Higgins v. Director, Department of Workforce Services
503 S.W.3d 833
Ark. Ct. App.2016Background
- Higgins worked as a legal secretary for the Arkansas Attorney General from November 2013 until June 8, 2015, when she was terminated for attendance violations under the office’s policy.
- She received an October 2014 verbal warning and a February 2015 written warning memorializing extensive leave without pay totaling 188.75 hours (10.5 hours in 2015).
- A February 6, 2015 memo warned that continued absences could lead to disciplinary action, up to termination, and noted the impact on colleagues.
- Higgins was on FMLA leave from March 10 to June 2, 2015; she returned June 2, 2015 and planned absences for June 9 were discussed after exhaustion of leave.
- She notified the agency of sick absences on June 8 and 9, with no paid or unpaid leave available, and was terminated on June 8 for violating attendance policy.
- The Tribunal and Board held Higgins was discharged for misconduct in connection with work under Ark. Code Ann. § 11-10-514(a)(2) due to a bona fide written attendance policy and her repeated absences.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 11-10-514(a)(2) applies to a bona fide attendance policy | Higgins contends illness and lack of awareness of a May 12 email policy negate misconduct. | AG asserts a bona fide written policy governs, and violations constitute misconduct regardless of illness. | Applicable: policy-based misconduct supports disqualification. |
| Whether the May 12, 2015 email altered the policy | Email created a new policy not read by Higgins and thus not enforceable as misconduct. | Email merely clarified existing handbook policy; it did not alter the policy. | Email clarified, not altered, the policy. |
| Whether absences due to illness constitute misconduct given warnings | Illness-related absences were beyond Higgins’s control and not willful misconduct. | Repeated unexcused absences violate the attendance policy regardless of illness; warnings were given. | Discharge for misconduct under the policy was supported. |
| Whether there was substantial evidence supporting the Board’s misconduct finding | Record lacks substantial evidence that Higgins willfully disregarded policy. | Warnings, knowledge of policy, and the June 8 termination constitute substantial evidence. | Substantial evidence supports misconduct finding. |
Key Cases Cited
- Hiner v. Dir., 965 S.W.2d 785 (Ark. App. 1998) (substantial-evidence standard; Board findings conclusive if supported)
- Thomas v. Dir., 931 S.W.2d 146 (Ark. App. 1996) (court may not substitute its findings for the Board)
- Johnson v. Dir., 465 S.W.3d 878 (Ark. App. 2015) (credibility and weight resolved by Board)
- Hernandez v. Dir., 461 S.W.3d 708 (Ark. App. 2015) (amendment regarding attendance policies; willful disregard context)
- Walls v. Director, 49 S.W.3d 670 (Ark. App. 2001) (pre-amendment context; evaluating policy adherence)
- Oliver v. Director, 94 S.W.3d 362 (Ark. App. 2002) (pre-amendment reasoning on attendance policy)