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Higgins v. Director, Department of Workforce Services

Court of Appeals of Arkansas, Division IV

September 28, 2016

WENDY HIGGINS APPELLANT
v.
DIRECTOR, DEPARTMENT OF WORKFORCE SERVICES, and ARKANSAS ATTORNEY GENERAL APPELLEES

         APPEAL FROM THE ARKANSAS BOARD OF REVIEW [NO. 2015-BR-1923]

          Davidson Law Firm, by: Angela Echols, for appellant.

          Phyllis Edwards, for appellee.

          CLIFF HOOFMAN, Judge.

         Appellant 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 that 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 if 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 neurocardiogenic syncope. She was required to exhaust all of her available leave 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 ...


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