been trained on how to conduct Ambetter claim reviews. Lambert stated that
she had asked her supervisors to be trained on Ambetter reviews “from day one” when her
caseload was changed, but that it never happened. Lambert stated that she was “pretty much
thrown over to the Ambetter side with no training.” She analogized it to “throwing you to
the wolves or sink or swim type scenarios.”
Centene apparently discussed these un-assigned files with Lambert. Subsequently, on
January 6, 2021, Lambert received from Centene a Last Chance Agreement (LCA). The
LCA stated that Lambert had unassigned several tasks in November and December of 2020
and warned Lambert that she could not un-assign tasks in the future without prior approval
of her supervisor. The LCA provided in relevant part:
There have been multiple conversations & emails with your people leader and manager, specifically on 11/19/2020, 11/21/2020, 12/2/2020, 12/4/2020, 12/9/2020 and Sr Director on 11/19/2020 & 11/25/2020 communicating expectations for work assignments explaining that un-assigning work that has been assigned by your supervisor is unacceptable and should not continue. Following repeated instructions not to un-assign work you continued this behavior on 12/11/2020, 12/14/2020, 12/15/2020, 1/04/2020 and 1/05/2021 . . . . We have discussed with you verbally and via email that you should not un-assign any tasks assigned to you by your supervisor without first discussing it . . . . Aria will complete all tasks assigned to her without un-assigning tasks.
The LCA stated, “Failure to meet the above expectations could lead to further disciplinary
action up to termination.”
4 Centene terminated Lambert’s employment on February 25, 2021. In a termination
review form, Centene stated that Lambert was terminated because she had un-assigned two
tasks from herself on January 26, 2021, without discussions with her supervisor in violation
of the LCA but, interestingly, she “was eligible for rehire.”
Lambert disagreed with Centene and testified that, after receiving the LCA from
Centene, she did not un-assign the two tasks on January 26 without first speaking to her
supervisor. Lambert stated that she never intentionally performed poorly or disregarded
Centene’s interests. Lambert also stated that she had never un-assigned any tasks because it
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Cite as 2023 Ark. App. 101 ARKANSAS COURT OF APPEALS DIVISION I No. E-22-230
ARIA LAMBERT APPELLANT Opinion Delivered February 22, 2023
V. APPEAL FROM THE ARKANSAS BOARD OF REVIEW DIRECTOR, DIVISION OF [NO. 2021-BR-04943] WORKFORCE SERVICES; AND CENTENE MANAGEMENT COMPANY APPELLEES REVERSED AND REMANDED
KENNETH S. HIXSON, Judge
Appellant Aria Lambert appeals from a decision of the Arkansas Board of Review
(Board) denying her unemployment benefits. She contends that substantial evidence does
not support the Board’s conclusion that she is disqualified from receiving benefits based on
the Board’s finding that she was discharged from her last work for misconduct connected
with the work. Alternatively, Lambert argues that error occurred because she was not
permitted to compel production of her personnel file. To determine whether Lambert was
discharged for misconduct under the circumstances presented herein, we conclude that it
was necessary to issue a subpoena to compel production of her personnel file. Therefore, we
reverse and remand for further proceedings.
On appeal of an unemployment-compensation case, we review the evidence and all
reasonable inferences deducible therefrom in the light most favorable to the Board’s findings. Jones v. Dir., 2019 Ark. App. 341, 581 S.W.3d 516. The Board’s findings of fact
are conclusive if supported by substantial evidence. Id. Substantial evidence is evidence a
reasonable mind might accept as adequate to support a conclusion. Id.
After Lambert was terminated form her employment at Centene Management
Company (Centene), she filed for unemployment benefits. The agency denied Lambert’s
claim because it found that Lambert was discharged as a direct result of her intentional poor
job performance. Lambert appealed to the Appeal Tribunal, and in advance of the hearing,
she filed a written request for a subpoena to be issued ordering Centene to produce a
complete copy of her personnel file, including all internal administrative complaints against
her. The Appeal Tribunal denied Lambert’s request.
Lambert testified at the hearing, but Centene did not appear. Lambert testified that
she began working for Centene as a concurrent medical review nurse in July 2019. Centene
is a health-insurance provider1 that operates multiple lines of businesses, including Arkansas
Total Care, Ambetter, and Allwell. Each line of business reviews different types of requests
for medical treatment to determine whether the treatment is medically necessary and,
therefore, a covered expense under the respective insurance policy. The Arkansas Total Care
line generally reviews requests for approval for medical treatment for patients in intermediate
care facilities who have mental disabilities and/or special needs. These reviews are manually
1 Due to the limited documentation submitted by Centene, it is unclear whether Centene is actually a health-insurance provider or a third-party review company that services health-insurance providers. For the purpose of this opinion the difference, if any, is not relevant.
