Sutton v. Tennessee Civil Service Commission

OPINION HARBISON, Justice. Appellee, a state employee, was discharged for an “habitual pattern of failure to report for duty at the assigned time and place.” It is uncontradicted in the record that the employee’s absences or failure to report for work were in every instance approved by his superiors and were supported by statements from doctors. His total absences did not exceed his accumulated leave or his approved sick leave. Under these circumstances, in our opinion, the employer was not legally justified in discharging appellee upon the ground alleged. Accordingly we affirm the judgment of the Court of Appeals and direct that the cause be remanded for further proceedings as directed in its opinion. There is little controversy as to the material facts in the case. Appellee was employed as a cook at the Green Valley Developmental Center, a state facility operated by the Department of Mental Health and Mental Retardation. His employment began on March 16, 1976, and his dismissal was effective January 8, 1985. He had been disciplined for improper use of sick leave privileges and for habitual failure to work at the assigned time and place on a number of occasions during the course of his employment and had been suspended three times during 1982 and 1983. His discharge, however, was predicated upon his absences from work during the last six months of his employment. During that period he was off from work on several occasions because of personal [789] illness or illness of members of his family, but the only time during that period when his absences were not approved by his superiors was an occasion in August 1984 when he left work a little over a half hour early. In every other instance medical statements were supplied in support of his sick leave, and there is no evidence that any of these statements, which came from several different doctors, were anything other than genuine. T.C.A. § 8-50-801(a) provides that a full-time state employee ... shall be granted absence from work with pay based upon his accrued annual leave, the time and amount of absence to be approved at the discretion of the head of the department or agency and subject to audit by the commissioner of personnel. T.C.A. § 8-50-801(b)(3) provides that employees having between five and ten years of full time service shall accrue annual leave at the rate of one and one-half days for each month of service and they accumulate a maximum of thirty-six work days. Sick leave is provided for in T.C.A. § 8-50-802. Under that statute sick leave may be granted to each full-time employee at the rate of one day for each month of service or major fraction thereof, at the discretion of the head of the department or agency and with the approval of the commissioner of personnel. T.C.A. § 8-50-802(a)(3) provides: Sick leave may be used only for absence from duty because of illness or disability due to accident of employee, his exposure to contagious diseases, or because of illness or death in the immediate family of the employee for such period as the attendance of the employee shall be necessary, except as hereinafter provided. The fifth subdivision of the same section provides that an employee may be required to present affidavits, certificates of physicians or other proof to support the reason for any absence during the time for which sick leave was taken. There is no evidence in this case that the appellee took sick leave for any improper purpose, or that he failed to document the leave taken with certificates of physicians, except for the one incident in August 1984. It is not insisted that that incident, standing alone, would be sufficient to justify the discharge in this case. There is substantial evidence in the record that the absences of appellee were disruptive and caused inconvenience to the employer and to other employees. This was especially true when he failed to call in advance in sufficient time to allow his supervisor to make other arrangements. Ap-pellee had been warned and disciplined because of his irregular attendance and on one or two occasions had been disciplined for abuse of sick leave. There was no evidence of his abuse of sick leave during the last six months of his employment, however, and abuse of sick leave privileges was not the ground upon which he was discharged. Chapter 1120-10-1.6(1) of the Civil Services Rules and Regulations in force at all material times provided as examples of cases when discipline might be imposed: (1) PERFORMANCE OF DUTIES.— The following causes relating to the performance of duties are representative samples of those considered for disciplinary action: (a) Inefficiency or incompetency in the performance of duties. (b) Negligence in the performance of duties. (c) Careless, negligent or improper use of State property or equipment. (d) Failure to maintain satisfactory and harmonious working relationships with the public and fellow employees. (e) Habitual improper use of sick leave privileges. (f) Habitual pattern of failure to report for duty at the assigned time and place. (g) Failure to obtain or maintain a current license or certificate required by law as a condition for performing the job. The discharge of appellee was based solely upon the provisions of subparagraph (f). Contained in the next subdivision of the regulations was a list of examples of [790] personal misconduct, but none of these was cited to support the discharge of appellee. Obviously, if an employee is absent from work on an approved sick leave, that person will hardly be able to report for work. Habitual absence or tardiness, of course, can be a basis for discharge, but not, in our opinion, when the employee is exercising approved sick leave privileges as in this case. Had the leaves taken not been approved, a different situation would be presented. See generally Duncan v. Tennessee Civil Service Commission, 674 S.W.2d 734 (Tenn.App.1983). With the only unapproved absence of the employee in six months being for a little over a half hour, however, we do not believe that the evidence adduced was sufficient to justify the discharge on the basis alleged. In the absence of substantial and material evidence that the employee habitually made unauthorized or unapproved use of his sick leave privileges, we agree with the majority of the Court of Appeals that the discharge in the present case was not justified on the single ground assigned by the employer. The General Assembly, through the statutes referred to above, has granted state employees a certain amount of annual leave and sick leave, the latter being subject to approval by superior officers of the employee. When the employee is exercising the leave thus granted with approval of his superiors, and when the authenticity and necessity for the sick leave are not challenged, we are of the opinion that the occasions for such leave should not be considered as a part of an “habitual pattern of failure to report for duty” as charged in this case. None of the other grounds for discipline stated in the regulations and none which might exist in addition to those so stated has been asserted by the employer. See T.C.A. § 8-30-326 (permitting dismissal for “the good of the service”). We agree with the statement made by the Court of Appeals in the case of Reece v. Tennessee Civil Service Commission, 699 S.W.2d 808, 813 (Tenn.App.1985): It must be conceded that the public payroll cannot be made a haven for those who with or without fault have become unable to perform the duties for which they were employed. It must likewise be conceded that “the good of the service” may in proper cases justify or require the discharge of public employees when their efficiency or usefulness in their positions has been seriously impaired by their own fault, by the fault of others, or by blameless misfortune. Nevertheless, we do not conceive that the authorized and approved use of leave privileges constitutes the ground alleged for discharge in the present ease. Our holding is limited to that narrow proposition because this was the only basis alleged for the disciplinary action taken in the present case. In a letter to appellee dated December 20, 1984, his supervisor listed the absences of the employee which were the basis for the recommendation of discharge. These referred to the period from July 18, 1984, through December 16, 1984. None of them involved abuse of annual leave, and all of them involved sickness. All of them were documented by doctors’ certificates except for the one incident on August 17, 1984, involving a little over thirty minutes, and all except that one were approved by superiors. The employee was paid for the time when he was off because of sickness, except for the August 17 incident. The judgment of the Court of Appeals in this case is affirmed at the cost of appellants. The cause will be remanded to the Tennessee Civil Service Commission for further proceedings. DROWOTA, C.J., and COOPER, J„ concur. FONES and O’BRIEN, JJ., dissent.