{ "id": 6136641, "name": "Vivian A. KIMBLE v. DIRECTOR, Arkansas Employment Security Department, and Willis Shaw Express", "name_abbreviation": "Kimble v. Director, Arkansas Employment Security Department", "decision_date": "1997-12-22", "docket_number": "E 97-50", "first_page": "36", "last_page": "42", "citations": [ { "type": "official", "cite": "60 Ark. App. 36" }, { "type": "parallel", "cite": "959 S.W.2d 66" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "392 A.2d 353", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1978, "opinion_index": 0 }, { "cite": "269 Ark. 693", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1712456 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/269/0693-01" ] }, { "cite": "42 Ark. App. 218", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140277 ], "weight": 4, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark-app/42/0218-01" ] }, { "cite": "31 Ark. App. 74", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137293 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark-app/31/0074-01" ] }, { "cite": "50 Ark. App. 77", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137446 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark-app/50/0077-01" ] }, { "cite": "796 S.W.2d 348", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 6645026, 6644510 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/ark-app/32/0058-01", "/ark-app/32/0043-01" ] }, { "cite": "32 Ark. App. 43", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6644510 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/ark-app/32/0043-01" ] }, { "cite": "625 S.W.2d 551", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 6715689, 6715716 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ark-app/3/280-A-01", "/ark-app/3/0281-01" ] }, { "cite": "3 Ark. App. 281", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6715716 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ark-app/3/0281-01" ] }, { "cite": "17 Ark. App. 72", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6649985 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/ark-app/17/0072-01" ] }, { "cite": "269 Ark. 795", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1712517 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/269/0795-01" ] }, { "cite": "52 Ark. App. 197", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139971 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark-app/52/0197-01" ] }, { "cite": "52 Ark. App. 126", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6138437 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark-app/52/0126-01" ] }, { "cite": "52 Ark. App. 197", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139971 ], "weight": 2, "year": 1996, "opinion_index": 1, "case_paths": [ "/ark-app/52/0197-01" ] }, { "cite": "52 Ark. App. 126", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6138437 ], "weight": 2, "year": 1996, "opinion_index": 1, "case_paths": [ "/ark-app/52/0126-01" ] } ], "analysis": { "cardinality": 533, "char_count": 9251, "ocr_confidence": 0.76, "pagerank": { "raw": 1.5609152421045048e-07, "percentile": 0.6769114724449186 }, "sha256": "9928684b70f7e54023a84a8c0d077f7bdd37713a2658663e88effdc7a440f66f", "simhash": "1:70ce450669bbd2ba", "word_count": 1472 }, "last_updated": "2023-07-14T20:03:53.777728+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Pittman, Jennings, and Meads, JJ., agree.", "Robbins, C.J., and Neal, JJ., dissent." ], "parties": [ "Vivian A. KIMBLE v. DIRECTOR, Arkansas Employment Security Department, and Willis Shaw Express" ], "opinions": [ { "text": "Judith Rogers, Judge.\nThis is an appeal from a decision of the Board of Review denying unemployment compensation benefits based on a finding that appellant, Vivian Kimble, was discharged for misconduct connected with the work. At issue in this case, which is submitted without supporting briefs, is whether the Board\u2019s finding of misconduct is supported by substantial evidence. We affirm the decision of the Board.\nAppellant worked for Willis Shaw Express as a long distance truck driver from January 26, 1996, to October 18, 1996. It is undisputed that she was discharged after having had five accidents in a six-month period, the first occurring on April 4 and the last on October 14. There was testimony that the employer characterized each of the accidents as \u201cpreventable.\u201d In at least two of the accidents, appellant hit stationary objects. In the first, she made a turn too sharply and damaged the trailer she was hauling. In the second accident, she hit a parked vehicle. She next damaged some pavement while making a turn. In the fourth accident, she backed into a vehicle that was parked at a fuel pump. Last, appellant struck another vehicle while making a right-hand turn.\nThe employer had written policies governing the standards of conduct expected of its employees. One such policy warned that the failure to safely operate equipment entrusted to an employee\u2019s care could result in disciplinary action or the loss of one\u2019s job. After the fourth accident, appellant was placed on probation, and she was warned that another incident could result in the termination of her employment. In her testimony, appellant admitted that each of the accidents was her fault, but she denied that she had \u201cdeliberately set out to have accidents.\u201d\n\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 the right to expect; and (4) disregard of the employee\u2019s duties and obligations to her employer. Rucker v. Director, 52 Ark. App. 126, 915 S.W.2d 315 (1996). There is an element of intent associated with a determination of misconduct. Fulgham v. Director, 52 Ark. App. 197, 918 S.W.2d 186 (1996). Mere inefficiency, unsatisfactory conduct, failure of good performance as the result of inability or incapacity, inadvertencies, ordinary negligence, or good-faith errors in judgment or discretion are not considered misconduct for unemployment insurance purposes unless it is of such a degree or recurrence as to manifest culpability, wrongful intent, evil design, or an intentional or substantial disregard of an employer\u2019s interest or of an employee\u2019s duties and obligations. Willis Johnson Co. v. Daniels, 269 Ark. 795, 601 S.W.2d 890 (Ark. App. 1980). See also Shipley Baking Co. v. Stiles, 17 Ark. App. 72, 703 S.W.2d 465 (1986); Arlington Hotel v. Director, 3 Ark. App. 281, 625 S.W.2d 551 (1981).