Patricia Faenger, Administrator, and Missouri Veterans Home at St. James, Missouri v. Threasa Bach

KAREN KING MITCHELL, Judge. 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 Wof-ford’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. *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 1. 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 that she could still attend the October 3 meeting. Accordingly, Wofford’s leave request was approved for all day October 4, but from only 11:00 a.m. until 3:00 p.m. on October 3. 2 Wofford failed to show up or call in for her shift at 6:30 a.m. on October 3, and around 10:00 or 10:30, a coworker (Janet Brakefield) contacted Wofford to let her know that she was going to be considered a no-call no-show. Rather than contact *194 her supervisor, Wofford contacted Eric-Moore, the local union representative. Then, on October 5, 2010, Faenger called Wofford into her office and advised Wof-ford that she was going to be dismissed for no call, no show. Wofford indicated that she had not seen the notation on her leave request indicating- that she was disapproved for half of her shift on October 3 and claimed that her no-call, no-show status was a simple mistake. Wofford pointed out that it was the first no call, no show she had had in her almost 30 years of employment with the facility. Wofford appealed her dismissal to the AHC, arguing, among other things, that her dismissal was not for the good of the service. The AHC held a consolidated' hearing for Wofford and two other former MVH employees that were also recently dismissed by Faenger: Threasa Bach and Bobby Petty. 3 At the hearing, MVH presented testimony indicating that, when employees failed to show up for their scheduled shifts or contact a supervisor to let the facility know that they would be unable to work, the customary response was dismissal of the “no call no show” employee; this was true of all seven MVH facilities across the state. MVH’s evidence demonstrated that, within an almost-two-year period (January 2009 through October 31, 2010), there were 153 dismissals statewide for no-call, no-show employees at MVH facilities; 24 of these dismissals were from the St. James facility. However, MVH did not present evidence indicating how these numbers related to the overall number of no-call, no-show events. Faenger, the facility’s administrator, indicated that the facility has essentially a zero-tolerance policy for no-call, no-show employees. And absent extenuating circumstances — which she described as situations like a car accident, when an employee was actually incapable of calling in or making it to work — the result would be dismissal of the employee. Wofford presented evidence from herself, Petty, Bach, and Kathy Hays (a former employee of MVH who worked as a certified nursing assistant from September 2004 until June of 2011) on the issue of whether dismissal was for the good of the service. All four women testified that, contrary to the claimed zero-tolerance policy, there were employees that had been no-call no-shows but had not been dismissed; instead, the employees were called and told to come in. 4 Those individuals were identified as John Morgan, Patty Roland, Sara Stewart, Donna Pasalaqua, and Joni Sel-linger. According to the testimony, there were at least two instances involving Morgan: in the first instance, he was at home sleeping and had to be called and told to come in; and in the second, he claimed to have insufficient gasoline in his car, but another employee was directed by Chanda Saultz (director of nursing) to pick him up and bring him in. As for Stewart, Pasalaqua, and Selling-er, according to Bach, Stewart failed to show up for a shift because her car would not start; but rather than being dismissed, Stewart was picked up by another employee and brought into work. Bach testified that Pasalaqua had made a scheduling mistake, believing that she had been approved for leave when she had not; rather than dismissing Pasalaqua, the facility called *195 and advised her of the error. As for Sel-linger, Bach did not explain the reason for Sellinger’s failure to call or show up, but Sellinger was apparently called by someone at the facility and told to come in. 5 In addition to the five individuals mentioned above, Bach testified that, on April 1, 2008, she received a memo advising her that she failed to report to work as scheduled on March 26, 2008, without notifying her supervisor. 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 facility ultimately decided, however, to excuse Bach’s prior no-call, no-show “[b]ased on [her] work history with this organization.” 6 Likewise, Petty testified that, approximately eighteen months before her dismissal, she had failed to call or show up for a scheduled shift on March 9, 2009, due to her own scheduling mistake and incorrect belief that she was on leave, but the facility had excused her absence at that time, just like Bach’s prior no-call, no-show, “based on [her] work history with [the] organization.” 