                                Cite as 2016 Ark. App. 449

                ARKANSAS COURT OF APPEALS
                                      DIVISION IV
                                      No. E-15-679


WENDY HIGGINS                                    Opinion Delivered   September 28, 2016
                             APPELLANT
                                                 APPEAL FROM THE ARKANSAS
V.                                               BOARD OF REVIEW
                                                 [NO. 2015-BR-1923]
DIRECTOR, DEPARTMENT OF
WORKFORCE SERVICES, and
ARKANSAS ATTORNEY GENERAL
                  APPELLEES                      AFFIRMED



                              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
                                Cite as 2016 Ark. App. 449

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


                                              2
                                  Cite as 2016 Ark. App. 449

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


                                                3
                                Cite as 2016 Ark. App. 449

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 matter to Chief Deputy Julie Benafield. Higgins was


                                              4
                                 Cite as 2016 Ark. App. 449

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 on 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 11-10-514(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. The Tribunal noted that the email’s statement that absences were unexcused until they

were approved was “simply a truism” and that the email only clarified the policy that the

employer does not consider the reason for an absence when the employee has no paid leave

available. The Tribunal found that Higgins had been reprimanded, that she was aware that

her attendance was a problem, and that she was discharged pursuant to the employer’s

attendance policy; therefore, she was discharged from last work for misconduct in connection

with the work.

       The Board affirmed and adopted the Tribunal’s decision. The Board agreed with the


                                                 5
                                 Cite as 2016 Ark. App. 449

Tribunal’s finding that Higgins was discharged for violating her employer’s attendance policy,

despite having received warnings alerting her that her attendance was unacceptable. The

Board noted that, even though Higgins might have been absent due to illness, being absent

put a hardship on the employer’s workforce. Thus, the Board found that Higgins’s attendance

demonstrated a disregard of the standards of behavior that her employer had a right to expect

of its employees and that she was discharged from her last work for misconduct connected

with the work. Higgins has timely appealed, arguing that there is not substantial evidence to

support the Board’s decision.

       On appeal in unemployment cases, findings of fact by the Board are conclusive if

supported by substantial evidence, and review is limited to determining whether the Board

could reasonably reach its decision based upon the evidence before it, even if there is evidence

upon which the Board might have reached a different decision. Hiner v. Dir., 61 Ark. App.

139, 965 S.W.2d 785 (1998). The reviewing court may not substitute its findings for the

Board’s, even though the court might have reached a different conclusion had it made an

original determination on the same evidence. Thomas v. Dir., 55 Ark. App. 101, 931 S.W.2d

146 (1996). Also, the credibility of witnesses and the weight to be accorded their testimony

are matters to be resolved by the Board. Johnson v. Dir., 84 Ark. App. 349, 141 S.W.3d 1

(2004).

       Pursuant to Arkansas Code Annotated section 11-10-514(a)(1), an individual shall be

disqualified for benefits if he or she is discharged from his or her last work for misconduct in

connection with the work. Section 11-10-514(a)(2) further provides that “[i]n cases of


                                               6
                                  Cite as 2016 Ark. App. 449

discharge for absenteeism, the individual shall be disqualified for misconduct in connection

with the work if the discharge was pursuant to the terms of a bona fide written attendance

policy, regardless of whether the policy is a fault or no-fault policy.” Whether an employee’s

actions constitute misconduct in connection with the work sufficient to deny unemployment

benefits is a question of fact for the Board. Thomas, supra.

       On appeal, Higgins argues that the Board erred in its decision that she was disqualified

from receiving unemployment benefits pursuant to section 11-10-514(a)(2) because she did

not intentionally or with wrongful intent violate the AG’s attendance policy. She contends

that her absences due to illness were beyond her control and that her conduct did not amount

to misconduct. Higgins cites to cases in which we have held that in order for an employee

to be engaged in misconduct sufficient to warrant the denial of unemployment benefits, the

employee’s actions must be a deliberate or willful disregard of the employer’s best interest or

a disregard of a standard of behavior that the employer has a right to expect of its employees.

