                               Cite as 2015 Ark. App. 717




                 ARKANSAS COURT OF APPEALS
                                     DIVISION IV
                                     No. E-15-402


                                                Opinion Delivered December 16, 2015

 ANA MARTINEZ                          APPEAL FROM THE ARKANSAS
                             APPELLANT BOARD OF REVIEW
                                       [NO. 2015-BR-01058]
 V.

 DIRECTOR, DEPARTMENT OF
 WORKFORCE SERVICES, AND
 YOURS TRULY CONSIGNMENT
 SHOPPE

                              APPELLEES REVERSED AND REMANDED


                         BRANDON J. HARRISON, Judge

      Ana Martinez appeals the Arkansas Board of Review’s (the Board) decision to deny

her unemployment benefits. The issue is whether Martinez was discharged from Yours

Truly Consignment Shoppe (Yours Truly) for misconduct. We hold that Martinez did

not engage in misconduct when she posted a Facebook status arguably critical of her

employer; therefore, we reverse the Board’s decision and remand for an award of benefits.

      Ana Martinez worked at Yours Truly from July 2012 until 27 March 2015, when

she was fired.   The Arkansas Department of Workforce Services (the Department)


                                            1
                              Cite as 2015 Ark. App. 717

determined that Martinez was disqualified from receiving unemployment benefits due to

misconduct, but the Arkansas Appeal Tribunal (Appeal Tribunal) reversed that decision.

The Appeal Tribunal stated:

      The claimant was discharged because of the posted comment. The
      comment was not intended for Montgomery to see or to be aware of. It
      was not intended to be harmful toward the employer. The posting was
      done while the claimant was off duty. The claimant exercised a lack of
      discretion in making such a comment. However, a lack of discretion in
      isolated instances is not considered misconduct in connection with the
      work.

Yours Truly appealed to the Board, which held its own hearing in June 2015. Martinez

appeared on her own behalf, and Cinda Montgomery, the general manager and owner of

Yours Truly, appeared for the company.

      Montgomery’s testimony revealed that in late March 2015, Yours Truly dismissed

several employees for what Montgomery referred to as “gross misconduct and being

caught doing wrong in the store.” Among the people fired was Melissa McClelland, who

posted the following Facebook status early on the afternoon of March 26: “Just got fired

with no explanation. :) but I’ve hated working at yourstruly for a long time now. I will

miss a couple people though. Mostly just Ana and Patricia. Lol.” Martinez “liked” the

status and posted two comments. The first comment stated, “Zam fam. ima miss you too

much! ♥♥♥.” The second comment was “She did both of y’all wrong.”

      Both Martinez and Montgomery testified that Martinez made these posts during

her lunch break, which she took on premises within close proximity of Montgomery.

After someone passed along the post and comments to Montgomery, she pulled Martinez

aside and expressed her belief that Martinez had acted improperly. Martinez then deleted

                                           2
                              Cite as 2015 Ark. App. 717

the second comment. 1    She stated that, after getting home from work, “I went on

Facebook and Cinda had already deleted me and blocked me as a friend, so that kind of

told me that I was done for anyway.” That night, Martinez posted the following to

Facebook:

      my oh my. there’s a reason I don’t post my opinions on here, today I did.
      in sake of a friend. someone did not like what I had to say even though it’s
      MY fb, MY post/comment. I can say what I please.
      don’t like whatcha see? then scoot. really had to be digging deep to even
      see it anyways. kinda says a lot. ima stick up for myself & my woes (people
      I care about), if that makes anyone feel some typa way, unfriend me. won’t
      phase me one bit.
      I’ve learned today how rare ‘real’ is. & I appreciate every one of y’all who
      have kept it real with me from day 1. I’m out . . .

Several hours later, Martinez sent a text message to Montgomery stating, “Hey Cinda, I

just want to apologize for the fb comment earlier. I was in the wrong to say that & it

wasn’t my place.” The next day, Montgomery bagged up Martinez’s belongings and

informed Martinez of the termination.

      The Board reversed the Appeal Tribunal and held that Martinez’s Facebook post

qualified as misconduct as defined by Arkansas Code Annotated section 11-10-514. The

Board’s order stated that this posting “was about Montgomery and the employer, and that

the claimant was aware that her postings were inappropriate and that the postings would

likely lead to her discharge.” It further stated, “The Facebook postings were public and

could be viewed by other employees and customers of the employer. The claimant’s




      1
         The record states that she deleted a comment after Montgomery either ordered
her to or strongly suggested that she do so. The record does not specify which of the two
comments is being referenced, but the second one seems most likely.
                                           3
                               Cite as 2015 Ark. App. 717

actions were a disregard of the employee’s duties and obligations to the employer and a

willful disregard of the employer’s interest.” Martinez has now appealed.

      The Board’s decisions are upheld if they are supported by substantial evidence.

Grace Drilling Co. v. Dir., 31 Ark. App. 81, 790 S.W.2d 907 (1990). Substantial evidence

is such relevant evidence as reasonable minds might accept as adequate to support a

conclusion. Garrett v. Dir. 2014 Ark. 50, at 5. We view the evidence and all reasonable

inferences deducible therefrom in the light most favorable to the Board’s findings. Id.

Even if the evidence could support a different decision, our review is limited to whether

the Board could have reasonably reached its decision based on the evidence presented. Id.

Whether a claimant undertook an act of misconduct sufficient to prevent the receipt of

unemployment benefits is a question of fact. Garrett, supra.      In the unemployment-

compensation context, misconduct is defined 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.” Moody v. Dir., 2014 Ark. App. 137, at 6, 432 S.W.3d

157, 160.

