Opinion
No. E11-284
09-26-2012
VICKIE L. BLAYLOCK APPELLANT v. DIRECTOR, DEPARTMENT OF WORKFORCE SERVICES AND WALMART APPELLEE
Robert A. Newcomb, for appellant. Phyllis Edwards, for appellee.
APPEAL FROM THE ARKANSAS
BOARD OF REVIEW
[NO. 2010-BR-00068]
AFFIRMED
CLIFF HOOFMAN , Judge
Appellant Vickie Blaylock appeals from the Board of Review's decision denying her unemployment benefits upon finding that she was discharged from last work for misconduct connected with the work. On appeal, Blaylock argues that the decision is not supported by substantial evidence and that her due-process rights were violated upon being unable to cross-examine the witnesses against her. We affirm.
The Department of Workforce Services issued a Notice of Agency Determination on October 30, 2009, finding that Blaylock was discharged from her job for violation of her employer's policy by failing to maintain privacy during an investigation and that her actions were against her employer's best interest. Thus, she was disqualified from receiving unemployment benefits under Arkansas Code Annotated section 11-10-514(a) for being discharged from her last work for misconduct in connection with the work.
Blaylock filed a timely appeal to the Arkansas Appeal Tribunal, and a telephone hearing was held on December 21, 2009. Blaylock appeared at the telephone hearing with her attorney and had two witnesses appear to testify on her behalf. For the employer, Wal-Mart, an attorney and one witness, Kelly Young, appeared.
Young, a Divisional Director for Asset Protection, testified that Blaylock worked as a Market Asset Protection Manager and reported to Don Arrick, a Regional Director for Asset Protection, who reported to Young. In June 2009, an anonymous call came into the Wal-Mart ethics hotline claiming that Blaylock was involved in manipulating some inventory counts within her market. Arrick conducted an investigation, but the claim was unsubstantiated. Later, there was a second call to the ethics hotline regarding Blaylock and possible irregularities with inventory. In September 2009, the ethics investigation team, led by Erik Vandyke, sent Blaylock an interview schedule for her and her staff of Asset Protection Coordinators. Young testified that it was made clear that the interview pertained to a confidential matter that was not to be discussed with anyone. Blaylock, Jennifer Linker, Daniel Linker, and Brandon Stafford were interviewed by the investigators on September 11 regarding inventory issues and instructed that the interviews were to remain confidential.
Young next testified as to what was reported to and discovered by the ethics investigation team. Brandon Stafford reported to the investigators that the group being interviewed met at a restaurant three times during the investigation and that Blaylock was not protecting the confidentiality of the investigation. At the first meeting, on September 10, Blaylock told the group that she was sure the investigators would be asking about the inventory overages in electronics. Upon leaving the restaurant and running into another associate, Blaylock told this person that "you didn't see us." Young also testified that Blaylock was found to have given her staff an unethical directive by instructing them that it might be a good idea to leave their cell phones open while they were being interviewed, so that the others could hear what was being said.
When the group met at a restaurant on September 11, Blaylock reportedly asked the group what questions they were asked in their interviews, asked how long their interviews had lasted, and discussed body language used during the interviews. When the group met a third time on September 17, Blaylock reportedly asked the group for help figuring out answers to questions she might be asked by the investigators during her follow-up interview scheduled for that afternoon.
Barbara Shelton was a trainee who was not part of the investigation but did go to the restaurant meetings. She corroborated the report to the investigators that Blaylock asked about the others' posture and demeanor during the interviews and reported that Blaylock talked about arranging the office to seat the investigators in a certain spot. Shelton also reported to the investigators that Jennifer Linker called her on September 21 and stated that Blaylock's interview did not go well and that the group must have been followed to the restaurants. Associate Anessa Royal reported to the investigators that Blaylock had called her and shared that she was being accused of falsifying inventory reports, asked questions about specific reports, and stated that she hoped a report had been destroyed. Blaylock was subsequently discharged based on the findings of the ethics investigation that she had attempted to hinder the investigation, had breached the confidentiality of the investigation, and had given an unethical directive.
Blaylock admitted to meeting with her staff at the three restaurants, but she denied discussing their interviews or the content of the investigation. She said they only discussed their treatment by the investigators and the investigators' violation of company policy. She testified that the staff had come to her under the employer's open-door policy, which allowed associates to contact anyone in the company with grievances or to share concerns. She testified that she had called Arrick with her staff on September 11 to report that her staff had complaints about the investigators, and Arrick told them to wait out the rest of the investigation. Blaylock testified that before she knew about the investigation, Vandyke had told other associates about it; thus, he breached the confidentiality of the investigation himself. She also denied rearranging the interview room and denied discussing this. Blaylock admitted to calling Anessa Royal on September 17, but she claimed they did not discuss the investigation.
