84 Hawai'i 305, Hardin v. Akiba

• Decision Date: 28 February 1997
• Docket Number: No. 19230,19230
• Citation: 933 P.2d 1339
• Parties: 84 Hawai'i 305 Sally J. HARDIN, Appellant-Appellee, v. Lorraine H. AKIBA, in her capacity as Director of Labor and Industrial Relations, Appellee-Appellee, and United Airlines, Appellee-Appellant.
• Court: Hawaii Supreme Court

Page 1339

933 P.2d 1339

84 Hawai'i 305

Sally J. HARDIN, Appellant-Appellee, v. Lorraine H. AKIBA, in her capacity as Director of Labor and Industrial Relations, Appellee-Appellee and United Airlines, Appellee-Appellant.

No. 19230.

Supreme Court of Hawai'i.

Feb. 28, 1997.

[84 Hawai'i 306] Kirk H. Cashmere, on the briefs, Honolulu, for appellant-appellee, Sally Hardin.

Frances E.H. Lum, Deputy Attorney General, on the briefs, Honolulu, for appellee-appellee, Lorraine H. Akiba, Director of Department of Labor and Industrial Relations.

Joseph A. Kinoshita, on the briefs, Honolulu, for appellee-appellant, United Airlines.

Before MOON, C.J., and KLEIN, LEVINSON, NAKAYAMA and RAMIL, JJ.

OPINION

MOON, Chief Justice.

Appellee-appellant United Airlines (United) appeals from the First Circuit Court's May 12, 1995 Decision and Order holding that appellant-appellee Sally J. Hardin is entitled to unemployment insurance benefits. On appeal, United contends that Hardin is not entitled to unemployment insurance benefits because: (1) Hardin provoked her own discharge, thus compelling the conclusion that she, in effect, quit her employment; and (2) assuming Hardin did not quit but, rather, was discharged, she was discharged for misconduct connected with her work. Appellee-appellee Lorraine H. Akiba, in her capacity as Director of the Department of Labor and Industrial Relations [hereinafter, the DLIR] contends that Hardin is disqualified for unemployment insurance benefits because she was discharged for misconduct connected with her work. Hardin, on the other hand, contends that the circuit court properly determined that she was eligible for unemployment benefits, but erred in not awarding her attorneys' fees.

For the reasons discussed below, we hold that Hardin was discharged for misconduct connected with her work, thus disqualifying her for unemployment insurance benefits. Accordingly, we vacate the judgment of the circuit court and remand for entry of judgment in favor of United.

I. BACKGROUND

Hardin worked as a reservationist for United for twenty-six years--from June 3, 1968 to June 28, 1994. Beginning in 1990, Hardin suffered from numerous medical problems that required her to miss a significant amount of work.

As a consequence of her lack of dependability, Hardin progressed through United's formal disciplinary process, receiving a "Notice of Concern," ¹ a "Warning Notice," ² and a "Final Notice." ³ In addition, Hardin received numerous formal and informal counseling sessions. The following chronology summarizes Hardin's attendance record, counseling sessions, and disciplinary warnings between June 3, 1990 and June 28, 1994 Between 1990 and 1994, Hardin's tardiness and absenteeism resulted in consistent ratings of "unacceptable" for dependability on United performance reviews, except for a "needs improvement" rating in 1992. During the informal and formal counseling sessions, United attempted to impress upon Hardin that dependability was a crucial aspect of her job performance and that, if she did not improve her dependability rating, she would be subject to disciplinary action, including possible termination.

Despite receiving a Final Notice and subsequently undergoing two formal counseling sessions emphasizing that her employment would be jeopardized by further absences, on June 11, 1994, Hardin reported to work twenty minutes late and left work two-and-one-half hours early in order to care for a sick friend. Thereafter, Hardin did not report to work for three days. She returned to work on June 15, 1994 and presented United with a psychiatrist's note that read: "6/11-6/14/94 Ms. Sally Hardin was unable to work due to stress related condition from caring for a[n] incapacitated person."

On June 27, 1994, Hardin's supervisors met with Hardin to discuss her dependability record. At the meeting, Hardin acknowledged that she had "had serious medical problems in the past several years, [but] that because [she] sought medical attention, these problems [were] resolved and behind [her]." Hardin stated that she "enjoy[s] her job and that [she] would be [at work] for the operation from now on." The following day, June 28, 1994, United terminated Hardin's employment due to her "unacceptable dependability and the lack of improvement over time."