7 The AHC reinstated Wofford to the position of Custodial Worker I. The AHC specifically found that MVH had cause for dismissing Wofford based upon her failure to call or show for her scheduled shift on October 8, 2010, from 6:30 a.m. until 11:00 а.m. But the AHC determined that Wof-ford’s dismissal was not for the good of the service. Specifically, the AHC found that “Faenger failed to meet her burden of proof to show that Wofford’s dismissal was for the good of the service.” MVH petitioned the circuit court of Cole County for judicial review of the AHC’s decision. After receiving briefs from both parties, the circuit court denied MVH’s request and sustained the AHC’s decision, reinstating Wofford. MVH appeals. Standard of Review “On ah appeal from the trial court’s review of an AHC decision, we review the decision of the AHC, not the judgment of the trM court.” Dep’t of Soc. Servs. v. Peace of Mind Adult Day Care Ctr., 377 S.W.3d 631, 637 (Mo.App.W.D. 2012). “ ‘The AHC’s decision will be upheld unless it is not supported by competent and substantial evidence upon the whole record; it is arbitrary, capricious, or unreasonable; it is an abuse of discretion; or it is otherwise unauthorized by law or in violation of constitutional provisions.’ ” Id. (quoting Beverly Enters.-Mo. Inc. v. Dep’t of Soc. Servs., 349 S.W.3d 337, 351 (Mo.App. W.D.2009)). In determining whether a decision is supported by substantial competent evidence, we review the record as a whole and determine whether the AHC’s decision is against the overwhelming weight of the evidence. Id. (citing Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. *196 banc 2003)). Though we do not view the AHC’s factual findings in the light most favorable to the decision, “we still must defer to its credibility findings, as the AHC is the sole judge of the credibility of witnesses and the weight and value to give to the evidence.” Id. (internal quotation omitted). “We review the AHC’s conclusions on the interpretation and application of the law[, however,] de novo.” Id. Analysis MVH raises a single point on appeal. MVH claims that the AHC abused its discretion and misapplied the law when it reinstated Wofford on the ground that her dismissal was not for the good of the service. We disagree. “An appointing authority may dismiss for cause any employee in [her] division occupying a position subject hereto when [s]he considers that such action is required in the interests of efficient administration and that the good of the service will be served thereby.” § 36.380. 8 “Section 36.380 thus provides that, in order to terminate a merit employee, an appointing authority must first have cause to do so.” Bowen v. Mo. Dep’t of Conservation, 46 S.W.3d 1, 10 (Mo.App. W.D.2001). “ ‘For cause’ means legal cause.” Mo. Veterans Home v. Brown, 374 S.W.3d 359, 365 (Mo.App. W.D.2012). “It ‘must be one which specially relates to and affects the administration of the office, and must be restricted to something of a substantial nature directly affecting the rights and interests of the public.’ ” Id. (quoting Prenger v. Moody, 845 S.W.2d 68, 77 (Mo.App. W.D.1992)). “The statute then provides a second tier of inquiry for the appointing authority, stating that before deciding to dismiss the merit employee for cause, the appointing authorities must consider whether dismissal is in the interests of efficient administration and whether ‘the good of the service will be served thereby.’” Bowen, 46 S.W.3d at 10 (quoting § 36.380). “[T]he terms ‘cause’ and for the good of the service’ are not synonymous,” 1 C.S.R. § 20-3.070(5)(C)(2), though “it is not surprising that it would often be for the good of the service to terminate an employee who had given cause to do so.” Bowen, 46 S.W.3d at 10. “It is true that, in the case of merit employees, courts have often combined their inquiry into whether a firing was for cause with whether it was for the good of the service”; nevertheless, there is “an analytical distinction between the terms ‘for cause,’ and for the good of the service.’ ” Id. at 10,11. And “[t]o the extent that ... cases [have] indicated in dicta that these terms are always used synonymously, they would not be correct with respect to Section 36.380, which states that first a merit employee must give cause for his termination; only then is inquiry made as to whether termination would be for the good of the service.” Id. at 11 n. 2. “Although not defined by the statutes, the standard ‘for the good of the service’ ... [ 9 ] requires a decision by the *197 appointing authority that the employee’s conduct is of such a serious nature that dismissal is required rather than some other form of discipline.” Lombardi v. Dunlap, 1 03 S.W.3d 786, 791 (Mo.App. W.D.2003). “Ultimately, the question of whether termination was for the good of the service is a matter for the agency’s determination.” Snider v. Mo. Highways and Transp. Comm’n, 356 S.W.3d 320, 324 (Mo.App. W.D.2011). And “ ‘it is not our role to substitute our judgment for that of the [agency] as to what is for the good of the service.’ ” Id. (quoting Bowen, 46 S.W.3d at 11); see also Mo. Dep’t of Corr. v. Cheeney, 926 S.W.2d 939, 941 (Mo.App. W.D.1996) (“The authority of the [AHC] to approve or disapprove a dismissal, however, does not extend discretion to the [AHC] to override the judgment of the appointing authority that dismissal of an employee is for the good of the service.”). This is not to say, however, that once an appointing authority determines that dismissal is for the good of the service, that determination is thereafter unassailable. See Mo. Veterans’ Comm’n v. Vanderhook, 290 S.W.3d 115, 120 (Mo.App. W.D.2009) (rejecting the contention that “the appointing authority’s determination that dismissal is for the good of the service is unassailable” as “clearly incorrect”). Section 36.390.5 provides that “[a]ny regular employee who is dismissed ... for cause ... may appeal in writing to the [AHC] ..., setting forth in substance the employee’s reasons for claiming that the dismissal ... was for political, religious, or racial reasons, or not for the good of the service.” “It would be pointless