      Though the Board does not seem to have made the distinction between on-duty

and off-duty conduct, because the post upon which it made its decision was made after

Martinez “went home” and was associated with a personal Facebook account, not a

company-maintained account, the post must be evaluated under the standard of off-duty

conduct.    When the alleged misconduct occurs while the claimant is off-duty, the

employer must show, by a preponderance of the evidence, that the conduct of the

                                            4
                                Cite as 2015 Ark. App. 717

employee (1) had some nexus to the work, (2) resulted in some harm to the employer’s

interests, and (3) was in fact conduct which was (a) violative of some code of behavior

contracted between employer and employee, and (b) done with intent or knowledge that

the employer’s interests would suffer. Dyer v. Dir., 2015 Ark. 470, 469 S.W.3d 372;

Feagin v. Everett, 9 Ark. App. 50, 652 S.W.2d 839 (1983). The post at issue does not

qualify as misconduct under this test.

                                           Nexus

        Substantial evidence existed to support a finding of a nexus between the status and

work.    There was conflicting testimony below regarding whether the post related to

Montgomery and Yours Truly. But Martinez herself stated that it was written as a broad

admonition against anyone who took issue with her expression of support for her former

coworker and that she “felt like [she] got backstabbed by somebody else at work” when

her comment on McClelland’s status was reported to Montgomery. Martinez also claimed

that she texted Montgomery “apologizing for commenting on Melissa’s status.” There is

sufficient evidence to support the Board’s finding that the status “was about Montgomery

and her employer.”

                                 Harm to Employer’s Interests

        There was substantial evidence to support the Board’s finding of harm to Yours

Truly’s interests. In discussing what she saw as the harm in Martinez’s Facebook activity,

Montgomery stated:

        We have a database that has 20,000 consignors in it, their money, their
        personal information, their—their personal items are entrusted to us. The—
        the board felt like if the employee would chime in with the other group of
        employees that—and she would disrespect me as the owner, that we could
                                              5
                                 Cite as 2015 Ark. App. 717

     not continue to bring her in as an employee. That there would be no
     respect from any of the employees for me as the general manager, the
     owner, if I allowed an employee to continue on employment after such
     actions.
Montgomery’s position seems to be that, first, given the basis of the previous firings, those

with whom she conducted business might conclude that whatever issues led to the

departure of the discharged employees had not been resolved and that they would

consequently feel less secure in Yours Truly’s ability to keep their information and money

safe. And second, Yours Truly believed that Martinez’s Facebook activity would erode

discipline among coworkers.        Though reasonable minds may differ on this point,

substantial evidence supports a finding of harm to the employer’s interests when all things,

including the parties’ credibility, are considered.

                               Violative and Intentional/Knowing

          Substantial evidence does not support a finding that Martinez’s conduct violated

any policy or was made with the intent or knowledge that Yours Truly’s interests would

suffer.    Yours Truly offered Montgomery’s testimony and documentary evidence of

guidelines that employees acknowledged receiving. But neither establishes that Martinez’s

comments violated any established policy or understanding between employer and

employee.

          Yours Truly relies on two “Employee Expectations” letters that Martinez signed.

The first, signed on 29 May 2014, contains fifteen numbered paragraphs and addresses

such issues as friendliness, honesty, attitude, requesting time off, timeliness and diligence,

cell phone use, and work attire. On 26 March 2015, the day of the Facebook activity that

led to Martinez’s termination, another such letter was sent and executed. Consisting of

                                               6
                                Cite as 2015 Ark. App. 717

one long numbered paragraph headed “Positive Attitudes,” and sent by Montgomery in

her capacity as Yours Truly’s general manager, the letter stated, “I want every employee

to get along with others, keep negative opinions and gossip out of the work place. If you

are unable to do this, you will be dismissed from employment.” It goes on to require that

customer complaints, problems with other employees, and “negative talk, gossip, lying

and judgment against others,” be brought to Montgomery’s attention, and that employees

are not to indulge their coworkers’ complaints, because “if [coworkers] give a listening ear

to their negativity and complaints and do not give [Montgomery] a chance to get to the

bottom of the issues and get it resolved, you can guarantee that the issues will continue.”

Though the “Employee Expectations” letters prohibit a broad range of conduct, a

Facebook status that identifies no one by name and is, under its most incriminating

interpretation, an oblique reference to Martinez’s displeasure with a reprimand she

received from Montgomery, does not fall within its orbit.

       The Board’s reliance on an interpretation of Martinez’s apology text as proof that

her at-home Facebook post was made with the intent to bring harm to Yours Truly is

misplaced. Admittedly, Martinez sent a text message in which she apologized for her

earlier Facebook comment concerning the propriety of other employee dismissals.

However, this apology does not relate to her at-home post, nor does it indicate a harmful

intent to the employer. While the at-home post expresses exasperation in general terms,

the exasperation is not derogatory in nature or directed at any individual or entity.

       “[O]ff-duty conduct may be sufficient reason for an employer to sever ties with an

employee” but does not necessarily “rise to the level of misconduct in connection with

                                              7
                                Cite as 2015 Ark. App. 717

the work.” Dyer, 2015 Ark. App. 470, at 4, 469 S.W.3d at 374. That was the case here.

Because there was not substantial evidence presented under the legally applicable standard,

the Board’s decision to deny Martinez benefits is reversed, and the case remanded for an

award of benefits.

       Reversed and remanded.

       VIRDEN and WHITEAKER, JJ., agree.

       Pro se appellant.

       Phyllis Edwards, Associate Counsel, for appellee.




                                             8
