McCuller-Silverman v. Dir., Dep't of Workforce Servs.

534 S.W.3d 748

Sharon MCCULLER–SILVERMAN, Appellant

v.DIRECTOR, DEPARTMENT OF WORKFORCE SERVICES, and Trinity Village, Inc., Appellees

No. E–17–3

Court of Appeals of Arkansas, DIVISION II.

Opinion Delivered: November 8, 2017

Cross & Kearney, PLLC, Pine Bluff, by: Jesse L. Kearney, for appellant.

Phyllis Edwards, for appellee.

KENNETH S. HIXSON, Judge

Appellant, Sharon McCuller–Silverman, appeals from an order mailed by the Arkansas Board of Review (Board) on December 7, 2016, denying the claimant benefits in favor of appellees, Daryl Bassett, director of the Department of Workforce Services (Department), and Trinity Village, Inc. (Trinity Village). On appeal, appellant's arguments can be summarized as (1) the Board exceeded its authority and abused its discretion in reviewing the decision of the Arkansas Appeal Tribunal (Tribunal), (2) substantial evidence does not support the Board's findings, and (3) the Tribunal's decision that appellant should repay benefits that were paid to her was premature and unfounded. We affirm.

Appellant was employed by Trinity Village as an administrator for assisted living prior to her termination. After she applied for unemployment-compensation benefits, Trinity Village filed a statement that appellant had been discharged for insubordination, specifically stating the following:

1. A#54^[1] Ms. Silverman not only failed to promptly initiate the protocols and actions necessary to address the deficiencies from the May 2–4, 2016 Assisted Living survey, but on 6/27/2016 refused to complete and sign the plan of correction. This is the Administrator's responsibility.

2. A#57 As Assisted Living Administrator, it is Ms. Silverman's responsibility to review, monitor, and utilize her departmental financial and budget reports as a primary tool in the management of her area. On 6/22/2016 she stated to me that they did not make sense to her and did not tell her anything, so she puts them straight in the shredder. I have personally instructed her in the interpretation and use of these reports on numerous occasions.

3. B#37 Ms. Silverman informed at least one staff member of the fiscal year end unaudited net income of Trinity Village. It was made clear by me in the staff meeting with only department managers, during which she was present that this was not to be repeated outside the meeting. Ms. Silverman also informed the same staff member as well as at least one additional staff member that she had a meeting with another manager where the manager shook her finger in her face. This is a confidential personnel issue that should not have been discussed.

4. A#34 Ms. Silverman exhibited anger and even hostility to a nurse aide in her department when discussing a possible worker's compensation injury. She was confrontational and exhibited a lack of good judgment in dealing with a sensitive issue.

5. B#23 With no proof, Ms. Silverman has stated to me and at least one other employee that another Trinity Department Manager "slashed her tires." This is a malicious statement with no substantiation.

6. B#34 Ms. Silverman frequently handles herself in an argumentative, accusatory, unprofessional manner with fellow managers as well as the assisted living staff, thus creating an unacceptable and frequently hostile environment.

Appellant also filed a statement. In her statement, appellant denied that she was fired for insubordination. Instead, she claimed the following:

I know they said I was fired for refusal to do an action plan but that is not true, the executive director told me that she was going to write it. She did tell me in the future that she wanted the administrators to write them from now on and I told her I would be hap[p]y to. I had a supervisor threaten me and yell and point her finger in my face. It cause[d] me to have an anxiety attack. My blood pressure spiked and my Dr[.] put me on a new anxiety medication and bp medication. I went to EEOC due to the supervisor threatening me. I did it for my own protection. My Doctor put me off work through 07/11/16. I went back to work on the 11th was there for 30 minutes and was called into the conference room, with Donna Stone and their attorney. Donna told me I was being terminated due to insubordination and I said for what. I didn't do anything. Then the attorney told me they would offer me 3 months of severance plus a neutral reference in exchange for my resignation. I did not accept their offer. They gave me a whole list of stuff I supposedly did but not a bit of it was true. I still believe I was discharged in retaliation for filing an EEOC charge.