for the statute to provide that the employee may explain why he or she believes dismissal was based on these grounds unless the legislature intended that the reviewing body then determine whether termination was for political, religious, or racial reasons, or not for the good of the service, and, if it finds that this was the basis of termination, to reverse the decision. Otherwise, the right to claim that dismissal was for improper reasons would be a hollow and pointless right indeed.” Vanderhook, 290 S.W.3d at 120 (quoting Bowen, 46 S.W.3d at 9); see also Barry Serv. Agency Co. v. Manning, 891 S.W.2d 882, 892 (Mo.App. W.D.1995) (“The fact that the legislature has vested discretion in an administrative official does not preclude a reviewing [body] from determining whether ... he ... acted in an unlawful, unconstitutional, arbitrary, capricious, unreasonable or abusive manner.”). In examining whether an employee’s dismissal was “in the interests of efficient administration” and “for the good of the service,” the appointing authority must first consider whether the employee’s conduct affected either her ability to perform her job or the agency’s ability to carry out its obligations. See Snider, 356 S.W.3d at 325 (dismissal was for the good of the service where evidence suggested that employee’s behavior affected “his ability to work as a team with other employees” and was “disruptive to the workplace,” as well as the facts that employee was “not essential” and his absence had no effect on the facility’s overall functioning); Bowen, 46 S.W.3d at 11 (identifying various reasons why dismissal might not be for the good of the service, such as' the essential nature of the employee to the Department’s function, the effects of the employee’s departure on morale, or the employee’s history or motivation). In making this determination, the appointing authority may consider the employee’s violation of a general rule of conduct. Lombardi, 103 S.W.3d at 791-92 (dismissal of corrections officer was for the good of the service where evidence indicated that officer’s violation of a policy prohibiting personal contact with inmates could “lead to the offender population’s loss of respect for staff, jealousy between *198 offenders, and extortion of staff by offenders” and “directly threaten[ed] the overall safety and security of the institution”); Black v. Lombardi, 970 S.W.2d 878, 381 (Mo.App. E.D.1998) (suspension of corrections officer, charged with assault, was for the good of the service, even though charges had been dismissed and were not connected with his job, because the charges, even though dismissed, “could affect his ability to gain and hold the confidence of staff and inmates”). The appointing authority must then consider whether the conduct’s effect on either the employee’s ability to perform her job or the facility’s ability to. carry out its obligations was sufficiently serious so as to warrant dismissal, rather than a lesser form of discipline. Prenger, 845 S.W.2d at 74. And because it is the employing agency’s burden to “establish grounds for dismissal,” Vanderhook, 290 S.W.3d at 119, the appointing authority must present evidence before the AHC to support its consideration of each of these elements. Here, though MVH presented evidence of the heightened need for consistent employee attendance, it failed to meet its burden of demonstrating that dismissal, rather than some lesser'punishment, was required to combat employee attendance issues. 10 Faenger’s sole evidence demonstrating why dismissal, rather than some lesser punishment, was necessary was the facility’s alleged zero-tolerance policy for no-call, no-show employees. Faenger testified that dismissal was the standard response in no-call, no-show situations, absent extenuating circumstances. The example both she and Saultz provided of an extenuating circumstance was an unexpected event, like a car accident, that would actually prevent the employee from being able to call in or show up to work. Faenger indicated that, because attendance was such a serious concern, when an employee failed to call in or show up for work, the employee would be dismissed, without any consideration of the employee’s performance or work history. Faenger indicated that this essentially zero-tolerance policy, resulting in dismissal, was necessary for efficient administration and the good of the service. The evidence, however, suggested that, while reliable attendance was important to the operation of the facility, MVH did not actually believe that a zero-tolerance policy was necessary to ensure adequate attendance, given the fact that exceptions were made to the alleged zero-tolerance policy based on the very reasons Faenger declared to be irrelevant to the determina-, tion. There were eleven total instances of employee no-call, no-shows testified to at the hearing. Of these eleven, only the three at issue (Bach, Petty, and Wofford) resulted in dismissal. 