{ "id": 6140851, "name": "Gena C. ROSSINI v. DIRECTOR, Arkansas Employee Security Department and Arkansas Democrat-Gazette", "name_abbreviation": "Rossini v. Director, Arkansas Employee Security Department", "decision_date": "2003-03-19", "docket_number": "E 02-166", "first_page": "286", "last_page": "291", "citations": [ { "type": "official", "cite": "81 Ark. App. 286" }, { "type": "parallel", "cite": "101 S.W.3d 266" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "67 Ark. App. 109", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137356 ], "weight": 2, "year": 1999, "opinion_index": 0, "case_paths": [ "/ark-app/67/0109-01" ] }, { "cite": "58 Ark. App. 58", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136882 ], "weight": 5, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark-app/58/0058-01" ] }, { "cite": "54 Ark. App. 210", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139478 ], "weight": 3, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark-app/54/0210-01" ] }, { "cite": "53 Ark. App. 295", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141957 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark-app/53/0295-01" ] }, { "cite": "78 Ark. App. 127", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137823 ], "weight": 3, "year": 2002, "opinion_index": 0, "case_paths": [ "/ark-app/78/0127-01" ] }, { "cite": "74 Ark. App. 424", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6142334 ], "weight": 3, "year": 2001, "opinion_index": 0, "case_paths": [ "/ark-app/74/0424-01" ] }, { "cite": "42 Ark. App. 218", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140277 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark-app/42/0218-01" ] }, { "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": "1 Ark. App. 262", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141937 ], "weight": 2, "year": 1981, "opinion_index": 1, "case_paths": [ "/ark-app/1/0262-01" ] }, { "cite": "58 Ark. App. 58", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136882 ], "weight": 2, "year": 1997, "opinion_index": 1, "case_paths": [ "/ark-app/58/0058-01" ] } ], "analysis": { "cardinality": 559, "char_count": 9934, "ocr_confidence": 0.753, "pagerank": { "raw": 1.0906665015898143e-07, "percentile": 0.5655601928915547 }, "sha256": "2057b3a3c5f9f361e6e766b2173a9306165ce32fc2d597fcb944769d95471de0", "simhash": "1:1ccfb482a33e6ac0", "word_count": 1601 }, "last_updated": "2023-07-14T22:00:28.541819+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Pittman, Gladwin, and Baker, JJ., agree.", "Hart and Roaf, dissent.", "Hart, J., joins." ], "parties": [ "Gena C. ROSSINI v. DIRECTOR, Arkansas Employee Security Department and Arkansas Democrat-Gazette" ], "opinions": [ { "text": "Terry Crabtree, Judge.\nAfter being terminated from her job, the appellant, Gena C. Rossini, sought unemployment benefits from the Arkansas Employment Security Department. When the Department denied her benefits, she appealed the decision to the Arkansas Appeal Tribunal. On March 13, 2002, the Appeal Tribunal reversed the Department\u2019s determination and awarded her benefits. On June 13, 2002, the Board of Review reversed the Appeal Tribunal and denied appellant unemployment benefits after finding that she was discharged from her last work for misconduct in connection with the work. For our review, appellant maintains that the Board of Review erred: (1) when it reversed the Appeal Tribunal\u2019s decision \u201cbased on the receipt of no new evidence;\u201d (2) when it relied heavily on a fax sent by appellant to appellee after she was terminated; (3) when it incorrectly interpreted the testimony of the witnesses; (4) when it failed to recognize \u201cthe everyday use of foul language;\u201d and (5) when it failed to acknowledge the absence of an investigation in which both parties were able to explain the event that lead to appellant\u2019s termination. We affirm.\nAppellant worked as a salesperson for the appellee, the Arkansas Democrat-Gazette, for one and one-half years. On the morning of March 1, 2002, appellant and her coworker, Dennis Perkins, an account executive, became involved in a verbal disagreement about a customer\u2019s account. Appellant claims that during the argument Perkins called her a b-. She testified that she responded by calling him a pansy a \u2014 . Their supervisor, Robert Shearon, who observed the confrontation, testified that he told them to calm down. Shearon stated that \u201cat that point [appellant] started calling [P erkins] some names, including \u2018a kid who couldn\u2019t make a sale.\u2019 \u201d Shearon also stated that appellant then called Perkins an a \u2014 hole and left the building. Approximately an hour later, appellee paged appellant and informed her that she was terminated.\nAs an initial matter, we must note that appellant did not make three of her arguments below that she now complains of on appeal. The record does not reflect that appellant argued (1) that the Board should not consider the fax she sent to appellee, (2) that the Board should recognize the everyday use of foul language, or (3) that the Board should acknowledge the absence of an investigation in which both parties were able to explain the event that lead to her termination. We decline to address the merits of these arguments. They were not made below, and this court does not consider issues raised for the first time on appeal. Rucker v. Price, 52 Ark. App. 126, 915 S.W.2d 315 (1996); Perdrix-Wang v. Director, 42 Ark. App. 218, 856 S.W.2d 636 (1993).\nFor appellant\u2019s remaining two points on appeal, she essentially complains that substantial evidence did not support the Board\u2019s decision. The findings of the Board of Review are con-elusive if they are supported by substantial evidence. Walls v. Director, 74 Ark. App. 424, 49 S.W.3d 670 (2001). 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. Lovelace v. Director, 78 Ark. App. 127, 79 S.W.3d 400 (2002). Even when 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.