Opinion
No. 2346 C.D. 2008.
Submitted: May 29, 2009.
Filed: July 17, 2009.
BEFORE: McGINLEY, Judge; JUBELIRER, Judge; FLAHERTY, Senior Judge.
OPINION NOT REPORTED
The Monroe County Area Agency on Aging (Agency) appeals from an order of the State Civil Service Commission (Commission) that sustained the appeal of Kevin P. Clare (Clare) wherein he challenged his removal as a Community Health Nurse 1 (community nurse). The Commission ordered his reinstatement within thirty days. We affirm.
Clare was hired as a community nurse with the Agency on January 7, 2002 and removed on February 5, 2008, for "extremely poor attendance." The Agency issued the following termination letter to Clare:
This is to inform you that your employment is terminated as of today due to extremely poor attendance. The absences we are considering are those in excess of any legally protected leave under FMLA. In January 2008 you reported to work two and a half days, January 23rd, 24th and a half day on January 25th . Today is the first time you have reported to work in February. At this time, there is no definite prognosis as to when you can return to work full time or your continued ability to maintain regular attendance upon your return.
Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et. seq.
(Commission's order at 2.) On February 11, 2008, Clare filed an appeal with the Commission, alleging that his removal violated the Civil Service Act, Act of August 5, 1941, P.L. 752, as amended, 71 P.S. §§ 741.1-741.1105 and that he was discriminated against because of a physical disability. The Commission conducted a hearing.
The Commission found that the Agency seeks to keep senior citizens functioning independently in the community by providing support services through various state programs. The Agency must make a level of care determination before a consumer is entitled to benefits. As a community nurse, Clare met with and gathered medical information for each consumer seeking services. Clare then made a level of care determination from information gathered by the Agency's staff members. If an individual requested a level of care evaluation, guidelines require that the determination be completed in three days if the individual is in the hospital or five days if the individual is in a care facility or in the community. Part of Clare's duties included driving to interview people in their homes. The Agency had a second registered nurse who worked part-time and followed the progress of consumers already in programs.
Beginning in September 2005, Clare took unpaid FMLA leave on an intermittent basis to care for his father who was terminally ill with cancer. After his first FMLA leave was over, Clare had a series of medical symptoms resulting in him being placed on a medical leave of absence. These leaves continued through 2007.
In early 2007, the Agency's executive director, Patricia Fretz (Fretz), contacted Bonnie Ace-Suttar (Ace-Suttar), the human resource director, and asked how much time Clare had remaining on FMLA leave. Ace-Suttar advised that Clare's entitlement to FMLA leave would expire on February 12, 2007. After that, Clare would have to apply for a disability leave of absence which was available to him under the collective bargaining agreement. In a letter dated February 13, 2007, Ace-Suttar advised Clare of the end of his FMLA and the need to request disability leave. Clare then applied for, and was granted, disability leave.
Five months after Clare returned from his disability leave, Clare injured his back while shoveling snow on December 31, 2007 and January 1, 2008. Clare saw his family doctor and then saw an orthopedist on January 2, 2008, for his back pain. Clare advised the Agency's care manager supervisor, Elaine Occhipinti, of his back problems.
On January 9, 2008, Dr. Harry W. Schmaltz faxed a note to Occhipinti. The note indicated that Dr. Schmaltz saw Clare on January 2 and further stated "NO WORK 01/02/08 UNTIL 01/21/08 OR AS TOLERATED." (Commission's opinion at 13.) On January 10, 2008, Clare contacted Occhipinti who indicated that she had received the doctor's note and that Clare could return to work on January 21. Clare stated that he would like to return to work sooner than January 21. Occhipinti told Clare that she would need another note from the doctor saying that Clare could return to work at an earlier date.
On January 14, 2008, Occhipinti received another doctor's note. On January 17, 2008, Clare called Occhipinti to see what the note said. Occhipinti told Clare that he could return to work on January 21, but was restricted from driving while taking pain medication. Clare told Occhipinti that he wanted to return to work. Additionally, Clare stated that he was taking medication but hoped to lessen the amount and that he would take the medicine after work when he was home. Occhipinti said that if Clare had to take medicine, it meant that he was in too much pain and he could not return to work because he was not going to be able to do his job.
Clare called Occhipinti and told her that he would not be at work on January 21, because he had a doctor's appointment. Occhipinti told Clare that the office was closed that day for a national holiday. Clare then saw a back specialist and the next day, January 22, he had a scan of his back performed and called off of work.
Clare returned to work on January 23 and provided the Agency a doctor's note. The note, dated January 21, 2008, stated " PLEASE EXCUSE FROM WORK FOR THE NEXT 2 WEEKS BUT MAY RETURN AS TOLERATED IF PAIN SUBSIDIES. NO DRIVING WHILE ON NARCOTIC PAIN MEDICATIONS." (Commission's opinion at 14.) While Clare was working on January 23, Occhipinti told him that he looked like he was in pain and that the doctor's note said he was to be off for two weeks. Clare responded that he could handle it and that the note indicated that he could work if he could tolerate it. Occhipinti then asked Clare if he was taking any medication that would inhibit his ability to drive. Clare responded the he was going to be alright. Clare worked a full day on January 23, 24 and part of the day on January 25.
On January 25, Occhipinti and Fritz met with Clare to discuss his current status, his recent absences and what the Agency could expect in the future. Clare left the meeting, refusing to discuss his absences, stating he had appropriate doctor's excuses. He then left work claiming he was in too much pain.
