Hamaker v. Gagnon

297 A.2d 351, 110 R.I. 709, 1972 R.I. LEXIS 970
Supreme Court of Rhode Island·Decided December 1, 1972·No. 1652-M. P·Published·Cited by 10 cases

Opinion

Paolino, J.

The petitioner was a classified state employee, with permanent status. On April 29, 1966, she was *710 dismissed by the appointing authority “for the good of the [sjervice.” 1 She appealed the authority’s action to the Personnel Appeal Board which heard the matter in 1967 and rendered a decision sustaining the authority’s action. The petitioner then filed a complaint in the Superior Court pursuant to the provisions of G. L. 1956, §42-35-15, as amended, by P. L. 1966, ch. 112, alleging that she was aggrieved by the board’s action. After a hearing in that court in December, 1971, before a justice thereof sitting without a jury, a decision was rendered affirming the board’s decision.

Thereafter petitioner filed the instant petition for certiorari pursuant to the provisions of G. L.,1956 (1969-Reenact-ment) §42-35-16. She alleges therein that a judgment 2 was entered in the Superior Court affirming the board’s action and that she, as a party in interest, is a party aggrieved by such action on the grounds that (a) the board committed prejudicial error in failing to determine whether the provi *711 sions of §36-4-39 3 had been violated.by the authority in terminating her employment, and (b) the decision of the board was based on evidence that was immaterial to its inquiry and that on its face was not reliable, probative and substantial. On February 8, 1972, we ordered the writ to issue. 4

The facts are substantially as follows. The petitioner was a senior clerk typist and a classified permanent state employee with over ten years of state employment. At the time of her dismissal she was working in the division of purchases. She had worked in other positions prior to working in the division of purchases in April, 1965. In May, 1965, she injured a finger while employed by the state and in July, 1965 had an operation performed removing certain nerves from the finger. She then took a leave of absence until she returned to work as a clerk typist in October, 1965. At that time she attempted to perform the duties of a clerk typist and thereafter she often had to seek medical attention for her finger. Her duties included typing, which she claimed was difficult if not impossible for her because of the removal *712 of nerves from her finger. The petitioner also states that her work included other duties as indicated by various exhibits presented by the state and testimony before the board. On April 1, 1966, petitioner’s appointing authority designated her as satisfactory and recommended her for continued state service, but on April 29, 1966, he dismissed her for the “good of the [s]ervice.” 5

The appeal before the board was heard on August 24 and September 28, 1967. Testimony was presented at this hearing by the then state purchasing agent in the division of purchases, who was the appointing authority, by Mrs. Dorothy I. Eddy, who was the chief clerk in the division of purchases between May, 1965 and April, 1966, the period involved in this case, and by petitioner. Both petitioner and the state were represented by counsel at these hearings. Various documents were presented and marked as exhibits.

The appointing authority’s testimony is in substance as follows. He had a study made of petitioner’s absenteeism and was concerned about her absenteeism prior to the time of her injury. He concluded that she was continually absent and that she performed her work very slowly. He also had a study made of her work after the injury. These studies were reduced to writing and as a result of such studies he concluded that she was very inefficient and he gave his reasons for such conclusion. He said that he had *713 occasion to observe the diligence with which petitioner performed her work and that based on such observation he did not feel she was diligent. He said that his final conclusion was that she was not able to do the work she was assigned to such an extent that it was affecting the morale of the whole division and he explained how it was effecting the morale of the division.

Mrs. Eddy, who was supervisor of personnel in the division of purchases, testified that petitioner was under her supervision; that she had cause to, and did, observe and study the efficiency and performance of petitioner, and she gave her conclusions, which were very critical of petitioner’s work. She referred to petitioner’s injury and said that she was taken off her work as a typist because she could not do that work and she was assigned to the mail desk where “ * * she spent just about all the time on the mail and did nothing else in the line of being in any other category.”

The petitioner testified in defense of her position. She explained the injury to her finger and said that after the injury she was doing different kinds of work, such as working on the mail, filing purchase orders, running errands and delivering the mail. She referred to her talks to Mrs. Eddy about the effects of her injury and of her visits to her doctor. She testified that she was absent because of illness and pain from her finger. Records of her work performance are exhibits in the case.

On October 2, 1967, the board rendered a decision which sustained the action of the appointing authority. The pertinent portion of the board’s decision reads as follows:

“The Board finds that there was sufficient evidence presented before it upon which the appointing authority * * could have acted in terminating Mrs. Hamaker.
“Snecifically, from the period April 1, 1966 to April 21, 1966 there were numerous days when the appellant *714 was absent with questionable justification. In addition, the tasks performed by her should have been performed in far shorter period of time than the time she utilized.” ■

On December 13, 1971, a trial justice of the Superior Court heard petitioner’s appeal from the board’s decision in accordance with the provisions of §42-35-15. 6 After examining the record and listening to argument of counsel 'he rendered a decision sustaining the board’s action.

He referred to the fact that shortly after petitioner came to work for the'department in 1965 she injured her finger; that in a period of time of approximately one year the number of hours she took out for sick leave, for vacation time, and for leave without pay amounted perhaps to a little less time out than the time spent in actual employment; that from time to time she was assigned to opening the mail and that in connection with this she was asked to do some limited typing; and that the work sheets indi *715 cated the amount of typing which she was asked to do and the amount of time which it took her to do it. - ■

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Hamaker v. Gagnon, 297 A.2d 351, 110 R.I. 709, 1972 R.I. LEXIS 970 (R.I. 1972).

297 A.2d 351 (Hamaker v. Gagnon) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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