             IN THE MISSOURI COURT OF APPEALS
                     WESTERN DISTRICT

PATRICIA FAENGER, ADMINISTRATOR,                  )
and MISSOURI VETERANS HOME AT                     )
ST. JAMES, MISSOURI,                              )
                                                  )
                                   Appellants,    )   WD77223
                                                  )
v.                                                )   OPINION FILED:
                                                  )   September 9, 2014
                                                  )
BOBBY PETTY,                                      )
                                                  )
                                  Respondent.     )


                   Appeal from the Circuit Court of Cole County, Missouri
                           The Honorable Daniel R. Green, Judge

                  Before Division One: Mark D. Pfeiffer, Presiding Judge, and
                     Lisa White Hardwick and Karen King Mitchell, Judges

        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 Bobby Petty, a State of Missouri

 merit-system employee, be reinstated to her position as Nursing Assistant I. MVH argues that

 the AHC‟s order, finding that MVH failed to meet its burden of proving that there was cause for

 Petty‟s dismissal, was not supported by competent and substantial evidence and was against the

 overwhelming weight of the evidence. 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.    The hardship created by the mandating process was often the subject of

contention with the local union.

        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 it 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


        1
            The mandating process can also 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
including dismissal. As to unauthorized absences, the policy provided that unauthorized absence

may result in disciplinary action, up to and including dismissal. When employees failed to show

up for their scheduled shifts or contact a supervisor to let them know that they would be unable

to work, the response was often dismissal of the “no call no show” employee. When employees

requested time off, however, they were generally granted their requests unless there was

insufficient staff for the day requested.

         Petty began working for the St. James facility on March 16, 2004, as a certified nursing

assistant. On October 7, 2010, Petty was scheduled to work from 6:30 a.m. until 3:00 p.m. At

4:45 a.m. that morning, however, Petty called Jodi Stroot (the shift supervisor) to let her know

that Petty‟s car would not start and, because Petty recently moved and her husband was out of

town, she did not know anyone that could give her a ride to work. Petty claimed that she told

Stroot that she would not be in to work at all that day. Stroot‟s notes, however, indicated that

Petty advised that she would call around and try to either get help with her car or find a ride.

Stroot claimed that she advised Petty to call back every couple of hours and update Stroot as to

whether she would be able to work any part of her shift.2 Though Policy B-113 did not expressly

address this situation, there was a general expectation that, if an employee encountered trouble

with a scheduled shift but was capable of showing up for any part of it, he or she would do so.

According to Stroot‟s notes, Petty agreed to call back.3




         2
            Stroot testified that she recalled her instruction that Petty call back because Stroot had recently
encountered a similar situation where a different employee did not call back and was viewed as a no-call, no-show.
But because Stroot had not made herself clear on that occasion, no disciplinary action was taken against the other
employee. Stroot was thereafter advised, “from now on, to clarify that.”
         3
           Stroot‟s notes stated: “„My car won‟t start & I don‟t know who to call. I don‟t know anyone that lives
out here. I will call around to find help or a ride. I don‟t know if I‟m going to be late or even make it in at all. I will
keep you posted & call back when I know more.‟ Clarified, Employee to call supervisor back. JS” (quoting Petty).


                                                            3
        Petty was able to get her car fixed, and she picked it up from the repair shop around

11:00 a.m.4 Petty later met up with a representative of the American Federation of State, County

and Municipal Employees (AFSCME) union around the lunch hour at a McDonald‟s restaurant

in St. James, which was located approximately two blocks from the MVH facility.

        Around 11:40 a.m., Lisa Heidbreder, an employee at the St. James‟s veterans home,

drove through the McDonald‟s drive-thru, saw Petty having lunch, and the two women waved at

each other. Though Petty claimed that she had her two-year-old son with her, Heidbreder did not

see any children. When she returned to work, Heidbreder casually mentioned to Shelly Blair (a

scheduler) that she had seen Petty at lunch. Blair responded with surprise because she knew that

Petty had called in with car problems, saying she could not make it to work, but was supposed to

call back if she found transportation. Accordingly, Blair suggested that Heidbreder report the

incident to Saultz, who suggested that they advise facility administrator Faenger. Heidbreder

was asked to write a statement, indicating what she had seen.

        Because Petty had not called back but was apparently able to obtain transportation during

her regularly scheduled shift, she was considered to be a no-call, no-show, and she was

dismissed.

