Al-Assi v. Ala. Dep't of Labor
| Decision Date | 13 February 2015 |
| Docket Number | 2130600. |
| Citation | 173 So.3d 932 |
| Parties | Mohammed AL–ASSI v. ALABAMA DEPARTMENT OF LABOR and Gregg Appliances, Inc. |
| Court | Alabama Court of Civil Appeals |
173 So.3d 932
Mohammed AL–ASSI
v.
ALABAMA DEPARTMENT OF LABOR and Gregg Appliances, Inc.
2130600.
Court of Civil Appeals of Alabama.
Feb. 13, 2015.
David Gespass of Gespass & Johnson, Birmingham, for appellant.
Joseph S. Ammons, gen. counsel, and Donald M. Harrison III, asst. gen. counsel,
Alabama Department of Labor, for appellee Alabama Department of Labor.
Opinion
DONALDSON, Judge.
An employer bears the burden of proving that a former employee is disqualified from receiving unemployment-compensation benefits that the former employee would otherwise normally be entitled to receive. See Ex parte Rogers, 68 So.3d 773, 780–81 (Ala.2010) ; Jim Skinner Ford, Inc. v. Davis, 113 So.3d 663, 664 (Ala.Civ.App.2012). Mohammed Al–Assi appeals from a judgment of the Jefferson Circuit Court (“the trial court”) in favor of the Alabama Department of Labor (“ADOL”)1 and Gregg Appliances, Inc. (“Gregg”), holding that, pursuant to § 25–4–78(2), Ala.Code 1975, he was disqualified from receiving unemployment-compensation benefits because he voluntarily quit his employment with Gregg without good cause. Because we find that Gregg and ADOL did not meet their burden of proving that Al–Assi voluntarily quit his employment and was therefore disqualified from receiving unemployment-compensation benefits, we reverse the judgment of the trial court and remand the matter to the trial court for further proceedings consistent with this opinion.
Procedural History and Facts
On November 6, 2011, Al–Assi filed a claim with ADOL for unemployment-compensation benefits under the Alabama Unemployment Compensation Act (“the Act”), § 25–4–1 et seq., Ala.Code 1975. ADOL initially considered Al–Assi to be eligible to receive benefits. On December 12, 2011, Gregg filed an appeal of ADOL's determination to grant Al–Assi unemployment benefits, asserting that Al–Assi had “voluntarily quit” his job with Gregg. A hearing was held on December 28, 2011, before an administrative hearing officer. All testimony was taken by telephone. At that hearing, the hearing officer received the testimony of Al–Assi; Tom Spade, Gregg's store manager at the store where Al–Assi was employed; and Patrick Albright, Gregg's floor manager at the store where Al–Assi was employed. Al–Assi and Gregg were represented by counsel.
The testimony showed that Al–Assi began his employment with Gregg on May 1, 2010. The location of the employment was a retail appliance store in Birmingham where Al–Assi was employed as a salesperson. Gregg provided Al–Assi with an employee handbook when his employment began. The handbook contained policies concerning employee absences from work.2
One of the policies in the handbook contained the following language, referred to by the parties as the “no call, no show” policy: “Absence from work without calling in or notifying [the] employer for 2 consecutive days or more will result in [the employee's] termination.” According to testimony, the no call, no show policy continued as follows: “[A] continuous absence for multiple days resulting from an associate's single illness will be considered one occurrence for purposes of this attendance policy.”
Al–Assi was scheduled to work daily from October 26, 2011, to October 30, 2011. On the morning of October 26, 2011, Al–Assi contacted Albright, the floor manager, by telephone to inform Albright that he had a written physician's excuse (“the first excuse”) to be off work from October 26, 2011, to October 31, 2011, due to back pain. Because he continued to experience pain, Al–Assi contacted his physician on October 27, who referred him to a pain specialist. Al–Assi saw the specialist on October 28, 2011. The specialist directed Al–Assi to refrain from working until November 4, 2011, when he was to have another appointment. The specialist provided Al–Assi with a written physician's excuse to be off work until November 4, 2011 (“the second excuse”).
