Weinstein v. Director, Arkansas Department of Workforce Services

428 S.W.3d 560, 2013 Ark. App. 374, 2013 WL 2438801, 2013 Ark. App. LEXIS 385
CourtCourt of Appeals of Arkansas
DecidedJune 5, 2013
DocketNo. E-12-495
StatusPublished
Cited by3 cases

This text of 428 S.W.3d 560 (Weinstein v. Director, Arkansas 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
Weinstein v. Director, Arkansas Department of Workforce Services, 428 S.W.3d 560, 2013 Ark. App. 374, 2013 WL 2438801, 2013 Ark. App. LEXIS 385 (Ark. Ct. App. 2013).

Opinion

RITA W. GRUBER, Judge.

| Elizabeth Weinstein appeals the denial of her unemployment benefits based on a finding that she was discharged for misconduct. Evidence at her hearing before the Appeal Tribunal focused on disciplinary actions taken against her during her work as an attorney at the Arkansas Department of Environmental Quality (ADEQ) in December 2010, April 2011, and May 2011.

The Tribunal entered a written decision examining these actions under ADEQ’s policy of progressive discipline, which placed offenses into Groups 1-3; Group 2 offenses remained active for two years, and an accumulation of two active Group 2 offenses was grounds for dismissal. The Tribunal’s decision included the following findings of fact:

In December 2010, the claimant was reprimanded because she failed to follow routing procedures which required that she forward all completed documents to her immediate supervisor for review pri- or to disseminating completed documents to any other | {.persons. This was considered to be a Group 1 offense, and she was suspended from work for ten days.1 She was also reprimanded in April 2011 for unsatisfactory work performance. Specifically, the claimant submitted an unsatisfactory brief for review just a few hours prior to the deadline for its filing. This was considered to be a Group 2 offense, and the claimant was placed on probation for ninety-days.2 In May 2011, the claimant was again reprimanded for failure to follow routing procedures, a Group 2 offense. Based on her accumulation of two Group 2 offenses, one of which occurred during her probationary period, the claimant was discharged from work.

The Arkansas Board of Review adopted and affirmed the Tribunal’s decision. The Board additionally found that even if the December 2010 incident alone did not constitute misconduct, the April and May 2011 reprimands showed misconduct in connection with Weinstein’s work, and that the April and May 2011 incidents that ultimately led to her discharge were a willful disregard of the employer’s best interests. The Board concluded that Weinstein was otherwise a good employee and her “otherwise satisfactory work performance established] ... she was able to produce acceptable work previously and did not do so when she was later reprimanded for unsatisfactory work product. Therefore, [she] was discharged from last work for misconduct in connection with the work.” Wein-stein contends on appeal that the Board erred in finding that although the December 2010 incident may not alone have established misconduct, other incidents established that she willfully disregarded her employer’s best interests; that she was able to produce acceptable work before producing an ^unsatisfactory work product in April 2011; and that her failure to follow routing procedures for two documents in May 2011 supported a finding of misconduct. We affirm the Board’s decision to deny benefits.

The Board of Review’s findings of fact are conclusive if they are supported by substantial evidence. Ark.Code Ann. § 11-10-529(c)(1) (Repl.2012); Perry v. Gaddy, 48 Ark.App. 128, 129, 891 S.W.2d 73, 74 (1995). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. West v. Dir., 94 Ark.App. 381, 383, 231 S.W.3d 96, 98 (2006). We review the Board’s findings in the light most favorable to the prevailing party, reversing only when the findings are not supported by substantial evidence. Ballard v. Dir., 2012 Ark. App. 371, at 4, 2012 WL 1943622. Issues of credibility of witnesses and weight to be afforded their testimony are matters for the Board to determine. Id.

Testimony at the hearing was given by Tammera Harrelson, who became chief of ADEQ’s legal division on February 21, 2011; Weinstein; and Dawn Guthrie, an attorney specialist and former managing attorney at ADEQ. The Board’s decision recounted Guthrie’s testimony that she was ordered by Director Teresa Marks to reprimand Weinstein for failure to follow routing procedures in December 2010, that Weinstein may have thought that she was to bypass normal routing procedures due to Director Marks’s urgent request for the document, and that Guthrie would not have written the reprimand had she not been instructed to do so by the director. The Board noted Harrelson’s testimony that Weinstein was reprimanded in April 2011 because approximately five hours pri- or to a filing deadline, |4due to poor time management, she submitted an unsatisfactory legal brief to Harrelson for editing; that the brief required significant editing; and that Harrelson placed Weinstein on a ninety-day probation and created timelines and deadlines for her to manage her time more effectively. The Board also noted Harrelson’s testimony that in May 2011, she observed two documents on the director’s desk authored by Weinstein, which she had not routed to Harrelson as required by routing procedures, and that Weinstein had not edited one of them.

The Board acknowledged Weinstein’s testimony that she should not have been reprimanded in December 2010 because, based on the director’s urgent request for the document, Weinstein assumed she was being instructed to bypass routing procedures; that the April 2011 reprimand was also unjust because she completed the brief and it was filed by the deadline; and that the May 2011 reprimand resulted from miscommunication, based on her explanation that the documents “somehow” were forwarded directly to the director despite Weinstein’s intention that Harrel-son review them first. Finally, the Board discussed testimony regarding Weinstein’s health as a reason for her dismissal — noting her suggestion that the discharge might have occurred because she had requested an FMLA leave of absence for serious asthma and ultimately was granted the leave to begin in June 2011. The Board noted Harrelson’s testimony that when she asked Weinstein if there was a problem resulting in the decline in her work, Weinstein indicated that she did not know what was wrong and that her problems with work performance were not related to her health condition.

In its reasoning and conclusions, the Board weighed the evidence presented at the hearing. It found that Weinstein reasonably thought in December 2010 that she was to bypass | ¡¡routing procedures and immediately submit documents to the director; that in April 2011, she submitted an unsatisfactory brief just hours before its filing deadline because she failed to begin working on it in a timely manner; and that in May 2011, she failed to review and edit a document before submitting it to the director for final review and intentionally failed to follow routing procedures although the process had been reviewed with her numerous times. The Board found that Weinstein was subject to discharge because she had accumulated two active Group 2 offenses, that her actions were against her employer’s best interests, and that her discharge was for misconduct in connection with her work.

Incident of December 2010

Ms. Weinstein contends in her first point on appeal that, in light of the Board’s finding that the December 2010 work product may not itself have established misconduct, “two later incidents, and failure to follow routing procedures” did not establish that she had willfully disregarded her employer’s best interests.

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Related

Ridley v. Director, Department of Workforce Services
2016 Ark. App. 465 (Court of Appeals of Arkansas, 2016)

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428 S.W.3d 560, 2013 Ark. App. 374, 2013 WL 2438801, 2013 Ark. App. LEXIS 385, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weinstein-v-director-arkansas-department-of-workforce-services-arkctapp-2013.