{ "id": 6141958, "name": "Beverly J. TATE v. DIRECTOR, DEPARTMENT of WORKFORCE SERVICES", "name_abbreviation": "Tate v. Director, Department of Workforce Services", "decision_date": "2007-12-05", "docket_number": "E 07-107", "first_page": "394", "last_page": "400", "citations": [ { "type": "official", "cite": "100 Ark. App. 394" }, { "type": "parallel", "cite": "269 S.W.3d 402" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "88 Ark. App. 57", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136959 ], "weight": 3, "year": 2004, "pin_cites": [ { "page": "64" }, { "page": "804" } ], "opinion_index": 0, "case_paths": [ "/ark-app/88/0057-01" ] }, { "cite": "88 S.W.3d 427", "category": "reporters:state_regional", "reporter": "S.W.3d", "case_ids": [ 1404505, 6142322 ], "year": 2002, "opinion_index": 1, "case_paths": [ "/ark/350/0464-01", "/ark-app/79/0407-01" ] }, { "cite": "79 Ark. App. 407", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6142322 ], "year": 2002, "opinion_index": 1, "case_paths": [ "/ark-app/79/0407-01" ] }, { "cite": "87 Ark. App. 311", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140689 ], "weight": 2, "year": 2004, "opinion_index": 1, "case_paths": [ "/ark-app/87/0311-01" ] }, { "cite": "55 Ark. App. 418", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6143590 ], "weight": 2, "year": 1996, "opinion_index": 1, "case_paths": [ "/ark-app/55/0418-01" ] }, { "cite": "81 Ark. App. 286", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140851 ], "weight": 3, "year": 2003, "opinion_index": 1, "case_paths": [ "/ark-app/81/0286-01" ] }, { "cite": "257 Ark. 829", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8724114 ], "weight": 4, "year": 1975, "pin_cites": [ { "page": "832", "parenthetical": "citations omitted" }, { "page": "284", "parenthetical": "citations omitted" }, { "page": "832-33" }, { "page": "284" } ], "opinion_index": 1, "case_paths": [ "/ark/257/0829-01" ] }, { "cite": "Ark. Code Ann. \u00a7 11-10-102", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 2002, "pin_cites": [ { "page": "(2)" } ], "opinion_index": 1 }, { "cite": "270 Ark. 190", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1709282 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "194" }, { "page": "910" } ], "opinion_index": 1, "case_paths": [ "/ark/270/0190-01" ] }, { "cite": "269 Ark. 774", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1712443 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/ark/269/0774-01" ] }, { "cite": "9 Ark. App. 59", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137142 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "66" }, { "page": "843" } ], "opinion_index": 1, "case_paths": [ "/ark-app/9/0059-01" ] }, { "cite": "227 Ark. 288", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1705586 ], "weight": 2, "year": 1957, "opinion_index": 1, "case_paths": [ "/ark/227/0288-01" ] }, { "cite": "38 S.W.2d 318", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1931, "opinion_index": 1 }, { "cite": "183 Ark. 738", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1441836 ], "year": 1931, "opinion_index": 1, "case_paths": [ "/ark/183/0738-01" ] }, { "cite": "261 Ark. 468", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1678966 ], "weight": 2, "year": 1977, "opinion_index": 1, "case_paths": [ "/ark/261/0468-01" ] } ], "analysis": { "cardinality": 718, "char_count": 12647, "ocr_confidence": 0.779, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.17495556690756875 }, "sha256": "1dd2315ade9a918ea32f9b4be60e55dff8601725e92f614eae4f6941c65b3ecd", "simhash": "1:b18f98a3e52267de", "word_count": 2016 }, "last_updated": "2023-07-14T22:52:18.034517+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Pittman, C.J., Gladwin, Robbins, Glover and Vaught, JJ-, agree.", "Heffley, Baker and Miller, JJ., dissent." ], "parties": [ "Beverly J. TATE v. DIRECTOR, DEPARTMENT of WORKFORCE SERVICES" ], "opinions": [ { "text": "D.P. Marshall Jr., Judge.\nBeverly Tate challenges the Board of Review\u2019s decision that she was not entitled to unemployment benefits because the University of Arkansas fired her with cause for insubordination. Ark. Code Ann. \u00a7 ll-10-514(a)(l) (Supp. 2007). Whether Tate\u2019s actions constituted misconduct in connection with her work was a fact question for the Board to answer. Terravista Landscape v. Williams, 88 Ark. App. 57, 64, 194 S.W.3d 800, 804 (2004). The question for this court is whether substantial evidence supports the Board\u2019s decision. Ibid. It does.