John Gieringer v. Director of Arkansas Employment Services Division and Greenway Equipment, Inc.

Cite as 2022 Ark. App. 280
ARKANSAS COURT OF APPEALS
DIVISION I
No. E-21-563

JOHN GIERINGER OPINION DELIVERED JUNE 1, 2022
APPELLANT
APPEAL FROM THE ARKANSAS
BOARD OF REVIEW
V. [NO. 2021-BR-02277]

DIRECTOR OF ARKANSAS
EMPLOYMENT SERVICES DIVISION
AND GREENWAY EQUIPMENT, INC.
APPELLEES AFFIRMED

ROBERT J. GLADWIN, Judge

John Gieringer appeals from the Arkansas Board of Review’s August 25, 2021 denial

of his unemployment claim on the basis that he was discharged from work for misconduct

connected to his work. Ark. Code Ann. § 11-10-514. On appeal, Gieringer argues that the

decision is not supported by substantial evidence and that the presence of multiple similar

incidents does not equate to misconduct. We affirm.

From February 10 to October 22, 2020, Gieringer worked for Greenway Equipment,

Inc. (Greenway), as a service technician. He was discharged from employment for excessive

tardiness; thereafter, he applied for unemployment insurance benefits. On his claimant’s

statement to the Division of Workforce Services, Gieringer indicated that he was discharged

for being late on the day he was discharged, October 23, 2020. On the employer’s statement
in response, Greenway indicated that Gieringer was discharged for tardiness and that his

being late was the final incident causing discharge. Greenway stated that Gieringer had been

late thirty-four times since July 1 and that his reasons included sickness, oversleeping, or

heavy traffic, and sometimes there were no reasons given. Greenway attached to its response

the manager’s list of dates Gieringer was tardy and two disciplinary notices dated April 22,

2020, and June 1, 2020.

Gieringer’s unemployment application was denied, and he filed a petition for appeal

with the Arkansas Appeal Tribunal. On May 21, 2021, a telephonic hearing was held, and

Todd Thompson, controller for Greenway, testified that Gieringer’s employment ended

because of his excessive absences and tardiness. He confirmed that Gieringer had been late

or absent from work roughly twenty times between March 3 and October 23. Ben Adams,

location manager for Greenway, testified that Gieringer was ultimately discharged for

excessive tardiness and that Gieringer had been counseled on April 22, June 1, July 16, July

31, and August 4.

Gieringer testified, “Ben manipulated my timecard and changed my times around,

and put me down as being late. I wasn’t late on most of the times that I was—I’m being

accused of being late.” He said that he was not alleging that he had never been late, and the

hearing officer asked him how it could be determined on which dates he was late. Gieringer

said,

Well, on 10/21, I had a meeting with Ben and Mike Osier, which is the Regional
Manager, about all the changes that had been being made to my timecard, and
because that was effectively taking money out of my pocket. There were days that I

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would work late, and my timecard would show that I’d clocked out early, and this
happened several times. So, I raised the issue and we had a meeting about this on
10/21, and the next -- and Mike Osier, the last thing that was said to me in that
meeting was, my job is safe, that he’s going to figure out what’s going on with my
timecard, and he’s going to let me know what – what’s going on. . . . I was fired the
very next day.

The Appeal Tribunal affirmed the Division’s decision to deny Gieringer

unemployment benefits:

The claimant was discharged for having violated the employer’s written attendance
policy. The claimant has not shown that the employer misapplied its policy, and the
preponderance of the evidence thus suggests that the claimant was discharged
pursuant to the terms of a bona fide written attendance policy within the meaning of
Ark. Code Ann. § 11-10-514(a)(2). While the claimant alleges that his timecard was
altered by his employer, he offered no substantiation. Therefore, the claimant was
discharged from last work for misconduct in connection with the work.

Gieringer appealed to the Arkansas Board of Review, which affirmed and adopted

the Appeal Tribunal’s decision. Thereafter, Gieringer filed a timely petition with this court.

