NOAH R. MAIGNAN, Grievant, vs. TENNESSEE DEPARTMENT OF CHILDREN S SERVICES

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1 University of Tennessee, Knoxville Trace: Tennessee Research and Creative Exchange Tennessee Department of State, Opinions from the Administrative Procedures Division Law NOAH R. MAIGNAN, Grievant, vs. TENNESSEE DEPARTMENT OF CHILDREN S SERVICES Follow this and additional works at: Part of the Administrative Law Commons This Initial Order by the Administrative Judges of the Administrative Procedures Division, Tennessee Department of State, is a public document made available by the College of Law Library, and the Tennessee Department of State, Administrative Procedures Division. For more information about this public document, please contact administrative.procedures@tn.gov

2 BEFORE THE TENNESSEE CIVIL SERVICE COMMISSION IN THE MATTER OF: ) ) NOAH R. MAIGNAN, ) Grievant, ) ) v. ) DOCKET NO J ) TENNESSEE DEPARTMENT OF ) CHILDREN S SERVICES ) ) ORDER GRANTING MOTION FOR SUMMARY JUDGMENT This contested case was set for an in person hearing on May 15, 2006, in Nashville, Tennessee, before Rob Wilson, Administrative Judge, Administrative Procedures Division, assigned by the Secretary of State and sitting for the Commissioner of the Tennessee Civil Service Commission. Susan Mee, Senior Counsel for the Tennessee Department of Children s Services, represented the Department. Grievant was represented by his attorney, Rebecca C. Kaman. The issue in this matter is whether Mr. Maignan abandoned his job according to Tennessee Department of Personnel Rule (5). On April 18, 2006, counsel for the Department filed a Motion for Summary Judgment. Upon consideration of the Department s Motion for Summary Judgment and accompanying documents, the Grievant s response thereto, the Grievant s Reply Memorandum, and the arguments of counsel, it is determined that there is no genuine issue as to any material fact and that the Department of Children s Services is entitled to judgment as a matter of law. Therefore, it is hereby ORDERED that the

3 Department s Motion for Summary Judgment is GRANTED. Accordingly, it is hereby ORDERED that the Grievant s claim is DISMISSED. This determination is based upon the following: STATEMENT OF CASE Grievant had been employed as a Case Manager 4 with the Department of Children s Services (DCS) since March 17, After an examination of Mr. Maignan s credentials it was determined that he did not meet the minimum qualifications for the Case Manager 4 position. As a result, Mr. Maignan was placed in a Case Manager 2 position. Mr. Maignan appealed the demotion and a contested case hearing was held on December 16, Judge Jim Hornsby issued an Order upholding the DCS decision to demote Mr. Maignan to a Case Manager 2 position. Judge Hornsby s Order further stated that there was no proof that the decision to demote Mr. Maignan was influenced by racial prejudice. Subsequent to the level five hearing on the demotion, and after settlement negotiations, DCS sent Mr. Maignan numerous letters directing him to report to work. Mr. Maignan did not report to work and he was considered to have resigned from his position with DCS effective February 1, Mr. Maignan filed an appeal of his termination. On April 18, 2006, counsel for DCS filed a Motion for Summary Judgment. Counsel for the Grievant timely filed a response to the DCS Motion. Counsels for both sides requested oral argument which was achieved through a telephone conference on May 10, 2006.

4 FINDINGS OF FACT 1. Mr. Maignan was employed as a Case Manager 4 with the Department of Children s Services beginning approximately March 17, DCS received an allegation that Mr. Maignan was not qualified for his job, and the Department of Personnel examined Mr. Maignan s qualifications. Personnel s examination revealed that Mr. Maignan should not have been hired as a Case Manager 4 because his prior work experience did not meet the minimum qualifications for the position. 3. Personnel determined that although Mr. Maignan did not qualify for the Case Manager 4 position, he did qualify for a Case Manager 2 position. Mr. Maignan did not accept the demotion and requested a level 5 grievance hearing. The outcome of the level 5 grievance hearing was that Mr. Maignan s demotion was upheld. 4. Mr. Maignan did not report to work in the Case Manager 2 position, but instead requested leave pending settlement negotiations. 5. On December 14, 2004, a letter bearing the signature of DCS Commissioner Viola Miller was mailed by regular and certified mail to Mr. Maignan directing him to report to work on December 22 nd as a Case Manager 2 in the Rutherford County office. This letter was also hand-delivered to Mr. Maignan at the December 14 th hearing. Mr. Maignan did not report to work on December 22 nd. 6. On January 5, 2005 a second letter from Commissioner Miller was mailed by regular and certified mail directing Mr. Maignan to report to work on January 11 th, This letter further explained that if Mr. Maignan failed to report to work as

