Grant v. Dir.

2014 Ark. App. 249

• Court: Court of Appeals of Arkansas
• Decided: April 23, 2014
• Docket: E-13-67
• Status: Published

Opinion

Cite as 2014 Ark. App. 249

ARKANSAS COURT OF APPEALS DIVISION III No. E-13-67

JOHNNY GRANT Opinion Delivered April 23, 2014 APPELLANT APPEAL FROM THE BOARD OF V. REVIEW [NO. 2012-BR-03579]

DIRECTOR, DEPARTMENT OF WORKFORCE SERVICES, and CITY OF BLYTHEVILLE APPELLEES AFFIRMED

DAVID M. GLOVER, Judge

In this unemployment case, appellant Johnny Grant appeals the denial of his claim for

unemployment benefits based upon the finding that he was discharged from his last work for

misconduct in connection with the work. The Appeal Tribunal found that Grant was

dismissed for misconduct in connection with the work; the Board of Review denied Grant’s

application for appeal from the Appeal Tribunal’s decision, therefore deeming the Appeal

Tribunal’s decision to be its decision. Grant now appeals to this court, arguing that there is

not substantial evidence to support the conclusion that he was discharged from his last work

for misconduct in connection with the work, that the hearing officer failed to develop the

record, and that he was denied due process. Based upon our standard of review, we affirm

the denial of benefits.

Grant was employed by the City of Blytheville for twenty-seven years as a sanitation

worker and employee of the street department. His duties included driving a truck and Cite as 2014 Ark. App. 249

performing manual labor. At the hearing before the Appeal Tribunal, Grant was the only

person who testified; the City did not appear. However, the Appeal Tribunal had before

it the City’s statement for discharge, which stated that the reason for discharge was

because Grant refused to comply with his supervisor’s instructions. Specifically, the statement

provided that Grant was told by his supervisor that another employee was going to drive the

truck Grant usually drove for the crew; Grant argued with his supervisor that he had always

been the driver and that it was not fair the new employee was going to drive the truck; Grant

was told that if he did not agree and did not want to be with the new driver he could quit;

Grant told his supervisor he would not quit; and Grant was then fired. At the hearing, Grant

disputed this version of events, testifying that he did not tell his supervisor he would not let

the new worker drive the truck because the truck did not belong to him. Grant also testified

he did not tell his supervisor it was unfair for the new employee to drive the truck or that he

would not go along with a new driver. Grant said that his supervisor thought he would quit,

and when Grant told him that he was not going to quit, the supervisor fired him. Grant said

that a secretary heard the conversation, but he did not ask her to testify for him because he

knew she was afraid she would lose her job.

Standard of Review

On appeal, the Board’s findings of fact are reviewed in the light most favorable to the

prevailing party, and the Board’s decision is reversed only when the findings are not supported

by substantial evidence. Occhuzzo v. Director, 2012 Ark. App. 117. Substantial evidence is

such relevant evidence that a reasonable mind might accept as adequate to support a

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conclusion. Smith v. Director, 2013 Ark. App. 360. Even where there is evidence from which

the Board might have reached a different conclusion, our scope of judicial review is limited

to a determination of whether the Board could have reasonably reached its decision based on

the evidence before it. Booker v. Director, 2013 Ark. App. 99. The credibility of witnesses and

the weight to be accorded their testimony are matters to be resolved by the Board. Occhuzzo,

supra.

Sufficiency of Evidence to Support Denial of Benefits for Misconduct

A person will be disqualified for unemployment benefits if it is found that he

was discharged from his employment on the basis of misconduct in connection with the

work. Ark. Code Ann. § 11-10-514(a)(1) (Repl. 2013). For purposes of unemployment

compensation, “misconduct” involves (1) disregard for the employer’s interest; (2) violation

of the employer’s rules; (3) disregard of the standards of behavior that the employer has a

right to expect of his employees; and (4) disregard of the employee’s duties and obligations

to his employer. Booker, supra. 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—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. Occhuzzo, supra. Whether an employee’s actions constitute misconduct in

connection with the work sufficient to deny unemployment benefits is a question of fact for

the Board. Johnson v. Director, 84 Ark. App. 349, 141 S.W.3d 1 (2004).

3 Cite as 2014 Ark. App. 249

Here, the evidence was diametrically opposed. The City’s statement was that Grant

argued with his supervisor when he was told that a new employee would be driving the truck

Grant had driven; Grant denied he did so. While Grant contends in his brief that his

supervisor made false, pretextual comments in order to terminate Grant—an older, black

employee—there was no evidence presented other than Grant’s testimony in support of this

argument. The Board is tasked with determining credibility, and, based on the decision in

favor of the City, it determined the City’s version of events was more credible. Therefore,

based on our standard of review, we must hold that substantial evidence supports the

misconduct finding.

Grant also mentions in passing that he was not afforded an opportunity to cross-

examine his accuser because neither his supervisor nor the City’s personnel director were

questioned by the hearing officer. He did not raise this issue below, and this court does not

consider issues raised for the first time on appeal. Parham v. Director, 2013 Ark. App. 362.

Furthermore, before the admission of hearsay evidence will not violate a party’s right to

confront and cross-examine adverse witnesses, a party must have an opportunity to know

what evidence is being considered and must have the right to a rehearing for the purpose of

giving that party the opportunity to subpoena and cross-examine adverse witnesses. Sanyo

Mfg. Corp. v. Stiles, 17 Ark. App. 20, 702 S.W.2d 421 (1986). Grant could have subpoenaed

these witnesses himself but did not do so; he knew what evidence was being presented, as it

was contained in the employer’s general discharge statement; and he never requested a remand

in order to subpoena his supervisor or the personnel director.

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Failure of Hearing Officer to Develop Record and Lack of Due Process

Grant’s last two arguments are that the hearing officer failed to develop the record

because no documents were subpoenaed and his personnel file was not considered, and that

his due-process rights under the Arkansas Constitution and the Fourteenth Amendment to

the United States Constitution were violated because there was no consideration of his

twenty-seven-year blemish-free career with the City or the fact that he was not provided step

discipline. This court will not consider these arguments because they are being raised for the

first time on appeal. Parham, supra.

Affirmed.

HARRISON and WYNNE, JJ., agree.

Larry J. Steele PLC, by: Larry J. Steele, for appellant.

Phyllis A. Edwards, for appellee.