Rossini v. Director, Arkansas Employee Security Department

101 S.W.3d 266, 81 Ark. App. 286, 2003 Ark. App. LEXIS 220, 2003 WL 1289358

• Court: Court of Appeals of Arkansas
• Decided: March 19, 2003
• Docket: E 02-166
• Status: Published

Opinions

Terry Crabtree, Judge.

After being terminated from her job, the appellant, Gena C. Rossini, sought unemployment benefits from the Arkansas Employment Security Department. When the Department denied her benefits, she appealed the decision to the Arkansas Appeal Tribunal. On March 13, 2002, the Appeal Tribunal reversed the Department’s determination and awarded her benefits. On June 13, 2002, the Board of Review reversed the Appeal Tribunal and denied appellant unemployment benefits after finding that she was discharged from her last work for misconduct in connection with the work. For our review, appellant maintains that the Board of Review erred: (1) when it reversed the Appeal Tribunal’s decision “based on the receipt of no new evidence;” (2) when it relied heavily on a fax sent by appellant to appellee after she was terminated; (3) when it incorrectly interpreted the testimony of the witnesses; (4) when it failed to recognize “the everyday use of foul language;” and (5) when it failed to acknowledge the absence of an investigation in which both parties were able to explain the event that lead to appellant’s termination. We affirm.

Appellant worked as a salesperson for the appellee, the Arkansas Democrat-Gazette, for one and one-half years. On the morning of March 1, 2002, appellant and her coworker, Dennis Perkins, an account executive, became involved in a verbal disagreement about a customer’s account. Appellant claims that during the argument Perkins called her a b-. She testified that she responded by calling him a pansy a — . Their supervisor, Robert Shearon, who observed the confrontation, testified that he told them to calm down. Shearon stated that “at that point [appellant] started calling [P erkins] some names, including ‘a kid who couldn’t make a sale.’ ” Shearon also stated that appellant then called Perkins an a — hole and left the building. Approximately an hour later, appellee paged appellant and informed her that she was terminated.

As an initial matter, we must note that appellant did not make three of her arguments below that she now complains of on appeal. The record does not reflect that appellant argued (1) that the Board should not consider the fax she sent to appellee, (2) that the Board should recognize the everyday use of foul language, or (3) that the Board should acknowledge the absence of an investigation in which both parties were able to explain the event that lead to her termination. We decline to address the merits of these arguments. They were not made below, and this court does not consider issues raised for the first time on appeal. Rucker v. Price, 52 Ark. App. 126, 915 S.W.2d 315 (1996); Perdrix-Wang v. Director, 42 Ark. App. 218, 856 S.W.2d 636 (1993).

For appellant’s remaining two points on appeal, she essentially complains that substantial evidence did not support the Board’s decision. The findings of the Board of Review are con-elusive if they are supported by substantial evidence. Walls v. Director, 74 Ark. App. 424, 49 S.W.3d 670 (2001). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. We review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board’s findings. Lovelace v. Director, 78 Ark. App. 127, 79 S.W.3d 400 (2002). 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 reasonably reach its decision upon the evidence before it. Id.

An individual shall be disqualified for unemployment benefits if she is discharged from her last work for misconduct in connection with the work. Ark. Code Ann. § ll-10-514(a)(l) (Repl. 1999). “Misconduct,” for purposes of unemployment compensation, involves: (1) disregard of the employer’s interest; (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. Greenberg v. Director, 53 Ark. App. 295, 922 S.W.2d 5 (1996). To constitute misconduct, however, the definitions require 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 error in judgment or discretion. Carraro v. Director, 54 Ark. App. 210, 924 S.W.2d 819 (1996). 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. Id. In sum, there is an element of intent associated with a determination of misconduct. Rollins v. Director, 58 Ark. App. 58, 945 S.W.2d 410 (1997).

Appellee’s employment policy states that disciplinary action, including discharge, may occur for violation of company rules and regulations including insubordination, using abusive language, and interfering with fellow employees or their work. Appellant received a copy of appellee’s rules, regulations, and policies at the time she was hired. At the hearing, appellant admitted that she used abusive language toward Perkins during their argument. She attempted to justify her actions by claiming that Perkins called her a name. Appellant’s supervisor, Robert Shearon, testified that Perkins did not call appellant any name during the argument. The Board of Review found that “the record contains no evidence other than [appellant’s] which would support her assertion that [Perkins] called her a ‘b-We recognize that the credibility of witnesses and the weight to be accorded their testimony are matters to be resolved by the Board. Niece v. Director, 67 Ark. App. 109, 992 S.W.2d 169 (1999).

It is undisputed that appellant chose to continue using abusive language even after her supervisor instructed her and Perkins to calm down. The Board of Review found appellant’s behavior to be intentional as she sought to belittle Perkins in front of others in the office. The Board also noted the fact that appellant sent a fax to appellee hours after she was terminated in which she referred to Perkins as “your boy” and stated, “[a]t this point, I’m reasonable to deal with. By Monday, who knows [?]”

We distinguish this case from Rollins, supra, where we reversed the Board of Review’s finding that a claimant had committed misconduct. In that case, the claimant told a coworker to stop meddling in her business and to shut up. Id. The Board found those words were harsh and provocative. Id. However, we did not believe that they rose to the level of misconduct as defined by the statute.

By contrast in the case at bar, we agree with the Board that appellant’s actions were malicious and contained willful intent. Her statements to Perkins reflect more than a lack of judgment. Even after the supervisor, Shearon, instructed appellant and Perkins to “calm down,” she continued with her verbal attacks and abusive language. This is clear evidence of a deliberate violation of appellee’s rules and standard of behavior that appellee had a right to expect.

Based upon our review of the evidence, we hold that substantial evidence supports the Board’s decision that appellant was discharged from her last work for misconduct in connection with the work.

Affirmed.

Pittman, Gladwin, and Baker, JJ., agree. Hart and Roaf, dissent.