Opinion
2022 CA 1188
06-02-2023
HENRY HARRIS v. DEPARTMENT OF PUBLIC SAFETY & CORRECTIONS - DIXONCORRECTIONAL INSTITUTE
Henry Harris Appellant Holden, Louisiana Plaintiff-Pro Se Robert R. Rochester, Jr. Counsel for Appellee Baton Rouge, Louisiana Defendant-Department of Public Safety and Corrections - Dixon Correctional Institute
Appealed from the Louisiana State Civil Service Commission Parish of East Baton Rouge • State of Louisiana Civil Service Commission Docket Number 187781 The Honorable David L. Duplantier, Chairman; D. Scott Hughes, Vice-Chairman; John McLure, Kristi Folse, G. Lee Griffin, Ronald M. Carrere, Jr., and Jo Ann Nixon, Presiding Board Members of the Louisiana State Civil Service Commission Martha K. Mansfield, Presiding Referee
Henry Harris Appellant
Holden, Louisiana Plaintiff-Pro Se
Robert R. Rochester, Jr. Counsel for Appellee
Baton Rouge, Louisiana Defendant-Department of Public Safety and Corrections - Dixon Correctional Institute
Before: Welch, Penzato, and Lanier, JJ.
WELCH, J.
Plaintiff, Henry Harris, appeals a ruling of the Louisiana State Civil Service Commission affirming the dismissal of his discrimination claims against the Louisiana State Department of Public Safety and Corrections ("DPSC") - Dixon Correctional Institute ("DCI"). For the following reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
Plaintiff is a Master Sergeant ("MSgt.") employed by DPSC-DCI with over seventeen years' experience as a corrections and security officer who has attained permanent status. MSgt. Harris is currently assigned to work at "Compound One D Team," located at the DCI main prison compound, in a security position supervising offenders as they perform janitorial duties. MSgt. Harris was previously assigned to work at DPSC Headquarters in downtown Baton Rouge, which is staffed by DCI, in a night-shift security position that required him to be POST-certified for a specialized security position. MSgt. Harris worked at DPSC Headquarters from October 16, 2015, until DPSC-DCI notified MSgt. Harris by letter dated November 8, 2021, that his job assignment had been changed from DPSC "Headquarters D Team" to DCI "Compound One D Team," effective November 10, 2021.
The Office of Peace Officer Standards and Training ("POST"), within the Louisiana Commission on Law Enforcement, provides required in-service training for certain corrections officers, including firearms training, officer survival training, and legal instruction. See La. R.S. 15:1208. See also "POST In-Service Training Requirements," Louisiana Commission on Law Enforcement and Administration of Criminal Justice, https://lcle.la.gov/programs/post/post-inservice-trainingrequirements/.
The record evidence shows that prior to this job location reassignment, MSgt. Harris has received at least one other job location reassignment-one effective October 16, 2015, reassigning him from "Compound One D Team" to "Headquarters D Team."
MSgt. Harris initiated an administrative remedy procedure ("ARP") regarding his reassignment. MSgt. Harris's request for ARP was denied at the first step. While his second step request for ARP was pending, MSgt. Harris appealed his reassignment to the Civil Service Commission on November 24, 2021, alleging that it was the result of prohibited discrimination due to his race (white) and biological sex (male).
A Civil Service Commission Referee conducted a public hearing on MSgt. Harris's appeal on February 9, 2022. After reviewing the record, hearing witness testimony, and examining the evidence introduced at the hearing, the Referee denied MSgt. Harris's appeal and issued written reasons for her ruling on March 25, 2022. The Referee upheld DPSC-DCI's action and found that while MSgt. Harris's position was replaced at DPSC Headquarters by a black female, MSgt. Harris failed to prove that his move from DPSC Headquarters to the DC1 main prison compound was based on prohibited discrimination and/or that his replacement was based on prohibited discrimination. The Referee held that DPSC-DCI established a rational business reason for its action, or that the action was "for the betterment of the institution" in allocating its human resources in an effective manner.
MSgt. Harris filed an application for review of the Referee's decision on April 11, 2022. The decision of the Referee became final after the Civil Service Commission denied MSgt. Harris's application for review. MSgt. Harris now appeals the final decision of the Civil Service Commission.