\nDuring the six months that Tate was in her last position at the University, she arrived late for work several times. At first, Tate wanted to make up for her tardiness, which was usually about fifteen minutes, by working during her break or her lunch time. Tate\u2019s supervisor instructed her that she could not do so, and instead must use some of her leave time to cover the tardiness. Tate questioned this interpretation of University policy. Tate and her supervisor consulted with the Associate Vice-Chancellor for Human Resources, who confirmed the supervisor\u2019s interpretation. When Tate was late again, her supervisor reminded her of the rules. Tate again sought to avoid using up her leave time and wanted to work during her breaks. Her supervisor refused, and suggested that Tate consult the supervisor\u2019s boss under the University\u2019s \u201copen-door\u201d policy. Tate did so. He declined to intervene, e-mailing Tate that she should sort the matter out with her supervisor.\nA few weeks later, Tate was late two days in a row. When her supervisor told her to use leave time for this tardiness, Tate again said that she would just make up the time by working through her breaks. The supervisor refused, and told Tate that her attitude on this matter and others needed to improve. When Tate asked the supervisor to put that in writing, the supervisor discharged Tate.\nThis record contains substantial evidence that supports the Board\u2019s decision. Asking questions about an employer\u2019s policy is not insubordination. Asking the employer to change or interpret the policy is not insubordination. But after the questions are asked and the requested accommodation is rejected, then an employee who refuses to accept the employer\u2019s decision about the rules for the workplace is insubordinate. Tate would not take no for an answer. She never indicated to her supervisor that she would comply with her instructions. Substantial evidence supports the Board\u2019s decision that Tate\u2019s repeated attempt to disregard the University\u2019s time policies ripened into misconduct. Terravista Landscape, supra.\nAffirmed.\nPittman, C.J., Gladwin, Robbins, Glover and Vaught, JJ-, agree.\nHeffley, Baker and Miller, JJ., dissent.", "type": "majority", "author": "D.P. Marshall Jr., Judge." }, { "text": "Karen R. Baker, Judge,\ndissenting. At the time of her termination, Ms. Tate was classified as an employee with more than seven years of full-time service. She had worked in hourly and work study capacities at the University in addition to the salaried position from which she was terminated. Nothing in the record indicates any disputes regarding Ms. Tate\u2019s timekeeping practices pursuant to the University\u2019s policy until she was transferred and placed under Ms. Seller\u2019s supervisory authority. The dispute that led to termination arose when Ms. Seller required Ms. Tate to use her leave time, that could be taken only in fifteen minute intervals, to address two sequential late arrivals of less than fifteen minutes. In presenting her understanding of her employer\u2019s policy, Ms. Tate explained that she had witnessed the University\u2019s progressive employment practices over a twelve-year time span. In expressing her understanding of the University\u2019s approach to work schedules, she quoted the following excerpt from an article entitled \u201cU of A Receives Silver Family Friendly Award:\u201d\nAs the university works to help employees maintain a work-life balance, it offers \u201ca lot of work-time options, everything from flexible hours, compressed workweeks, permanent part time and telecommuting,\u201d Taylor (Barbara Taylor, associate vice chancellor for human relations) said. \u201cAs an employer, the university strives to provide its employees with convenience and many choices.