2 performed. The Ambetter line generally reviews requests for approval for medical treatment
for patients from a larger population of patients with a wide range of diagnoses different
from the limited Arkansas Total Care line patients. The Ambetter reviews are generally
performed using a computer software program. The record does not disclose what types of
reviews were generated by the Allwell line. As a review nurse for the Arkansas Total Care
line of business, Lambert’s job required her to conduct medical-necessity reviews to
determine whether Centene would cover a proposed course of treatment.
Lambert testified that during her first year of employment with Centene as an
Arkansas Total Care review nurse, there were no complaints about her productivity.
Lambert received a good annual report, a bonus, and a pay raise. Lambert stated that, during
this time, she was conducting seven to nine reviews a day working for the Arkansas Total
Care line of business.
Lambert testified that sometime between August and October of 2020, Centene
began assigning her reviews in its Ambetter line of business in addition to her existing reviews
in the Arkansas Total Care line. Lambert stated further that, due to a high turnover of
nurses, her caseload increased from seven to nine reviews a day to fifteen to twenty reviews
a day. Lambert stated that she had not been trained to conduct reviews for Ambetter
patients, and she testified that the reviews for Arkansas Total Care and Ambetter were
markedly different as explained above.
Lambert acknowledged that she had un-assigned tasks on several occasions between
November 2019 and January 2020 pertaining to the additional Ambetter line of business.
3 Lambert explained that she “just couldn’t work those tasks . . . because they were assignments
[she] had not been trained on” and that she informed her supervisors of this. When her
supervisors admonished Lambert to stop un-assigning tasks, Lambert explained to them that
she had not been trained on how to conduct Ambetter claim reviews. Lambert stated that
she had asked her supervisors to be trained on Ambetter reviews “from day one” when her
caseload was changed, but that it never happened. Lambert stated that she was “pretty much
thrown over to the Ambetter side with no training.” She analogized it to “throwing you to
the wolves or sink or swim type scenarios.”
Centene apparently discussed these un-assigned files with Lambert. Subsequently, on
January 6, 2021, Lambert received from Centene a Last Chance Agreement (LCA). The
LCA stated that Lambert had unassigned several tasks in November and December of 2020
and warned Lambert that she could not un-assign tasks in the future without prior approval
of her supervisor. The LCA provided in relevant part:
There have been multiple conversations & emails with your people leader and manager, specifically on 11/19/2020, 11/21/2020, 12/2/2020, 12/4/2020, 12/9/2020 and Sr Director on 11/19/2020 & 11/25/2020 communicating expectations for work assignments explaining that un-assigning work that has been assigned by your supervisor is unacceptable and should not continue. Following repeated instructions not to un-assign work you continued this behavior on 12/11/2020, 12/14/2020, 12/15/2020, 1/04/2020 and 1/05/2021 . . . . We have discussed with you verbally and via email that you should not un-assign any tasks assigned to you by your supervisor without first discussing it . . . . Aria will complete all tasks assigned to her without un-assigning tasks.
The LCA stated, “Failure to meet the above expectations could lead to further disciplinary
action up to termination.”
4 Centene terminated Lambert’s employment on February 25, 2021. In a termination
review form, Centene stated that Lambert was terminated because she had un-assigned two
tasks from herself on January 26, 2021, without discussions with her supervisor in violation
of the LCA but, interestingly, she “was eligible for rehire.”
Lambert disagreed with Centene and testified that, after receiving the LCA from
Centene, she did not un-assign the two tasks on January 26 without first speaking to her
supervisor. Lambert stated that she never intentionally performed poorly or disregarded
Centene’s interests. Lambert also stated that she had never un-assigned any tasks because it
was too much work but, rather, because she had not been trained in those areas. Lambert
testified that, with proper training, she would have been qualified to perform the Ambetter
reviews.
The Appeal Tribunal affirmed the agency’s decision and denied Lambert
unemployment benefits. The Appeal Tribunal found that Lambert’s “repeated acts of
commission, omission, or negligence despite progressive discipline constitutes sufficient
proof of intentional poor performance” and, therefore, that Lambert “was discharged from
last work for misconduct in connection with the work.” Lambert then appealed to the
Board, and the Board issued a decision rejecting Lambert’s claim that she had been denied
a fair hearing based on the unavailability of her personnel file. The Board affirmed and
adopted the Appeal Tribunal’s decision disqualifying her from benefits.
In this appeal from the Board’s decision denying unemployment benefits, Lambert
first challenges the Board’s finding that she was discharged from her work for misconduct
5 connected with the work, arguing that this finding is not supported by substantial evidence.
She further argues that error occurred below because a subpoena should have been issued to
compel production of her personnel file. We agree with Lambert’s second argument.