"After consideration of the application for review, along with the pleadings and exhibits specified pursuant to subsection (b)(5) of this Rule, the Commission may ... [a]ffirm the Referee's decision by denying the application for review." Civil Service Rule 13.36(f)(4). See also La. Const. Art. X, § 12(A) ("If an application for review is timely filed with the commission and, after a review of the application by the commission, the application is denied, the decision of the referee becomes the final decision of the commission as of the date the application is denied.").
See La, Const. Art. X, § 12(A) ("The final decision of the commission shall be subject to review on any question of law or fact upon appeal to the court of appeal wherein the commission is located, upon application filed with the commission within thirty calendar days after its decision becomes final."). MSgt. Harris timely filed a motion for appeal on September 12, 2022. The Referee signed an order of appeal on September 13, 2022, notice of which was transmitted by the Civil Service Commission's Appeals Administrator to the parties on September 13, 2022.
ASSIGNMENTS OF ERROR
1. The Referee erred in applying strict scrutiny and standards to pleadings by a.pro se party.
2. The Referee erred by not drawing an adverse presumption against DPSC-DCI for not producing subpoenaed records.
3. The Referee erred by sustaining DPSC-DCI's untimely and inappropriate objections to MSgt. Harris's evidence.
4. The Referee erred by making Findings of Fact that are not supported by the record.
5. The Referee erred by disregarding witness statements that contradicted DPSC-DCI's position.
6. The Referee erred by disregarding the probationary employment status of MSgt. Harris's replacement at DPSC Headquarters.
7. The Referee erred by not applying the Civil Service Commission's "four corners rule" for discrimination claims.
8. The Referee erred by ignoring witness testimony that demonstrated MSgt. Harris's reassignment was not a merit-based decision.
9. The Referee erred by taking judicial notice of a DPSC policy not entered into the record.
10.The Referee erred by taking notice of exhibits in the record that contradicted DPSC-DCI's description of events, specifically, disregarding an impairment in state service created by MSgt. Harris's reassignment and disregarding evidence disputing the testimony of DCI Assistant Warden Keith Turner.
11.The Referee erred by disregarding DPSC-DCI's obligation to fill all positions based on employee's merits.
12.The Referee erred by giving more weight to the evidence of DPSC-DCI than is allowed by law.
13. The Referee erred by not taking proper notice of the holding of Hays v. Louisiana Wild Life & Fisheries Comm'n, 165 So.2d 556, 562 (La.App. 1stCir.), writs refused. 246 La. 855, 167 So.2d 672 (1964), overruled on other grounds, Reppond v. City of Den ham Springs, 572 So.2d 224, 227 (La.App. 1st Cir. 1990).
STANDARD OF REVIEW
Decisions of Civil Service Commission Referees are subject to the same standard of review as decisions of the Commission itself, which are subject to the same standard of review as a decision of a district court. Ragona v. Louisiana Workforce Comm'n, 2019-0020 (La.App. 1st Cir. 9/27/19), 287 So.3d 772, 776; Usun v. LSU Health Sciences Center Medical Center of Louisiana at New Orleans, 2002-0295, 2002-0296 (La.App. 1st Cir. 2/14/03), 845 So.2d 491, 494.
Accordingly, factual determinations of the Commission or referee should not be reversed or modified unless clearly wrong or manifestly erroneous. Ragona, 287 So.3d at 776; Usun, 845 So.2d at 494. However, as to the Civil Service Commission or Referee's interpretation of laws and regulations, this Court performs its traditional plenary functions and applies the error of law standard. Adikema v. Department of Public Safety and Corrections-Office of Youth Development, 2006-1854 (La.App. 1st Cir. 9/14/07), 971 So.2d 1071, 1074.
Although not at issue in this appeal, we note that in evaluating a determination as to whether the disciplinary action of termination taken by the appointing authority is based on legal cause and commensurate with the infraction, the reviewing court should not modify or reverse the Civil Service Commission's order unless it is arbitrary, capricious, or characterized by abuse of discretion. Usun, 845 So.2d at 494.
