Opinion
2013 CA 0076
2013-09-20
GREGORY BREAUX v. INTERIM LOUISIANA STATE UNIVERSITY PUBLIC HOSPITAL
Philip H. Kennedy New Orleans, Louisiana Counsel for Appellant Interim Louisiana State University Public Hospital Greer E. Goff New Orleans, Louisiana Counsel for Appellee Gregory Breaux Adrienne Bordelon General Counsel Baton Rouge, Louisiana Counsel for Shannon S. Templet, Director, Department of State Civil Service
NOT DESIGNATED FOR PUBLICATION
On Appeal From A Decision Of The State Civil Service Commission
State of Louisiana
Docket No. 17069
Honorable David Duplantier, Chairman;
John McClure, Vice-Chairman;
G. Lee Griffin, Kenneth Polite, D. Scott Hughes,
C. Pete Fremin, and Sidney Tobias; Members
Shannon S. Templet, Director
Department of State Civil Service
Philip H. Kennedy
New Orleans, Louisiana
Counsel for Appellant
Interim Louisiana State University
Public Hospital
Greer E. Goff
New Orleans, Louisiana
Counsel for Appellee
Gregory Breaux
Adrienne Bordelon
General Counsel
Baton Rouge, Louisiana
Counsel for Shannon S. Templet,
Director, Department of State
Civil Service
BEFORE: PETTIGREW, MCDONALD, AND McCLENDON, JJ.
McCLENDON, J.
An employer appeals a ruling by the Louisiana State Civil Service Commission (Commission) that affirms a decision of the Commission's Referee to reverse the disciplinary action taken by the employer against an employee. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
Gregory Breaux is a commissioned police officer employed by the LSU Health Sciences Center, Interim LSU Public Hospital ("Hospital"). Officer Breaux worked at a facility known as "Jackson Square," an intake area for incoming mental patients at the Hospital. Patients with mental health problems are initially processed at Jackson Square before they are transported to the hospital's Mental Health Emergency Room Extension (MHERE). It is the duty of police officers assigned to Jackson Square to search incoming mental health patients for contraband.
On June 30, 2011, Officer Breaux relieved Officer Alfred Miller from duty at Jackson Square. During Officer Miller's shift, which was scheduled to end at 2:30 p.m., a patient, A.B., arrived at Jackson Square. What happens next is in dispute. According to Officer Miller, he checked A.B. and A.B.'s belongings in at 2:28 p.m. Officer Miller indicated, however, that he informed Officer Breaux that A.B. "just came in and needed to be searched." According to Officer Breaux, whose scheduled shift began at 2:30 p.m., however, Officer Miller informed him that A.B. had "just arrived and [Office Miller] checked him and he was fine." As such, Officer Breaux indicated that he did not conduct a search of A.B.
A.B. was subsequently transported from Jackson Square to MHERE, where contraband items, including a "powdery white substance," a glass tube, and marijuana, were discovered.
The Hospital charged Officer Breaux with failing to properly search a patient in Jackson Square during his shift. The Hospital, concluding that Officer Breaux had failed to follow departmental procedures, issued a reduction of Officer Breaux's pay over four pay periods in lieu of a 15-day suspension.
Officer Breaux appealed the decision to the Commission, and the case was assigned to a Referee. A hearing was held on April 4, 2011. Following the hearing, the cross-examination testimony given by Officer Breaux could not be recovered because of a mechanical failure. The Referee advised that due to the mechanical failure, the parties would either have to stipulate to a set of facts based on her notes, or that the cross-examination testimony would have to be taken anew. Thereafter, the Referee held a subsequent hearing over a year later on June 8, 2012 "for the limited purpose of reconstructing the lost testimony of Mr. Breaux that was taken on cross."
On August 4, 2011, prior to the hearing to reconstruct Officer Breaux's cross examination testimony, the Hospital filed a Motion for New Trial. In its motion, the Hospital asserted that it obtained newly-discovered evidence, specifically a document entitled "Patient Clothes and Valuables," which, it asserted, conclusively established that Officer Breaux had taken possession of A.B.'s valuables after he had reported for duty. The Hospital contended that the document was not previously available at the time of the April 4, 2011 hearing.
At the June 8, 2012 hearing to reconstruct Officer Breaux's lost cross-examination testimony, the Hospital attempted to introduce the referenced document. Because the document had not been introduced at the April 4, 2011 hearing, however, the Referee did not accept the document into evidence. The Hospital therefore proffered it. The Referee also noted orally that she denied the Hospital's motion for new trial.
On August 7, 2012, the Referee issued a decision, granting Officer Breaux's appeal and ordering that the Hospital pay Officer Breaux back wages, with interest. In her ruling, the Referee found that Officer Miller had instructed Officer Breaux that "everyone" had been "checked in." The Referee also found that "Mr. Breaux reasonably believed that 'everyone' included Patient A.B. and that Mr. Miller had properly searched him when Patient A.B. was 'checked in.'" The Referee further indicated that after hearing and observing the witnesses, it found Officer Breaux's version of events more credible than Mr. Miller's.
The Hospital requested review of the Referee's decision. On October 2, 2012, the Commission denied the Hospital's application for review, and the Referee's decision became the final decision of the Commission.
The Hospital has timely appealed the Commission's decision upholding the Referee's decision, contending that the Referee erred in granting Officer Breaux's appeal; in finding that Officer Breaux's testimony was more credible than Officer Miller's; in ignoring evidence supporting the Hospital's case; in ignoring evidence tending to discredit Officer Breaux's testimony; in denying the Hospital the opportunity to introduce newly discovered evidence; and in finding that the Hospital's actions were unreasonable.