Al–Assi testified that he called Albright again on October 28, 2011, and that he notified Albright that he would need to be off work for an additional week based on the second excuse. Al–Assi testified that Albright did not ask Al–Assi to bring the first excuse and the second excuse to the store.
On November 4, 2011, Al–Assi returned to the specialist. The specialist determined that Al–Assi would need to change his medicine and that he would require additional time off from work. The specialist provided Al–Assi with a written physician's excuse from work for an additional period (“the third excuse”). That same day, Al–Assi went to the store and spoke to Spade, the store manager. Al–Assi provided the second excuse and the third excuse to Spade, but he did not have the first excuse with him at the time. Spade informed Al–Assi that Gregg had terminated his employment for violating Gregg's no call, no show policy because Al–Assi had not called in to the store daily since being absent on October 26, 2011.
Albright testified that he had spoken with Al–Assi on October 26 but that he had not spoken with Al–Assi on October 28. Spade testified that Albright had informed him that Al–Assi had called on October 26 and had reported that he would be off work until October 30, 2011, but that Albright had never informed him that Al–Assi had called back on October 28. Spade testified that the next time he or Albright had heard from Al–Assi was on November 4, when Al–Assi came to the store. Spade testified that Al–Assi admitted to him at that time that he had not called in since October 26. Albright testified that he had been informed on November 1, 2011, that Al–Assi had been dismissed for job abandonment.
On January 9, 2012, the hearing officer rendered a decision denying Al–Assi's claim for unemployment-compensation
benefits, pursuant to § 25–4–78(2), on the ground that Al–Assi had voluntarily left his most recent bona fide work without good cause. The hearing officer's written decision contained a statement indicating that the decision had been mailed to Al–Assi on January 9, 2012.
On February 1, 2012, Al–Assi applied for permission to appeal that decision to ADOL's Board of Appeals, pursuant to § 25–4–92(c), Ala.Code 1975. In his application, Al–Assi claimed that neither he nor his attorney had received notice of the hearing officer's decision. The Board of Appeals affirmed the decision of the hearing officer on February 22, 2012, on the basis that Al–Assi's application for permission to appeal had not been filed within 15 days after notice of the decision had been mailed, as required by § 25–4–92(c). Al–Assi appealed the Board of Appeals' affirmance of the hearing officer's decision to the trial court in April 2012. The trial court entered an order on December 17, 2012, in which it determined that Al–Assi's application for permission to appeal to the Board of Appeals had been timely, presumably finding that Al–Assi had not received adequate notice of the hearing officer's determination. The trial court remanded the matter to the Board of Appeals. On February 22, 2013, the Board of Appeals affirmed the hearing officer's decision. See Rule 480–1–3–.03(1), Ala. Admin. Code (ADOL) (“Within 30 days after the application for Leave to Appeal shall have been received by the Board of Appeals, the Board of Appeals shall either grant or deny the application solely on the basis of the application and the record.”).
On March 4, 2013, Al–Assi appealed the Board of Appeals' decision of February 22, 2013, to the trial court. ADOL was named as the defendant in the case. Gregg filed a motion to intervene in the case pursuant to Rule 24, Ala. R. Civ. P., on January 23, 2014, and the trial court granted that motion.
The trial court conducted a hearing on February 6, 2014. The parties agreed to submit the transcript of the December 28, 2011, telephone hearing before the administrative hearing officer to the trial court in lieu of presenting live testimony of witnesses. Al–Assi also submitted an affidavit from Jane Archer, Ph.D., chair of the English Department of Birmingham–Southern College. Dr. Archer testified that she had reviewed Gregg's no call, no show policy and that her interpretation of the language in that policy was that it did not require an employee to call in to report absences multiple times for one event of illness. She testified, in part:
“[T]he most reasonable interpretation of the handbook would be that, if an employee contacts his or her manager, and informs him or her...
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