Our standard of review is well settled:

On appeal of an unemployment-compensation case, we review the evidence
and all reasonable inferences deducible therefrom in the light most favorable to the
Board’s findings. Jones v. Dir., 2019 Ark. App. 341, 581 S.W.3d 516. The Board’s
findings of fact are conclusive if supported by substantial evidence. Id. Substantial
evidence is evidence a reasonable mind might accept as adequate to support a
conclusion. Id. Appellate review is limited to determining whether the Board could
reasonably reach its decision based on the evidence before it, even if there is evidence
on which the Board might have reached a different decision. Higgins v. Dir., 2016 Ark.
App. 449, 503 S.W.3d 833. The reviewing court may not substitute its findings for
the Board’s, even though the court might have reached a different conclusion had it
made an original determination on the same evidence. Id. Also, the credibility of
witnesses and the weight to be accorded their testimony are matters to be resolved by
the Board. Id.

Misconduct includes the violation of any behavioral policies of the employer,
disregard of the employer’s rules, disregard of the standards of behavior that the

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employer has a right to expect from its employees, and disregard of the employee’s
duties and obligations to his or her employer. Hopkins v. Dir., 2019 Ark. App. 84, 571
S.W.3d 524. It is the employer’s burden to establish misconduct by a preponderance
of the evidence. Id. Whether an employee’s behavior is misconduct that justifies the
denial of unemployment benefits is a question of fact for the Board to decide. Id.
There is an element of intent associated with a determination of misconduct. Id.

Bright v. Dir., 2021 Ark. App. 217, at 2–3, 625 S.W.3d 720, 722.

Gieringer argues that the Board’s decision is not supported by substantial evidence

because Greenway did not prove that he intended to act in a way that amounts to

misconduct. Grigsby v. Everett, 8 Ark. App. 188, 649 S.W.2d 404 (1983). He relies on an

unpublished case, Harris v. Director, E02-312 (Ark. App. June 18, 2003) (unpublished),

wherein this court affirmed the Board’s finding that the employee followed what she believed

to be the correct protocol for notifying her employer that she would be absent as it pertained

to her employer’s written work policy. Gieringer argues that the record contains no written

policy on the protocol for absenteeism and tardiness. See Rucker v. Price, 52 Ark. App. 126,

915 S.W.2d 315 (1996). He contends that he was under the impression he was fired for his

questions about his timecard and that Greenway produced no evidence in the hearing with

the Appeal Tribunal to support the determination that he acted intentionally when he was

late for work on any date. He claims that Greenway did not bring forth any evidence

portraying that his tardiness was an intentional disregard of its interest or an intentional

violation of its rules.

Gieringer also argues that the presence of multiple instances of being late does not

equate to misconduct. Clark v. Dir., 83 Ark. App. 308, 126 S.W.3d 728 (2003) (holding that

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an employee truck driver’s multiple involvements in truck accidents did not prove intent).

Like the employee in Clark, Gieringer claims that he was late “ever since he began working

at Greenway.” Thus, he claims, he never proved he has the ability to consistently be on time

to work, thereby eliminating the intentional aspect.

The record reflects that Gieringer was employed with Greenway for about eight

months, and during that time, he signed a written warning due to excessive tardiness on

April 22, 2020. The warning stated that Gieringer had been verbally counseled regarding

his tardiness on two prior occasions. Gieringer then received a warning on June 1, 2020, for

further excessive tardiness. The warning stated that Gieringer would be terminated if he did

not correct his behavior, and he signed the warning. He continued to report to work late

for various reasons, and he was discharged from his employment on October 23, 2020.

Greenway reported that Gieringer was either tardy or absent over thirty times during his

eight months of employment. It is clear from the record that Gieringer was discharged for

misconduct connected with his work when he was repeatedly late for work. On his written

statement to the Division, Gieringer indicated that he was late on the day of his discharge,

and there was no evidence presented that he was discharged for any other reason than

excessive tardiness. Accordingly, we affirm.

Affirmed.

BARRETT and MURPHY, JJ., agree.

Center for Arkansas Legal Services, by: Jay P. Coleman, for appellant.

Jennifer Janis, for separate appellee Director, Arkansas Division of Workforce Services.

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