Higgins v. Director, Department of Workforce Services

2016 Ark. App. 449, 503 S.W.3d 833, 2016 Ark. App. LEXIS 468
CourtCourt of Appeals of Arkansas
DecidedSeptember 28, 2016
DocketE-15-679
StatusPublished
Cited by16 cases

This text of 2016 Ark. App. 449 (Higgins v. Director, Department of Workforce Services) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Higgins v. Director, Department of Workforce Services, 2016 Ark. App. 449, 503 S.W.3d 833, 2016 Ark. App. LEXIS 468 (Ark. Ct. App. 2016).

Opinion

CLIFF HOOFMAN, Judge

JjAppellant Wendy Higgins appeals from the decision of the Arkansas Board of Review (Board) affirming and adopting the opinion of the Appeal Tribunal (Tribunal), which denied her unemployment benefits on the basis that she was discharged from last work for misconduct in connection with the work due to excessive absenteeism. On appeal, Higgins argues that the Board’s decision is not supported by substantial evidence. We affirm.

Higgins was employed by the Office of the Arkansas Attorney General (AG) as a legal secretary from November 2013 until June 8, 2015, when She was discharged for violating the AG’s attendance policy. She was denied unemployment benefits by the Department of Workforce Services (Department) and appealed her denial to the Tribunal, which held a telephone hearing on August 19 and 21, 2015.

At the hearing, Katina'Hodge, the employer’s representative, testified that the agency has an employee handbook wherein the policies on attendance are set forth. Hodge indicated 12that Higgins received a copy of this handbook at the time she was hired on November 5, 2013, and that she received an updated copy on January 16, 2015. Hodge further stated that Higgins was reminded of the procedures for requesting leave and the policies regarding absenteeism via an email from Sarah Tacker, the deputy attorney general in Higgins’s department, on May 12,2015.

According to Hodge, Higgins had a history of poor work attendance prior to her discharge. In October 2014, she was verbally warned about her attendance issues by one of her supervisors, Jim DePriest. On February 6, 2015, a memorandum was issued to Higgins by Tacker and another senior assistant attorney general memorializing the problem of Higgins’s .excessive absences. This memo indicated that Higgins had been classified as “Leave Without Pay (LWOP)” for 188.75 hours since her employment with the AG began, with 10.5 of these hours having been accrued in 2015. The memo further noted that Higgins had taken an additional four hours of leave without pay the previous day that had not yet been documented on her time sheet. Higgins was informed that her attendance had not improved even after her prior verbal warning and that her excessive absences had been disruptive to her colleagues. The memo further notified Higgins that if her conduct was not immediately remedied, then she would be subjected to disciplinary action, up to and including termination.

Following the February 6, 2015 memo, Hodge testified that Higgins was again warned about her excessive absences on March 2, 2015, when Tacker responded to Higgins’s email that she would be absent that day by replying, “Please be aware that unexcused absences, even lRif there is leave available, is still not in accordance with office policy. Please see p. 6 of the handbook.”

Hodge stated that Higgins was on Family Medical Leave Act (FMLA) leave from March 10, 2015, until June 2, 2015, when she was released by her physician to return to work with no restrictions. Although Higgins returned to work on June 2, 2015, Hodge testified that she then notified the AG that she would be absent on June 8 and 9. Because Higgins did not have any paid or unpaid leave remaining and because these absences had not been approved, Hodge stated that Higgins was in direct violation of the AG’s attendance policies and was therefore terminated on June 8, 2015.

In her testimony, Higgins agreed that she had received a copy of the employee handbook and that she was aware of the attendance policies therein. She further admitted that she had received warnings about her excessive absenteeism. However, Higgins testified that she was on FMLA leave at the time of the May 12, 2015 email from Tacker, and Higgins claimed that this email set forth a new policy regarding leave without pay and unexcused absences. Higgins stated that she was not aware of this email until June 8,2015, when she was terminated.