\nAn individual shall be disqualified for unemployment benefits if she is discharged from her last work for misconduct in connection with the work. Ark. Code Ann. \u00a7 ll-10-514(a)(l) (Repl. 1999). \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). 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 error in judgment or discretion. Carraro v. Director, 54 Ark. App. 210, 924 S.W.2d 819 (1996). 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. Id. In sum, there is an element of intent associated with a determination of misconduct. Rollins v. Director, 58 Ark. App. 58, 945 S.W.2d 410 (1997).\nAppellee\u2019s employment policy states that disciplinary action, including discharge, may occur for violation of company rules and regulations including insubordination, using abusive language, and interfering with fellow employees or their work. Appellant received a copy of appellee\u2019s rules, regulations, and policies at the time she was hired. At the hearing, appellant admitted that she used abusive language toward Perkins during their argument. She attempted to justify her actions by claiming that Perkins called her a name. Appellant\u2019s supervisor, Robert Shearon, testified that Perkins did not call appellant any name during the argument. The Board of Review found that \u201cthe record contains no evidence other than [appellant\u2019s] which would support her assertion that [Perkins] called her a \u2018b-We recognize that the credibility of witnesses and the weight to be accorded their testimony are matters to be resolved by the Board. Niece v. Director, 67 Ark. App. 109, 992 S.W.2d 169 (1999).\nIt is undisputed that appellant chose to continue using abusive language even after her supervisor instructed her and Perkins to calm down. The Board of Review found appellant\u2019s behavior to be intentional as she sought to belittle Perkins in front of others in the office. The Board also noted the fact that appellant sent a fax to appellee hours after she was terminated in which she referred to Perkins as \u201cyour boy\u201d and stated, \u201c[a]t this point, I\u2019m reasonable to deal with. By Monday, who knows [?]\u201d\nWe distinguish this case from Rollins, supra, where we reversed the Board of Review\u2019s finding that a claimant had committed misconduct. In that case, the claimant told a coworker to stop meddling in her business and to shut up. Id. The Board found those words were harsh and provocative. Id. However, we did not believe that they rose to the level of misconduct as defined by the statute.\nBy contrast in the case at bar, we agree with the Board that appellant\u2019s actions were malicious and contained willful intent. Her statements to Perkins reflect more than a lack of judgment. Even after the supervisor, Shearon, instructed appellant and Perkins to \u201ccalm down,\u201d she continued with her verbal attacks and abusive language. This is clear evidence of a deliberate violation of appellee\u2019s rules and standard of behavior that appellee had a right to expect.\nBased upon our review of the evidence, we hold that substantial evidence supports the Board\u2019s decision that appellant was discharged from her last work for misconduct in connection with the work.\nAffirmed.\nPittman, Gladwin, and Baker, JJ., agree.\nHart and Roaf, dissent.", "type": "majority", "author": "Terry Crabtree, Judge." }, { "text": "Andree Layton Roaf, Judge,\ndissenting. I do not believe that the Board of Review\u2019s decision to deny Gena C. Rossini\u2019s claim for unemployment benefits based upon misconduct is supported by substantial evidence or by our case law. The sole basis for Rossini\u2019s termination was that she called a male coworker a name during a heated argument over an account, in the presence of two other male employees, including her supervisor. Rossini testified that the coworker first called her a name but he denied this, and the others pre\u00e1ent testified that they did not hear it. There is extensive testimony in the record about the common use of profanity by employees in this department, including prior use by Rossini and the coworker involved in the dispute with her. Rossini had not been warned or reprimanded when she used the \u201cF\u201d word in anger in the presence of the supervisor two months before her termination. The policy Rossini was alleged to have violated prohibited \u201ccommitting immoral acts, using abusive language or making racial slurs.\u201d Although the Board of Review and the majority do not find Rollins v. Director, 58 Ark. App. 58, 945 S.W.2d 410 (1997), controlling , I disagree. Moreover, Reynolds v. Daniels, Director, 1 Ark. App. 262, 614 S.W.2d 525 (1981), is distinguishable, because it found unprovoked profanity directed at the employee\u2019s immediate supervisor to be misconduct.\nIn Rollins, this court found that harsh words spoken by an employee to a coworker immediately preceding a fight may have been spoken in poor judgment, but did not rise to the level of misconduct as defined by statute and the court. In this instance, Rossini\u2019s actions in tossing off a parting comment at her coworker while retreating from the encounter certainly did not rise to the level of the provocative and confrontational encounter described in Rollins, and was not directed at her supervisor as was the profanity used in Reynolds. As in Rollins, Rossini\u2019s words may have been spoken out of lack of judgment, but in the circumstances do not show malicious or willful intent or a recurrence of poor judgment so as to constitute misconduct.\nHart, J., joins.", "type": "dissent", "author": "Andree Layton Roaf, Judge," } ], "attorneys": [ "Goheen Legal Services, LLC, by: Robert (Jake) Goheen, for appellant.", "Phyllis Edwards, for appellee." ], "corrections": "", "head_matter": "Gena C. ROSSINI v. DIRECTOR, Arkansas Employee Security Department and Arkansas Democrat-Gazette\nE 02-166\n101 S.W.3d 266\nCourt of Appeals of Arkansas Divisions IV and I\nOpinion delivered March 19, 2003\nGoheen Legal Services, LLC, by: Robert (Jake) Goheen, for appellant.\nPhyllis Edwards, for appellee." }, "file_name": "0286-01", "first_page_order": 312, "last_page_order": 317 }