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Hernandez v. Director, Dep't of Workforce Services

Court of Appeals of Arkansas, Division III

May 6, 2015

PATRICIA HERNANDEZ, APPELLANT
v.
DIRECTOR, DEPARTMENT OF WORKFORCE SERVICES, AND SIMMONS FOODS, INC., APPELLEES

APPEAL FROM THE ARKANSAS BOARD OF REVIEW. NO. 2014-BR-01066.

Mary E. Goff, Legal Aid of Arkansas, Inc., for appellant.

Phyllis A. Edwards, for appellee.

RAYMOND R. ABRAMSON, Judge. GLADWIN, C.J., and HARRISON, J., agree.

OPINION

Page 709

RAYMOND R. ABRAMSON, Judge

Patricia Hernandez appeals the Arkansas Board of Review's (Board) decision to deny her unemployment benefits. On appeal, Hernandez argues that the Board did not apply the current version of Arkansas Code Annotated section 11-10-514(a)(2) in making its finding and that substantial evidence did not support the Board's conclusion. Based on our standard of review, we affirm the denial of benefits.

Hernandez began working in production at Simmons Foods, Inc. (Simmons) on March 23, 2013. She was discharged on February 10, 2014. The Department of Workforce Services (Department) issued a " Notice of Agency Determination" to the parties on March 6, 2014, denying Hernandez benefits under Arkansas Code Annotated section 11-10-514(a) upon finding that she was discharged from last work for misconduct in connection with the work. Hernandez filed a timely appeal to the Appeal Tribunal, which conducted a telephone hearing on April 10, 2014, and affirmed

Page 710

the Department's determination. Hernandez then appealed to the Board from the decision of the Appeal Tribunal. The Board, pursuant to section 11-10-514(a), found that Hernandez was discharged for misconduct and was therefore disqualified from benefits. The matter is now before this court.

Hernandez worked for Simmons for approximately ten months. Mary Doyle, Human Resources Director at Simmons, testified that the employer's policy provided that employees who accumulated at least ten attendance points per year may be discharged, and that three consecutive days of absence without notification would result in termination of employment. Over the course of those ten months, Hernandez accumulated twenty-six and a half points based on her absences from work. Hernandez did not call or come in to work on February 6, 7, 8, or 10, 2014; she was terminated on February 10th for excessive absences and three days of not calling in or coming to work.

During her testimony, Doyle indicated that Hernandez received a copy of Simmons's attendance point policy in Spanish. Doyle also stated that Hernandez was told during orientation about the policy regarding absences without notification, but she was not given a hard copy of the policy. According to Doyle, the no call/no show policy appears on two different slides that are shown at orientation.

Doyle also testified that Simmons normally gives employees written warnings when they reach four, six, eight, and ten points. Hernandez was given only one written warning--when she had accumulated six and a half points. Doyle testified that she and her supervisor held several meetings with Hernandez concerning her attendance and that Hernandez was allowed to exceed the ten-point maximum because she promised she would bring in doctors' notes. Over the course of Hernandez's employment and despite her numerous absences, Doyle received only one doctor's note from Hernandez, which was in August 2013. Doyle testified that the decision to terminate Hernandez was made by her superior, the Human Relations Complex Manager, and that even if Hernandez had brought in all of her doctors' notes as she had promised, she would still have been discharged because she failed to call in for three consecutive days prior to her termination.

Hernandez argues that the Board was required to apply the language of Arkansas Code Annotated section 11-10-514(a)(2), which was in effect in 2014, the date of her discharge. She asserts that the Board's decision to deny benefits on an earlier version of the statute was an error of law. Therefore, she maintains that the Board's conclusions ...


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