DISCUSSION
On appeal, the Hospital seeks review of the Referee's decision not to allow it to introduce the document entitled "Patient Clothes and Valuables" at the June 8, 2012 hearing. The June 8, 2012 hearing, as recognized by the Referee, was "for the limited purpose of reconstructing the lost testimony of Mr. Breaux that was taken on cross." The Hospital never objected to the limited nature of the proceeding. Given the limited purpose of the proceeding and the Hospital's lack of a contemporaneous objection, we cannot conclude that the Referee abused her discretion in not allowing the Hospital to cross examine Officer Breaux regarding the document and in refusing to admit the document into evidence.
We note that the Code of Civil Procedure provides a different procedure in the event that testimony of a witness "has not been taken down in writing." See LSA-C.C.P. art. 2131.
The Hospital also contends that it should have been granted a new trial on the basis of newly discovered evidence. Prior to the second hearing, the Hospital filed a motion for new trial based on its discovery of the "Patient Clothes and Valuables" document referenced above. Louisiana Code of Civil Procedure article 1972 provides that a new trial shall be granted when a party has discovered, since the trial, evidence important to the cause, which it could not, with due diligence, have obtained before or during the trial. The Hospital has offered no evidence to show why the document, which was apparently in its possession, could not be produced at the April 4, 2011 hearing. Accordingly, we find no error in the Referee's denial of the Hospital's motion for new trial.
Nevertheless, the Hospital contends that the remaining evidence-testimonial and documentary—is sufficient to uphold the discipline that it imposed in that it contradicts Officer Breaux's testimony and the Commission's findings and conclusions. The Hospital points out that Officer Miller was not testifying from memory at the earlier April 2011 hearing, but rather was reading from a statement prepared shortly after the incident. In contrast, Officer Breaux's testimony that Officer Miller "checked" A.B. and "he was fine" was first related at the April 2011 hearing, over ten months after the incident. Moreover, the Hospital notes that Sergeant Ronald Young investigated the matter and interviewed Officer Breaux shortly after the incident. According to Sergeant Young, during his initial conversation with Officer Breaux, Officer Breaux did not know or could not remember when A.B. arrived at Jackson Square. Sergeant Young also indicated that Officer Breaux never informed him that Officer Miller told him that A.B. had been searched.
The Hospital avers that even if Officer Miller did state to Officer Breaux that the patient had been checked, Officer Breaux would have been required to search the patient's clothes once he changed into hospital garb.
The Hospital also asserts that Officer Breaux's statements are internally inconsistent. The Hospital notes that Officer Breaux testified that all other patients that arrived after A.B. had been changed into hospital garb, with the sole exception of A.B. The Hospital also notes that Officer Breaux testified that A.B. was seated and still dressed in his street clothes when Officer Breaux left Jackson Square to attend a doctor's appointment. The Hospital points out, however, that in his appeal statement, Officer Breaux indicated that when he arrived at Jackson Square, A.B. "was changed and clothing secured." The Hospital concludes that Officer Breaux's appeal statement discredits his testimony that the patient was seated and stiii in his street clothes at the time Officer Breaux left the area to attend a doctor's appointment.
The Hospital additionally contends that Officer Breaux's statement is also refuted by the proffered document, which we do not consider on appeal, having found no error in the Referee's refusal to admit the document into evidence.
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It is well settled that a reviewing court may not disturb the factual findings of the trier of fact in the absence of manifest error. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989); Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La. 1978). The reviewing court does not decide whether the trier of fact was right or wrong; rather, a fact finder's factual determinations cannot be reversed unless an appellate court, after review of the entire record, finds both that no reasonable factual basis exists for the finding and that it is manifestly erroneous or clearly wrong. See Stobart v. State, Through Department of Transportation and Development, 617 So.2d 880, 882 (La. 1993). Moreover, in applying this standard, a fact finder's credibility determinations are entitled to great deference. See Hebert v. Rapides Parish Police Jury, 06-2001 (La. 1/16/08), 974 So.2d 635, 654 (on rehearing). Thus, if the fact finder's findings are reasonable in light of the record viewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La. 1990).
Where documents or objective evidence so contradict a witness's story, or the story itself is so internally inconsistent or implausible on its face that a reasonable fact finder would not credit the witness's story, a reviewing court may well find manifest error. Rosell, 549 So.2d at 844-845. Where a fact finder's determination is based on its decision to credit the testimony of one or two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Stobart, 617 So.2d at 883. This is not to say, however, that factual determinations cannot ever, or hardly ever, be upset. Ambrose v. New Orleans Police Department Ambulance Service, 93-3099 (La. 7/5/94), 639 So.2d 216, 221. Although deference to the fact finder should be accorded, because appellate courts have a constitutional duty to review both law and facts, they have the right and the obligation to determine whether the fact finder is clearly wrong based on the evidence, or clearly without evidentiary support. Id.
After a thorough review of the record, we are constrained to find that the Referee did not commit manifest error in reaching her factual determinations. We do not find Officer Breaux's story so internally inconsistent or implausible on its face such that the Referee could not credit Officer Breaux's version of events. Even though we may have decided this matter differently had we been sitting as trier of fact, we find that a reasonable factual basis exists for the Referee's findings. As such, we conclude that the Hospital's assignment of error is without merit.
CONCLUSION
For the foregoing reasons, the decision of the Commission is affirmed. Costs of this appeal in the amount of $426.50 are assessed to the appellant, LSU Health Sciences Center, Interim LSU Public Hospital.
AFFIRMED.