5 January 11 th he would be considered to have abandoned his position in accordance with T.C.A (c). Mr. Maignan did not report to work on January 11, A third letter from Commissioner Miller was mailed by regular and certified mail on January 18, 2005, directing Mr. Maignan to report to work on January 24, This letter addressed the fact that Mr. Maignan had been in contact with the DCS personnel director and also explained that Mr. Maignan s circumstances pertaining to his demotion do not justify his remaining away from work. The letter also stated that failure to report to work would subject Mr. Maignan to separation from service based on job abandonment. Mr. Maignan did not report for work on January 24, A fourth and final letter bearing Commissioner Miller s signature was sent to Mr. Maignan on January 26, 2005, reciting the history of return to work requests and stating that Mr. Maignan would be considered to have abandoned his position if he failed to report to work. Mr. Maignan did not report for work. 9. On February 1, 2005 Commissioner Miller sent a letter to Mr. Maignan informing him that his employment was terminated based on job abandonment. APPLICABLE LAW 1. T.C.A Dismissal. (c) Any employee who is absent from duty for more than three (3) consecutive work days without giving notice to the appointing authority or appropriate Manager to include the reason for such absence, and without securing permission to be on leave, or who fails to report for duty or to the immediate supervisor, or to the appointing authority within two (2) work days after the expiration of any authorize leave of absence, is considered as having resigned not in good standing, absent existing circumstances causing the employees absence or preventing the employee s return. 2. Tennessee Department of Personnel Rules and Regulations Tenure, Suspension and Separation. (5) Job Abandonment. An employee

6 who is absent from duty for more than three (3) consecutive business days without giving notice to the appointing authority or appropriate Manager concerning the reason for such absence and without securing permission to be on leave, or who fails to report for duty or to the immediate supervisor or the appointing authority within two (2) business days after the expiration of any authorized leave of absence, absent unusual circumstances causing the employee s absence or preventing the employee s return, is considered as having resigned not in good standing. ANALYSIS AND CONCLUSIONS OF LAW Grievant s argument that he had no intention of abandoning his employment with DCS is without merit. T.C.A does not require that an employee intend to abandon his job. The Statute clearly states that an employee who does not show up for work for three consecutive days will be considered to have resigned his position. Furthermore, there were no unusual circumstances that would have prevented Mr. Maignan from showing up for work. An employee s dissatisfaction, unhappiness, and inconvenience because of working conditions do not appear to be sufficient justification for violation of the personnel rule when there are accepted grievance procedures available. Grubb v. Tennessee Civil Service Commission, et al., 731 S.W. 2d 919. In the Grubb case the court found that Ms. Grubb was well aware of the personnel rule which provides that an employee who fails to report for duty within two business days after the expiration of any authorized leave of absence shall be considered as having resigned not in good standing. The court noted that the rule was brought to Ms. Grubb s attention at least twice before her resignation became effective. Similarly, Commissioner Viola Miller sent four separate letters to Mr. Maignan. The letters dated January 5, 2005, January 18, 2005, and January 26, 2005 all stated that Mr. Maignan s position would be considered resigned if he did not show up for work at the designated time. In Mr.

7 Maignan s case, as in the Grubb case, it is clear that Mr. Maignan made a conscious decision to not comply with the personnel rules referenced by Commissioner Miller in each of her letters. Counsel for Mr. Maignan also contends that Mr. Maignan did not report for work due to the fact that the Rutherford County office was not an appropriate placement because of an alleged complaint about racial discrimination in the Bedford County DCS office which also affected the Rutherford County DCS office. However, there is no evidence that would suggest that Mr. Maignan s unhappiness with his assignment was due to anything more than his dissatisfaction in being assigned to a Case Manager 2 position. Even if Mr. Maignan s allegations of racial discrimination were found to valid there is no evidence to indicate that the DCS work environment was so hostile as to justify not showing up for work after being directed to do so repeatedly. Mr. Maignan s complaints, whether related to his demotion or to alleged discrimination, irrefutably involve issues for which established procedures exist. The proof in this matter clearly establishes that Mr. Maignan was aware that Commissioner Miller directed him to report for work on four separate occasions. Furthermore, Mr. Maignan had been notified that his refusal to report for work would result in the termination of his employment. Mr. Maignan consciously chose to not comply with Commissioner Miller s order and he was aware of the consequences. Accordingly, for the foregoing reasons, the DCS Motion for Summary Judgment is GRANTED. Therefore, it is ORDERED that Mr. Maignan s termination from DCS service is UPHELD, and the claim is DISMISSED. This INITIAL ORDER entered and effective this the 19th day of May 2006.

8 ROB WILSON ADMINISTRATIVE JUDGE Filed in the Administrative Procedures Division, Office of the Secretary of State, this the 19th day of May CHARLES C. SULLIVAN II, DIRECTOR ADMINISTRATIVEPROCEDURESDIVISION