Opinion
NUMBER 2016 CA 1209
06-02-2017
ALICIA BAILEY v. LOUISIANA WORKFORCE COMMISSION
Alicia Bailey Baton Rouge, LA Pro Se - Appellant Plaintiff - Alicia Bailey Mary Ann M. White Baton Rouge, LA Attorney for Appellee Defendant - Louisiana Workforce Commission
NOT DESIGNATED FOR PUBLICATION
Appealed from the Civil Service Commission In and for the Parish of East Baton Rouge, Louisiana
Trial Court Number S-17951 Honorable David Duplaniter, Chairman G. Lee Fremin, Member Ronald M. Carrere, Member Kimberly Dellafosse, Member Bryon P. Decoteau, Jr., Director Department of State Civil Service Alicia Bailey
Baton Rouge, LA Pro Se - Appellant
Plaintiff - Alicia Bailey Mary Ann M. White
Baton Rouge, LA Attorney for Appellee
Defendant - Louisiana Workforce
Commission BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ. WELCH, J.
Alicia Bailey appeals a decision of the State of Louisiana Civil Service Commission ("the Commission") denying her application to appeal the decision of the Civil Service Referee ("the referee") and the decision of the referee, upholding the Louisiana Workforce Commission's ("LWC") termination of Ms. Bailey's employment based on cause. We affirm the decision of the Commission in accordance with Uniform Rules—Courts of Appeal, Rule 2-16.2(A)(5), (6), (7), (8), and (10).
Prior to her termination, Ms. Bailey was employed by the LWC as an accounting technician and served with permanent status. By letter dated August 1, 2014, LWC notified Ms. Bailey that she was being terminated effective that day. In the termination letter, LWC essentially claimed that Ms. Bailey was insubordinate and had engaged in unprofessional, disruptive, and disrespectful behavior with her co-workers. In addition, LWC noted the previous disciplinary action against Ms. Bailey for the same or similar behavior and that Ms. Bailey had received improvement letters regarding her behavior. Ms. Bailey appealed her termination, essentially denying the allegations set forth in LWC's termination letter and urging that she had been the victim of disparate treatment.
After seven days of public hearings before the referee, on February 26, 2016, the referee rendered a decision with extensive findings of fact and conclusions of law. Therein, the referee concluded that LWC proved legal cause for discipline, and that the penalty imposed (dismissal/termination) was commensurate with the offenses. Accordingly, the referee denied the appeal. Ms. Bailey filed an application requesting that the Commission review the decision of the referee, and on May 4, 2016, the Commission denied that application. This appeal by Ms. Bailey followed.
LWC has filed a motion to strike portions of Ms. Bailey's reply brief, along with the exhibits attached to her original and reply brief. LWC contends that Ms. Bailey's reply brief contains scandalous and impertinent material that was offered merely for the purpose of harassment and that most of the exhibits to her original and reply brief were not introduced as evidence at the hearing in this matter, and thus, are not part of the record. With respect to the exhibits, we note that none of the exhibits attached to Ms. Bailey's briefs are authorized exhibits to an appellant's brief or a reply brief. See Uniform Rules—Courts of Appeal, Rule 2-12.4 and 2-12.6. Therefore, we grant LWC's motion to strike and order the exhibits attached to Ms. Bailey's briefs be struck.
With respect to the scandalous and impertinent statements made by Ms. Bailey in her reply brief, we have thoroughly reviewed her reply brief and agree that it contains several scandalous, unproven statements about the witnesses, supervisors of LWC, LWC counsel, and the referee, as well as makes arguments and references to material not introduced or argued at the hearing. Therefore, we grant LWC's motion to strike and order the following statements to be stricken from Ms. Bailey's reply brief: (1) the allegation on page 1 that the referee had improper interaction with counsel for LWC; (2) the allegation on page 3 that the appointing authority (LWC), the attorney for LWC, and the referee "were texting amongst each other during the hearing;" (3) the allegations on pages 5 and 7 concerning discrepancies in evidence and testimony presented at Ms. Bailey's unemployment appeal hearing and the civil service hearing; (4) the allegations on page 6 of harassment, threats, and intimidation of Ms. Bailey's sister who is employed at LWC; (5) the allegations on page 6 that Ms. Bailey's sister's receipt of a letter of reprimand was a retaliatory act; and (6) the allegations on page 8 that witnesses and counsel for LWC violated the sequestration order.
