Cite as 2013 Ark. App. 531
ARKANSAS COURT OF APPEALS DIVISION II No. E-13-23
Opinion Delivered SEPTEMBER 25, 2013 DANIEL WILLIAMS APPELLANT APPEAL FROM THE BOARD OF REVIEW [NO. 2012-BR-03606] V.
DIRECTOR, DEPARTMENT OF WORKFORCE SERVICES, and WALMART APPELLEES AFFIRMED
DAVID M. GLOVER, Judge
Pursuant to a progressive-discipline policy, Daniel Williams was discharged from
his job as assistant manager of a Walmart store on October 4, 2012. He had been employed
by Walmart since November 1989. The Appeal Tribunal determined that Walmart had
followed its progressive-discipline policy in discharging Williams. The Appeal Tribunal
further found that because his “discharge was the result of repeated acts of poor performance
despite progressive warnings, the claimant’s poor performance must be viewed as intentional
under Ark. Code Ann. § 11-10-514,” and he was therefore “discharged from last work for
misconduct in connection with the work.” The Board of Review denied Williams’s
application for appeal, rendering the Appeal Tribunal’s decision the Board’s decision for
purposes of our judicial review. In this appeal, Williams contends that there was no
substantial evidence to support the finding that he was discharged for misconduct. We affirm. Cite as 2013 Ark. App. 531
Background
At the hearing before the Appeal Tribunal, John Garrard, the store manager, testified
that he and Brent Raines, the market manager, were the individuals who discharged
Williams. Garrard explained that the reason for the discharge was that Williams “failed to
comply with the Personal Improvement Plan that we had put forth a little more than ninety
days before the date of his termination.” He further testified that Williams had been placed
on an improvement plan because it was believed he was using poor judgment when making
decisions, that he did not take initiative to complete tasks, and that he was unorganized and
unprepared; that he wanted Williams to set expectations with his department managers, to
take initiative in addressing those standards, to take time to plan, and not to ask for permission
to execute initiatives in his areas; and that he believed Williams’s zone-merchandise
supervisors and department managers knew more about what was gong on in his area than
he did. He stated that Williams had received previous warnings in 2007, 2010, and 2012 that
were related to poor judgment or poor performance, and that under Walmart’s progressive-
discipline policy, Williams had reached his last coaching step on May 14, 2012. Garrard
explained that the May 14 step was taken because Williams had exhibited poor judgment in
making a particular business decision.
Williams also testified before the Appeal Tribunal. He stated that he had been an
assistant manager at Walmart and that John Garrard notified him of his termination on
October 4, 2012. He acknowledged that Walmart had followed its progressive-discipline
policy with regard to his discharge and that he had received prior warnings related to
performance issues. Williams said that the final warning he received was related to
2 Cite as 2013 Ark. App. 531
reimbursement to a customer for damage that her automobile sustained in Walmart’s
automotive department while Williams was off work. According to Williams, she had gotten
the damage repaired elsewhere and presented Walmart with the bill for the repairs. Williams
testified that he reimbursed her for the amount of the bill; that he had no reason to think that
the bill was not accurate but later learned that it was not. He acknowledged that he failed to
follow company policy and procedures for processing the claim, but stated that his supervisor
did not inform him of that fact until a couple of weeks after he had already written out the
money order.
Garrard further stated that the last coaching Williams received was on May 14, but that
there were several subsequent discussions with him about his performance and his
improvement plan on June 14, July 13, and July 23. He said that the July 23 meeting was to
let Williams know that at that point, he had failed to make the necessary changes under his
improvement plan and that he had thirty days to make those changes. Garrard said that
during that thirty-day period, Williams took a vacation and never came to Garrard or Brent
Raines to discuss whether that vacation would interfere with his ability to comply with the
improvement plan.
Williams replied that he did send an e-mail to Raines to let him know about the
vacation plans. He stated he had a copy of the e-mail and that Raines should have a copy
also. Williams said that he sent the e-mail about a month before he went on vacation; that
he did not include Garrard on the e-mail because he did not know that he was supposed to
do so; and that he provided the e-mails to Garrard once he requested them.
3 Cite as 2013 Ark. App. 531
Standard of Review
In our review of unemployment cases, findings of fact by the Board of Review are
conclusive if they are supported by substantial evidence. Board of Trustees v. Williams, 91
Ark. App. 38, 207 S.W.3d 569 (2005). Our review is limited to determining whether the
Board could reasonably reach its decision upon the evidence before it. Id. Substantial
evidence is such relevant evidence as a reasonable mind might accept as adequate to support
a conclusion. Id. We do not conduct a de novo review of the evidence; the evidence and
all reasonable inferences deducible therefrom are reviewed in the light most favorable to the
Board’s findings. Id. 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. Like
a jury, an administrative agency is free to believe or disbelieve any witness, and we give the
evidence its strongest probative force to support the administrative decision. Id.