        Petty 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 Petty and two

other former MVH employees that were also recently dismissed by Faenger: Threasa Bach and

Velinda Kay Wofford.5

        The AHC reinstated Petty to the position of Nursing Assistant I. The AHC specifically

found that “Policy B-113 merely requires the employee to provide „appropriate notification to

        4
          Additionally, the service receipt indicates that Petty was charged $25.00 for a service call, which was
provided at 9:15 a.m., and that she simply needed a new battery.
        5
          All three women claimed that their dismissals were not for the good of the service.


                                                       4
the supervisor.‟ Petty did this when she called Stroot at 4:45 am, to inform her that she was

unable to report for her 6:30 am shift due to car problems.” The AHC noted the conflicting

evidence between Stroot and Petty as to whether Petty was required to call back in later during

the day, but then determined that “[b]ecause it is Faenger‟s burden, we find this conflicting

testimony in favor of Petty.” The AHC concluded that Faenger failed to prove that Petty

violated Policy B-113. The AHC then concluded that “because we did not find cause to dismiss

Petty . . . , we find the discussion of efficient administration and good of the service to be moot”;

the order indicated that, accordingly, there were no factual findings on those issues.

       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 Petty. MVH appeals.

                                       Standard of Review

       “On an appeal from the trial court‟s review of an AHC decision, we review the decision

of the AHC, not the judgment of the trial 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. banc 2003)). Though we do not view the AHC‟s factual findings in the




                                                 5
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 quotations 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‟s decision reinstating

Petty was unsupported by competent and substantial evidence upon the whole record in that it

failed to consider the overwhelming amount of evidence supporting Petty‟s dismissal. Because

the AHC‟s decision was based upon a credibility determination to which we must defer, we

affirm its decision.

        “An appointing authority may dismiss for cause any employee in his division occupying

a position subject hereto when he considers that such action is required in the interests of

efficient administration and that the good of the service will be served thereby.” § 36.380.6

“„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 burden of proof is on the employing agency to establish grounds for dismissal.”

Mo. Veterans Comm’n v. Vanderhook, 290 S.W.3d 115, 119 (Mo. App. W.D. 2009).

        1 C.S.R. § 20-3.070(2) “sets forth a non-exhaustive list of circumstances that are

sufficient to establish „cause‟ for dismissal.”         Brown, 374 S.W.3d at 365.          Among those

circumstances are: a “complete[] absen[ce] from duty without prior or subsequent authorization


        6
         All statutory references are to the Revised Statutes of Missouri 2000, as updated through the 2010
Cumulative Supplement, unless otherwise noted.


                                                    6
for that absence,” 1 C.S.R. § 20-3.070(2)(F), and a “willful[] violat[ion of] the lawful regulations

or policies of the agency” of which the employee is aware. Id. at § 20-3.070(2)(L).

           In Petty‟s dismissal letter, MVH indicated that she was being dismissed because of an

“unscheduled and unauthorized absence from duty.” More specifically, the letter indicated that

Petty‟s absence was in violation of Policy B-113 and B-257.7

           It is undisputed that Petty called in to work on the day of her scheduled shift and advised

that she was having car trouble. It is also undisputed that Petty did not show up at all for her

scheduled shift. The dispute centered around whether Petty was required to call back and keep

the facility updated as to whether she would be able to work any portion of her scheduled shift.

Both parties agreed that, if Petty was not required to call back, she would not have been

dismissed. Thus, the critical question before the AHC was whether Petty was aware of any

policy requiring her to call back.

           The AHC recognized the disputed factual issue and noted that “[b]ecause it is Faenger‟s

burden, we find this conflicting testimony in favor of Petty.”

           Generally speaking, “[w]here there is a direct conflict in the testimony, the [AHC] must

make a choice between the conflicting testimony.” Harrington v. Smarr, 844 S.W.2d 16, 19

(Mo. App. W.D. 1992). Though the AHC failed to expressly resolve the credibility issue

through a finding of fact, the only reasonable inference from the AHC‟s conclusion is that it

found both Petty and Stroot to be equally credible as to the substance of the phone conversation

when Petty called in to work that morning. “When the commission finds the parties to be

equally credible . . . , it has, in effect, declared that the [burden-carrying party] did not satisfy

[its] burden of proof.” Houcks v. Am. Food and Vending Enters., Inc., 247 S.W.3d 66, 68 (Mo.


