Garrett v. Dir., Dep't of Workforce Servs.

• Citation: 2014 Ark. 50
• Decision Date: 06 February 2014
• Docket Number: No. CV-13-175,CV-13-175
• Parties: SHARON GARRETT APPELLANT v. DIRECTOR, DEPARTMENT OF WORKFORCE SERVICES, AND DAVITA APPELLEES
• Court: Supreme Court of Arkansas

2014 Ark. 50

SHARON GARRETT APPELLANT v. DIRECTOR, DEPARTMENT OF WORKFORCE SERVICES, AND DAVITA APPELLEES

No. CV-13-175

SUPREME COURT OF ARKANSAS

Opinion Delivered February 6, 2014

APPEAL FROM THE ARKANSAS

BOARD OF REVIEW

[NO. 2012-BR-01101]

REVERSED AND REMANDED;

COURT OF APPEALS' OPINION

VACATED.

PAUL E. DANIELSON, Associate Justice

Appellant Sharon Garrett appeals from the decision of the Board of Review affirming the decision of the Appeal Tribunal, which upheld the denial of her unemployment benefits by appellee Director, Department of Workforce Services (Department). Ms. Garrett originally appealed to our court of appeals, which affirmed the Board's decision by a 4-2 vote. See Garrett v. Dir., Dep't of Workforce Servs., 2013 Ark. App. 113. Ms. Garrett petitioned this court for review, and we granted the petition. When we grant a petition for review, we consider the appeal as though it had originally been filed in this court. See Blake v. Shellstrom, 2012 Ark. 428. Ms. Garrett's sole point on appeal is that the Board's decision was in error; we agree. We therefore reverse the Board's decision and remand for an award of benefits.

The facts of this case are largely undisputed. Ms. Garrett was employed as a patient-care tech by appellee DaVita, where she was charged with placing patients on dialysis.According to DaVita's corrective-action form, Ms. Garrett began her employment on July 12, 2010, and was terminated on January 11, 2012.¹ The sole basis for her termination was that she had not obtained her "PCT" certification by the required date, which was within eighteen months of being hired.

Following her termination, Ms. Garrett applied for unemployment benefits, but her application was denied by the Department pursuant to Arkansas Code Annotated § 11-10-514(a)(1) (Repl. 2012), which disqualifies an individual from receiving benefits if the discharge from last work was for misconduct in connection with the work. The Department found that Ms. Garrett was "discharged from your job on 01-11-12 for failure to become certified by Federal Regulations which is a requirement of the job. Your willful actions resulted in this loss and were against your employer's best interest." Ms. Garrett subsequently petitioned for appeal to the Appeal Tribunal.

During the telephone hearing before the hearing officer for the Appeal Tribunal, Ms. Viola Love-Taylor, DaVita's facility administrator, explained that, pursuant to federal requirements, all dialysis technicians are to become certified as "CCHTs" within eighteen months of employment. Ms. Love-Taylor testified that Ms. Garrett was informed of this requirement when she was hired and reminded of this requirement in August and December, 2011.

Ms. Garrett testified that she knew she was going to have become certified, but thatthere was uncertainty as to who was to cover the fee for the certification after DaVita took over the facility. She further testified that she was told that she need only have a certification testing date set within the eighteen-month time frame.² Ms. Garrett stated that she finally obtained the money to cover the fee for the testing and submitted her application on December 13, 2011. However, as she testified and Ms. Love-Taylor confirmed, her application was sent back to her solely because Ms. Love-Taylor had failed to fill out the facility's portion of the application completely. As a result of the incomplete application, Ms. Garrett testified, she did not receive the requisite testing date before the expiration of the eighteen-month period, and she was discharged. Ms. Love-Taylor admitted, however, that had Ms. Garrett received a certification date, Ms. Garrett could have remained on the schedule for thirty days until she had taken the test rather than be terminated. Ms. Love-Taylor then confirmed that Ms. Garrett was terminated because she did not have a test date.

On April 10, 2012, the hearing officer for the Appeal Tribunal issued its decision affirming the Department's denial of benefits, finding that

[Ms. Garrett] testified that she did not obtain her certification prior to her discharge due to not having the funds to pay for the certification and the application being returned for incomplete data. The evidence indicates that the claimant had 18 months from the date of hire to obtain the certification, she was aware that she must pay for the certification, and she failed to do so. Although the employer completed the application incorrectly, it was the responsibility of the claimant to ensure that the application was submitted prior to 18 months and she had successfully passed the exam. The claimant's actions were within her control and her actions violated a standard of conduct which the employer had the right to expect. Therefore, the claimant wasdischarged from last work for misconduct in connection with the work.

Ms. Garrett then sent her notice to appeal the decision of the Appeal Tribunal to the Board of Review. The Board of Review issued its decision on July 31, 2012, wherein it concluded that the decision of the Appeal Tribunal was correct in both its findings of fact and conclusions of law, and it adopted the Appeal Tribunal's decision as the decision of the Board. The Board further made note of

the claimant's contention that the employer completed paperwork incorrectly that caused her licensing application to be sent back and that it caused her to not receive her license timely. Although the paperwork had to be corrected and resubmitted, the claimant had eighteen (18) months to submit the paperwork, and the Board finds that the claimant was ultimately responsible for not submitting the application in a timely manner. As such, the claimant's actions were a willful disregard of her employer's interests. Therefore, the claimant was discharged from last work for misconduct in connection with the work.

As already stated, Ms. Garrett appealed to the court of appeals, which affirmed, and petitioned this court for review, which we granted. We turn then to Ms. Garrett's appeal from the Board's decision.

As her sole point on appeal, Ms. Garrett argues that there was no substantial evidence to support the Board's finding of misconduct on her part. She contends that any failure to obtain a testing date before the expiration of the eighteen-month time period was a result of her application not being completed correctly by her employer. The Department counters that the Board could have reasonably reached its decision based on the evidence before it. It urges that had Ms. Garrett submitted her application earlier, there would have been time to correct her employer's error and she would have received her test date in a timely manner. The Department contends that Ms. Garrett's decision...