Subsequent to her termination, Hardin applied for unemployment insurance benefits. On July 29, 1994, the Unemployment Insurance Division (UID) issued a "Notice of Unemployment Insurance Decision," disqualifying Hardin for benefits because she had been "discharged for misconduct connected with work." Specifically, the notice stated:

You were employed by United Airlines Inc[.] as a reservationist from June 3, 1968 to June 28, 1994. You were discharged due to excessive absences and tardiness. The employer reports that you reported for work tardy and you left early on June 11, 1994. Then you were absent on June 12, 13, and 14, 1994. You returned to work on June 15, 1994 with a doctor's note. You indicate that you were absent because you were caring for an ill friend who refused to get medical attention. You were previously warned about your absences and tardiness.

Since you were aware that your job was in jeopardy due to your absences, your actions are considered to be in wilful disregard of the employer's best interests. You therefore were discharged for misconduct connected with work.

Thereafter, Hardin appealed the UID's decision to the DLIR's Security Appeals Office (SAO). In its September 7, 1994 decision, the SAO agreed with the UID that Hardin was disqualified for unemployment benefits, not, however, because Hardin had been discharged for misconduct, but rather because Hardin had voluntarily quit without good cause. The SAO explained:

Having been provided ample notice that termination was a clearly foreseeable consequence of her action, claimant [ (Hardin) ] effectively abandoned her employment. She was the moving party, and termination must be considered as a quit.

....

As the moving party in the termination of the employment relationship, claimant assumes the burden of establishing, by a preponderance of the evidence, that real, substantial or compelling reason existed for leaving work. Moreover, it is expected that reasonable alternatives be pursued before terminating employment.

It need not be considered whether [Hardin's] friend's health, safety or morals would have been jeopardized had claimant not left her work to care for him, since she failed to notify the friend's sister, who would be presumed the person most responsible for his care, until after she had assumed that responsibility. Nor did she avail herself of professional sources of emergency care. Thereafter, she extended her absence without attempting to transfer the responsibility to other professional or personal sources, before it effected [sic] her own health and extended her absence.

It need not be doubted that this situation resulted in stress, or that it was of a degree as to preclude her working, yet she personally reached the decision this was the case, and also personally decided when she was able to return. Her psychiatrist, undoubtedly in good faith, simply affirmed these decisions. She confirmed that the condition resulted from claimant's voluntary actions.

Having failed to pursue the reasonable alternatives which would have permitted her to retain her employment, it may not be found that claimant had compelling reason to abandon her work [under] the circumstances that existed at the time she did so.

On October 7, 1994, Hardin appealed the SAO decision to the circuit court.

Following a hearing held on May 1, 1995, the circuit court issued the following Decision and Order on May 12, 1995:

The appeals officer ruled that [Hardin] voluntarily quit her employment with United Airlines, finding that [Hardin] had abandoned her employment as a reservations sales agent as a result of her four day absence from work between June 11-15, 1994. An employee abandons employment if the employee leaves employment without the intent of returning to work. This court finds that the appeals officer reached an erroneous conclusion of law based on the facts in the record on appeal.

[Hardin] informed [United] of her leaving her place of employment on June 11, 1994. She gave [United] a reason for leaving and returned to her employment within four days of leaving. [Hardin] worked for approximately two weeks after she returned to work before [United] terminated her employment.

[United]'s termination of [Hardin] was based on her lack of dependability and not for any misconduct as a result of the incident that occurred between June 11 and June 15, 1994. [United] cited as the reason for [Hardin]'s termination: (1) excessive absences due to illness; (2) infrequent tardiness; and (3) the absence of June 11-15, 1994. A reasonable trier of fact can only infer from the record that [United]'s reason for the termination was not due to misconduct, but due to unsatisfactory performance, i.e., lack of dependability on the part of the employee.

There are only two incidents in the record which can form the basis of misconduct: (1) tardiness; and (2) unexcused absence. [United] did not rely on tardiness for the basis of the termination which [it] deemed to be infrequent. Nor did [United] rely on the June 11-15, 1994 absence. [United] relied on a totality of circumstances based on [Hardin]'s excessive absences due to illness. Therefore, the moving party in the termination of [Hardin]'s employment was the [e]mployer and not the employee. The court therefore reverses the appeals officer's decision and it is hereby ordered that [Hardin] is entitled to unemployment insurance benefits to the extent that she is otherwise eligible.

This timely appeal followed.

II. STANDARD OF REVIEW

SB21 [1-4] Review of a decision made by the circuit court upon its review of an agency's decision is a secondary appeal. The standard of review is...