On appeal, Ms. Bailey contends that the Commission erred in upholding the decision of the referee. Generally, decisions of the referee are subject to the same standard of review as decisions of the Commission itself. Decisions of the Commission are subject to the same standard of review as a decision of a district court. Johnson v. Department of Health and Hospitals, 2000-0071 (La. App. 1st Cir. 2/16/01), 808 So.2d 436, 437-438. When reviewing the Commission's (or referee's) findings of fact, the appellate court is required to apply the manifestly erroneous or clearly wrong standard of review. However, in evaluating the Commission's (or referee's) determination as to whether the disciplinary action taken by the appointing authority is based on legal cause and commensurate with the infraction, the reviewing court should not modify or reverse the Commission's (or referee's) order unless it is arbitrary, capricious, or characterized by abuse of discretion. Usun v. LSU Health Sciences Center Medical Center of Louisiana at New Orleans, 2002-0295 (La. App. 1st Cir. 2/14/03), 845 So.2d 491, 494; Jackson v. Department of Health and Hospitals, Office for Citizens with Developmental Disabilities, 98-2772 (La. App. 1st Cir. 2/18/00), 752 So.2d 357, 359 n. 1.
A permanent classified civil service employee cannot be disciplined without cause. La. Const. art. 10, § 8. Cause exists when the employee's conduct is detrimental to the efficient and orderly operation of the public service that employed him. An appellate court should not reverse (or modify) the Commission's (or the referee's) determination of the existence of cause for a disciplinary action unless the decision is arbitrary, capricious, or an abuse of discretion. See Usun, 845 So.2d at 495. The word "arbitrary" implies a disregard of evidence or of the proper weight thereof; a conclusion is "capricious" when there is no substantial evidence to support it or the conclusion is contrary to substantiated competent evidence. See Usun, 845 So.2d at 495-496. Generally, an abuse of discretion results from a conclusion reached capriciously or in an arbitrary manner. Burst v. Board of Commissioners, Port of New Orleans, 93-2069 (La. App. 1st Cir. 10/7/94), 646 So.2d 955, 958.
As previously noted, the referee, in upholding Ms. Bailey's termination by the LWC, issued extensive findings of facts and conclusions of law. Essentially, the referee found that Ms. Bailey had engaged in unprofessional and inappropriate behavior on multiple occasions; that she had threatened her fellow employees with litigation; that she made vulgar and offensive comments; that she needlessly instigated a confrontation with a co-worker; that she was insubordinate with her supervisors; and thus, she was a disruptive influence in the office. The referee articulated, in detail, specific instances of Ms. Bailey's behavior in this regard, all of which were supported by the extensive testimony in the record from Ms. Bailey's co-workers. While Ms. Bailey urges us to re-weigh the evidence in a manner more favorable to her version of the facts, we are bound by our standard of review and we cannot say that the referee's factual findings in this regard were manifestly erroneous. Furthermore, based on the factual findings, the referee also concluded that the penalty imposed by the LWC, i.e., dismissal or termination, was commensurate with the offenses, particularly in light of the fact that LWC had previously suspended Ms. Bailey and issued her an improvement letter for engaging in disruptive behavior. Based on the evidence in the record, we cannot say that the referee's determination that Ms. Bailey's behavior constituted legal cause warranting termination or dismissal was arbitrary, capricious, or an abuse of discretion. Hence, the referee did not abuse her discretion in upholding the LWC's termination of Ms. Bailey's employment based on cause. Therefore, we affirm both the decision of the Commission denying Ms. Bailey's application to appeal the decision of the referee and the decision of the referee.
Although not assigned as error, we note that Ms. Bailey, in arguing that the Commission erred in upholding the decision of the referee, argued that the referee should have recused herself since she was the referee in a past matter involving Ms. Bailey, and that the referee denied Ms. Bailey's right to call many witnesses, opportunity to cross-examine witnesses, and make a closing statement. However, we find no merit to these contentions. First, the record before us reveals no grounds for the recusal of the referee. See La. C.C.P. art. 151; Civil Service Rule 13.32. Furthermore, the record does not establish that the referee precluded Ms. Bailey from calling relevant witnesses or that she was denied either the right to cross-examine witnesses or to make a closing statement. --------
All costs of this appeal are assessed to the appellant, Alicia Bailey.
MOTION TO STRIKE GRANTED; AFFIRMED.