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Faenger v. Bach

Court of Appeals of Missouri, Western District, First Division

September 16, 2014

PATRICIA FAENGER, ADMINISTRATOR, and MISSOURI VETERANS HOME AT ST. JAMES, MISSOURI, Appellants,
v.
THREASA BACH, Respondent

Opinion Filed: September 16, 2014.

Page 181

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

Kevin Hall, Jefferson City, MO, Attorney for Appellants.

Mark E. Moreland, St. Louis, MO, Attorney for Respondent.

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 182

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 Threasa Bach (a State of Missouri merit-system employee) be reinstated to her position as Nursing Assistant I. MVH argues that the AHC's order constituted an abuse of discretion and a misapplication of the law insofar as the order determined--contrary to Faenger's judgment--that Bach's dismissal was not for the good of the service. 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

Page 183

process creates a hardship on employees, the facility would make every effort to avoid the process if possible by contacting volunteers first from a volunteer list.

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

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 " [i]t 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 stated that " Unauthorized absence may result in disciplinary action, up to and including dismissal." When employees requested time off, however, they were generally granted their requests unless there was insufficient staff for the day requested.

Bach began her employment as a certified nursing assistant with MVH at the St. James facility in April 2004. At the time, Janet Anderson was the director of nursing.[2] After a year, Bach and her husband moved to Virginia for his job, where they remained for two years before returning to Missouri. Upon her return, Bach contacted MVH to see if she could resume her former job. Anderson rehired Bach as a certified nursing assistant in 2007.

On April 1, 2008, Bach received a memo from Anderson, advising Bach that Bach failed to report to work as scheduled on March 26, 2008, without notifying her supervisor. The memo further indicated that " Failure to notify the supervisor that you will be absent from work jeopardizes the facility's ability to assure adequate staffing and places resident care at risk." According to the memo, Bach had indicated that, because of a change in her schedule, she mistakenly believed March 26, 2008, to be her day off. The memo further stated: " Based on your work history with this organization, we are excusing your failure to report to work without notifying the supervisor. In the future, please keep in mind that this may be grounds for dismissal. You are to notify the supervisor two hours prior to the start of your assigned shift when you are unable to report to work." Bach acknowledged receiving and signing this memo, but insisted that her absence had been a result of the facility's mistake and not her own.

Bach's 2008 performance evaluation, conducted by Anderson, indicated that Bach's performance needed improvement. Her 2009 performance evaluation, conducted by Chanda Saultz (Anderson's replacement), ...


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