\u201d\nRegarding flexible hours, Ms. Tate included the following provision from the employment handbook:\nYou and your supervisor may agree to a work week with a time schedule that differs from the regular daily schedule if it serves both your needs and those of the University. The schedule must not create a pattern of overtime work or cause undue hardship for your work unit. Any flex-time agreements that you make must be put in writing and be signed by you and your supervisor.\nMs. Tate related in her history of Ms. Seller\u2019s application of the University\u2019s policy to her an incident that occurred within the first month of Ms. Tate being transferred to Ms. Seller\u2019s supervision. In that instance, Ms. Seller refused to authorize overtime worked by Ms. Tate. Instead, Ms. Seller adjusted Ms. Tate\u2019s leave time, rather than paying overtime. Ms. Tate also explained that she was normally five to ten minutes early to work each day and that on occasion would begin working thirty minutes earlier than the scheduled day.\nFurthermore, Ms. Tate explained that she followed the University\u2019s open-door policy in pursuing a clarification of Ms. Seller\u2019s application of the policy:\n[T]he university does have an open-door policy, and employees are, and can, and the option is available to employees to ask and to question, and that\u2019s exactly what I was doing, and that is not insubordinate and not disrespectful to take advantage of the open-door policy. It\u2019s in the university handbook.\nMs. Seller not only acknowledged the employer\u2019s open-door policy but stated that she encouraged Ms. Tate to talk to Don Peterson, Ms. Seller\u2019s supervisor. Nevertheless, she maintained that the reason for Ms. Tate\u2019s termination was the insubordination and disrespect that she showed toward Ms. Seller.\nOf particular importance to the issue before us are three exhibits regarding the use of breaks. The first is an email from Ms. Seller to Barbara Taylor making the following request: \u201cBarbara, Beverly and I have a question about work breaks. Can you please explain the law requirements and then the University\u2019s position on them?\u201d The second is the response from Ms. Taylor to Ms. Seller and copied to Ms. Tate. This email is several pages and begins with the following statement: \u201cThe answer to your question is a somewhat complicated one, as it involves both the Federal Fair Labor Standard Act (FSLA) and state regulations.\u201d The last email is from Ms. Seller to Ms. Tate that states simply: \u201cYes, if you need breaks, you can take one mid morning not to exceed 15 minutes and one mid afternoon not to exceed 15 minutes.\u201d\nMs. Arbuthnot testified that Ms. Tate was terminated, not for her usage of the time, but for \u201ccontinually arguing about the time usage.\u201d Ms. Seller testified that \u201cBeverly was terminated for insubordination and disrespect to my position as her supervisor, not for being tardy, but for continually arguing with me about the use of her breaks to shorten her day, to fill in time that she was late.\u201d Ms. Tate testified that she questioned the policy regarding the time usage as applied by Ms. Seller because she believed that the application was inappropriate to her position as a salaried employee. The Board of Review found that Ms. Tate \u201cwas not discharged for \u2018questioning\u2019 time keeping practices or for \u2018being late.\u2019 She was discharged for being insubordinate.\u201d The majority\u2019s affirmance is in direct contradiction to the evidence in this case and the public policy that is our duty to protect.\nStatutes are to be construed with reference to the public policy which they are designed to accomplish. Commercial Printing Co. v. Rush, 261 Ark. 468, 549 S.W.2d 790 (1977); Ark. Tax Comm\u2019n v. Crittenden County, 183 Ark. 738, 38 S.W.2d 318 (1931). As the supreme court stated in Little Rock Furniture Mfg. Co. v. Commr. of Labor, 227 Ark. 288, 298 S.W.2d 56 (1957), our Employment Security Act must be given an interpretation in keeping with the declaration of state policy. The intent of the Arkansas Legislature controls the construction of our unemployment security laws. Feagin v. Everett, 9 Ark. App. 59, 66, 652 S.W.2d 839, 843 (1983). In addition, the Employment Security Act is remedial in nature and must be liberally construed in order to accomplish its beneficent purpose. Graham v. Daniels, 269 Ark. 774, 601 S.W.2d 229 (Ark. App.1980).