Hayes v. State

CONNIE HAYES v. STATE OF TENNESSEE

No. M2013-01811-COA-R3-CV

COURT OF APPEALS OF TENNESSEE AT NASHVILLE

May 20, 2014 Session

Filed July 10, 2014

Direct Appeal from the Chancery Court for Davidson County

No. 12-1525-I

Claudia C. Bonnyman, Chancellor

This appeal involves the termination of a State employee. The employee was late for work on numerous occasions prior to and throughout 2010. She sustained an at-work injury in October 2010. On January 15, 2011, she was tardy for work and a termination proceeding was commenced shortly thereafter. Prior to her receipt of the letter recommending termination, the employee tendered a request for FMLA leave, which leave was approved after termination was recommended, but before termination was confirmed. The Civil Service Commission affirmed the employee's termination. The Chancery Court affirmed the employee's termination and it dismissed her interference with FMLA claim. We affirm.

Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed

ALAN E. HIGHERS, P.J., W.S., delivered the opinion of the Court, in which DAVID R. FARMER, J., and J. STEVEN STAFFORD, J., joined.

Jeffery S. Frensley, Nashville, Tennessee, for the appellant, Connie Hayes

Robert E. Cooper, Jr., Attorney General and Reporter, Joseph F. Whalen, Acting Solicitor General, John W. Dalton, Senior Counsel, Nashville, Tennessee, for the appellee, Tennessee Civil Service Commission

OPINION

I. FACTS & PROCEDURAL HISTORY

At all times relevant to this appeal, Appellant Connie Hayes was employed by the Department of Intellectual and Developmental Disabilities working as a Developmental Technician Supervisor I at Clover Bottom Developmental Center ("CBDC"). At the time of her termination, she had been employed by the State of Tennessee for approximately thirty-one years.

In September 2010, Dr. Stacey Dixon became the chief officer at CBDC. She testified¹ that when she took over the position, CBDC was under "significant hardship financially" and that she was "under great pressure to reduce costs[.]" She discovered "a significant problem with leave and attendance"-particularly, "a huge problem that some people did not come to work on time or at all"-that increased the center's reliance upon overtime and that, in her opinion, created an unsafe practice of forcing exhausted employees to care for the center's disabled residents.

In 2006, prior to Dr. Dixon's arrival, CBDC implemented a leave and attendance policy. The policy provided a six-minute grace period before an employee was considered tardy and it allowed an employee to be tardy and absent from work five times during a twelve-month period² without disciplinary action.³ Upon the sixth tardy/absence, a written warning was given; upon the seventh tardy/absence, an employee faced suspension; and upon the eighth tardy/absence, an employee faced termination.⁴

To remedy the aforementioned problems and to bring the leave and attendance policy in line with the Department of Human Resources' policy for leave and attendance, Dr. Dixonalong with the management team, rewrote the 2006 policy.⁵ The new policy became effective December 1, 2010; however, tardies and absences already accrued under the old policy were carried over. Under the new policy, both unapproved tardies and absences were considered "unapproved leave." Thus, tardies and absences were added together for disciplinary purposes. Additionally, pursuant to the new policy, the six-minute grace period was eliminated and disciplinary action commenced after the first occurrence of unapproved leave.

On October 15, 2010, Ms. Hayes suffered an on-the-job injury when she tripped over a rug, hitting her knee and thigh against a door edge. She claimed injuries to her knee, upper thigh, and right elbow.

On December 16, 2010, Ms. Hayes completed and signed a request for intermittent leave under the Family and Medical Leave Act ("FMLA"). On December 23, 2010, Ms. Hayes' health care provider completed the requisite FMLA medical certification indicating that episodic flare-ups of hypertension and joint pain left Ms. Hayes unable to perform her job functions during two, eight-hour days per month. According to Ms. Hayes, she sent the FMLA paperwork to the State via fax and personal delivery on or about January 1, 2011. However, when she received no response, she re-faxed the paperwork to the same number on January 17, 2011.⁶ Employee Relations Officer Darla Goad received Ms. Hayes' FMLA request on January 18, Ms. Goad faxed the request to CBDC Unit Director Rosalyn Stephens on January 19, and Ms. Stephens signed and returned the fax on January 20. On January 20, 2011, Ms. Goad approved Ms. Hayes' request for intermittent FMLA leave; she was allowed 450 hours of leave. Such approval was confirmed in a January 31, 2011 letter to Ms. Hayes from Ms. Goad.⁷

Meanwhile, between January 1, 2010 and December 1, 2010, Ms. Hayes was tardy for work forty-six times; forty-one of those tardies occurred prior to October 2010.⁸ In December 2010, after implementation of the new policy, Ms. Hayes was tardy for work ten times. Between January 1, 2011 and January 15, 2011, Ms. Hayes was again tardy for work ten times.