LAW AND DISCUSSION
The civil service provisions in the Louisiana Constitution and the Civil Service Commission's rules are designed to secure adequate protection to career public servants from political discrimination and favoritism. In promoting the merit system, the intent of these laws is to guarantee the security and welfare of public service. See La. Const. Art. X, § 1; Sanders v. Dep't of Health and Human Resources, 388 So.2d 768, 771 (La. 1980). To further these goals, and in addition to its primary function as a quasi-judicial body, the Civil Service Commission is empowered to generally supervise the civil service system and to establish rules for that system's administration. Bannister v. Dep't of Streets, 95-0404 (La. 1/16/96), 666 So.2d 641, 645. The Civil Service Commission Rules have the effect of law. La. Const. Art. X, § 10(A)(4); Sanders, 388 So.2d at 770; Shortess v. Dep't of Pub. Safety & Corr., 2006-2313 (La.App. 1st Cir. 9/14/07), 971 So.2d 1051, 1055, writ denied, 2007-2293 (La. 1/25/08), 973 So.2d 761.
Civil Service Rule 4.1 (b) provides that "all officers and employees of the State of Louisiana are in the Classified Service," subject to the exceptions in Civil Service Rule 4.1(c) and (d), none of which apply to MSgt. Harris. Classified civil service employees are identified by their appointment as either "permanent" or "probationary" status employees. "'Appointment' means an offer by an appointing authority to a qualified person of employment in a classified position and the acceptance of such offer." Civil Service Rule 1.5. A regular or permanent appointment "means the status attained by a classified employee upon the successful completion of his probation period." Civil Service Rule 1.34. See also La. R.S. 33:2393(27) ("regular employee" is an employee who has been appointed to a position in the classified service after completing work test period). In turn, a probationary appointment "means the appointment of a person to serve a working test period in a position." Civil Service Rule 1.26; see also La. R.S. 33:2417.
It is well established that the Civil Service Commission has exclusive jurisdiction over classified civil service employer-employee disputes that are employment related, including, but not limited to: the power to adopt rules for regulating employment, promotion, demotion, suspension, reduction in pay, removal, certification, qualifications, political activities, employment conditions, compensation, and disbursements to employees, and other personnel matters and transactions, as well as the power and authority to hear and decide all removal and disciplinary cases. See La. Const. Art. X, §§ 10(A)(1)(a) and 12A; State Civil Service Comm'n v. Dep't of Pub. Safety Dir., 2003-1702 (La. 4/14/04), 873 So.2d 636, 644.
The Civil Service Commission's jurisdiction to hear appeals is limited to two categories of claims: (1) removal or disciplinary claims under La. Const. Art. X, §§ 8(A) and 12(A), and (2) discrimination claims under La. Const. Art. X, § 8(B). Kling v. Louisiana Dep't of Revenue, 2018-1480 (La.App. 1st Cir. 7/18/19), 281 So.3d 696, 707, writs denied, 2019-01434, 2019-01441 (La. 11/5/19), 281 So.3d 671. For removal/disciplinary claims, "[t]he burden of proof on appeal, as to the facts, shall be on the appointing authority." La. Const. Art. X, § 8(A).
"No person who has gained permanent status in the classified state or city service shall be subjected to disciplinary action except for cause expressed in writing." La. Const. Art. X, § 8(A).
"The State Civil Service Commission shall have the exclusive power and authority to hear and decide all removal and disciplinary cases...." La. Const. Art. X, § 12(A).
"No classified employee shall be discriminated against because of his political or religious beliefs, sex, or race." La. Const. Art. X, § 8(B).
At issue in the instant appeal, however, are MSgt. Harris's discrimination claims. For discrimination claims, "[t]he burden of proof on appeal, as to the facts, shall be on the employee." La. Const. Art. X, § 8(B); Johnson v. Dep't of Health & Hospitals, 2000-0071 (La.App. 1st Cir. 2/16/01), 808 So.2d 436, 438. (Emphasis added). An employee in a civil service discrimination action must prove his claim by a preponderance of evidence. Muse v. Louisiana Dep't of Pub. Safety & Corr., Office of Prob. & Parole, 2022-0458 (La.App. 1st Cir. 11/4/22), 355 So.3d 620, 625. A preponderance of the evidence means evidence which is of greater weight than that which is offered in opposition. Proof is sufficient to constitute a preponderance when, taken as a whole, it shows the fact of causation sought to be proved as more probable than not. Harrell v. Dep't of Health & Hosps., Off. for Citizens with Developmental Disabilities, Pinecrest Supports & Servs. Ctr., 2010-0281, 2010-0282 (La.App. 1st Cir. 9/10/10), 48 So.3d 297, 301, writ not considered. 2010-2310 (La. 12/10/10), 51 So.3d 715. If the employee establishes a prima facie case of discrimination, a presumption is created that the employer has unlawfully discriminated against the employee, and the burden shifts to the employer to prove that the adverse employment actions were taken for a legitimate nondiscriminatory reason. Muse, 355 So.3d at 625. Thus, MSgt. Harris had the burden of establishing a prima facie case of discrimination, that is, evidence that he was treated differently because of his race or gender, which makes it more probable than not that the actions taken by DPSC-DCI were motivated by a non-merit factor, either his race or gender.
