ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JUDGE JOSEPHINE LINKER HART

DIVISION I

DARLENE P. BUTLER

APPELLANT

V.

DIRECTOR, Arkansas Employment Security Department; and UNIVERSITY OF ARKANSAS

APPELLEES

E99-327

May 16, 2001

APPEAL FROM THE ARKANSAS BOARD OF REVIEW

[NO. 99-BR-01162]

AFFIRMED

Appellant, Darlene P. Butler, appeals from the decision of the Arkansas Board of Review finding that she was not unemployed from September 25, 1998, to February 28, 1999, and further, that she was not entitled to benefits through August 15, 1999, because she was not able and available for suitable work, nor doing those things which a reasonably prudent individual would do to secure work. Specifically, appellant argues that the Board's decision was not supported by substantial evidence. We affirm.

Appellant was employed at the University of Arkansas in Fayetteville, Arkansas, as an assistant professor in the Industrial Engineering Department. Appellant was assigned classes to teach during the fall semester of 1998, but, as she testified, she "stopped teaching those classes because initially at the beginning of this semester I had some trouble with childcare." The head of her department, Eric Malestrom, asked appellant to teach the classesand be

physically present at the University. He further told appellant that the University childcare facility would be available to provide care for her child. Appellant rejected the childcare offer and sought to be on campus only two days a week. She testified that she had childcare, just not for all days, and she wanted to telecommute until she obtained childcare for all days. She also admitted that she did not attend all of her committee meetings regarding advancement of graduate students.

Malestrom offered her a leave of absence from November 1, 1998, to May 15, 1999, but ultimately they disagreed over the conditions of the leave of absence. Appellant testified that Malestrom offered her three options: accept the leave of absence, resign, or be terminated. She also stated that she was never given the option of returning to teaching and that she never attempted to return.

Appellant was paid her regular salary through the end of February 1999, and was placed on a leave of absence on March 1, 1999. In an Arkansas Employment Security Department worksheet, a University representative noted that appellant was placed on leave "because she was not coming to work." The representative further wrote, "All she has to do is to come back to work anytime she is willing to do her work at the [U]niversity. She's totally in ... control of her leave of absence." Appellant submitted a letter to the University of Arkansas resigning from her position effective August 5, 1999. She began employment elsewhere on August 16, 1999.

On appeal, we review the findings of fact of the Board of Review in the light most favorable to the prevailing party and reverse when the findings are not supported bysubstantial evidence. See McKissick v. Rolle, 61 Ark. App. 266, 268, 966 S.W.2d 921, 923 (1998). Substantial evidence is evidence that reasonable persons would find adequate to support a conclusion. Id. The credibility of witnesses and the weight to be accorded their testimony are matters that are be resolved by the Board of Review. Id.

The Board found that appellant was employed between September 25, 1998, and February 28, 1999. In pertinent part, "an individual shall be deemed `unemployed' with respect to any week during which: (1) He performs no services; and (2) No wages are payable to him with respect to that week ...." Ark. Code Ann. § 11-10-214(a) (Repl. 1996). Because appellant was paid her salary through the end of February 1999, we conclude that the Board did not err in finding that appellant was not unemployed during that period. See McVey v. Daniels, 270 Ark. 409, 605 S.W.2d 483 (Ark. App. 1980).

We further conclude that the Board did not err in finding that, though she was unemployed beginning March 1, 1999, appellant was not entitled to benefits through August 15, 1999, because she was not able and available for work nor doing those things which a reasonably prudent individual would do to secure work. In pertinent part, an insured worker is eligible to receive benefits if "[t]he worker is unemployed, is physically and mentally able to perform suitable work, and is available for such work." Ark. Code Ann. § 11-10-507(3)(A) (Supp. 1999). Furthermore, "[m]ere registration and reporting at a local employment office shall not be conclusive evidence of ability to work, availability for work, or willingness to accept work unless the individual is doing those things which a reasonably prudent individual would be expected to do to secure work." Id.

Here, there is simply no evidence to suggest that through August 15, 1999, appellant attempted to return to work after resolving her availability problems. Further, as the Board notes, "[i]f the claimant had truly believed that there was no option of her returning to work, then she would not have needed to resign." Given the absence of an effort on appellant's part to return to work, we affirm the Board's decision that appellant was not able and available for work nor doing those things which a reasonably prudent individual would do to secure work.

Affirmed.

Stroud, C.J., and Crabtree, J., agree.