On January 15, 2011, Ms. Hayes was forty minutes late for work. She testified that she telephoned "the unit," "assum[edly] prior to the time for her shift to begin, and spoke with Mr. O'Peak, who apparently functioned in the same role as Ms. Hayes. She allegedly advised him that she was sick and unable to report to work, that she "[had] FMLA[,]"⁹ and that she had a doctor's note excusing her absence. According to Ms. Hayes, Mr. O'Peak informed her that he had no one to cover her shift, and therefore, Ms. Hayes decided to report to work, albeit forty minutes late.

Employee Relations Officer, Darla Goad, however, testified that an employee unable to timely report to work must, prior to the commencement of shift, notify his or her supervisor and leave a message on the telephone call-out log. Ms. Hayes apparently did not comply with these requirements. Ms. Goad testified that Ms. Hayes did not phone the call-log regarding her January 15, 2011 tardiness and testimony established that Mr. Nwoke-as opposed to Mr. O'Peak-was Ms. Hayes' supervisor. Ms. Hayes did not present a doctor's note for her tardiness.

On January 25, 2011, Ms. Stephens issued a letter to Ms. Hayes indicating that Ms. Stephens had recommended that Ms. Hayes' employment be terminated. The letter noted that Ms. Hayes had received an oral warning on January 21, 2010 for six previous tardiness incidents in December 2009 and January 2010; she had received a written warning on July 20, 2010 for a tardiness incident in July 2010; and that she had received a one-day suspension in September 2010 for six tardiness incidents in July and August 2010. The letter further cited Ms. Hayes' forty-minute tardiness on January 15, 2011. The letter explained that Ms. Hayes' "pattern of unexcused absences" had placed her in violation of Tennessee Department of Human Resources Rule 1120-10-.06(6), Habitual Pattern of Failure to Report for Duty¹⁰ and in violation of CBDC Policy Leave and Attendance Index 505; Unapproved Leave D.1.,effective December 1, 2010, which provides:

Any leave taken without prior approval from the unit/department director or designee may be counted as an occurrence of unapproved leave. Unapproved late arrival to the employee's work station, leaving work early without approval, late return from an approved break, taking an unapproved break, an unexcused absence, or the failure to provide a physician's statement to justify sick leave (when requested) all count as occurrences of unapproved leave.¹¹

On February 1, 2011, Ms. Hayes met with Darla Goad for a due process hearing regarding the January 25, 2011 letter of intent to terminate. By letter dated February 11, 2011, Dr. Dixon, CBDC Chief Officer, agreed with the recommendation and confirmed her decision to separate Ms. Hayes from State service.

On March 16, 2011, a Level IV Grievance Hearing was held. In a March 31, 2011 letter, the Commissioner of the Department of Intellectual and Developmental Disabilities upheld the decision by CBDC management to terminate her employment.

On October 11-12, 2011, a Level V Grievance Hearing was held before an Administrative Law Judge. The ALJ upheld Ms. Hayes' termination in an Initial Order, and Ms. Hayes unsuccessfully filed a Petition for Reconsideration of the Initial Order. Ms. Hayes then appealed to the Civil Service Commission, which adopted the ALJ's Initial Order upholding Ms. Hayes' termination.

On October 24, 2012, Ms. Hayes filed a Petition for Judicial Review in the Davidson County Chancery Court, again challenging her termination. The matter was heard on July 9, 2013, after which, the Chancery Court entered an Order, which incorporated its thorough oral ruling, affirming the decision of the Tennessee Civil Service Commission. Ms. Hayes timely appealed to this Court.

II. ISSUES PRESENTED

Appellant presents the following issues for review:

1. Whether the decision to terminate Ms. Hayes' employment was arbitrary or capricious and characterized by an abuse of discretion or clearly unwarranted exercise of discretion; and

2. Whether Ms. Hayes' termination is an interference with the exercise of her rights under the Family and Medical Leave Act.

For the following reasons, we affirm the decision of the chancery court.

III. DISCUSSION

A. Whether Commission's Decision was Arbitrary or Capricious

On appeal, Ms. Hayes argues that the Commission's decision to uphold her termination was arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. We review the Commission's decision using the same standard of review used by the chancery court. Davis v. Shelby County Sheriff's Dep't, 278 S.W.3d 256, 264 (Tenn. 2009). Judicial review is governed by the Uniform Administrative Procedures Act, Tenn. Code Ann. § 4-5-322. See Tenn. Code...