In assignments of error five, six, seven, nine, ten, eleven, twelve, and thirteen, MSgt. Harris essentially contests the Referee's determination that while he proved a prima facie case of racial and/or sexual discrimination, the Referee determined that DPSC rebutted his case by showing that MSgt. Harris' job location was changed for a nondiscriminatory reason. In his appeal to the Civil Service Commission, MSgt. Harris alleged that his reassignment from DPSC Headquarters to the DCI main prison compound subjected him to racial and sexual discrimination in violation of the Civil Service Commission rules. During his six years working at DPSC Headquarters, MSgt. Harris alleged that he was the only white male assigned to twelve-hour security shifts on "D Team"; the other three corrections officers on "D Team" were black females. MSgt. Harris alleged that after his reassignment, DPSC replaced him with a black female Sergeant with less than three years' experience who was not POST-certified, which he claimed was a requirement for any security position at DPSC Headquarters. MSgt. Harris alleged that another DCI male employee and DCI Warden Edward "Dusty" Bickham told him, on separate occasions, that DPSC preferred women working at Headquarters.
MSgt. Harris, who represented himself at the hearing, presented his case and called witnesses. MSgt. Harris testified that he worked a twelve-hour night shift at DPSC Headquarters from October 2015 through November 2021, where he was often the lone officer on the premises. He stated he was replaced by Sgt. Shalantha Moore, a black female, who was not POST-certified and who had less experience than he did as a corrections and security officer; thus, he stated he was replaced by someone not qualified to take the job. He testified that he did not believe he was moved from Headquarters to the DCI main prison compound for "the benefit of the institution," but rather because DPSC only wanted women working at Headquarters. On cross-examination, when asked whether his skillset and years of experience would be better applied at DCI rather than Headquarters, MSgt. Harris responded that it could, however, if his skills were applied to the betterment of DCI, it would be to the detriment of Headquarters. On cross-examination, MSgt. Harris testified that corrections officers cannot perform a cross-gender strip search of offenders, except in extenuating circumstances.
MSgt. Harris represented himself before the Civil Service Commission and is now representing himself before this Court. A layman who represents himself cannot be held to the same standards of skill and judgment which must be attributed to an attorney. Johnson v. Dep't of Health & Hospitals, 2000-0071 (La.App. 1st Cir. 2/16/01), 808 So.2d 436,437. However, a layman assumes responsibility for his own inadequacy and lack of knowledge of both procedural and substantive law. Id.
DCI Warden Edward "Dusty" Bickham testified that DCI is a minimum, medium, and maximum custody facility housing male offenders in dormitory settings and restricted cell blocks. Warden Bickham testified that MSgt. Harris is assigned to "D Team," which is a twelve-hour night shift assignment. He indicated that MSgt. Harris formerly worked on "D Team" at Headquarters, but was reassigned in November 2021 to work on "D Team" at the DCI main prison compound. Warden Bickman testified:
In this instance [sic] case, I did ~ I'm going to tell you, I didn't even know who Henry Harris was. I didn't know who he was at all.
He had -- his name had come up I think through HR, had reached out to me, and said that some of the policies I was implementing, he wasn't really excited about, and didn't think that Headquarters, that personnel, should fall under these particular policies. And so I'm like, who is Henry Harris? Let me find out. And I'm thinking, I'm looking, I said, how many years does he have? And they said... 17 years of service.... And I said, well, first of all, I think he needs to understand that Headquarters does fall on the DCI's purview and he needs to understand that. So I think maybe.. .he needs to spend some time back at DCI.
