DIVISION IV

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

E01-48

January 16, 2002

TONYA D. BAIER AN APPEAL FROM ARKANSAS

APPELLANT BOARD OF REVIEW

V.

ARKANSAS EMPLOYMENT

SECURITY DEPARTMENT and

CHARLES G. JOHNSON

APPELLEES REVERSED AND REMANDED

Appellant Tonya Baier challenges an Arkansas Board of Review (Board) decision that she was discharged from her last employment for misconduct associated with the work. As her sole point on appeal, Baier contends that the Board's decision is not supported by substantial evidence. We agree that there is no substantial evidence to support the Board's conclusion that appellant disregarded her employer's interest. Consequently, we reverse and remand.

For approximately ten years, appellant worked as a registered dental assistant in the dental office of Dr. Charles Johnson. On August 24, 2000, appellant was terminated by Dr. Johnson from her employment for lying about co-workers, causing trouble among coworkers, and exhibiting a disrespectful attitude toward Johnson's wife. She filed a claim for unemployment benefits with the Arkansas Employment Security Department. TheDepartment awarded benefits to appellant, as did the Appeals Tribunal. However, the Board reversed the Department, after finding that appellant willfully disobeyed a specific directive given by DeLee Johnson for appellant not to discuss seating arrangements with a fellow employee. The Board determined that appellant's behavior was not in her employer's best interest and that it violated a standard of behavior that the employer had the right to expect. At the hearing, DeLee Johnson, the wife of Dr. Charles Johnson, testified that she worked at the dental office occasionally and that she was in charge of making arrangements for a yearly cruise given as a bonus to staff members. Mrs. Johnson testified that her job responsibilities included coming in from time to time to help out, writing checks, and occasionally doing payroll. She testified that she helped out on a part-time basis, and that she was not a dental hygienist.

DeLee Johnson testified that appellant had expressed on several occasions that she did not want to be seated next to co-worker Melissa Horton and Horton's husband. DeLee Johnson further admitted that based on the information provided by appellant, Mrs. Johnson was not thrilled about sitting by the Hortons either, but that she had agreed to do so on a rotational basis. DeLee Johnson testified that when she called the travel agency, she was told that appellant had been extremely rude and had told the agency that she (appellant) planned to cancel her portion of the trip, and implied that the office would not use the agency in the future. She testified that appellant did not have authority to represent the office regarding the trip, and that appellant misrepresented the office. When DeLee Johnson confronted appellant, appellant denied the agency's allegations. Appellant also told DeLeeJohnson that she should tell Horton why no one wanted to sit next to Horton and her husband at the dinner table. DeLee Johnson then told appellant to keep the matter confidential and to not discuss it with anyone. After DeLee Johnson talked with appellant, appellant discussed the matter with Dr. Johnson, and told him she was not happy with the seating arrangements. Later, DeLee Johnson learned that appellant told Horton that it was DeLee Johnson and another co-worker who did not want to be seated next to the Hortons. DeLee Johnson testified that as a result, the office was disrupted and there was a lot of friction between the co-workers. She testified that she talked with appellant about the travel agency on August 9, 2000.

Barbara Johnson, the office administrator, testified that she witnessed a confrontation between appellant and DeLee Johnson regarding travel arrangements for the cruise. She testified that appellant was very rude, loud, and confrontational. When asked if she ever expressed an unwillingness to sit by the Hortons, Barbara Johnson testified no, and that she actually volunteered for the Hortons to sit at her table if it would resolve the confusion. She also denied having a conversation with the travel agency regarding where she was going to be roomed in proximity to the Hortons. However, Barbara Johnson admitted teasing appellant's husband about the fact that the Baiers were scheduled to sit next to the Hortons. Melissa Horton testified that appellant told her that DeLee Johnson and Barbara Johnson did not want to be seated next to Melissa and her husband. She testified that she was extremely hurt that they would not want to be seated next to her. Horton stated that she later found out from Barbara and DeLee Johnson that appellant's statement was not true. She testified that she and appellant discussed the trip when appellant came in the back operating room and told Horton that DeLee Johnson would bring her a seating arrangement, and that the Hortons were to be seated with Dr. Johnson, DeLee Johnson, and four other parties that were not involved with the office. Horton testified that appellant also told her that she had told DeLee and Barbara that they could not do that to the Hortons. Melissa Horton testified that she was upset that she and her husband were being "shoved off with someone we did not know." Horton testified that the conversation with appellant occurred sometime between appellant's confrontation with the travel agent and appellant's confrontation with DeLee Johnson about the seating arrangements.

Dr. Johnson testified that he overheard and then observed appellant being disrespectful and rude to his wife regarding the seating arrangements for the cruise. He stated that appellant's voice was raised, her arms were folded, and she was confronting his wife face to face. Afterwards, appellant came in to Dr. Johnson's office, and relayed the incident. Appellant denied being rude to the travel agent, and stated that she had never decided to cancel the trip. Appellant also told Dr. Johnson that she did not want to sit or be around the Hortons because of Mr. Horton's propensity to drink. She also asked Dr. Johnson to contact the travel agency to verify what she said. The next day, Dr. Johnson contacted the agency, and was told that appellant's conversations were confronting, rude, and abusive. Dr. Johnson apologized for appellant's behavior and told the agency that appellant did not have the authority to act on behalf of the clinic. He testified that prior to August 9, he last had a conversation with appellant about her conduct at work in August 1999, and that he firedappellant because she was rude and because she lied.

