Cite as 2014 Ark. App. 249
ARKANSAS COURT OF APPEALS
DIVISION III
No. E-13-67
JOHNNY GRANT Opinion Delivered April 23, 2014
APPELLANT
APPEAL FROM THE BOARD OF
V. REVIEW [NO. 2012-BR-03579]
DIRECTOR, DEPARTMENT OF
WORKFORCE SERVICES, and CITY
OF BLYTHEVILLE
APPELLEES AFFIRMED
DAVID M. GLOVER, Judge
In this unemployment case, appellant Johnny Grant appeals the denial of his claim for
unemployment benefits based upon the finding that he was discharged from his last work for
misconduct in connection with the work. The Appeal Tribunal found that Grant was
dismissed for misconduct in connection with the work; the Board of Review denied Grant’s
application for appeal from the Appeal Tribunal’s decision, therefore deeming the Appeal
Tribunal’s decision to be its decision. Grant now appeals to this court, arguing that there is
not substantial evidence to support the conclusion that he was discharged from his last work
for misconduct in connection with the work, that the hearing officer failed to develop the
record, and that he was denied due process. Based upon our standard of review, we affirm
the denial of benefits.
Grant was employed by the City of Blytheville for twenty-seven years as a sanitation
worker and employee of the street department. His duties included driving a truck and
Cite as 2014 Ark. App. 249
performing manual labor. At the hearing before the Appeal Tribunal, Grant was the only
person who testified; the City did not appear. However, the Appeal Tribunal had before
it the City’s statement for discharge, which stated that the reason for discharge was
because Grant refused to comply with his supervisor’s instructions. Specifically, the statement
provided that Grant was told by his supervisor that another employee was going to drive the
truck Grant usually drove for the crew; Grant argued with his supervisor that he had always
been the driver and that it was not fair the new employee was going to drive the truck; Grant
was told that if he did not agree and did not want to be with the new driver he could quit;
Grant told his supervisor he would not quit; and Grant was then fired. At the hearing, Grant
disputed this version of events, testifying that he did not tell his supervisor he would not let
the new worker drive the truck because the truck did not belong to him. Grant also testified
he did not tell his supervisor it was unfair for the new employee to drive the truck or that he
would not go along with a new driver. Grant said that his supervisor thought he would quit,
and when Grant told him that he was not going to quit, the supervisor fired him. Grant said
that a secretary heard the conversation, but he did not ask her to testify for him because he
knew she was afraid she would lose her job.
Standard of Review
On appeal, the Board’s findings of fact are reviewed in the light most favorable to the
prevailing party, and the Board’s decision is reversed only when the findings are not supported
by substantial evidence. Occhuzzo v. Director, 2012 Ark. App. 117. Substantial evidence is
such relevant evidence that a reasonable mind might accept as adequate to support a
2
Cite as 2014 Ark. App. 249
conclusion. Smith v. Director, 2013 Ark. App. 360. Even where there is evidence from which
the Board might have reached a different conclusion, our scope of judicial review is limited
to a determination of whether the Board could have reasonably reached its decision based on
the evidence before it. Booker v. Director, 2013 Ark. App. 99. The credibility of witnesses and
the weight to be accorded their testimony are matters to be resolved by the Board. Occhuzzo,
supra.
Sufficiency of Evidence to Support Denial of Benefits for Misconduct
A person will be disqualified for unemployment benefits if it is found that he
was discharged from his employment on the basis of misconduct in connection with the
work. Ark. Code Ann. § 11-10-514(a)(1) (Repl. 2013). For purposes of unemployment
compensation, “misconduct” involves (1) disregard for the employer’s interest; (2) violation
of the employer’s rules; (3) disregard of the standards of behavior that the employer has a
right to expect of his employees; and (4) disregard of the employee’s duties and obligations
to his employer. Booker, supra. Misconduct requires 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—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. Occhuzzo, supra. Whether an employee’s actions constitute misconduct in
connection with the work sufficient to deny unemployment benefits is a question of fact for
the Board. Johnson v. Director, 84 Ark. App. 349, 141 S.W.3d 1 (2004).
3
Cite as 2014 Ark. App. 249
Here, the evidence was diametrically opposed. The City’s statement was that Grant
argued with his supervisor when he was told that a new employee would be driving the truck
Grant had driven; Grant denied he did so. While Grant contends in his brief that his
supervisor made false, pretextual comments in order to terminate Grant—an older, black
employee—there was no evidence presented other than Grant’s testimony in support of this
argument. The Board is tasked with determining credibility, and, based on the decision in
favor of the City, it determined the City’s version of events was more credible. Therefore,
based on our standard of review, we must hold that substantial evidence supports the
misconduct finding.
Grant also mentions in passing that he was not afforded an opportunity to cross-
examine his accuser because neither his supervisor nor the City’s personnel director were
questioned by the hearing officer. He did not raise this issue below, and this court does not
consider issues raised for the first time on appeal. Parham v. Director, 2013 Ark. App. 362.
Furthermore, before the admission of hearsay evidence will not violate a party’s right to
confront and cross-examine adverse witnesses, a party must have an opportunity to know
what evidence is being considered and must have the right to a rehearing for the purpose of
giving that party the opportunity to subpoena and cross-examine adverse witnesses. Sanyo
Mfg. Corp. v. Stiles, 17 Ark. App. 20, 702 S.W.2d 421 (1986). Grant could have subpoenaed
these witnesses himself but did not do so; he knew what evidence was being presented, as it
was contained in the employer’s general discharge statement; and he never requested a remand
in order to subpoena his supervisor or the personnel director.
4
Cite as 2014 Ark. App. 249
Failure of Hearing Officer to Develop Record and Lack of Due Process
Grant’s last two arguments are that the hearing officer failed to develop the record
because no documents were subpoenaed and his personnel file was not considered, and that
his due-process rights under the Arkansas Constitution and the Fourteenth Amendment to
the United States Constitution were violated because there was no consideration of his
twenty-seven-year blemish-free career with the City or the fact that he was not provided step
discipline. This court will not consider these arguments because they are being raised for the
first time on appeal. Parham, supra.
Affirmed.
HARRISON and WYNNE, JJ., agree.
Larry J. Steele PLC, by: Larry J. Steele, for appellant.
Phyllis A. Edwards, for appellee.
5