See, e.g., Johnson v. Dir., 2015 Ark. App. 389, 465 S.W.3d 878 (stating that misconduct

requires more than mere inefficiency, unsatisfactory conduct, failure in good performance as

a result of inability or incapacity, inadvertencies, ordinary negligence in isolated instances, or

good-faith errors in judgment or discretion); Hernandez v. Dir., 2015 Ark. App. 290, 461

S.W.3d 708 (same).

       While these principles continue to apply to cases in which an employee is disqualified

from receiving unemployment benefits for misconduct in general, Ark. Code Ann. § 11-10-

514(a)(2) was amended in 2011 to provide that in the specific situation where an employee


                                                7
                                  Cite as 2016 Ark. App. 449

has been discharged on the basis of absenteeism, that employee may be disqualified for

misconduct if the discharge was pursuant to the terms of a bona fide written attendance

policy, regardless of whether the policy is a fault or no-fault policy and regardless of the reason

for the employee’s absences. See Acts of 2011, Act 861 § 4, eff. July 27, 2011. See also Acts

of 2013, Act 1077 § 1, eff. Aug. 16, 2013 (further removing the requirement that the written

attendance policy provide for progressive warnings). Although Hernandez, supra, was decided

after section 11-10-514(a)(2) was amended, it did not involve a situation where the employer

had a bona fide written attendance policy that it followed in terminating the employee. As

this court noted in Hernandez, where the employer has no written policy or fails to follow its

written policy, then the facts must be evaluated to determine whether the employee’s

behavior was a willful disregard of the employer’s interest. Also, in Johnson, supra, we reversed

the Board’s finding of misconduct where there was no evidence that the employee was aware

that she was released to return to work by her treating doctor and where even the Board

indicated that there may have been a misunderstanding on the employee’s part.

       Higgins also cites to Walls v. Director, 74 Ark. App. 424, 49 S.W.3d 670 (2001), and

to Oliver v. Director, 80 Ark. App. 275, 94 S.W.3d 362 (2002), in support of her argument that

she did not intentionally violate the AG’s policy on absenteeism. However, both of these

cases were decided prior to the 2011 amendment of section 11-10-514(a)(2), and thus, the

reasons for the employees’ absences were relevant in deciding whether there was misconduct

in those cases. Her reliance on Rodriquez v. Director, 2013 Ark. App. 361, is also misplaced,

as that case did not involve a discharge for absenteeism.


                                                8
                                 Cite as 2016 Ark. App. 449

       Here, the provisions in the AG’s employee handbook specifically provide that excessive

absenteeism or any absences without notice are unacceptable; that the employee must consult

with the Attorney General or the Chief Deputy for approval of leave without pay; and that

absences without approval may subject the employee to disciplinary action, including

termination. Furthermore, Higgins was verbally warned about her absences in October 2014,

and she received a written warning memorializing her excessive number of hours of leave

without pay in February 2015. She was cautioned at that time that continued absences could

result in disciplinary action, including termination for cause. On March 2, 2015, prior to her

FMLA leave, Higgins was again warned that unexcused absences were in violation of the

employer’s policy. After Higgins had exhausted her FMLA leave and had returned to work

on June 2, 2015, she then notified her employer that she would be absent on June 9. Higgins

had not yet received approval for her planned absence on June 9 when she notified the AG

that she was sick on the morning of June 8 and would be missing that day as well. At that

time, Higgins’s supervisor informed her that she had no available leave, that her absences were

unapproved, and that she was therefore in violation of the office’s attendance policies. She

was terminated later that day due to her violation.

       Based on this evidence, the Board found that, regardless of Higgins’s argument that her

absences were due to illness and were not intentional, she was discharged for violating her

employer’s attendance policy. Because we conclude that there was substantial evidence to

support the Board’s decision that Higgins was discharged for misconduct connected with the

work pursuant to Ark. Code Ann. § 11-10-514(a)(2), we affirm.


                                              9
                          Cite as 2016 Ark. App. 449

Affirmed.

HARRISON and WHITEAKER, JJ., agree.

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

Phyllis Edwards, for appellee.




                                      10
