{
  "id": 6135960,
  "name": "Sondra O. CLARK v. DIRECTOR, Employment Security Department, and Northwest Arkansas Radiation Therapy Institute, Inc.",
  "name_abbreviation": "Clark v. Director, Employment Security Department",
  "decision_date": "1997-06-04",
  "docket_number": "E 95-193",
  "first_page": "1",
  "last_page": "7",
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    "id": 13370,
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      "reporter": "Ark. App.",
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      "year": 1996,
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        "/ark-app/54/0210-01"
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      "reporter": "Ark. App.",
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  "last_updated": "2023-07-14T22:49:00.217253+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Pittman, Arey, Bird, and Meads, JJ., agree.",
      "Neal, J., dissents."
    ],
    "parties": [
      "Sondra O. CLARK v. DIRECTOR, Employment Security Department, and Northwest Arkansas Radiation Therapy Institute, Inc."
    ],
    "opinions": [
      {
        "text": "John F. Stroud, Jr., Judge.\nThis is an employment security case in which appellant, Sondra Clark, was denied unemployment benefits because she was discharged for misconduct in connection with her work. The Appeals Tribunal denied appellant benefits for a period of eight weeks. The Board of Review denied benefits for a period of ten weeks, finding that the misconduct involved dishonesty. We affirm the Board of Review.\nAppellant had been employed by appellee, Northwest Arkansas Radiation Therapy Institute, for more than nine years when she was discharged in February 1995. Her duties as a senior staff radiation therapist and clinical supervisor included taking and logging daily equipment readings on six machines. The readings numbered between 150 to 200 each day.\nOne of the machines monitored by appellant was used to deliver high energy radiation in the treatment of cancer patients. Appellant took twenty-one readings each day on this machine, including one with respect to the machine\u2019s water pressure. It was important that the readings not vary from day to day because any deviation from the normal operation of the equipment could affect the delivery of the radiation treatment, conceivably altering the treatment outcome. Appellant had performed this task since October 1985.\nOn January 11, 1995, the water-pressure gauge on this machine was replaced by an engineer employed by NARTI. Prior to replacement, the old gauge had consistently read 60 p.s.i. The engineer performed a preventive maintenance inspection on the machine between January 23, 1995, and February 4, 1995. The inspection included a review of the logbook. In making the inspection, he noticed a discrepancy between the actual reading on the newly installed water-pressure gauge and the readings that were recorded in the log book. The new gauge measured 75-76 p.s.i., rather than the 60 p.s.i. that registered on the old gauge. However, appellant continued to record the readings at 60 p.s.i. She was terminated on February 14, 1995, for \u201cfalsifying records,\u201d an offense calling for immediate termination under NARTI\u2019s progressive discipline policy.\nAppellant filed a claim for unemployment benefits. The Appeals Tribunal denied her benefits for a period of eight weeks, and the Board of Review denied her benefits for a period of ten weeks, finding that her misconduct involved dishonesty. On appeal to this court, appellant argues that the Board of Review\u2019s finding that she engaged in misconduct by intentionally falsifying company records was not supported by substantial evidence. We disagree.\nOn appeal, the Board of Review\u2019s findings of fact are conclusive if they are supported by substantial evidence. Rucker v. Director, 52 Ark. App. 126, 915 S.W.2d 315 (1996). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. We review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board\u2019s findings. Id. Our review is limited to a determination of whether the Board could reasonably reach its decision upon the evidence before it. Id.\nArkansas Code Annotated section 11-10-514 (Repl. 1996) provides in pertinent part:\n(a)(1) If so found by the Director of the Arkansas Employment Security Department, an individual shall be disqualified for benefits if he is discharged from his last work for misconduct in connection with the work.\n(3) Except as otherwise provided in this section, disqualification for misconduct shall be for eight (8) weeks of unemployment as defined in \u00a7 11-10-512.\n(b) If he is discharged from his last work for misconduct in connection with the work on account of dishonesty, ... or willful violation of the rules or customs of the employer pertaining to the safety of fellow employees or company property, he shall be disqualified from the date of fifing his claim until he shall have ten (10) weeks of employment in each of which he shall have earned wages equal to at least his weekly benefit amount.\nAs we pointed out in Perry v. Gaddy, 48 Ark. App. 128, 891 S.W.2d 73 (1995):\nMere inefficiency, unsatisfactory conduct, failure of good performance as a result of inability or incapacity, inadvertence, and ordinary negligence or good-faith errors in judgment or discretion are not considered misconduct for unemployment insurance purposes unless they are of such degree or recurrence as to manifest culpability, wrongful intent, evil design, or an intentional or substantial disregard of an employer\u2019s interests or of an employee\u2019s duties and obligations.\n(Emphasis added.)\nHere, the Board of Review could reasonably reach the decision it did based upon the evidence that was before it. There was substantial evidence to support the Board\u2019s finding that appellant was discharged for misconduct connected with the work on account of dishonesty. After the gauge was replaced and the new gauge consistently registered 75-76 p.s.i., appellant continued to chart the gauge readings at 60 p.s.i. Once the problem was brought to the employer\u2019s attention, the gauges and logs were monitored on a daily basis and compared to appellant\u2019s readings. The discrepancies between the actual readings and appellant\u2019s log entries constituted substantial evidence that appellant\u2019s actions surpassed those of mere misreadings to those of not reading the gauges at all and logging false numbers. Such misconduct demonstrates an intentional or substantial disregard of an employer\u2019s interests or of an employee\u2019s duties and obligations.\nAffirmed.\nPittman, Arey, Bird, and Meads, JJ., agree.\nNeal, J., dissents.",
        "type": "majority",
        "author": "John F. Stroud, Jr., Judge."