And, secondly, ...with his experience, 17 years, we are - no matter what, we're extremely short. ... But shortness is not really the issue on why I moved him. It's his experience that I wanted to have, even told him, is help train officers, help train a lot of new ones. I mean, I don't have the numbers in front of me, but our average sergeant, master sergeant, on the compound has a couple year's experience. He's got 17 working with offenders, you know. I mean, there's maybe some other officers that have that many years, but not that experience working with offenders. So that's - all that put together, I realized his - the best option was going to be him moving back to DCI.
Warden Bickham testified that the majority of DCI officers were females, and of that number, the majority were black. Warden Bickham testified that the race/sex breakdown of DCI employees influences job assignments to the extent that male employees may work essentially anywhere within DPSC-DCI, while female officers would be restricted from some of those duties. Warden Bickham testified that he did not reassign MSgt. Harris based on racial or sexual discrimination. He further stated that MSgt. Harris was not banned from working at Headquarters; that decision would be made by a shift supervisor as to the personnel needs of DPSC-DCI.
DCI Assistant Warden Keith Turner, who has twenty-nine years' experience with the DPSC, testified that as DCTs Chief of Security, he is responsible for DCI job assignments. Asst. Warden Turner testified that DCI Warden Edward "Dusty" Bickham told him to reassign MSgt. Harris to the DCI main prison compound; Warden Bickham did not give him any reasons for the reassignment. Asst. Warden Turner testified that one of the factors he considers when assigning an employee are the breakdown of male and female officers to male and female offenders. He gave as examples that when a strip search of an offender is performed, it must be performed by an officer of the same gender, and that female officers may not enter male offender bathrooms. Because DPSC-DCI is currently so short-staffed, Asst. Warden Turner testified that he has to make sure DCI has enough male officers at the DCI main prison compound. Asst. Warden Turner testified he "would prefer to have a female in a position that doesn't come in contact with the offenders in order to give [him] a male back at the institution." Asst. Warden Turner testified that he did not reassign MSgt. Harris based on racial or sexual discrimination; MSgt. Harris was merely reassigned for the "best interest of the institution." On cross-examination, Asst. Warden Turner admitted that at the time he assigned Sgt. Moore (who replaced MSgt. Harris) to Headquarters, she did not have the required handgun training to work a specialized security position at Headquarters, but that she subsequently received the required certification.
The testimony of MSgt. Anthony Miller, a former administration support Colonel, now a Master Sergeant, supported Asst. Warden Turner's testimony. MSgt. Miller maintained DCTs POST firearms certifications and served as a POST-firearm trainer and instructor. MSgt. Miller testified that while Sgt. Moore was not POST-certified at the time she was assigned to Headquarters, she did ultimately complete the handgun training required to work a specialized security position, which is the position she currently works at Headquarters.
While MSgt. Harris complains that he was discriminated against because of his race and sex, we find no evidence that supports his contentions. Rather, the record, testimony, and evidence shows that DPSC-DCI reassigned MSgt. Harris based on personnel needs of DPSC-DCI at the time and he sustained no loss in pay. DPSC-DCI had the authority to reassign MSgt. Harris within DPSC in order to meet the needs of the department. The testimony at the hearing and the evidence submitted show that DPSC-DCI acted in the best interest of the institution and had nondiscriminatory reasons for reassigning MSgt. Harris.
The trier of fact is charged with assessing the credibility of the witnesses and, in doing so, is free to accept or reject, in whole or in part, the testimony of any witness. Johnson v. State Through Department of Transportation and Development, 2017-0973 (La.App. 1st Cir. 4/3/19), 275 So.3d 879, 898, writ denied, 2019-00676 (La. 9/6/19), 278 So.3d 970. As reasoned by the Referee, "MSgt. Harris has years of experience working in corrections; Sgt. Moore did not. MSgt. Harris, because of his gender, may work essentially anywhere within DPSC-DCI without posing a threat to the offender's rights to privacy while showering, being searched, and the like. Sgt. Moore, of course being female, is restricted from some of these duties." While Sgt. Moore was not POST-certified at the time she was assigned to Headquarters, the Referee held, "I am convinced no one knew that at the time...." The record, testimony, and evidence shows that Sgt. Moore subsequently attained the required handgun certification for her assignment at Headquarters.
