Burch v. Bassett
2016 Ark. App. 456
| Ark. Ct. App. | 2016Background
- Lydia Burch worked for Weldon, Williams & Lick, Inc. (WWL) for over 35 years and was subject to a company handbook attendance policy (80 hours sick leave in a rolling 12‑month period).
- Burch had a long history of attendance warnings (2005, 2007, 2013, 2014) and a June 16, 2014 written warning stating further violations could lead to termination; she signed the warning.
- In 2015 she accrued additional illness‑related absences (she has a history of cancer diagnoses) and did not immediately apply to HR for intermittent FMLA or to use vacation time; a supervisor had previously emailed that vacation requests would be reviewed case‑by‑case.
- WWL terminated Burch on July 13, 2015 for exceeding permitted absences under its written attendance policy.
- Burch filed for unemployment benefits; the agency, Appeal Tribunal, and Arkansas Board of Review denied benefits for misconduct under Ark. Code Ann. § 11‑10‑514(a)(2). Burch appealed to the Arkansas Court of Appeals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether illness‑related absences constitute misconduct to bar unemployment benefits | Burch: illness and lack of intent negate misconduct; prior case (Jones) shows lack of doctor’s note alone is not misconduct | WWL: discharge was for absenteeism under a bona fide written attendance policy (fault or no‑fault), so misconduct is established | Held: Court affirmed — absenteeism under a bona fide written attendance policy supports disqualification regardless of intent |
| Whether employer proved existence of a written attendance policy | Burch: WWL did not introduce the handbook at hearing, so no proof of written policy | WWL: evidence of handbook and signed warning letter acknowledging policy suffices to prove the policy | Held: Court held handbook existence was sufficiently proved by the signed warning and prior notice |
| Whether supervisor’s email permitted use of vacation time and thus excused absences | Burch: supervisor’s April 7 email allowed vacation use without prior approval in special circumstances | WWL: email addressed vacation requests generally, not sick leave; Burch did not request vacation/ FMLA through HR | Held: Court rejected Burch’s argument — email did not override policy and she did not apply to use vacation/FMLA |
| Standard of review — whether Board’s factual finding is supported by substantial evidence | Burch: Board erred in finding misconduct on these facts | WWL: Board’s factual findings are entitled to deference if supported by substantial evidence | Held: Court applied substantial‑evidence review and affirmed the Board’s decision |
Key Cases Cited
- Snyder v. Director, Department of Workforce Services, 81 Ark. App. 262 (Ark. Ct. App.) (standard of review — defer to Board of Review and view evidence in light most favorable to it)
- Gunter v. Director, 82 Ark. App. 346 (Ark. Ct. App.) (credibility of witnesses is for the administrative body)
- Nibco, Inc. v. Metcalf, 1 Ark. App. 114 (Ark. Ct. App.) (definition of misconduct categories)
- Grigsby v. Everett, 8 Ark. App. 188 (Ark. Ct. App.) (employer must prove misconduct by a preponderance of the evidence)
- Jones v. Director, Department of Workforce Services, 439 S.W.3d 86 (Ark. Ct. App.) (distinguishable precedent where lack of doctor’s note did not constitute misconduct)
- Sadler v. Stiles, 22 Ark. App. 117 (Ark. Ct. App.) (appellate scope limited to whether Board could reasonably reach its decision)