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Faenger v. Wofford

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.
VELINDA KAY WOFFORD, Respondent

Opinion Filed: September 16, 2014.

Page 191

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 192

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 Velinda Kay Wofford (a State of Missouri merit-system employee) be reinstated to her position as Custodial Worker 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 Wofford'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 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.

Page 193

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.

Wofford began working at the St. James facility in 1980, as a nursing assistant. Three or four years later, she obtained her certification and continued working as a certified nursing assistant for another 18 years before changing roles to Custodian I. At some point, Wofford was promoted to Custodian II for approximately one year before voluntarily returning to Custodian I.

Wofford first became involved with the local union in 1999, when she took on the role of chief steward. She later became vice president and then president in 2003. She remained president until September of 2009, when Threasa Bach took over. At that time, Wofford resumed her work as a chief steward. Around 2006, Wofford joined the union's negotiating team, working on the negotiations with the State of Missouri. Her work on the negotiating team required her to travel periodically to Jefferson City for caucuses and negotiations. When these events were scheduled, Wofford received a letter that she then presented to the facility to notify them of her need for time off. Whenever Wofford presented MVH with one of these letters, the facility made it a point to give her the time off to attend.

On September 27, 2010, Wofford submitted a leave request for October 3 and 4, 2010, so that she could attend a caucus and negotiations in Jefferson City on behalf of the union negotiating team. Her regularly scheduled shift was from 6:30 a.m. to 3:00 p.m. on each day. The caucus was scheduled to begin in Jefferson City, which is approximately 60 miles away from St. James, at 1:00 p.m. on October 3. Because October 3 was a Sunday and the facility was typically short-staffed on the weekends, they were unable to give Wofford the entire day off. Nevertheless, after discussions with a custodial supervisor, Faenger determined that they could sufficiently cover the second half of Wofford's shift, so ...


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