MSgt. Harris's contentions that his reassignment was racially or gender motivated is not sufficient to support his discrimination claim. As held by the Referee:
DPSC-DCI must employ officers without regard to race or gender. That is true for both MSgt. Harris and Sgt. Moore. This placed the agency in a quandary given the majority of officers are Black females and are restricted from certain assignments. The agency acted reasonably in balancing these competing interests by reassigning MSgt. Harris to a
position that requires a male, and replacing him with a person who is capable of filling the position, even if she was less qualified in terms of experience.
We therefore conclude, as did the Referee, that MSgt. Harris did not satisfy his burden of proving racial discrimination in the presentation of his case. We find no error in the Referee's conclusion that his allegations of discrimination, even taken as true, were rebutted by DPSC-DCI by a preponderance of the evidence. DPSC-DCI established that it had a rational business reason for its action, or that its action was taken "for the betterment of the institution" in allocating its human resources in an effective manner. Accordingly, we find no merit in these assignments of error.
We next address assignments of error one, three, and thirteen wherein MSgt. Harris complains the Referee refused to allow him to introduce certain evidence. During the hearing, MSgt. Harris attempted to introduce evidence of a previous Corrections Services Employee Rule Violation Report (a "VR-1") and a rescinded disciplinary action in an effort to demonstrate "a pattern of discrimination on behalf of DCI administrators that had culminated in his removal from Headquarters. Each time this was attempted, the Referee ruled that he had not properly [pled] facts to allow the admission of such evidence." MSgt. Harris also attempted to introduce a memo outlining a DCI On-Call policy change in an attempt to demonstrate that his reassignment to the DCI main prison compound caused his income to change. The Referee sustained DPSC-DCI1 s objection to the document, noting that it was not relevant since the policy changed prior to his transfer November 2021.
An Employee Rule Violation Report (a "VR-1") is a DPSC "Corrections Services internal worksheet used to document employee rule violations. A VR-1 may result in a disciplinary action, performance evaluation notation, or no action taken as a result of a specific rule violation." "Corrections Services Employee Manual, July 1, 2018," Louisiana Department of Public Safety and Corrections, pp. 18, 55, https://www.bidnet.conVbneattachments?/574986032.pdf (2018).
In describing his VRI-1 and prior disciplinary action, MSgt. Harris stated that in September 2020, while working at DPSC Headquarters, he was accused of misconduct, issued a VR-1, and DPSC initiated a disciplinary action against him (Civil Service Commission Docket Number 18692). He stated that he appealed the disciplinary action claiming, among other things, racial discrimination. The disciplinary action at issue in his prior appeal was later rescinded pursuant to a notice of defect issued by the Civil Service Commission Referee assigned to that case. In his current appeal, MSgt. Harris did not make an allegation of retaliation. He stated that based on the allegations in his prior appeal, "a future removal from Headquarters would be seen as retaliation for his [prior] appeal and a furtherance of disparate and discriminatory treatment of employees based on their race and gender," citing Hays v. Louisiana Wild Life & Fisheries Comm'n, 165 So.2d 556, 562 (La.App. 1stCir.), writs refused. 246 La. 855, 167 So.2d 672 (1964) (overruled on other grounds. Reppond v. City of Denham Springs, 572 So.2d 224, 227 (La.App. 1st Cir. 1990)).
In support of his discrimination claim, MSgt. Harris cited the Annotations to the Civil Service Rules, annotating La. Const. Art. X, § 8(B) and citing Hays:
There can be little doubt but that Section 15(N)(1) [of the Louisiana Constitution of 1921 ] was intended to prevent discrimination in any manner or form whatsoever. That certain matters rest within the sound discretion of the various appointing authorities neither excuses, justifies, permits nor condones discrimination. It is obvious that an appointing authority may discriminate in the exercise of a purely discretionary function by denying or withholding benefits or advantages to a particular employee or group of employees for improper motives such as bias, prejudice or personal animosity. To hold otherwise is but to give appointing authorities the opportunity to circumvent the constitutional prohibition against discriminatory practices by the simple expedient of ingenious and imaginative exercise of their discretion. It is equally obvious, we believe, that if the exercise of one's discretion is motivated by or results in discrimination against a given employee, without cause or justification, it constitutes an abuse of discretion and is nothing more than prohibited discrimination. Hays v. Louisiana Wild Life and Fisheries Commission, 165 So .2d 556, 562 (La.App. 1 Cir. 1964). [Emphasis added].Laura Denson Holmes, "Annotations to the Civil Service Rules," Louisiana Department of State Civil Service, Second Edition, p. 12, https://www.civilservice.louisiana.gov/CSRules/Index.aspx (March 2008).