\nIn the present case, the Board concluded that a preponderance of the evidence established a pattern of recurring negligence rising to the level of misconduct. The Board predicated its decision on the number of accidents that occurred in a short time span and appellant\u2019s own testimony that she was at fault.\nThe issue of misconduct is a question of fact for the Board of Review to determine. Tenenbaum v. Director, 32 Ark. App. 43, 796 S.W.2d 348 (1990). On appeal, the findings of fact made by the Board are conclusive if they are supported by substantial evidence. George\u2019s Inc. v. Director, 50 Ark. App. 77, 900 S.W.2d 590 (1995). Substantial evidence is defined as such evidence as a reasonable person might accept as adequately supporting a conclusion. Calvin v. Director, 31 Ark. App. 74, 787 S.W.2d 701 (1990). We review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board\u2019s findings. Perdrix-Wang v. Director, 42 Ark. App. 218, 856 S.W.2d 636 (1993). Even where there is evidence upon which the Board might have reached a different decision, the scope of judicial review is limited to a determination of whether the Board could reasonably reach its decision upon the evidence before it. Id.\nIt is generally recognized that unemployment benefits may be denied a discharged employee-driver based on a finding of misconduct where motor vehicle accidents are chargeable to negligence which has occurred periodically or with consistent regularity. 76 Am. Jur. 2d, Unemployment Compensation \u00a7 84. But even numerous accidents will not support a finding of misconduct where evidence is lacking that the accidents were due to the employee\u2019s negligence. Id. The case of B.J. McAdams v. Daniels, 269 Ark. 693, 600 S.W.2d 418 (Ark. App. 1980), is illustrative of this latter point. There, the claimant had three accidents in an eleven-month period. We affirmed the Board\u2019s award of benefits based on the lack of evidence demonstrating recurring negligence from which misconduct could be inferred, when the last accident was attributable to weather conditions, and not the negligence of the claimant.\nBy contrast here, however, the appellant had five \u201cpreventable\u201d accidents in a brief, six-month period for which she admitted fault. We also note that appellant performed her job without incident prior to the spate of accidents. On this record, we hold that, despite appellant\u2019s claim that she did not deliberately set out to have accidents, the number, frequency, and nature of the accidents satisfy the elements necessary to support a finding of misconduct. Quite apart from isolated instances of ordinary negligence, the evidence shows a recurring pattern of carelessness from which the Board was permitted to infer a manifest indifference that constitutes a substantial disregard of her employer\u2019s interests, as well as a substantial disregard of her duties and obligations to the employer. Therefore, we cannot say that there is no substantial evidence to support the denial of benefits.\nAffirmed.\nPittman, Jennings, and Meads, JJ., agree.\nRobbins, C.J., and Neal, JJ., dissent.\nSee, e.g.y Schappe v. Unemployment Compensation Board of Review, 392 A.2d 353 (Pa. Commw. Ct. 1978).", "type": "majority", "author": "Judith Rogers, Judge." }, { "text": "John B. Robbins, Chief Judge,\ndissenting. I disagree with the prevailing opinion of this court, which today holds that Mrs. Vivian Kimble\u2019s accidents were tantamount to intentional misconduct and render her ineligible for unemployment compensation benefits.\nMrs. Kimble was employed by Willis Shaw Express as a long-distance truck driver. In the words of Allen Roller, vice president of Shaw\u2019s human resources and safety departments, \u201cShe delivered freight to all forty-eight states,\u201d in a \u201csemi-tractor trailer.\u201d The record does not reflect the distance Mrs. Kimble drove her tractor-trailer rig during the nine months that she worked for Shaw, or the number of miles that the driver of an eighteen-wheeler could reasonably be expected to drive without experiencing an accident. We only know that Mrs. Kimble was involved in a total of five accidents over the course of her employment, with the last accident triggering her discharge.\nThere is a significant difference between the misconduct that disqualifies a worker from unemployment compensation and mere unsatisfactory job performance. I will not repeat here the definition of \u201cmisconduct\u201d for purposes of unemployment compensation inasmuch as the prevailing opinion has quoted the definition we gave this term in Rucker v. Director, 52 Ark. App. 126, 915 S.W.2d 315 (1996). It must be noted, however, that misconduct involves an element of intent. Fulgham v. Director, 52 Ark. App. 197, 918 S.W.2d 186 (1996).\nThe prevailing opinion emphasizes that the accidents in which Mrs. Kimble was involved were \u201cpreventable\u201d and that Mrs. Kimble admitted fault. Just because an accident is \u201cpreventable,\u201d i.e., in hindsight something could have been done differently and the accident would not have happened, does not alter the fact that the accident was only an accident. It was not disputed that Mrs. Kimble had the five accidents. Mrs. Kimble testified, however, that they were \u201cjust that, they were accidents. . . . They were my fault accidents, but they were, there was nothing willful on my part.\u201d Mr. Roller also testified that Mrs. Kimble \u201cwasn\u2019t intentionally trying to have the accidents,\u201d and that \u201cVivian\u2019s a real fine person, but we just had to make the decision because of the number of preven tables.\u201d\nShaw Express may have acted prudently and reasonably in deciding to terminate Mrs. Kimble from employment as a long distance truck driver because she may be a poor driver. However, there is simply no substantial evidence to support a determination by the Board of Review that Mrs. Kimble\u2019s conduct was tantamount to an intentional disregard of her employer\u2019s interest so as to label her job performance \u201cmisconduct.\u201d\nI would reverse and remand this case to the Board of Review with directions that Mrs. Kimble be awarded unemployment compensation benefits.\nNeal, J., joins in this opinion.", "type": "dissent", "author": "John B. Robbins, Chief Judge," } ], "attorneys": [], "corrections": "", "head_matter": "Vivian A. KIMBLE v. DIRECTOR, Arkansas Employment Security Department, and Willis Shaw Express\nE 97-50\n959 S.W.2d 66\nCourt of Appeals of Arkansas Divisions I and II\nOpinion delivered December 22, 1997" }, "file_name": "0036-01", "first_page_order": 58, "last_page_order": 64 }