White v. Director, Arkansas Employment Sec. Dept.

• Decision Date: 26 June 1996
• Docket Number: No. E94-297,E94-297
• Citation: 924 S.W.2d 823,54 Ark.App. 197
• Parties: , 11 IER Cases 1660 Laurie WHITE, Appellant, v. DIRECTOR, ARKANSAS EMPLOYMENT SECURITY DEPARTMENT and Duff-Norton Yale Hoists, Appellees.
• Court: Arkansas Court of Appeals

Page 823

924 S.W.2d 823

54 Ark.App. 197, 11 IER Cases 1660

Laurie WHITE, Appellant, v. DIRECTOR, ARKANSAS EMPLOYMENT SECURITY DEPARTMENT and Duff-Norton Yale Hoists, Appellees.

No. E94-297.

Court of Appeals of Arkansas,

En Banc.

June 26, 1996.

Scott Trotter, Little Rock, for Appellant.

Ronald A. Calkins, Little Rock, for ESD.

James W. Moore, Little Rock, for Duff-Norton Yale Hoists.

COOPER, Judge.

The appellant in this unemployment compensation case was employed by the appellee, Duff-Norton Yale Hoists Co., on February 3, 1994. On that date she consented to be tested for drug abuse pursuant to the employer's policy. The employer asserted that her test was positive, and she was subsequently discharged for failure to comply with company policy regarding actions to be taken following a positive drug test. After a hearing, the Board of Review found that the appellant was disqualified for unemployment benefits because she had been discharged for misconduct connected with the work. From that decision, comes this appeal.

For reversal, the appellant contends that there is no substantial evidence to support the Board's finding that she was discharged for misconduct connected with the work. We do not agree, and we affirm.

On appeal, the findings of fact of the Board of Review are conclusive if supported by substantial evidence, i.e., by such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. George's Inc. v. Director, 50 Ark.App. 77, 900 S.W.2d 590 (1995). Our review is limited to determining whether the Board could reasonably reach its decision upon the evidence before it, and in making that determination, we review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board's findings. Id.

Viewed in that light, the record shows that the employer's drug policy required employees testing positive for drug use to accept treatment for substance abuse; failure to accept treatment was expressly provided to be insubordination subjecting the employee to discharge. In the event that an employee should disagree with the test results, the policy permitted a second test to be performed at employee expense, using the original specimen, within 30 days of the original test.

In the case at bar, there was evidence that the employer notified the appellant that a positive result was obtained on her drug test, and that the appellant neither obtained a retest within 30 days nor accepted treatment pursuant to the employer's policy. Although there was evidence that would support a finding that the appellant had not been insubordinate, the scope of our review is limited to determining whether the Board could reasonably reach its decision on the evidence before it. Perry v. Gaddy, 48 Ark.App. 128, 891 S.W.2d 73 (1995). We hold that it could, and consequently, we must affirm. ¹

Affirmed.

JENNINGS, C.J., and STROUD, J., agree.

MAYFIELD, NEAL, and GRIFFEN, JJ., dissent.

GRIFFEN, Judge, dissenting.

Although the majority views this case as turning on the fact that appellant "neither obtained a retest within 30 days nor accepted treatment pursuant to the employer's policy" in case of a positive result from an employee's drug test, the clear and uncontradicted proof is that the employer never provided the original specimen within 30 days of the original test. The plain proof is that the appellant disputed the positive drug test, challenged the chain of custody for the original sample, and was told by the personnel manager for appellee that her options were to either enter rehabilitation or be fired. Appellant also testified that she tried to persuade the employer to retest the original sample, but that the personnel manager rejected that request. Furthermore, the personnel manager (Martha Lucas) testified that she did not receive the original test result until the day before the second hearing before the Appeal Tribunal. Neither she nor anybody else associated with the employer have produced the original test specimen so that the appellant's right to obtain a retest could be honored.

