Zenaro v. Dir., Dep't of Workforce Servs.

521 S.W.3d 164

Paul ZENARO, Appellant

v.DIRECTOR, DEPARTMENT OF WORKFORCE SERVICES, and Entertainment (L), Appellees

No. E–17–19

Court of Appeals of Arkansas, DIVISION I.

Opinion Delivered: May 10, 2017

Paul R. Zenaro, pro se appellant.

Phyllis Edwards, Little Rock, Associate General Counsel, for appellee.

BART F. VIRDEN, Judge

Appellant Paul Zenaro appeals the decision of the Arkansas Board of Review (Board) denying him unemployment benefits. He contends that substantial evidence does not support the Board's conclusion that he is disqualified from receiving benefits on finding he was discharged from last work for misconduct connected with the work. We agree and reverse and remand.

Zenaro was a merchant-account representative for Entertainment (L) for six years. He worked in the Fayetteville market but was reassigned to Saint Louis, to which he commuted weekly, incurring travel and related expenses. The company provided two written warnings to Zenaro regarding his sales revenue and placed him on a performance-improvement plan. He was discharged for poor job performance on September 16, 2016, and on October 21, 2016, he received notification from the Department of Workforce Services that his claim for unemployment benefits had been denied. He filed timely appeals to the Appeal Tribunal and the Board of Review.

A hearing was held before the Appeal Tribunal. The employer did not appear, but Zenaro testified that he had experienced some difficulty attaining the revenue needed to justify his transfer to a new market and to offset the resulting travel costs but that he had exceeded the performance-plan goals and thus was removed from the plan. Nevertheless, the Appeal Tribunal found that Zenaro had intentionally violated his employer's rules and disregarded his employer's interests by failing to perform in accordance with its standards after having received progressive discipline. The Board affirmed the Appeal Tribunal's decision. Zenaro appeals the Board's decision.

We do not conduct de novo reviews in unemployment-benefits appeals; instead, we review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board's findings of fact. McAteer v. Dir., Dep't of Workforce Servs. , 2016 Ark. App. 52, 481 S.W.3d 776. The Board's findings of fact are conclusive if supported by substantial evidence, which is such relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Id. 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 have reasonably reached its decision based on the evidence before it. Id. Credibility calls are for the finder of fact, as is the weight to be accorded to testimony. Id.

A claimant is disqualified from receiving unemployment benefits if he or she is discharged from last work for misconduct in connection with the work. Ark. Code Ann. § 11–10–514(a)(1) (Repl. 2012). Misconduct in connection with the work shall not be found for instances of poor performance unless the employer can prove that the poor performance was intentional. Ark. Code Ann. § 11–10–514(a)(4)(A). It is the employer's burden to establish misconduct on the part of the employee by a preponderance of the evidence. Law Offices of Craig L. Cook v. Dir. , 2013 Ark....