Theophile v. Director, Department of Workforce Services

2014 Ark. App. 462, 441 S.W.3d 66, 2014 Ark. App. LEXIS 639
CourtCourt of Appeals of Arkansas
DecidedSeptember 17, 2014
DocketE-13-971
StatusPublished
Cited by1 cases

This text of 2014 Ark. App. 462 (Theophile 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
Theophile v. Director, Department of Workforce Services, 2014 Ark. App. 462, 441 S.W.3d 66, 2014 Ark. App. LEXIS 639 (Ark. Ct. App. 2014).

Opinion

ROBERT J. GLADWIN, Chief Judge.

bThe Arkansas Board of Review (Board) affirmed the denial of benefits to Allyson Theophile, ruling that she did not voluntarily resign from her employment, but that she was discharged for misconduct, making her ineligible for unemployment-compensation benefits. Theophile argues on appeal that the Board’s decision is not supported by substantial evidence. We affirm.

I. Statement of Facts

Theophile was employed by the Administrative Office of the U.S. Courts in Probation and Pretrial Services in the Eastern District of Arkansas when she submitted her resignation in lieu of termination, effective March 25, 2013. Thereafter, Theophile applied for unemployment compensation benefits. Appel-lee Arkansas Department of Workforce ^Services determined that Theophile was disqualified from receiving benefits because she had voluntarily resigned.

At the telephonic hearing before the Arkansas Appeal Tribunal on June 26, 2013, the hearing officer noted that the issue before the tribunal was whether Theophile voluntarily left, was discharged, or was suspended from last work and whether the circumstances of the separation entitled her to benefits in accordance with Arkansas Code Annotated section 11-10-513 (Repl.2012) or section 11-10-514 (Supp. 2013).

Theophile testified that she began her work for the U.S. Probation and Pretrial Services Offices in Los Angeles, working in the Central District of California for fifteen years. She moved to Little Rock on June 4, 2012, because she was promoted to Assistant Deputy Chief U.S. Probation Officer.

The record reflects that Theophile received a “Notice of Proposed Adverse Action” from Rebecca Howell, Deputy Chief Probation Officer for the Eastern District of Arkansas, on December 19, 2012. The notice stated that in June, July, and November 2012, Theophile withdrew money on her government-issued travel card for personal expenses, violating statute, policies, and the Code of Conduct for Judiciary Employees. The notice stated that Theophile converted public funds for personal use, knowing that it was improper and a misuse of the government-issued credit card. The notice proposed to Theo-phile that the following actions be taken:

1) written reprimand; 2) withhold next wage increase ...; 3) extend probationary period until December 31, 2013; 4) suspended without pay for five days; and 5) pay your government credit card in full as current balance is $236.05.

| a The notice provided that these proposed actions would take place if Theophile did not submit a request for administrative review within five days. Theophile filed a request for review on December 19, 2012.

The record further reflects that Theo-phile filed a declaration in opposition to the proposed adverse action stating that she did not intentionally violate any statute, policies, or Code of Conduct for Judiciary Employees when she used her government-issued travel card for moving expenses. She claimed that when she used the card, she did not recognize her actions as being improper. She claimed that she understood, based on Rebecca Howell’s assertion during a telephone conversation with Theophile that Howell had been given the option to use her government credit card to pay for moving expenses and that it was acceptable to use the government card for work-related moving and relocation expenses. She also explained that she thought it. was permissible to use the credit card for moving and relocation because the credit card was issued in Theophile’s name and she paid the charges directly. She stated that she now understood that it was wrong, that she was responsible for her actions, and that she regretted her poor judgment. However, she claimed that the proposed adverse action was too severe, taking into account her years of federal service and excellence in the past. In response to the charges, she noted that the promised relocation bonus of $25,000 was to be received two weeks after her arrival on June 4, 2012, but was not received until July 6, 2012. She stated that she only received $18,000 due to taxes.

In response to Theophile’s declaration, Howell filed a memorandum on January 14, 2013, and recommended termination. Theophile sent a memorandum to Eddie Towe, |4Chief U.S. Probation Officer, proposing a meeting to discuss alternatives to the recommended termination. Towe responded on January 28, 2013, and proposed that Theophile voluntarily submit her resignation effective March 25, 2013, in exchange for a neutral employment reference and no reference to this matter or the proposed disciplinary actions in her personnel file.

An agreement was signed by Theophile and Towe effectuating Towe’s proposal to allow Theophile to resign. However, at the hearing before the tribunal, Theophile stated that she did not voluntarily quit her employment but agreed to the resignation only because she did not want the termination in her permanent record.

The Appeal Tribunal found that
[Theophile] voluntarily agreed to enter into an agreement with her employer that she would resign effective March 25, 2013. [Theophile] had legal representation throughout the proceedings and was free to consult with her attorney on available options. [Theophile] did not quit for a reason attributable to the employer. Therefore, [Theophile] voluntarily left last work without good cause connected with the work. [Ark. Code Ann. § ll-10-513(a).]

Theophile appealed to the Board, which affirmed the denial of benefits, but modified the determination by finding that Theophile was discharged from her employment for misconduct in connection with her work. Ark.Code Ann. § 11-10-514(a). The Board found as follows:

In the present case, the documentary evidence [Theophile] submitted to the Appeal Tribunal shows that the employer discovered that [Theophile] was using her government issued travel credit card for personal use. [Theophile] admitted that she used the card for moving expenses when she took a promotion to the Little Rock office. [Theophile] had been living and working for the employer in California. The documentary evidence indicates that [Theophile] also admitted that she knew she was not allowed to use the government issued travel credit card for such a purpose.... |fiTherefore, the decision of the Appeal Tribunal ... which affirmed the Department of Workforce Services’ determination, is modified to deny benefits under Ark. Code Ann. § ll-10-514(a) on the finding that [Theophile] was discharged from last work for misconduct with the work.

Theophile filed a timely petition for review, and this appeal followed.

II. 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. Dir., 2012 Ark. App. 117, 2012 WL 386759. Substantial evidence is such relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Smith v. Dir., 2013 Ark. App. 360, 2013 WL 2368802.

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Related

Najafabadi v. Director, Department of Workforce Services
2015 Ark. App. 652 (Court of Appeals of Arkansas, 2015)

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2014 Ark. App. 462, 441 S.W.3d 66, 2014 Ark. App. LEXIS 639, Counsel Stack Legal Research, https://law.counselstack.com/opinion/theophile-v-director-department-of-workforce-services-arkctapp-2014.