Higgins testified that she began having health issues in September 2014, at a time when she claimed that she was being harassed at work and was under severe stress. She indicated that she was experiencing blackouts, which caused her to fall and suffer concussions. She stated .that she was placed on medical leave by her doctor and that she was eventually diagnosed with neuroeardiogenic syncope. She was required to exhaust all of her available Lleave time before taking her FMLA leave. Higgins stated that she had her first appointment with a neurologist on June 1, 2015, and that .she was scheduled for several.follow-up procedures on June 9, 2015.

When she returned from FMLA leave on June 2, 2015, Higgins testified that she notified the human-resources manager that she would need to be absent on June 9 and provided documentation from her doctor. She' was told that Tacker was out of town that week and to place her leave request in Tacker’s box, which she stated that she did. She also emailed a reminder to Tacker and to Edith Collins, the lead secretary, on June 5, Higgins stated that she did not hear from Tacker until the following Monday, June 8, when Higgins emailed Tacker, Collins, and Robin Ball, who was in charge of the attendance calendar, that she was sick and would not be working that day. Higgins again noted in this email that she would also be out the following day, on Tuesday, June 9, for her medical procedures.

Tacker responded via email that Higgins’s absence that day and her planned absence the next day were “problematic and a violation of office policy.” Tacker indicated that she had planned on addressing the June 9 planned absence with Higgins that morning but that she was unable to do so due to Higgins’s absence. The email referred to several handbook provisions regarding attendance, as well as the May 12, 2015 email, and it concluded by stating that “your absence today and your planned absence tomorrow is unapproved. You have no available paid leave and your FMLA leave has been exhausted. Pursuant to our policies, you are subject to additional disciplinary action, up to and including termination.” Tacker stated that she was referring the matter to Chief Deputy Julie Benafield. Higgins was | r,notified by Benafield later that day that she was being terminated “for violating office policy regarding leave without pay.”

Higgins testified that she felt she was terminated oh the basis of a policy contained in the May 12, 2015 email that she had never received or read. She stated that some of her absences in the past had been excused even though she did not have any available paid leave and that the handbook did not -indicate that she could be fired for using leave without pay. Higgins testified that her health issues were beyond her control and that she would never have intentionally tried to get fired- from her job.

Following the hearing, the Tribunal affirmed' the Department’s denial of unemployment benefits under Arkansas Code Annotated section ll-10-514(a)(2) (Repl. 2015), finding that Higgins was discharged for excessive absenteeism. While the Tribunal noted Higgins’s claim that she was held to policies contained in an email she had not seen, the Tribunal found that the email merely explained the policy in the handbook and did not alter it.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Daniel Harris v. Director, Division of Workforce Services
2024 Ark. App. 582 (Court of Appeals of Arkansas, 2024)
Dustin Smith v. Director, Division of Workforce Services
2023 Ark. App. 595 (Court of Appeals of Arkansas, 2023)
Deborah Wemette v. Director, Division of Workforce Services
2023 Ark. App. 367 (Court of Appeals of Arkansas, 2023)
Kathern Rush v. Director, Division of Workforce Services, and Peopleready, Inc.
2023 Ark. App. 276 (Court of Appeals of Arkansas, 2023)
Amber Helms v. Director, Department of Workforce Services
2023 Ark. App. 47 (Court of Appeals of Arkansas, 2023)
Gary Roach v. Director, Division of Workforce Services And 168 Farms, Inc.
2022 Ark. App. 429 (Court of Appeals of Arkansas, 2022)
Elizabeth Young v. Director, Department of Workforce Services
2022 Ark. App. 257 (Court of Appeals of Arkansas, 2022)
Rachel Hourston v. Director, Department of Workforce Services
2022 Ark. App. 142 (Court of Appeals of Arkansas, 2022)
Hopkins v. Director, Department of Workforce Services
2019 Ark. App. 84 (Court of Appeals of Arkansas, 2019)

Cite This Page — Counsel Stack

Bluebook (online)
2016 Ark. App. 449, 503 S.W.3d 833, 2016 Ark. App. LEXIS 468, Counsel Stack Legal Research, https://law.counselstack.com/opinion/higgins-v-director-department-of-workforce-services-arkctapp-2016.