      },
      {
        "text": "Olly Neal, Judge,\ndissenting. I respectfully dissent from the majority\u2019s decision to affirm. The majority adequately set out the facts; however, there are a few that I believe merit additional discussion. Mel Cheney, the director of patient services, testified that an old gauge on one of the machines that appellant consistently charted as reading 60 p.s.i. was replaced with a gauge that consistendy read 75 or 76 p.s.i. After installation of the new gauge, appellant, who had not been informed that the old gauge had been replaced, continued to chart that the gauge read 60 p.s.i. Cheney testified that once the discrepancy in the readings was brought to his attention, the readings charted on the particular gauge were monitored on a daily basis. According to Cheney, any deviation from the normal operation of the equipment could affect the delivery of the radiation treatment and alter the outcome of the patients\u2019 treatment as well as the safety of anyone working around the equipment. Although discrepancies in the readings were first noted in January, 1995, appellant was not made aware of the discrepancies until February 13, 1995, when she was placed on suspension and eventually terminated from her employment. The majority found that the facts support the Board\u2019s finding that the discrepancies between the log entries and actual readings demonstrate an intentional or substantial disregard of an employer\u2019s interests or of an employee\u2019s duties and obligations, and support a finding of misconduct due to dishonesty. I disagree.\nOn review of employment compensation cases, the factual findings of the Board of Review are conclusive if they are supported by substantial evidence; but that is not to say that our function on appeal is merely to ratify whatever decision is made by the Board of Review. See Carraro v. Director, 54 Ark. App. 210, 924 S.W.2d 819 (1996). Further, we are not at liberty to ignore our responsibility to determine whether the standard of review has been met. Id. When the Board\u2019s decision is not supported by substantial evidence, we will reverse. Id.\nArkansas Code Annotated \u00a7 ll-10-514(a)(l) (Repl. 1996) provides that an individual shall be disqualified for benefits if he is discharged from his 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 of his employees, and (4) disregard of the employee\u2019s duties and obligations to his employer. Greenberg v. Director, 53 Ark. App. 295, 922 S.W.2d 5 (1996); George's Inc. v. Director, 50 Ark. App. 77, 900 S.W.2d 590 (1995). However, as the court explained in Carraro:\nTo constitute misconduct, however, the definitions require more than mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertancies, ordinary negligence in isolated instances, or good-faith error in judgment or discretion. There must be an intentional or deliberate violation, a willful or wanton disregard, or carelessness or negligence of such degree or recurrence as to manifest wrongful intent or evil design.\n54 Ark. App. 210, 924 S.W.2d 819 (1996).\nIt is my belief that the standard of review has not been met. In Perry v. Gaddy, 48 Ark. App. 128, 891 S.W.2d 73 (1995), we found that the employee\u2019s recurring negligence amounted to misconduct. There, the appellant had worked for her employer for twelve years; however, her error rating consistently exceeded the standard error rate during the years that preceded her termination. In addition, the appellant in Perry had been evaluated and warned of poor performance prior to her termination. I think it is of particular importance that although Cheney and others in management were aware that appellant\u2019s log of gauge readings was approximately 15 p.s.i. below the readings charted by other employees, appellant received no warning of poor performance prior to the decision to terminate. The facts indicate that simple negligence may be inferred from appellant\u2019s misreading of the gauges, but such negligence does not amount to an intentional or substantial disregard of the employer\u2019s interests or of her duties or obligations.\nAdditionally, appellant read the gauge in question with Cheney looking over her shoulder, and charted the gauge as reading 65 p.s.i. Cheney testified that he made a mental note that he was reading the gauge at 75 p.s.i., and that he did not inform appellant of the discrepancy in the readings. I believe the fact that appellant charted a lower reading with her supervisor present belies the Board of Review\u2019s finding that her actions were the result of dishonesty.\nFor the reasons set forth above I would reverse.",
        "type": "dissent",
        "author": "Olly Neal, Judge,"
      }
    ],
    "attorneys": [
      "Stephen Lee Wood, P.A., by: Stephen Lee Wood, for appellant.",
      "Phyllis Edwards, for appellee Phil Price.",
      "Cypert, Crouch, Clark & Harwell, by: Charles L. Harwell, for separate appellee Robert Reyerson."
    ],
    "corrections": "",
    "head_matter": "Sondra O. CLARK v. DIRECTOR, Employment Security Department, and Northwest Arkansas Radiation Therapy Institute, Inc.\nE 95-193\n944 S.W.2d 862\nCourt of Appeals of Arkansas Divisions I and II\nOpinion delivered June 4, 1997\nStephen Lee Wood, P.A., by: Stephen Lee Wood, for appellant.\nPhyllis Edwards, for appellee Phil Price.\nCypert, Crouch, Clark & Harwell, by: Charles L. Harwell, for separate appellee Robert Reyerson."
  },
  "file_name": "0001-01",
  "first_page_order": 29,
  "last_page_order": 35
}