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Al-Assi v. Alabama Dep't of Labor & Gregg Appliances, Inc.

Alabama Court of Civil Appeals

February 13, 2015

Mohammed Al-Assi
v.
Alabama Department of Labor and Gregg Appliances, Inc

Released for Publication September 15, 2015.

Appeal from Jefferson Circuit Court. (CV-13-170), Trial Judge: Houston L. Brown, Judge.

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.

DONALDSON, Judge. Thompson, P.J., and Pittman, Thomas, and Moore, JJ., concur.

OPINION

Page 933

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]

Page 934

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 ...


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