A claimant is disqualified from receiving unemployment benefits if he or she is
discharged from his or her last work for misconduct in connection with the work. Ark. Code
Ann. § 11-10-514(a)(1) (Supp. 2021). Misconduct in connection with the work shall not be
found for instances of poor performance unless the employer can prove that the poor
performance was intentional. Ark. Code Ann. § 11-10-514(a)(4)(A). Subdivision (a)(4)(B)
provides that an individual’s repeated act of commission, omission, or negligence despite
progressive discipline constitutes sufficient proof of intentional poor performance.
Our appellate jurisprudence makes clear that to constitute misconduct, there must be
an element of intent. Wilson v. Dir., 2017 Ark. App. 171, 517 S.W.3d 427. Misconduct
requires more than 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. Id. To constitute misconduct there
must be an intentional or deliberate violation, a willful and wanton disregard, or carelessness
or negligence of such degree or recurrence as to manifest a wrongful intent or evil design.
Id.
The issue in this case is whether Lambert intentionally disregarded Centene’s
interests. While Lambert acknowledged that she un-assigned some files for review, Lambert
testified that there was no intentional disregard of Centene’s interests because she was
6 repeatedly asked to perform tasks for which she had not been trained. However, one email
from Centene mentioned that the Lambert was offered the opportunity to shadow an
employee for guidance. Also, in a questionnaire submitted by Centene, it was asked to note
and attach the documents in support of its claim that Lambert was discharged for
unsatisfactory work performance. Centene attached only a two-page document titled “Policy
and Procedure.” Centene did not attach any portion of Lambert’s personnel file that
supported its conclusion that Lambert was discharged for unsatisfactory work performance.
The “Policy and Procedure” document provides in part:
Employees whose conduct violates company standards or policies or whose work performance does not meet expected standards may be subject to some or all of the following types of actions, depending on employee history and the fact and circumstances of the current situation. When issues arise, they should generally first be handled through setting expectations and providing coaching and feedback. These coaching and feedback sessions should be documented (e.g.: people leader’s notes, email recap, Employee Coaching Log etc.) and maintained by the people leader. Should the issues persist, or additional issues surface, more formal discipline may result as follows: . . . [issuance of an LCA followed by possible termination].
(Emphasis added.) In its discharge form provided to the Board, Centene stated that Lambert
was discharged for not meeting expectations. However, in the discharge form Centene was
also asked whether there were prior warnings given to the claimant and, if so, to provide
copies of these warnings. Centene left this section bank, and none of this documentation
was provided. This documentation was crucial to the issue of whether Lambert had engaged
in intentional misconduct despite progressive warnings as Centene had alleged. Due to the
lack of attachments and contemporaneous documentation by Centene, we conclude that
Lambert should have had the opportunity to review her personnel file, which may have
7 contained information relevant to Lambert’s employment history and alleged disciplinary
warnings such as “coaching and feedback sessions [which] should be documented (e.g.: people leader’s
notes, email recap, Employee Coaching Log etc.) and maintained by the people leader.” (Emphasis
added.)
Arkansas Code Annotated section 11-10-315 (Supp. 2021) provides that “the
Director of the Division of Workforce Services, the chair of an appeal tribunal, the members
of the Board of Review, and any duly authorized representative of any of them shall have the
power to . . . issue subpoenas to compel the attendance of witnesses in the production of
books, papers, correspondence, memoranda, and other records deemed necessary as
evidence in connection with disputed claims or the administration of this chapter.”
Arkansas Code Annotated section 11-10-524(b)(1) (Supp. 2021) provides that in an appeal
from the agency decision “the appeal tribunal, after affording the parties a reasonable
opportunity for a fair hearing, and on the basis of the record, shall” reach its decision.
Lambert’s personnel file, which she requested but was denied, had a direct bearing in
deciding the core issue at hand of whether Lambert was discharged for misconduct in
connection with her work. More specifically, Lambert’s personnel file would undoubtedly
shed light on the nature of Lambert’s alleged progressive discipline, if any, and whether she
had engaged in intentional misconduct. Under the narrow circumstances presented by this
case, we hold that the Appeal Tribunal and the Board erred in denying Lambert’s request to
subpoena her personnel file in advance of the hearing. The file was of particular importance
because no representative of the employer was present at the hearing to provide evidence on
8 the issue in question. Therefore, we reverse the Board’s decision, and we remand for
production of Lambert’s personnel file and a new hearing to determine whether Lambert is
eligible for unemployment benefits.
Reversed and remanded.
VIRDEN and MURPHY, JJ., agree.
Trevor Townsend, Center for Arkansas Legal Services, for appellant.
Cynthia L. Uhrynowycz, Associate General Counsel, for appellee.