Jennifer Linker testified that only two statements were made by the group relating to the investigation: her complaint to Blaylock that the investigators were violating company policy regarding where the interviews were conducted and Stafford's complaint to Blaylock that Arrick should know that the investigators had prematurely made their minds up. Linker, who was also terminated for breach of confidentiality, denied discussing the contents of the investigation at any time and testified that Blaylock never gave the cell phone directive. David Linker testified that, when he informed Stafford of his own termination for breach of confidentiality, Stafford agreed that Linker had never said anything. Linker testified that Stafford denied making any statements.
The Appeal Tribunal reversed the determination of the Department denying Blaylock benefits. The Tribunal found that Blaylock and her witnesses gave the only first-person testimony, and they all denied that Blaylock discussed the specifics of the investigation. The Tribunal concluded that the employer did not present any first-person testimony and had not met its burden of proof. Therefore, the Tribunal concluded that the claimant was discharged from last work for reasons that did not amount to misconduct in connection with the work.
Wal-Mart timely appealed to the Board of Review. The Board reversed the Appeal Tribunal decision upon finding that the claimant was discharged from last work for misconduct connected with the work. The Board acknowledged that the bulk of the employer's evidence was based on information reported confidentially to the employer's ethics investigators, but the Board found this evidence credible. Blaylock now appeals this decision.
On appeal, we review the findings of the Board of Review and affirm if they are supported by substantial evidence. Bergman v. Dir., Dep't of Workforce Servs., 2010 Ark. App. 729, ___ S.W.3d ___. Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Id. We review the evidence and all reasonable inferences deducible therefrom in a light most favorable to the Board's findings. Id.
If so found by the Director of the Department of Workforce Services, 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. Ark. Code Ann. § 11-10-514(a)(1) (Repl. 2012). Misconduct is defined in unemployment compensation jurisprudence as (1) disregard of the employer's interests; (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; or (4) disregard of the employee's duties and obligations to the employer. Bergman, supra. Mere unsatisfactory conduct, ordinary negligence, or good-faith errors in judgment or discretion are not considered misconduct unless they are of such a degree or recurrence as to manifest wrongful intent, evil design, or an intentional disregard of the employer's interests. Id.
Blaylock argues that there is not substantial evidence to support the Board's decision because reasonable minds would not accept double hearsay as adequate evidence to support a conclusion. Blaylock faults the employer for not calling to testify the people who supposedly had first-hand knowledge of misconduct (Stafford, Shelton, and Royal) or the people who investigated the misconduct. Blaylock argues that she denied discussing the facts of the investigation, and Linker corroborated this.
We hold that there is substantial evidence that Blaylock was discharged for misconduct in connection with her work. The ethics investigation team received evidence of Blaylock's misconduct from three sources, including two not involved in the investigation. Although Young's testimony concerning the events leading up to her termination included hearsay information, neither the Appeal Tribunal nor the Board of Review are bound by common law or statutory rules of evidence. Edwards v. Stiles, 23 Ark. App. 96, 743 S.W.2d 12 (1988). Young's testimony was sufficient evidence of Blaylock's misconduct, as he was well aware of the ethics investigation findings—he and one other person made the decision to fire Blaylock based on those findings.
Blaylock also argues that her due-process rights were violated due to her being denied the chance to cross-examine witnesses against her, namely, Stafford, Shelton, Royal, and the investigators. Appellee argues that Blaylock's argument is without merit as it was not raised below. In Edwards v. Stiles, 23 Ark. App. 96, 100, 743 S.W.2d 12, 15-16 (1988), this court stated as follows:
Hearsay evidence can constitute substantial evidence in unemployment compensation cases, but the claimant must be given the opportunity to subpoena and cross-examine adverse witnesses at some stage of the proceedings. When the claimant does not request another hearing in order to cross-examine witnesses whose hearsay statements have been received in evidence, he effectively waives his right of cross-examination, and due process requirements are not violated.(Internal citations omitted.) In Swan v. Stiles, we held that the alleged violation of appellant's right of cross-examination was never presented to the Board, although the appellant had the opportunity to do so. 16 Ark. App. 27, 696 S.W.2d 765 (1985). Like Swan, Blaylock did not request a continuance before the Tribunal or petition the Board to remand the matter to the Tribunal to allow her the opportunity to cross-examine opposing witnesses. Thus, her argument is waived, and we affirm the denial of benefits.
Affirmed.
ABRAMSON and BROWN, JJ., agree.
Robert A. Newcomb, for appellant.
Phyllis Edwards, for appellee.