Discussion
If so found by the Director of the Department of Workforce Services, an individual
shall be disqualified for benefits if he or she is discharged from his or her last work for
misconduct in connection with the work. Ark. Code Ann. § 11-10-514(a)(1) (2012). An
individual shall not be deemed guilty of misconduct for poor performance in his or her job
duties unless the employer can prove that the poor performance was intentional. Ark. Code
Ann. § 11-10-514(d)(1). An individual’s repeated act of commission or omission or
negligence despite progressive discipline shall constitute sufficient proof of intentional poor
performance. Ark. Code Ann. § 11-10-514(d)(2).
4 Cite as 2013 Ark. App. 531
Williams’s basic contention in this appeal is that section 11-10-514(d)(2) “does not
contemplate that multiple acts of differing types of poor performance should constitute
sufficient proof of the requisite intent for misconduct.” That is, he argues that the clear
language of the statute requires repeated acts of the same type of poor performance in order
to establish the necessary intent for a finding of misconduct, and that because the poor
performance for which he was discharged represented differing types, it does not constitute
sufficient proof of the necessary intent. We disagree.
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Cite as 2013 Ark. App. 531
ARKANSAS COURT OF APPEALS DIVISION II No. E-13-23
Opinion Delivered SEPTEMBER 25, 2013 DANIEL WILLIAMS APPELLANT APPEAL FROM THE BOARD OF REVIEW [NO. 2012-BR-03606] V.
DIRECTOR, DEPARTMENT OF WORKFORCE SERVICES, and WALMART APPELLEES AFFIRMED
DAVID M. GLOVER, Judge
Pursuant to a progressive-discipline policy, Daniel Williams was discharged from
his job as assistant manager of a Walmart store on October 4, 2012. He had been employed
by Walmart since November 1989. The Appeal Tribunal determined that Walmart had
followed its progressive-discipline policy in discharging Williams. The Appeal Tribunal
further found that because his “discharge was the result of repeated acts of poor performance
despite progressive warnings, the claimant’s poor performance must be viewed as intentional
under Ark. Code Ann. § 11-10-514,” and he was therefore “discharged from last work for
misconduct in connection with the work.” The Board of Review denied Williams’s
application for appeal, rendering the Appeal Tribunal’s decision the Board’s decision for
purposes of our judicial review. In this appeal, Williams contends that there was no
substantial evidence to support the finding that he was discharged for misconduct. We affirm. Cite as 2013 Ark. App. 531
Background
At the hearing before the Appeal Tribunal, John Garrard, the store manager, testified
that he and Brent Raines, the market manager, were the individuals who discharged
Williams. Garrard explained that the reason for the discharge was that Williams “failed to
comply with the Personal Improvement Plan that we had put forth a little more than ninety
days before the date of his termination.” He further testified that Williams had been placed
on an improvement plan because it was believed he was using poor judgment when making
decisions, that he did not take initiative to complete tasks, and that he was unorganized and
unprepared; that he wanted Williams to set expectations with his department managers, to
take initiative in addressing those standards, to take time to plan, and not to ask for permission
to execute initiatives in his areas; and that he believed Williams’s zone-merchandise
supervisors and department managers knew more about what was gong on in his area than
he did. He stated that Williams had received previous warnings in 2007, 2010, and 2012 that
were related to poor judgment or poor performance, and that under Walmart’s progressive-
discipline policy, Williams had reached his last coaching step on May 14, 2012. Garrard
explained that the May 14 step was taken because Williams had exhibited poor judgment in
making a particular business decision.
Williams also testified before the Appeal Tribunal. He stated that he had been an
assistant manager at Walmart and that John Garrard notified him of his termination on
October 4, 2012. He acknowledged that Walmart had followed its progressive-discipline
policy with regard to his discharge and that he had received prior warnings related to
performance issues. Williams said that the final warning he received was related to
2 Cite as 2013 Ark. App. 531
reimbursement to a customer for damage that her automobile sustained in Walmart’s
automotive department while Williams was off work. According to Williams, she had gotten
the damage repaired elsewhere and presented Walmart with the bill for the repairs. Williams
testified that he reimbursed her for the amount of the bill; that he had no reason to think that
the bill was not accurate but later learned that it was not. He acknowledged that he failed to
follow company policy and procedures for processing the claim, but stated that his supervisor
did not inform him of that fact until a couple of weeks after he had already written out the
money order.