The personnel manager testified that appellant had missed quite a number of days from work before February 3, 1994, and there appears to have been some concern that she needed or was contemplating psychiatric hospitalization at that point in time. Although the personnel manager testified that the contemplated hospitalization may have been for treatment of anorexia, there is no verification that appellant was diagnosed with that condition in the record. At any rate, the personnel manager informed appellant that she would be scheduled for a drug test due to her perceived absenteeism problem. Appellant went to the lab at Baptist Hospital in Forrest City on February 3, 1994, and provided a urine specimen, pursuant to directions from the personnel manager who had told her that unless she did so she would be fired immediately. Appellant's undisputed testimony is that she did not seal, initial, or otherwise label the urine specimen and that she did not see anyone else do so. The personnel manager testified that she does not know what happened to the urine specimen, but that the specimen produced a positive result for presence of amphetamines and that appellant was fired because she did not produce a negative result upon retesting of the original specimen. Thus, appellant was terminated for alleged noncompliance with appellee's drug policy in what appears to have been a blatant violation of that policy by her employer. Now our court has decided to uphold the denial of her claim for unemployment benefits based upon the view that there is substantial evidence supporting the Board of Review's decision that she was discharged from her job because of misconduct connected with the work.

The Arkansas Supreme Court has stated that in keeping with the declaration of the state public policy of providing benefits to workers who are unemployed through no fault of their own, the statutory misconduct provision of the unemployment compensation law must be given an interpretation consistent with that declared policy, and that it should not be so literally construed as to effect a forfeiture of benefits by an employee except in clear cases of misconduct. Willis Johnson Co. v. Daniels, 269 Ark. 795, 601 S.W.2d 890 (1980). While various definitions of the term "misconduct" have been given by Arkansas courts, it appears generally accepted that a finding of "misconduct" will attach only to conduct evincing an intentional or deliberate violation of employer rules, a willful or wanton disregard, or carelessness or negligence of such degree or recurrence as to manifest wrongful intent or evil design. Hillman v. Arkansas Hwy. & Transp. Dep't, 39 F.3d 197 (8th Cir.1994); see also A. Tenenbaum Co. v. Director of Labor, 32 Ark.App. 43, 796 S.W.2d 348 (1990); Edwards v. Stiles, 23 Ark.App. 96, 743 S.W.2d 12 (1988).

It is true that the issue of misconduct is a question of fact for the Board of Review, and that, on appeal, the Board's findings are conclusive if supported by substantial evidence. A. Tenenbaum Co., supra. The problem with the Board's findings in this case is that any holding of misconduct must rest upon a finding that appellant failed to comply with the employer's drug testing policy requiring her to produce a negative result from the original specimen that produced the positive result. All the evidence on the issue shows that the employer never produced the original specimen for appellant to retest. The employer selected the testing agency. It had the duty to make the original specimen available to appellant so that she could exercise her right to have it retested in connection with her challenge to the positive finding. Having failed to safeguard the original specimen so as to make it available for retesting pursuant to its own policy, the employer is in no position to use appellant's failure to produce a negative result upon a retest that the employer knows cannot be obtained to justify her dismissal.

Stripped of its obligatory references to the standard of review, this result stands for the proposition that an employee can be found guilty of misconduct so as to be disqualified from entitlement to unemployment benefits where the employer accuses her of violating its drug policy based upon a positive drug test from a specimen that nobody has identified and which the employer cannot find. As if that were not enough, the prevailing opinion also holds that where the employer has deprived the employee of the chance to retest the original specimen, the employer may successfully assert the employee's failure to produce a negative result upon retesting as "misconduct." I cannot agree that fair-minded persons confronted with these facts would characterize appellant's failure to produce a negative result from a specimen that her employer has failed and/or refused to produce for retesting as intentional or deliberate disregard of her job duties and obligations or the employer's interests. Moreover, I reject the notion that the Arkansas General Assembly intended that employees should forfeit their right to unemployment compensation benefits on account of misconduct due to plain proof...