Appellant testified that the trip incident began when her husband came by the office to pick up a check to make an initial deposit on the trip. When he arrived, Barbara Johnson and her husband were seated in the office, and Barbara commented to Mr. Baier that she knew where he was roomed on the ship, and that Baier was seated with the Hortons. Appellant testified that when the office took its yearly cruise the previous year, Mr. Horton had too much to drink and that he and his wife got into an argument, which put everyone on the spot. After the conversation, appellant's husband went to the travel agency. When he returned home that evening, he was upset because the travel agent informed him that staff members had made requests not to sit next to the Hortons. Appellant telephoned the agency from her home and spoke with Rosa. When she confronted Rosa about the conversation between Rosa and Mr. Baier, Rosa confirmed that two people had made these requests. Appellant stated that Rosa informed her that DeLee Johnson made the request not to room next to the Hortons.

Appellant's husband testified that he went to the travel agency and was approached by a travel agent, who asked him what problems everyone had with the Hortons. The agent told Baier that DeLee Johnson and another party had requested that the agency not place them beside the Hortons during meals.

The next morning, appellant confronted DeLee Johnson about the incident. DeLee Johnson confirmed that she made the request because Mr. Horton liked to drink, smoke, and stay out late, and she did not want Dr. Johnson disturbed by Mr. Horton going in and out ofthe room. DeLee Johnson then telephoned Rosa at the travel agency, and told Rosa that she did not expect her request to leave the travel agency.

At the conclusion of the hearing, the hearing officer awarded benefits to appellant. Dr. Johnson appealed the award to the Appeals Tribunal, which upheld appellant's award. Next, Dr. Johnson appealed the decision to the Board, requesting that the Board accept additional evidence. The Board declined to accept additional evidence; however, it reversed the Appeal Tribunal's award after finding that appellant was discharged for misconduct because she disobeyed an order to refrain from discussing the travel arrangements with her co-workers. Appellant now brings this appeal.

Administrative agencies are similar to a jury, in that the administrative agency is free to believe or not believe the testimony of a witness. See Thomas v. Arkansas Dep't of Human Servs., 319 Ark. 782, 894 S.W.2d 584 (1995). Findings of the Board are conclusive when the findings are supported by substantial evidence. See Perdrix-Wang v. Dir. Emp. Sec. Dep't, 42 Ark. App. 218, 856 S.W.2d 636 (1993). Evidence is substantial when reasonable minds might accept the evidence as adequate to support the Board's determination. See id. All evidence, as well as reasonable inferences, is viewed in a light most favorable to the findings of the Board. See id. We will not substitute our opinion for that of the Board. Consequently, even when evidence exists that would support a different conclusion, our review is limited to determining whether the Board could have reasonably reached its conclusion based on the evidence presented to the Board. See id. However, reversal is required when we determine that the Board's decision is not supported bysubstantial evidence. See Carraro v. Dir., 54 Ark. App. 210, 924 S.W.2d 819 (1996).

Arkansas Code Annotated section 11-10-514(a)(1) (Supp. 2001) provides that a person shall be disqualified for benefits if the Board determines that the person is discharged from her last employment due to misconduct in connection with her work. For purposes of unemployment compensation, misconduct is defined as "(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 a right to expect of his employees, and (4) disregard of the employee's duties and obligations to his employer." Greenberg v. Dir., 53 Ark. App. 295, 297, 922 S.W.2d 5, 6 (1996). Misconduct involves an element of intent, and does not include ordinary negligence, unsatisfactory performance, or an unintentional failure to perform. See id. Instead, misconduct includes willful acts that are done with the purpose of intentionally disregarding the employer's interest or the employee's duties. See id.

We hold that the Board's decision was not supported by substantial evidence. The Board found that appellant's actions constituted misconduct such as to disqualify her for benefits because "the co-owner testified that she instructed the claimant not to discuss the matter with other employees. The claimant deliberately defied this directive when she told the co-worker that the co-owner and administrator had requested not to sit next to her." However, reasonable minds could not accept this conclusion as adequate to support a finding that appellant's remarks to Melissa Horton constituted intentional disregard for her employer's interest. In the first place, DeLee Johnson was not appellant's supervisor. Indeed, DeLee Johnson testified that she occasionally worked at the clinic to help and thather responsibilities included writing checks and doing payroll on occasion. Given the fact that no supervisor-employee relationship existed between appellant and Mrs. Johnson, appellant could not have violated a supervisory directive.

Furthermore, Horton testified that she did not know when the conversation occurred, but that the conversation took place "sometime between [appellant's] confrontation with the travel agent and her confrontation with DeLee Johnson about the seating arrangements." Because Horton's testimony unequivocally stated that the statement was made before appellant was directed by DeLee Johnson to not discuss the matter, appellant could not have violated DeLee Johnson's order. Similar to a jury, the Board was not required to believe all or part of Horton's testimony. However, absent Horton's testimony, substantial evidence does not exist to adequately support the Board's conclusion that the conversation between appellant and Horton occurred after DeLee Johnson purported to prohibit appellant from discussing the matter with Horton or to establish the sequence of events. DeLee Johnson testified that "[appellant] did not follow my instructions to keep the matter confidential and discussed it with Melissa Horton." All that may be inferred from DeLee Johnson's testimony is that DeLee Johnson believed that the conversation took place after DeLee Johnson's directive. While one could infer from Johnson's testimony her belief that appellant discussed the travel arrangements after appellant was told not to do so, DeLee Johnson's testimony does not establish the sequence necessary to support a finding of misconduct. Therefore, we reverse and remand this case to the Board for further proceedings to determine appellant's eligibility for benefits and the amount and duration ofher benefits.

Reversed and remanded.

Robbins and Roaf, JJ., agree.