11 Five of the no-call, no-show incidents involved scheduling mistakes, but only two of those scheduling *199 mistakes resulted in dismissal (Bach and Wofford). Three of the incidents involved employee car trouble, but only one of the car-trouble instances resulted in dismissal (Petty). Additionally, contrary to Faen-ger’s assertion that employee performance and work history were irrelevant to the question of whether the employee would be dismissed, there were at least two no-call, no-show incidents — not involving extenuating circumstances as defined by Faenger and Saultz — wherein the unauthorized absences were excused “[b]ased on [the employee’s] work history with this organization.” Given this conflicting evidence, it appears that the AHC found Faenger’s testimony, that a zero-tolerance policy resulting in dismissal was required for the good of the service and efficient administration, not to be credible. We defer to the AHC’s credibility determinations because “the AHC ‘is the sole judge of the credibility of witnesses and the weight and value to give to the evidence.’” Peace of Mind, 377 S.W.3d at 637 (quoting Mo. Real Estate Appraisers Comm’n v. Funk, 306 S.W.3d 101, 105 (Mo.App.W.D.2010)). It was MVH’s burden to establish that its zero-tolerance policy regarding attendance was for the good of the service and in the interests of efficient administration. The AHC determined, however, that MVH’s evidence regarding the necessity for a zero-tolerance policy was not credible. This left MVH without substantial evidence supporting Faenger’s discretionary determination that Wofford’s dismissal was for the good of the service. Thus, we cannot say that the AHC erred in determining that MVH failed to meet its burden. Point denied. Conclusion Because the AHC’s decision was supported by competent and substantial evidence, the trial court’s decision affirming the AHC’s order is affirmed. MARK D. PFEIFFER, Presiding Judge, and LISA WHITE HARDWICK, Judge, concur. ' Footnotes [1] The mandating process can affect the facility's budget because it often results in overtime compensation for the mandated employees. With adequate staffing, the facility can minimize the overtime compensation by excusing previously mandated employees from their subsequently scheduled shifts. This is not a possibility if a scheduled employee simply fails to show up to work, resulting in an insufficient number of employees. [2] Wofford initially requested unpaid leave, but Faenger corrected the request to reflect the paid leave to which Wofford was entitled while away on union business. [3] All three women claimed that their dismissals were not for the good of the service. [4] Bach testified that the facility's policy was not to call individuals that failed to call or report for their scheduled shifts and that this "no call” policy was the subject of a labor management meeting. [5] There was no evidence regarding the reason for Roland’s failure to call in or show up for her scheduled shift. The evidence was, however, that she was called and told to come in, rather than being dismissed. [6] 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. [7] Petty was ultimately dismissed for a subsequent alleged no-call, no-show. On that occasion, Petty had called in to advise the facility that her car would not start. Petty was seen later in the day at a restaurant nearby the facility during what would have been her regular shift. Because Petty had not called the facility back to advise them whether she would be able to work any part of her shift, the facility deemed her a no-call, no-show and dismissed her. [8] All statutory references are to the Revised Statutes of Missouri 2000, as updated through the 2010 Cumulative Supplement, unless otherwise noted. [9] Lombardi further indicates that the standard "implies some personal misconduct or fact that renders the employee’s further employment harmful to the public interest.” Lombardi v. Dunlap, 103 S.W.3d 786, 791 (Mo.App. W.D.2003). We omitted this language because it is the same language identified by this court in Bowen as improperly conflating the concepts of "cause" and "good of the service.” Bowen, 46 S.W.3d at 10 n. 2. Thus, it is not the appropriate standard by which to determine whether dismissal was for the good of the service. [10] While, obviously, employee absence affects that particular employee’s ability to perform her job, it does not appear that it necessarily affects the facility’s ability to carry out its functions. Although the facility must maintain a minimum number of individuals on staff at any given time, an employee’s absence did not preclude the facility from doing so. The evidence indicated that the facility was able to maintain the minimum number by either contacting volunteers from a volunteer list to cover shifts, or by mandating employees that were already present to stay beyond their scheduled shifts and cover the absence. And while it would be easier for the facility to carry out its function without having to worry about employee absence, it is not necessarily true that the facility's ability to do so is hampered by employee absence. [11] In noting these discrepancies, we do not mean to imply that selective enforcement is a viable consideration in this context, as the appointing authority is vested with a consid *199 erable amount of discretion in this context. See Roorda v. City of Arnold, 142 S.W.3d 786, 798-99 (Mo.App. W.D.2004) (“While we decline to decide whether [selective enforcement] is viable in a civil action where the decision of an administrative body upholding the termination of a public employee is challenged, we note that, to accept [this] argument would be to hold that regardless of the circumstances, unless the [appointing authority] disciplines all [employees] who violate [agency policy], he may not discipline any.”); see also Jarrett v. Hill, 648 S.W.2d 170, 173 (Mo.App. E.D.1983) (rejecting dismissed employee's argument that the appointing authority’s disparate treatment of similar violations rendered that decision arbitrary and capricious). We are noting these discrepancies merely as support for the AHC's determination that MVH's evidence regarding the need for a zero-tolerance policy was not credible.