                               Cite as 2014 Ark. App. 462

                ARKANSAS COURT OF APPEALS
                                      DIVISION III
                                      No. E-13-971


ALLYSON THEOPHILE                                OPINION DELIVERED SEPTEMBER 17, 2014
                              APPELLANT

V.
                                                 APPEAL FROM THE ARKANSAS
                                                 BOARD OF REVIEW
DIRECTOR, DEPARTMENT OF                          [NO. 2013-BR-02302]
WORKFORCE SERVICES, and
ADMINISTRATIVE OFFICE OF THE
U.S. COURT
                     APPELLEES                   AFFIRMED



                        ROBERT J. GLADWIN, Chief Judge


       The Arkansas Board of Review (Board) affirmed the denial of benefits to Allyson

Theophile, ruling that she did not voluntarily resign from her employment, but that she was

discharged for misconduct, making her ineligible for unemployment-compensation benefits.

Theophile argues on appeal that the Board’s decision is not supported by substantial

evidence. We affirm.

                                    I. Statement of Facts

       Theophile was employed by the Administrative Office of the U.S. Courts in

Probation and Pretrial Services in the Eastern District of Arkansas when she submitted her

resignation in lieu of termination, effective March 25, 2013. Thereafter, Theophile applied

for unemployment compensation benefits. Appellee Arkansas Department of Workforce
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Services determined that Theophile was disqualified from receiving benefits because she had

voluntarily resigned.

       At the telephonic hearing before the Arkansas Appeal Tribunal on June 26, 2013, the

hearing officer noted that the issue before the tribunal was whether Theophile voluntarily

left, was discharged, or was suspended from last work and whether the circumstances of the

separation entitled her to benefits in accordance with Arkansas Code Annotated section 11-

10-513 (Repl. 2012) or section 11-10-514 (Supp. 2013).

       Theophile testified that she began her work for the U.S. Probation and Pretrial

Services Offices in Los Angeles, working in the Central District of California for fifteen years.

She moved to Little Rock on June 4, 2012, because she was promoted to Assistant Deputy

Chief U.S. Probation Officer.

       The record reflects that Theophile received a “Notice of Proposed Adverse Action”

from Rebecca Howell, Deputy Chief Probation Officer for the Eastern District of Arkansas,

on December 19, 2012. The notice stated that in June, July, and November 2012,

Theophile withdrew money on her government-issued travel card for personal expenses,

violating statute, policies, and the Code of Conduct for Judiciary Employees. The notice

stated that Theophile converted public funds for personal use, knowing that it was improper

and a misuse of the government-issued credit card. The notice proposed to Theophile that

the following actions be taken:

       1) written reprimand; 2) withhold next wage increase . . . ; 3) extend probationary
       period until December 31, 2013; 4) suspended without pay for five days; and 5) pay
       your government credit card in full as current balance is $236.05.


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The notice provided that these proposed actions would take place if Theophile did not

submit a request for administrative review within five days. Theophile filed a request for

review on December 19, 2012.

       The record further reflects that Theophile filed a declaration in opposition to the

proposed adverse action stating that she did not intentionally violate any statute, policies, or

Code of Conduct for Judiciary Employees when she used her government-issued travel card

for moving expenses. She claimed that when she used the card, she did not recognize her

actions as being improper. She claimed that she understood, based on Rebecca Howell’s

assertion during a telephone conversation with Theophile that Howell had been given the

option to use her government credit card to pay for moving expenses and that it was

acceptable to use the government card for work-related moving and relocation expenses.

She also explained that she thought it was permissible to use the credit card for moving and

relocation because the credit card was issued in Theophile’s name and she paid the charges

directly. She stated that she now understood that it was wrong, that she was responsible for

her actions, and that she regretted her poor judgment. However, she claimed that the

proposed adverse action was too severe, taking into account her years of federal service and

excellence in the past. In response to the charges, she noted that the promised relocation

bonus of $25,000 was to be received two weeks after her arrival on June 4, 2012, but was not

received until July 6, 2012. She stated that she only received $18,000 due to taxes.

       In response to Theophile’s declaration, Howell filed a memorandum on January 14,

2013, and recommended termination. Theophile sent a memorandum to Eddie Towe,


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Chief U.S. Probation Officer, proposing a meeting to discuss alternatives to the

recommended termination. Towe responded on January 28, 2013, and proposed that

Theophile voluntarily submit her resignation effective March 25, 2013, in exchange for a

neutral employment reference and no reference to this matter or the proposed disciplinary

actions in her personnel file.

       An agreement was signed by Theophile and Towe effectuating Towe’s proposal to

allow Theophile to resign. However, at the hearing before the tribunal, Theophile stated

that she did not voluntarily quit her employment but agreed to the resignation only because

she did not want the termination in her permanent record.

       The Appeal Tribunal found that

       [Theophile] voluntarily agreed to enter into an agreement with her employer that she
       would resign effective March 25, 2013. [Theophile] had legal representation
       throughout the proceedings and was free to consult with her attorney on available
       options. [Theophile] did not quit for a reason attributable to the employer. Therefore,
       [Theophile] voluntarily left last work without good cause connected with the work.
       [Ark. Code Ann. § 11-10-513(a).]

