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ARKANSAS COURT OF APPEALS DIVISION IV No. E-13-128

TANYA MILLSPAUGH Opinion Delivered August 28, 2013 APPELLANT ARKANSAS BOARD OF REVIEW V. [NO. 202-BR-03501]

DIRECTOR, DEPARTMENT OF WORKFORCE SERVICES, AND DISCOUNT TOBACCO APPELLEES REVERSED AND REMANDED

PHILLIP T. WHITEAKER, Judge

Appellant Tanya Millspaugh was discharged from her employment. The Department

of Workforce Services issued a Notice of Agency Determination denying her claim for

unemployment benefits under Arkansas Code Annotated section 11-10-514(a) (Repl. 2012),

finding that Millspaugh was discharged for misconduct. Millspaugh appealed that decision

to the Appeal Tribunal (“Tribunal”), which reversed the Department’s decision. Millspaugh’s

employer then appealed to the Board of Review (“Board”), which reversed the Tribunal.

Millspaugh petitioned this court for review, and we reverse the Board’s determination and

remand for an award of benefits.

We review the Board’s findings in the light most favorable to the prevailing party and

affirm the Board’s decision if it is supported by substantial evidence. Rodriguez v. Dir.,

; Price v. Dir.,

. Substantial evidence is such relevant Cite as

evidence that a reasonable mind might accept as adequate to support a conclusion. Rodriguez,

supra. Even when there is evidence upon which the Board might have reached a different

decision, the scope of our review is limited to a determination of whether the Board

reasonably could have reached the decision that it did based upon the evidence before it. Id.

Our function on appeal, however, is not merely to rubber stamp decisions arising from the

Board. Id.

Millspaugh was employed as a cashier for Discount Tobacco in Malvern. She usually

worked on Fridays, Saturdays, and Sundays. When she left work on Sunday, September 23,

no schedule had been posted yet for the coming week, so she inferred that her hours would

be her usual Friday-through-Sunday hours.1 On Tuesday, September 25, Millspaugh drove

to Batesville to see her family. At 1:24 that afternoon, a co-worker texted her, saying that she

was supposed to work from 2:00 p.m. until 10:00 p.m. that day. Millspaugh texted back that

she was in Batesville and could not possibly make it. Millspaugh then called her supervisor,

Tiffany Stovall, and explained that she could not be there because she was two-and-a-half

hours away. Stovall told Millspaugh that, if she did not report for work, she would not have

a job. On Wednesday, Millspaugh contacted Stovall to see if her paycheck had arrived and

to ask if she was going to be written up or fired. Stovall replied that Millspaugh did not have

a job anymore because she did not show up for work.

Amanda Duvall, the office manager for Discount Tobacco, testified on behalf of the

1 One of Millspaugh’s co-workers, Candi Hawthorne, also testified that no schedule had been posted before Millspaugh left work on Sunday night.

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employer. Duvall explained that the store had a policy whereby employees were required to

call if they were not going to report for work; if an employee did not call and did not show

up, the company considered the employee to have quit.

Based on this evidence, the Board found that Millspaugh’s actions were “tantamount

to misconduct.” It conceded that Millspaugh presented “compelling testimony” that the

work schedule had not been posted before she left work on Sunday night, that she usually

worked only on weekends, and that the employer should have “ideally” posted the work

schedule in advance. The Board nonetheless found that it was Millspaugh’s responsibility to

make sure that she was not scheduled to work. The Board also noted that, while Millspaugh

was two-and-a-half hours away when she was notified that she was supposed to report for

work, she “presented no testimony that she could not have reported to work.” We disagree.

Arkansas Code Annotated section 11-10-514(a)(1) provides, “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.” The employer has the burden of proving by a preponderance of the

evidence that an employee engaged in misconduct. Rodriguez, supra.

“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. Id.

For purposes of unemployment insurance, the definition of misconduct requires more than

mere inefficiency, unsatisfactory conduct, failure in good performance as a result of inability

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or incapacity, inadvertencies, ordinary negligence in isolated instances, or good-faith errors

in judgment or discretion.

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.

Millspaugh’s conduct did not rise to the level of misconduct. Nothing in the record

indicates that she was acting with an intentional disregard of her employer’s interests. Rather,

the facts in the record show that she routinely worked Fridays, Saturdays, and Sundays; when

she left work on Sunday, no schedule for the following week had been posted; she

reasonably assumed that she would not be called to report for work during the week; and,

on Tuesday, based on her justifiable assumption, she drove to Batesville to visit her family.

Upon learning that she had been scheduled to work, she complied with company policy by

calling and informing her employer that she would not be able to report. There is no

substantial evidence to support the Board’s determination that Millspaugh’s actions amounted

to misconduct. We therefore reverse and remand for an award of benefits.

Reversed and remanded.

VAUGHT and HIXSON , JJ., agree.

Tanya Millspaugh, pro se appellant.

Phyllis Edwards, Associate General Counsel, Department of Workforce Services, for appellee.

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