           7
               Policy B-257 merely authorized dismissal as a disciplinary measure in response to an unauthorized
absence.


                                                         7
App. W.D. 2008); see also Kansas City Club v. Labor and Indus. Relations Comm’n, 840

S.W.2d 273, 275-76 (Mo. App. W.D. 1992) (when the commission finds the parties equally

credible, it must resolve the issue in favor of the non-burden-carrying party); Gamble v.

Hoffman, 695 S.W.2d 503, 507 (Mo. App. W.D. 1985) (“An administrative agency or board may

weigh testimony and choose to believe or disbelieve all or part of it, but it may not set up a test

or standard for credibility which requires the party not having the burden of proof to establish the

incredibility of the witness for the party having the burden of proof.”). By resolving the conflict

here in favor of Petty, the AHC essentially stated its determination that MVH (the

burden-carrying party on the issue of cause) failed to demonstrate that Stroot‟s version of events

(though credible) was more credible than Petty‟s.

       “[U]nder our standard of review, we are required to defer to the Commission‟s credibility

determinations.” Scott v. Treasurer of State-Custodian of Second Injury Fund, 417 S.W.3d 381,

389 n.7 (Mo. App. W.D. 2014). “Thus, even if this Court would have assessed credibility

differently” in light of the facts that Stroot‟s notes were written contemporaneously with Petty‟s

phone call, that Stroot apparently had no motive to falsify her notes, that Petty‟s “violation” did

not become apparent until well after Stroot wrote her notes, and that Petty had motive to falsify

her testimony, “we must defer to the Commission‟s assessment that [Petty‟s] testimony was

credible.” Id.

       In any event, we find Petty‟s situation similar to that of the employee in Henry v.

Missouri Department of Mental Health, 351 S.W.3d 707 (Mo. App. W.D. 2011). In Henry, the

employee was dismissed for allegedly violating departmental policy when she held a client‟s

head during a restraint. Id. at 713-14. To meet its burden of proof, the department introduced its

written policy that required employees to use “only approved principles and techniques




                                                 8
consistent with PRO ACT for physical or mechanical restraints.” Id. at 714. “[T]he written PRO

ACT material submitted at the administrative hearing[, however,] d[id] not prohibit holding a

client‟s head during a restraint.” Id. Rather, the prohibition on head holding came from an oral

admonition provided by a PRO ACT instructor during a training session. Id. at 713-14. On

appeal from the employee‟s reinstatement, this court rejected the department‟s argument that the

oral admonition sufficed to prove that head holding constituted a violation of its policies and

regulations. Id. at 714. This court noted: “If the hospital‟s management wanted to prohibit

some methods of restraining the head, it should have done so in a written policy or in written

PRO ACT materials that stated what conduct was permitted or should be prohibited.” Id.

        Here, Policy B-113 requires no more of an employee than to call a supervisor when the

employee discovers that he or she will be unable to report for a scheduled shift.8 Though, like

the oral admonition in Henry, there was apparently an unwritten understanding that situations

like Petty‟s necessitated continuous updates throughout the employee‟s scheduled shift, Stroot

admitted that on at least one prior occasion, an employee was not aware of this requirement and,

consequently, was not dismissed for failing to call back.                  If an employee is required to

continually update the facility of his or her availability throughout the duration of a scheduled

shift, lest the employee be deemed a no-call, no-show, the facility should include this

information in its written policy describing the attendance requirements (Policy B-113). Thus,

MVH did not establish by substantial and competent evidence that continuous callbacks were

required by its policies and regulations.




        8
          Though the policy requires the employee to call in at least two hours prior to a scheduled shift, MVH
witnesses acknowledged that, had Petty‟s 15-minute tardiness in calling in been the only violation, she would have
received merely a corrective action, rather than dismissal.


                                                        9
       Because MVH failed to prove that continuous callbacks were required by its attendance

policy and because the AHC found Petty‟s testimony that she advised the facility she would not

be available to work at all that day to be credible, we must affirm.

       MVH‟s point on appeal is denied.

                                            Conclusion

       Because the AHC‟s decision was supported by competent and substantial evidence on the

whole record, we affirm.




                                              Karen King Mitchell, Judge

Mark D. Pfeiffer, Presiding Judge, and
Lisa White Hardwick, Judge, concur.




                                                 10