Garrard further stated that the last coaching Williams received was on May 14, but that
there were several subsequent discussions with him about his performance and his
improvement plan on June 14, July 13, and July 23. He said that the July 23 meeting was to
let Williams know that at that point, he had failed to make the necessary changes under his
improvement plan and that he had thirty days to make those changes. Garrard said that
during that thirty-day period, Williams took a vacation and never came to Garrard or Brent
Raines to discuss whether that vacation would interfere with his ability to comply with the
improvement plan.
Williams replied that he did send an e-mail to Raines to let him know about the
vacation plans. He stated he had a copy of the e-mail and that Raines should have a copy
also. Williams said that he sent the e-mail about a month before he went on vacation; that
he did not include Garrard on the e-mail because he did not know that he was supposed to
do so; and that he provided the e-mails to Garrard once he requested them.
3 Cite as 2013 Ark. App. 531
Standard of Review
In our review of unemployment cases, findings of fact by the Board of Review are
conclusive if they are supported by substantial evidence. Board of Trustees v. Williams, 91
Ark. App. 38, 207 S.W.3d 569 (2005). Our review is limited to determining whether the
Board could reasonably reach its decision upon the evidence before it. Id. Substantial
evidence is such relevant evidence as a reasonable mind might accept as adequate to support
a conclusion. Id. We do not conduct a de novo review of the evidence; the evidence and
all reasonable inferences deducible therefrom are reviewed in the light most favorable to the
Board’s findings. Id. 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. Like
a jury, an administrative agency is free to believe or disbelieve any witness, and we give the
evidence its strongest probative force to support the administrative decision. Id.
Discussion
If so found by the Director of the Department of Workforce Services, an individual
shall be disqualified for benefits if he or she is discharged from his or her last work for
misconduct in connection with the work. Ark. Code Ann. § 11-10-514(a)(1) (2012). An
individual shall not be deemed guilty of misconduct for poor performance in his or her job
duties unless the employer can prove that the poor performance was intentional. Ark. Code
Ann. § 11-10-514(d)(1). An individual’s repeated act of commission or omission or
negligence despite progressive discipline shall constitute sufficient proof of intentional poor
performance. Ark. Code Ann. § 11-10-514(d)(2).
4 Cite as 2013 Ark. App. 531
Williams’s basic contention in this appeal is that section 11-10-514(d)(2) “does not
contemplate that multiple acts of differing types of poor performance should constitute
sufficient proof of the requisite intent for misconduct.” That is, he argues that the clear
language of the statute requires repeated acts of the same type of poor performance in order
to establish the necessary intent for a finding of misconduct, and that because the poor
performance for which he was discharged represented differing types, it does not constitute
sufficient proof of the necessary intent. We disagree.
It is clear from our case law that misconduct involves disregard of the employer’s
interest, violation of the employer’s rules, disregard of the standards of behavior the employer
has a right to expect of its employees, and disregard of the employee’s duties and obligations
to the employer, Rodriguez v. Director, 2013 Ark. App. 361; that it requires more than mere
inefficiency, unsatisfactory conduct, failure in good performance as a result of inability or
incapacity, inadvertencies, ordinary negligence in isolated instances, or good-faith errors in
judgment or discretion. Id. We have also made clear that conduct
that may well provide a sufficient basis for the discharge of an employee may not be sufficient to deny that employee unemployment benefits. The two inquiries are entirely different. To conclude that there has been misconduct for unemployment- insurance purposes, we have long required an element of intent: mere good-faith errors in judgment or discretion and unsatisfactory conduct are not misconduct unless they are of such a degree or recurrence as to manifest culpability, wrongful intent, evil design, or intentional disregard of an employer’s interest.
Id. at 4. (Emphasis added.)
Here, under both our statutes and case law, the recurrence of unsatisfactory conduct
can reach such a degree as to manifest the necessary intent to establish misconduct for
unemployment-insurance purposes. We are not convinced that either our case law or our
5 Cite as 2013 Ark. App. 531
statutes require that the unsatisfactory conduct be of the same type. We conclude that
reasonable minds could have reached the same decision as that of the Board of Review and
that the Board’s decision is therefore supported by substantial evidence.
Affirmed.
GLADWIN, C.J., and WHITEAKER, J., agree.
The Kester Law Firm, by: Joseph Hall, for appellant.
Phyllis A. Edwards, for appellee.