IN THE CIVIL SERVICE COMMISSION FOR MADISON COUNTY, TENNESSEE In the matter of MADISON COUNTY vs. No. 2014-02 VATISHA EVANS-BARKEN DECISION THIS CAUSE was heard before the Civil Service Commission at a hearing on March 30, 2015, Present before the Civil Service Commission (hereinafter “Commission”) were Madison County (hereinafter “County”) and Vatisha Evans-Barken (hereinafter “Evans-Barken”), Evans-Barken timely appealed the decision of the Sheriff of Madison County as to her termination, There were four witnesses called to testify and six exhibits were admitted. The following witnesses were called to testify: Tony White, David Woolfork, Cleveland Davis and Vatisha Evans-Barken. Based upon the testimony and statements of the witnesses, the observations of the demeanor of the witnesses, the admission of the exhibits and the entire record in this cause the Commission renders the following decision.FACTS Evans-Barken had been employed with the Madison County Sheriff's Department since October of 2007. She was hired by the former sheriff, David Woolfork. She began her service working in the patrol division. In November of 2008 she was transferred to the warrants division, In October of 2009 she was moved to the criminal investigative division. Her duties with the criminal investigative division included property crimes and also included the investigation of some violent crimes. In September of 2011 she was promoted to Sergeant. On May 1, 2014 she was put on medical leave by Dr. John Michael Briley, a nurse practitioner with Primary Care Specialists South. Dr. Briley submitted a Department of Labor report (Exhibit 2) which indicated she was incapacitated for employment purposes. ‘The report stated the incapacity period was “4-1-14 til 4-8-14 then 4-29-14 until improved”. Dr. Briley found that she was incapacitated “due to her mental state and anxiety” and because of that, she was unable to perform her duties, At the time of her medical leave, Evans-Barken had accrued some sick and vacation leave. Evans-Barken used up her leave time and was permitted to stay out on medical leave, without pay, in accordance with the provisions of the Family Medical Leave Act (FMLA). At the time she initially took medical leave, Tommy Cunningham was serving as the interim sheriff. On July 15, 2014 Evans-Barken retumed to the Primary Care Specialists South for a follow up visit and she was seen by Dr. Briley’s successor. She testified that it was her understanding that Dr. Briley was on leave at the time. The medical professional she 2saw at that time reported the following: 1. That her FMLA time would be up on August 1, 2014; 2. That she was to continue seeing her counselor, Demarcus Davis in Memphis; 3. That she had anxiety, depression, PTSD, and headache; 4. That her FMLA should be extended for 8 weeks and a reevaluation would need to be done; The report also indicated that it had been sent to the Madison County HR department Attn: Misty at 988-3836 and Lt. Billy Carneal at 423-6067. (Exhibit no. 4). Mr. Tony White, the Deputy Mayor of Madison County, stated he was in charge of the Human Resources Department for the County. Mr. White testified that he did not remember seeing the record of July 15, 2014, however, he did not deny that it had been sent to his office. Mr. White also testified that Sheriff John Mehr contacted him on September 2, 2014 about Evans-Barken’s absence and the issue of whether or not she could be terminated. Mr. White testified that he told Sheriff Mehr that she could be fired. Sheriff John Mehr instructed Mr. White to send Evans-Barken a termination letter. Mr. White sent the termination letter on September 2, 2014, There was no proof presented that prior to the decision to terminate Evans-Barken that Sheriff Mehr had either seen or had a copy of Evans-Barken’s medical record of July 15, 2014. After she received notice of her termination, Evans-Barken sent a letter to Mr. White timely appealing the decision to terminate her. In that letter she stated, “As of my last doctor’s visit, a projected return to work date is scheduled for October 1, 2014”. 