Kimble v. Director, Arkansas Employment Sec. Dept.

• Decision Date: 22 December 1997
• Docket Number: No. E,E
• Citation: 959 S.W.2d 66,60 Ark.App. 36
• Parties: Vivian A. KIMBLE, Appellant, v. DIRECTOR, ARKANSAS EMPLOYMENT SECURITY DEPARTMENT and Willis Shaw Express, Appellees. 97-50.
• Court: Arkansas Court of Appeals

Page 66

959 S.W.2d 66

60 Ark.App. 36

Vivian A. KIMBLE, Appellant, v. DIRECTOR, ARKANSAS EMPLOYMENT SECURITY DEPARTMENT and Willis

Shaw Express, Appellees.

No. E 97-50.

Court of Appeals of Arkansas,

Divisions I and II.

Dec. 22, 1997.

No briefs filed.

ROGERS, Judge.

This is an appeal from a decision of the Board of Review denying unemployment compensation benefits based on a finding that appellant, Vivian Kimble, was discharged for misconduct connected with the work. At issue in this case, which is submitted without supporting briefs, is whether the Board's finding of misconduct is supported by substantial evidence. We affirm the decision of the Board.

Appellant worked for Willis Shaw Express as a long distance truck driver from January 26, 1996, to October 18, 1996. It is undisputed that she was discharged after having had five accidents in a six-month period, the first occurring on April 4 and the last on October 14. There was testimony that the employer characterized each of the accidents as "preventable." In at least two of the accidents, appellant hit stationary objects. In the first, she made a turn too sharply and damaged the trailer she was hauling. In the second accident, she hit a parked vehicle. She next damaged some pavement while making a turn. In the fourth accident, she backed into a vehicle that was parked at a fuel pump. Last, appellant struck another vehicle while making a right-hand turn.

The employer had written policies governing the standards of conduct expected of its employees. One such policy warned that the failure to safely operate equipment entrusted to an employee's care could result in disciplinary action or the loss of one's job. After the fourth accident, appellant was placed on probation, and she was warned that another incident could result in the termination of her employment. In her testimony, appellant admitted that each of the accidents was her fault, but she denied that she had "deliberately set out to have accidents."

"Misconduct," for purposes of unemployment compensation, involves: (1) disregard of the employer's interest; (2) violation of the employer's rules; (3) disregard of the standards of behavior which the employer has the right to expect; and (4) disregard of the employee's duties and obligations to her employer. Rucker v. Director, 52 Ark.App. 126, 915 S.W.2d 315 (1996). There is an element of intent associated with a determination of misconduct. Fulgham v. Director, 52 Ark.App. 197, 918 S.W.2d 186 (1996). Mere inefficiency, unsatisfactory conduct, failure of good performance as the result of inability or incapacity, inadvertencies, ordinary negligence, or good-faith errors in judgment or discretion are not considered misconduct for unemployment insurance purposes unless it is of such a degree or recurrence as to manifest culpability, wrongful intent, evil design, or an intentional or substantial disregard of an employer's interest or of an employee's duties and obligations. Willis Johnson Co. v. Daniels, 269 Ark. 795, 601 S.W.2d 890 (Ark.App.1980). See also Shipley Baking Co. v. Stiles, 17 Ark.App. 72, 703 S.W.2d 465 (1986); Arlington Hotel v. Director, 3 Ark.App. 281, 625 S.W.2d 551 (1981).

In the present case, the Board concluded that a preponderance of the evidence established a pattern of recurring negligence rising to the level of misconduct. The Board predicated its decision on the number of accidents that occurred in a short time span and appellant's own testimony that she was at fault.

The issue of misconduct is a question of fact for the Board of Review to determine. Tenenbaum v. Director, 32 Ark.App. 43, 796 S.W.2d 348 (1990). On appeal, the findings of fact made by the Board are conclusive if they are supported by substantial evidence. George's Inc. v. Director, 50 Ark.App. 77, 900 S.W.2d 590 (1995). Substantial evidence is defined as such evidence as a reasonable person might accept as adequately supporting a conclusion. Calvin v. Director, 31 Ark.App. 74, 787 S.W.2d 701 (1990). We review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board's findings. Perdrix-Wang v. Director, 42 Ark.App. 218, 856 S.W.2d 636 (1993). Even where 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.

It is generally recognized that unemployment benefits may be denied a discharged employee-driver based on a finding of misconduct where motor vehicle accidents are chargeable to negligence which has occurred periodically or with consistent regularity. ¹ 76 AM. JUR .2d, Unemployment Compensation § 84. But even numerous accidents will not support a finding of misconduct where evidence is lacking that the accidents were due to the employee's negligence. Id. The case of B.J. McAdams v. Daniels, 269 Ark. 693, 600 S.W.2d 418 (Ark.App.1980), is illustrative of this latter point. There, the claimant had three accidents in an eleven-month period. We affirmed the Board's award of benefits based on the lack of evidence demonstrating recurring negligence from which misconduct could be inferred, when the last accident was attributable to weather conditions, and not the negligence of the claimant.

By contrast here, however, the appellant had five "preventable" accidents in a brief, six-month period for which she admitted fault. We also note that appellant performed her job without incident prior to the spate of accidents. On this record, we hold that, despite appellant's claim that she did not deliberately set out...