\nUnemployment benefits are intended to benefit employees who lose their jobs through no fault or voluntary decision of their own. They are not intended to penalize employers or reward employees, but to promote the general welfare of the State. Wacaster v. Daniels, 270 Ark. 190, 194, 603 S.W.2d 907, 910 (Ark. App. 1980). The policy of the Arkansas Employment Security Act is \u201cto encourage employers to provide more stable employment\u201d and to accumulate \u201cfunds during periods of employment from which benefits may be paid for periods of unemployment.\u201d Ark. Code Ann. \u00a7 11-10-102(2) (Repl. 2002).\nOur supreme court has explained that the purpose of the eligibility and disqualification provisions of an unemployment compensation statute is to protect the state unemployment compensation fund against claims of individuals who would prefer benefits to jobs. Garrett v. Cline, 257 Ark. 829, 832, 520 S.W.2d 281, 284 (1975) (citations omitted). The eligibility and disqualification provisions, being in pari materia, are to be construed together. Id. at 832-33, 520 S.W.2d at 284.\nArkansas Code Annotated section ll-10-514(a)(l) (Repl. 2002) provides, \u201cIf so found by the Arkansas Employment Security Department, an individual shall be disqualified for benefits if he or she is discharged from his or her last work for misconduct in connection with the work. \u201cMisconduct,\u201d for purposes of unemployment compensation, involves (1) disregard of the employer\u2019s interest; (2) violation of the employer\u2019s rules; (3) disregard of the standards of behavior which the employer has a right to expect; and (4) disregard of the employee\u2019s duties and obligations to his employer. Rossini v. Director, 81 Ark. App. 286, 101 S.W.3d 266 (2003). To constitute misconduct, however, the definitions require more than mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies, ordinary negligence in isolated instances, or good-faith errors in judgment or discretion. Id. Instead, there is an element of intent associated with a determination of misconduct. Blackford v. Director, 55 Ark. App. 418, 935 S.W.2d 311 (1996). There must be an intentional and deliberate violation, a willful and wanton disregard, or carelessness or negligence of such a degree or recurrence as to manifest wrongful intent or evil design. Rossini v. Director, supra. Misconduct contemplates a willful or wanton disregard of an employer\u2019s interest as is manifested in the deliberate violation or disregard of those standards of behavior which the employer has a right to expect from its employees. Blackford v. Director, supra.\nThe employer has the burden of proving misconduct by a preponderance of the evidence. Arkansas Midland R.R. v. Director, 87 Ark. App. 311, 191 S.W.3d 544 (2004). Additionally, the credibility of witnesses and the weight to be accorded their testimony are matters to be resolved by the Board. Williams v. Director, 79 Ark. App. 407, 88 S.W.3d 427 (2002).\nIn this case, the evidence showed that the law governing the University\u2019s policy was complicated and that the use of breaks was flexible. Nevertheless, the Board found that Ms. Tate\u2019s attempts to clarify the use of breaks was insubordination, although the board also found that she was not terminated for questioning the policy. Despite this flawed circular reasoning, the majority affirms.\nNothing in this record indicates that Ms. Tate is attempting to receive unemployment benefits in lieu of work. It is our duty to interpret the statutes regarding misconduct and determine whether the evidence can support the Board\u2019s determination. Nothing in this record can support the Board\u2019s finding that Ms. Tate was insubordinate and that her insubordination manifested a wrongful intent or evil design against her employer.\nAccordingly, I dissent.\nHeffley and Miller, JJ., join.", "type": "dissent", "author": "Karen R. Baker, Judge," } ], "attorneys": [ "Appellant, pro se.", "Phyllis A. Edwards, for appellee." ], "corrections": "", "head_matter": "Beverly J. TATE v. DIRECTOR, DEPARTMENT of WORKFORCE SERVICES\nE 07-107\n269 S.W.3d 402\nCourt of Appeals of Arkansas\nOpinion delivered December 5, 2007\nAppellant, pro se.\nPhyllis A. Edwards, for appellee." }, "file_name": "0394-01", "first_page_order": 422, "last_page_order": 428 }