In Lizette Emma v. Department of Correction (July 6, 2017), the Civil Service Commission refused to enforce a Last Chance Agreement (LCA) against Corrections Officer Emma in which she had waived all rights of appeal in the event of a future offense. Emma signed the LCA with the advice and consent of the Union in lieu of being dismissed for smoking in violation of a statute that calls for mandatory dismissal, and for being absent without leave for several shifts. Her absences were caused by serious personal and family medical issues.
After the LCA was signed, Emma continued to miss work time because of new family issues. The DOC authorized more leave for her beyond what she had earned. But, after using up that additional leave, she was absent without leave for several additional shifts and failed to call in to report that she was going to be absent on at least one occasion. The DOC fired her and, notwithstanding the waiver of appeal in the LCA, she appealed to the Commission.
Commission Chairman Christopher Bowman, who heard the case, reaffirmed a decision he had authored in Kenney v. Cambridge Housing Authority, 20 CSR 160 (2007) in which he determined that the waiver of a civil service appeal for a future offense violated the public policy inherent in the civil service statute and would not be enforced by the Commission. He allowed that if a LCA left open the right of the employee to challenge the dismissal imposed under the LCA to arbitration, then public policy would not be frustrated. The LCA signed by Emma did not do this.
It is apparent from the Emma Decision that Commissioner Bowman sympathized with Emma because of the reasons for her absences, which were not challenged by the DOC. Moreover, he made it clear that he was not pleased that the DOC did not take his recommendation to settle the case, writing, “Ms. Emma has lived through and endured an incredibly unfortunate string of misfortunate events over the past few years. For that reason, I urged the parties, as part of the pre-hearing conference, to engage in settlement discussions guided by the principles of equity and good conscience.”
In deciding the level of discipline, Chairman Bowman looked at other LCAs at the DOC, which, like the one with Emma, had “no precedent” clauses. (The DOC objected.) He honed in on one LCA in which an employee who was under an LCA for poor attendance, including playing golf after calling in sick, was given a “second last chance” after he was caught calling in “sick” again to go and play golf. The employee was not dismissed but received only a 15 day suspension without pay and an extension of the LCA. Therefore, Commissioner Bowman reduced the dismissal of Emma to the same 15 day suspension based on the following rationale:
Ms. Emma violated the LCA for bona fide medical reasons related to her children, including caring for her daughter who was experiencing a life-threatening condition. She was terminated. I cannot conjure up a more egregious example of disparate treatment, warranting the Commission’s intervention in the form of a modified penalty.
The Emma decision is both questionable and worrisome. The Commission ignores language in the civil service statute that states that employees can be disciplined with their written consent. It also fails to consider that the concept of an LCA is a mutual understanding that there was just cause to dismiss the employee at the time the LCA was entered. Even though most LCAs leave open an appeal that requires the Employer to prove the offense that violates the LCA, but waive an appeal on the discipline imposed if the offense is proven, the decision leaves open the question of whether the Commission will honor a waiver of appeal on even the limited issue. Perhaps the best way to avoid the risk is to limit any appeal of discipline imposed under an LCA to arbitration, a process in which the arbitrator is bound to honor the parties’ agreement.
