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Faenger v. Petty

Court of Appeals of Missouri, Western District, First Division

September 9, 2014

PATRICIA FAENGER, ADMINISTRATOR, and MISSOURI VETERANS HOME AT ST. JAMES, MISSOURI, Appellants,
v.
BOBBY PETTY, Respondent

Page 200

Appeal from the Circuit Court of Cole County, Missouri. The Honorable Daniel R. Green, Judge.

For Appellants: Kevin Hall, Jefferson City, MO.

For Respondent: Mark E. Moreland, St. Louis, MO.

Before Division One: Mark D. Pfeiffer, Presiding Judge, and Lisa White Hardwick and Karen King Mitchell, Judges. Mark D. Pfeiffer, Presiding Judge, and Lisa White Hardwick, Judge, concur.

OPINION

Karen King Mitchell, Judge

Page 201

The Missouri Veterans Home and Patricia Faenger (administrator for the Missouri Veterans Home--St. James) (collectively " MVH" ) appeal the circuit court's affirmance of the Administrative Hearing Commission's (AHC) order that Bobby Petty, a State of Missouri merit-system employee, be reinstated to her position as Nursing Assistant I. MVH argues that the AHC's order, finding that MVH failed to meet its burden of proving that there was cause for Petty's dismissal, was not supported by competent and substantial evidence and was against the overwhelming weight of the evidence. We affirm.

Factual Background

MVH is a state-run nursing home facility for veterans, which is operated under the authority of the Missouri Veterans Commission; the home at issue in this appeal is located in St. James, Missouri. The facility is required to have a minimum number of employees at any given time in order to provide adequate supervision and care for the residents. If a scheduled employee is unable or fails to show up for a scheduled shift, and as a result, there are an insufficient number of employees, the facility (in the absence of volunteers) has to " mandate" a non-scheduled employee to work past his or her scheduled shift to cover the deficiency created by the absent employee.[1] Recognizing that the mandating process creates a hardship on employees, the facility would make every effort to avoid the process if possible by contacting volunteers first. The hardship created by the mandating process was often the subject of contention with the local union.

Because adequate staffing was a serious concern for the facility, MVH had in place Policy B-113, which provided, in part:

Page 202

All employees are expected to demonstrate regular attendance and use their leave responsibly. Employees who demonstrate patterns of tardiness in reporting for duty, patterns of absences, or absences from duty without authorization may be subject to disciplinary action, up to and including dismissal as outlined below.

The policy further indicated that it is the employee's responsibility to notify and discuss with their supervisor at the earliest possible moment any problems with their availability for work. The policy required employees to give notice of unavailability at least two hours before their scheduled shifts and provided that the failure to do so may result in disciplinary action, up to and including dismissal. As to unauthorized absences, the policy provided that unauthorized absence may result in disciplinary action, up to and including dismissal. When employees failed to show up for their scheduled shifts or contact a supervisor to let them know that they would be unable to work, the response was often dismissal of the ...


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