3ANALYSIS, Chapter 54 of the Private Act of 1983, Section 6 states in part as follows: “all persons discharged or demoted shall have the right to be heard by the Commission in his own defense, in person or by counsel, and the action of the sheriff in discharging or demoting such person shall be subject to approval or disapproval of the Commission.” The Commis ion is governed by the Private Act but is subject to judicial review in accordance with the provisions set forth in the Uniform Administrative Procedures Act (“UAPA”) codified at T.C.A. 4-5-101 et.seq. See also, Mitchell v. Madison County Sheriff's Department et. al., 325 S.W.3d 603 (Tenn. Ct. App. 2010). Itis the responsibility of the Commission to listen and evaluate the testimony of the witnesses, and review the exhibits in order to assure that both parties receive a fair and impartial review. T.C.A. 4-5-312(b) states in part as follows: “To the extent necessary for full disclosure of all relevant facts and issues, the administrative judge or hearing officer shall afford to all parties, the opportunity to respond, present evidence and argument, conduct cross examination, and submit rebuttal evidence...” In this matter, both attorneys presented a well tried case and did an exemplary job of representing their client. ‘The events that unfolded in this matter occurred at a time of transition within the Madison County Sheriff's Department. The former sheriff, David Woolfork resigned his 4office in February, 2014. An interim sheriff, Tommy Cunningham, served until a new sheriff was elected in August, 2014. Sheriff John Mehr assumed office on September 1, 2014 and began the task of taking over his official duties. It was during this time period from May 1, 2014 until September 2, 2014, that Evans-Barken was on leave for medical reasons, The facts of this case are unique in as much as the transition within the Sheriff's department created confusion. On July 15, 2014 a medical professional sent on Evans- Barkens behalf a record to the Human Resources Department of Madison County. The same record was also sent to Lt. Billy Carneal, the supervisor for Evans-Barken. The record advised that her FMLA time was due to expire on August 1, 2014 and that she would need her time extended for eight weeks. The extended FMLA time recommended by the medical professional would have excused Evans-Barken past her termination date of September 2, 2014. Therefore, the decision to terminate was made during the time she was given extended leave by the medical professional. ‘The County did not notify Evans-Barken about either approving or disapproving the extended leave time recommended by the medical professional. It is apparent that a medical professional had recommended her leave approval and it was undisputed by the County that Evans-Barken had valid reasons for medical leave. Also, there was no proof presented that indicated the County disapproved the extended leave time. The decision to extend the leave time would have been made by the interim sheriff, Tommy Cunningham. In this case there was no proof presented that Cunningham took any action 5on the valid request for the extension of her medical leave. Evans-Barken was informed by her doctor that they sent the notification to the County and to her supervisor regarding the extended leave, It was undisputed at the hearing that Evans-Barken last notification had been sent to the County and to Evans-Barkens’ supervisor, Lt. Carneal. (See Exhibit 4), Itwas apparent that Evan’s-Barken’s notice of termination was received before the extended leave period had expired. In her request for an appeal, Evans-Barken advised that she would be willing to return and would be released to return to work on October I, 2014. ‘The Commission finds that the facts indicate that Evans-Barken took reasonable and necessary steps to keep the County apprised of her valid medical circumstances. More specifically, on July 15, 2014, she contacted the County and her supervisor, through her medical professional, about the nature of her condition and the need for further medical treatment. At the time of the notification, she was still under the provisions of the FMLA. From the facts, the County either knew or should have known that Evans-Barken was not at work because of the recommended extended FMLA time of eight weeks. Furthermore, itis undisputed from the evidence that the County never advised Evans-Barken that it disapproved the medical professional’s recommendation for extended leave time, Because of this, Evans-Barken could have reasonably assumed that the County did not object. It is also significant that at the time of the letter of termination, that Evans-Barken was still within the ti \¢ frame of her medical professional's recommended medical leave time.CONCLUSION After weighing the proof presented at the hearing and the facts and findings as stated herein, it is the unanimous decision of the Commission to disapprove the decision to terminate Evans-Barken, day of__ 224 52015 DAVID W. CAMP