Clare did not work again until three days later on January 30, 2008. He left early that day and left a note on Occhipinti's desk explaining that he was in too much pain. After leaving on January 30, Clare did not attempt to return to work again until February 5, 2008. Clare was terminated at work on February 5, 2008.
In certain circumstances, employees can use anticipated vacation, personal and sick days before the time is actually accrued. The vacation, personal and sick time that Clare used in January and February 2008 had not yet been exhausted but was time Clare was anticipating earning through the year. Occhipinti signed timesheets for Clare, approving of his anticipated leave usage for the time between January 2 and February 1, 2008. At the time of his removal, Clare had two personal days remaining in 2008, but nothing else. He had already used his anticipated sick and vacation days.
Based on the above findings, the Commission determined that the Agency did not present sufficient evidence to establish that Clare was removed for just cause. Although Clare had significant absences over a three year period, the Agency failed to establish that Clare's attendance during periods of time when he was not on valid leave was deficient enough to establish just cause for removal. The Commission ordered Clare's reinstatement. This appeal followed.
The Commission ordered that Clare be reinstated as of February 5, 2007. The year 2007 is an error as all of the absences at issue concern the year 2008.
Our review is limited to determining whether the Commission's adjudication is consistent with the law, whether constitutional rights have been violated and whether necessary findings are supported by substantial evidence. Fleming v. State Civil Service Commission, 319 A.2d 185 (Pa.Cmwlth. 1974).
Initially, the Agency claims that just cause was shown for Clare's removal. Just cause for removal, which the appointing authority bears the burden of proving, must be merit related. Woods v. State Civil Service Commission (New Castle Youth Development Center), 590 Pa. 337, 912 A.2d 803 (2006). Merit related criteria include whether the employee failed to properly execute his duties or has acted in a way that hampers or frustrates the execution of his duties. Id.
According to the Agency, there was just cause for Clare's removal because he had excessive absenteeism. The absenteeism resulted in other employees having to complete Clare's work, to the detriment of their own work and to the detriment of the Agency's clients.
In addressing the Agency's argument, we note that the Agency states that the excessive absenteeism at issue is based on the time that Clare missed in January and February of 2008. (Agency's brief at 24.) Although Clare was absent for extended periods prior to January 2008, such leave was proper under FMLA and disability leave. The Agency only introduced evidence of Clare's absences prior to January 2008, to explain why Clare was not eligible for FMLA or the extended leave program. Id.
Concerning Clare's absences in January and February of 2008, the Commission's findings indicate that Clare was out of work on anticipated paid sick leave on January 2 through 4, 7 through 11, 14 through 17, January 22nd and January 28 through Friday, February 1, 2008, with the exception of one hour, which he worked on January 30. Clare returned to work on February 5, 2008 and was terminated that day. During Clare's absences, Occhipinti signed timesheets for Clare approving of his leave usage for the period between January 2 and February 1, 2008.
Clare used anticipated leave for his absences in January and February of 2008. The applicable collective bargaining agreement allows employees to use anticipated leave and, as previously stated, Occhipinti signed timesheets for Clare, approving use of his anticipated leave between January 2 and February 1, 2008.
In White v. Department of Corrections, 532 A.2d 950 (Pa.Cmwlth. 1987), petition for allowance of appeal denied, 518 Pa. 628, 531 A.2d 1139 (1988), the Department of Corrections (Department) suspended an employee who was absent from work on sick leave for eleven days, and tardy on four occasions over a sixteen month period. The Department did not contest the validity of the sick days earned and used by the employee. Rather, the Department asserted that valid use of sick days actually accrued, if excessive, can justify a suspension. This court disagreed stating the Department "cannot punish employees for using validly earned benefits." Id. at 499. Concluding that the Department did not have good cause to suspend the employee based upon his absences due to illness, this court then remanded the case to the Commission to make findings with respect to the four incidences of tardiness. In Hargrove v. Pennsylvania State Civil Service Commission (Department of Corrections), 851 A.2d 257 (Pa.Cmwlth. 2004), this court reiterated that an employee cannot be disciplined for lawfully using an earned credit.
The Agency argues that the above cases are distinguishable because Clare used anticipated leave rather than already earned leave. We disagree that such merits a different result in this case. As already stated, the collective bargaining agreement permitted the use of anticipated leave and Clare's supervisor approved the use of the anticipated leave. In addition, although Clare had used all of his anticipated sick and vacation days, Clare still had two personal days remaining at the time he was terminated.
The Agency, nonetheless, claims that it was uncertain as to whether Clare would be able to perform his duties given his past attendance. As stated by the Commission, however, "while it is clear that the appointing authority [Agency] did not believe that appellant [Clare] would be capable of performing his duties in the future after he returned to work on February 5 due to his prior medical conditions and/or leave, this does not mean that the appointing authority is free to terminate the employee." (Commission's opinion at 44, 45.) Here, Clare was actually at work at the time of his termination and still had two remaining anticipated personal days.
In accordance with the above, we agree with the Commission that the Agency did not show just cause for Clare's removal and the decision of the Commission is, therefore, affirmed.
Like the Commission, because we agree that there was not just cause for Clare's removal, we need not address the issue of discrimination.
ORDER
Now, July 17, 2009, the order of the State Civil Service Commission, in the above-captioned matter, is affirmed. The order of the State Civil Service Commission is corrected to reflect that the date referenced therein as the reinstatement date for all purposes is February 5, 2008, not February 5, 2007.