The Department found that appellant was not disqualified from receiving benefits in a Notice of Agency Determination mailed on August 24, 2016. Trinity Village timely appealed that decision to the Tribunal, and a telephone hearing was held on October 17, 2016.

At the hearing, Lea Reed testified that she was an RN consultant at Trinity Village and that appellant was her immediate supervisor. Reed recalled a meeting in which the executive director, Donna Stone, discussed the financial situation of Trinity Village with Reed and appellant present. Despite Stone's instruction that the information was confidential, appellant subsequently discussed the employer's specific profits and losses with Margie Smith and Reed. Smith was not present at the prior staff meeting.

Reed further testified that the Office of Long Term Care found deficiencies during an audit. The deficiencies needed to be corrected, and a plan of correction needed to be submitted to the Office of Long Term Care. Reed testified that during the meeting about the deficiencies, Stone stated that she would assist April Boosier, the dietary manager, with correcting the deficiencies. Reed did not recall whether anything was said about who would prepare the plan of correction. However, Reed testified that she was in appellant's office when appellant received a call from Stone. According to Reed, Stone had instructed appellant to prepare the plan of correction, but appellant refused.

Phyllis Offut, an LPN employed at Trinity Village, testified that appellant had told her that she thought she was in charge of the plan of correction. Appellant additionally told Offut that she was not going to complete it. Appellant further told Offut that Boosier would have to complete the plan of correction.

Stone testified that appellant was responsible for reviewing and understanding monthly financial reports. However, during one conversation, appellant told Stone that she did not understand them and would simply shred them each month. Stone additionally testified that she had discussed confidential information in a managerial-staff meeting and specifically instructed that the information not be discussed outside that meeting. However, Reed informed Stone that appellant had subsequently discussed the information with Smith present.

Stone further testified that another one of appellant's job responsibilities was to complete a plan of correction when deficiencies are discovered. Appellant had prepared and signed a previous plan of correction in 2015. During the meeting regarding the recent deficiencies, Stone stated that she would assist Boosier with correcting the deficiencies, but Stone did not state that she would prepare the plan of correction. In a telephone conversation on June 27, 2016, Stone inquired how appellant was doing with preparing the plan. However, appellant stated that she was not going to prepare the plan and further refused to do so after Stone had instructed appellant to prepare the plan. Stone testified that appellant's actions were in violation of Trinity Village's written policy. Appellant was medically excused from work from June 28, 2016, through July 11, 2016. During that time, appellant filed an EEOC complaint, and appellant was discharged the day she returned to work.

Appellant did not testify at the hearing. Smith testified on appellant's behalf. Smith testified that she had recalled that Stone and Boosier had agreed to prepare the plan of correction at the meeting regarding the deficiencies.

The Tribunal mailed a written decision affirming the Department's decision to award benefits on October 20, 2016, and Trinity Village timely appealed to the Board. The Board did not accept any additional evidence. The Board reversed the Tribunal's decision. After summarizing the evidence presented at the hearing before the Tribunal, the Board specifically found that

[i]n this instance, Reed testified that the claimant discussed confidential financial information of the employer in the presence of an employee who was not present in a meeting discussing the financial information, despite being told not to discuss the information. Additionally, both Stone and Reed testified that the claimant had a phone conversation with Stone on June 27, 2016, in which Stone asked about the status of the Plan of Correction, told the claimant to complete the Plan of Correction, and was told by the claimant that she would not complete the plan. Stone indicated that preparing the plan was one of the claimant's job duties as administrator. Further, the claimant completed and signed the Plan of Correction for the employer in 2015. Although Margie Smith testified that she believed that Stone told the claimant in a meeting that she and April Boosier would prepare the plan, the Board does not find this testimony to be more persuasive than the testimony of Stone and Reed. Stone did testify that she told Boosier she would assist her with correcting the deficiencies during

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