Moody v. Director, Department of Workforce Services

2014 Ark. App. 137, 432 S.W.3d 157, 2014 WL 637039, 2014 Ark. App. LEXIS 167
CourtCourt of Appeals of Arkansas
DecidedFebruary 19, 2014
DocketE-12-317
StatusPublished
Cited by7 cases

This text of 2014 Ark. App. 137 (Moody v. Director, Department of Workforce Services) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Moody v. Director, Department of Workforce Services, 2014 Ark. App. 137, 432 S.W.3d 157, 2014 WL 637039, 2014 Ark. App. LEXIS 167 (Ark. Ct. App. 2014).

Opinion

WAYMOND M. BROWN, Judge.

| Appellant appeals from the Board of Review’s (Board) decision to affirm the Appeal Tribunal’s (Tribunal) denial of benefits to claimant under Arkansas Code Annotated section ll-10-514(a) on finding that the claimant was discharged from last work for misconduct in connection with the work. We affirm.

Ethan Moody was a crew leader with the Arkansas Highway and Transportation Department (AHTD). The position of Finish Grader became available in his crew. Moody’s direct supervisor, Ricky Sharp, intended to give the position to the current rough operator on his crew. Moody believed that person was incapable of performing the duties required of the finish grader position. He informed Sharp’s supervisor, Bruce Street, of his belief that the position should not be given to the particular employee Sharp had in mind. Moody asserted that the rough grader’s current level of work was bringing crew morale down and “it was gonna [sic] hit the fan” if Sharp promoted him to the vacant ^position. Street advised Sharp that he and Moody should resolve the issue between the two of them. Due to Moody’s assertions, Sharp decided to interview the crew individually about the particular employee in an effort to see if they were in agreement with Moody. He began interviewing the crew on October 18, 2010.

At the conclusion of each interview, Sharp would ask if there was anything else the interviewee wanted to discuss. At the close of their respective interviews, Belinda Rogers and Rebecca Bohannon came forward with allegations against Moody. Rogers stated that in August 2010, she “felt something on the top of my boot in between my leg, and it run up my leg, high up on my leg, and I turned around and it was Odell L [sic] Moody.” 1 She stated that Moody had a “flag paddle, putting it up between my legs.” 2 She stated that she told him to stop, after which he left, and there had been no other occurrences like that since. Sharp testified that a fellow crew member, Elvis Garrett, acknowledged witnessing the paddle incident between Rogers and Moody. Bo-hannon alleged that on a day when she was wearing a coat, Moody told her if she didn’t take off her coat, “you’re going to sour the mike [sic] in those things,” referring to her breasts. 3 She also alleged that Moody Ijjhad patted her “on the cheek of [her bottom]” after giving her instructions and had stuck his finger in a hole in her pants twice. Both contacts were unwel-comed. According to the EEO report, Bohannon told Rogers about each of these three incidences shortly after they occurred. At a later date, Sharp brought the ladies in for a meeting with Street, to whom they repeated the same allegations.

Following the meeting, Street discussed the allegations with his supervisor, Linda Waite. 4 Street and Waite forwarded the allegations to the personnel department in Little Rock as required by policy. Waite also contacted James Moore in EEO on October 29, 2010, asking him to review the allegations and get back to them with findings thereon.

No one from the AHTD spoke with Moody during the investigation. This was due in part to Moody’s being off on sick leave when Street and Waite turned the matter over to the EEO, and in part due to the AHTD no longer being involved in the investigation once it was turned over to the EEO. Once the allegations were turned over to the EEO, the EEO instructed Street and Waite to locate Moody and place him on leave without pay pending the outcome of the investigation. This was accomplished on November 2, 2010. When interviewed by Wanda Bynum of the EEO, Moody denied all the allegations. At the Tribunal’s hearing, he attributed the allegations of Rogers and Bohannon to retribution for safety violations he had previously reported against them. 5 He 14asserted that Garrett was retaliating against Moody because of Moody’s prior decision to recommend another employee for a promotion over Garrett.

Upon completion of its investigation, the EEO found the allegations to be substantiated and determined that Moody would be terminated. Waite concurred with the EEO’s recommendation to terminate Moody in an interoffice memorandum dated November 16, 2010. Moody was terminated November 29, 2010.

On December 27, 2010, the Department of Workforce Services (Department) issued a notice of agency determination denying Moody benefits under Arkansas Code Annotated section ll-10-514(a) on finding that Moody was discharged from last work for misconduct in connection with the work. Moody filed a timely appeal of this determination to the Appeal Tribunal. Following an in-person hearing on May 11, 2011, the Tribunal issued its decision which affirmed the Department. Claimant filed a timely appeal to the Board of Review. The Board affirmed the Tribunal. This timely appeal followed.

We do not conduct a de novo review in appeals from the Board of Review. 6 On appeal, we review the findings of the Board of Review and affirm if they are supported by substantial evidence. 7 Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. 8 If fair-minded persons could reach the ^Board’s conclusions on the same evidence, we must affirm its decision. 9 We review the evidence and all reasonable inferences deducible from the evidence in the light most favorable to the Board of Review’s findings. 10 Issues of credibility and the weight of evidence are matters for the Board to determine. 11

On appeal, Moody argues that there was not sufficient evidence to support the administrative law judge’s (ALJ) decision. Throughout his brief, Moody’s counsel refers to the ALJ. We advise Moody counsel that there is no ALJ in an unemployment compensation matter. Accordingly, because the only hearing occurred before the Tribunal, we assume that the ALJ references are meant to refer to the Tribunal hearing officer, and we treat them as such.

In a related matter, we note that though Moody is appealing the Board’s decision to affirm the Tribunal’s decision, Moody’s arguments are all erroneously directed at the hearing officer and the Tribunal’s resulting decision. That decision was appealed to the Board, which affirmed in a separate decision; therefore, no basis exist for referring to the Tribunal’s decision. Accordingly, we address the Board’s decision only and determine whether there was sufficient evidence to support it.

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 thelfiwork. 12

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Related

Herman Hampton v. Director
2023 Ark. App. 352 (Court of Appeals of Arkansas, 2023)
Cheryl Pillow v. Director, Division of Workforce Services
2022 Ark. App. 341 (Court of Appeals of Arkansas, 2022)
Blanton v. Dir., Dep't of Workforce Servs.
2019 Ark. App. 205 (Court of Appeals of Arkansas, 2019)
Postoak v. Bassett
547 S.W.3d 100 (Court of Appeals of Arkansas, 2018)
Wilson v. Director, Department of Workforce Services
2017 Ark. App. 171 (Court of Appeals of Arkansas, 2017)
Martinez v. Director, Department of Workforce Services
2015 Ark. App. 717 (Court of Appeals of Arkansas, 2015)

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Bluebook (online)
2014 Ark. App. 137, 432 S.W.3d 157, 2014 WL 637039, 2014 Ark. App. LEXIS 167, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moody-v-director-department-of-workforce-services-arkctapp-2014.