We agree with the Referee that MSgt. Harris failed to allege facts sufficient to state a claim of retaliation. As noted by MSgt. Harris, his prior VR-1 and disciplinary action were rescinded by the Civil Service Commission; therefore, his previous discrimination claims were mooted. Second, based on the analysis in Hays, if an agency in the exercise of its discretion has cause or justification for taking a particular action, such actions are not an abuse of discretion nor prohibited discrimination. In the current appeal, the Referee held that DPSC-DC1 had valid cause and justification for reassigning MSgt. Harris' work location to the DCI main prison compound-specifically a rational business reason, or that the action was taken '"for the betterment of the institution' in allocating its human resources in an effective manner."
Furthermore, the trier of fact has great discretion in controlling the conduct of the trial and the presentation of evidence. The decision to admit or exclude evidence may not be reversed on appeal in the absence of an abuse of its broad discretion. See Medine v. Roniger, 2003-3436 (La. 7/2/04), 879 So.2d 706, 711; Alfred Conhagen, Inc. of Louisiana v. Ruhrpumpen, Inc., 2021-0396, 2021-0397 (La.App. 4ttlCir. 4/13/22), 338 So.3d 55, 62. We cannot say that the Referee abused her discretion in excluding evidence of the VR-1, prior disciplinary action, and the DPSC-DCI memo.
We next address MSgt. Harris's second assignment of error, where he argues the Referee gave great deference to the DPSC-DCI, who did not comply with the Referee's issued subpoenas, and erred by not drawing an adverse presumption of records not produced by DPSC-DCI. Spoliation of the evidence is an evidentiary doctrine that refers to an intentional destruction of evidence for the purpose of depriving the opposing parties of its use in pending or anticipated litigation and has its roots in the evidentiary doctrine of "adverse presumption," which allows for a jury instruction to be given that the destroyed evidence is presumed to have contained information detrimental to the party who destroyed the evidence unless such destruction is adequately explained. Roussell v. Circle K Store, Inc., 2021-0582 (La.App. 1st Cir. 12/22/21), 340 So.3d 52, 56. This adverse inference is not applicable, however, when the party gives an adequate explanation for the failure to produce the evidence. Id. Furthermore, under La. C.C.P. art. 1471, when a party refuses or is unable to comply with a discovery order, the trial court in a pending action "may make such orders in regard to the failure as are just," thereby granting the trial court broad discretion to impose a range of sanctions, including the imposition of an adverse presumption.
The Referee heard testimony during the hearing that DPSC Headquarters maintains employee log books, wherein each employee signs off on the log book as they make rounds throughout the building. After DPSC-DCI indicated that the particular log book sought by MSgt. Harris was missing, despite the agency's best efforts to locate it, the Referee indicated, that while she was "not pleased that things are missing, if [DPSC-DCI] say that ... they've done everything after a diligent search, and we don't have any evidence to the contrary, then there's really nothing that we can do." (Emphasis added). The Referee further stated, "while it's distressing that they didn't give you everything, I'm wondering if any of it would1 ve been subject to an objection as to relevance or anything else." The trier of fact has great discretion in controlling the conduct of the trial and the presentation of evidence. The decision to admit or exclude evidence may not be reversed on appeal in the absence of an abuse of its broad discretion. See Medine, 879 So.2d at 711; Alfred Conhagen, Inc. of Louisiana, 338 So.3d at 62. We cannot say that the Referee abused her discretion in failing to impose an adverse presumption on DPSC-DCI for its failure to produce the log book.
Finally, we find no merit in MSgt. Harris's remaining assignments of error four and eight. After a thorough review, we conclude that the Referee's findings of fact are supported by the record. Further, there is no evidence that the testimony of Warden Bickham was ignored by the Referee. See Johnson, 275 So.3d at 898.
DECREE
For the foregoing reasons, we affirm the decision of the Referee, which was adopted by the Civil Service Commission as its final decision. We cast the appellant, MSgt. Henry Harris, with costs of this appeal.
AFFIRMED.