       Theophile appealed to the Board, which affirmed the denial of benefits, but modified

the determination by finding that Theophile was discharged from her employment for

misconduct in connection with her work. Ark. Code Ann. § 11-10-514(a). The Board

found as follows:

       In the present case, the documentary evidence [Theophile] submitted to the Appeal
       Tribunal shows that the employer discovered that [Theophile] was using her
       government issued travel credit card for personal use. [Theophile] admitted that she
       used the card for moving expenses when she took a promotion to the Little Rock
       office. [Theophile] had been living and working for the employer in California. The
       documentary evidence indicates that [Theophile] also admitted that she knew she was
       not allowed to use the government issued travel credit card for such a purpose.

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       . . . Therefore, the decision of the Appeal Tribunal . . . which affirmed the
       Department of Workforce Services’ determination, is modified to deny benefits under
       Ark. Code Ann. § 11-10-514(a) on the finding that [Theophile] was discharged from
       last work for misconduct with the work.

Theophile filed a timely petition for review, and this appeal followed.

                                    II. 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. Dir., 2012 Ark. App. 117. Substantial

evidence is such relevant evidence that a reasonable mind might accept as adequate to

support a conclusion. Smith v. Dir., 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. Dir., 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.

            III. 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

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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. Dir., 84 Ark. App. 349, 141 S.W.3d 1 (2004).

                                       IV. Discussion

       Theophile claims that the Board’s decision is erroneous and not supported by

substantial evidence. She cites her stellar performance throughout her career with the U.S.

Probation and Pretrial Services Office in California, pointing to her outstanding performance

evaluations in years past. She argues that these facts do not support the conclusion that

someone of her stature would ever intentionally violate or disregard her employer’s policies

or interests.

       She contends that there was no evidence presented to the Board that she intentionally

violated her employer’s policy by using her government- issued credit card. The Board

found that she knew she was not allowed to use the credit card for moving expenses.

However, she claims that the only evidence to support that she knew it was wrong came

from Rebecca Howell’s response to Theophile’s declaration and revised recommendation for

disciplinary action, dated January 14, 2013. Howell relies on an alleged written statement


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from Theophile, purportedly dated December 11, 2013, to suggest that Theophile

acknowledged that she knew her actions were improper. Theophile points out that this

December 11, 2013 statement was not in the record and is thus not before this court.

Therefore, Theophile argues that the Board’s reliance on this alleged statement is erroneous

and there is nothing else in the record before the Board to support that Theophile was aware

that her use of the government credit card was improper.

       She further claims that her consistent testimony has been that her relocation bonus

was delayed and that she did not receive the full amount that she anticipated due to taxes.

She spoke to Howell and understood that she indicated that Theophile was allowed to use

her government credit card for relocation, even though she knew it would be improper to

use the credit card for personal expenses. This misunderstanding proves, she contends, that

she did not intentionally disregard or violate her employer’s rules regarding use of the credit

card and thus, she was not discharged for misconduct sufficient to deny unemployment

benefits.     Theophile maintains that there was no evidence before the Appeal Tribunal

or the Board regarding the employer’s policies concerning government-issued credit cards.

She complains that the accusation that she violated judicial canons of the Code of Conduct

for Judiciary Employees is vague. She points out that she has had the same credit card for

fifteen years, that she pays it directly, and that she never expected the government to pay for

her charges on the card. Further, she notes that she was not subjected to termination until

she retained an attorney and chose to seek administrative review of the initial disciplinary

recommendation. She contends that she has taken responsibility for her actions, not denying


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that what she did was improper, but denying that she willfully, intentionally, or even

recklessly violated her employer’s policies. She claims that this was one occasion when she

made a good-faith error in judgment and does not deserve to be denied unemployment.

       Appellee argues that the Board’s decision that Theophile was discharged for

misconduct due to misuse of her government-issued credit card must be affirmed because it

is supported by substantial evidence.        Appellee points to Theophile’s fifteen-year

employment with the Administrative Office of the U.S. Courts. After she accepted a

promotion, a relocation bonus was offered. She began her position in Little Rock on June

4, 2012. She received her relocation bonus of approximately $18,000 on July 6, 2012. A

routine audit was conducted that showed Theophile had made cash withdrawals on her

government-issued credit card on June 29, and July 6, 2012, that were not related to

government travel. When contacted, Theophile informed the auditor that these withdrawals

were not related to travel but were used to pay for moving expenses related to her relocation.

In January 2013, it was found that additional cash advances had been taken on the card in

November 2012. When the auditor tried to question Theophile, she was not cooperative.

She admitted that the expenses in November were not directly, but indirectly, related to

relocation as she was in debt because of the relocation.

       Based on her conflicting statements, the employer determined that there were

additional violations that warranted more discipline. She was then allowed to resign from

her employment in lieu of being discharged. A resignation that is induced under pressure

from the employer is not considered voluntary and is treated as a discharge for the purposes


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of unemployment insurance. See Dobbins v. Everett, 2 Ark. App. 254, 620 S.W.2d 309

(1981).

       Appellee points out that Theophile admitted that she knew that the government-

issued credit card was not to be used for personal expenses, but did so after her supervisor,

Howell, indicated that she could use it for relocation. However, Howell denied that she

ever indicated to Theophile that it was acceptable to use the card for that purpose. Further,

appellee points to Theophile’s use of the card only after her job had begun in Arkansas. It

is within the Board’s purview to determine witness credibility.            Occhuzzo, supra.

Accordingly, we hold that substantial evidence supports the Board’s decision.

       Affirmed.

       WOOD and BROWN , JJ., agree.

       Flinn Law Firm, P.A., by: Jennifer Williams Flinn, for appellant.

       Phyllis A. Edwards, for appellee.




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