Opinion
NUMBER 2012 CA 0033R
08-06-2013
VALERIE D. HARRIS v. LOUISIANA STATE UNIVERSITY BEHAVIORAL HEALTH SCIENCES
Daniel Frazier, Jr. Baton Rouge, LA Counsel for Plaintiff/Appellee Valerie D. Harris Philip H. Kennedy New Orleans, LA Counsel for Defendant/Appellant LSU Behavioral Health Services Adrienne T. Bordelon Baton Rouge, LA Counsel for Defendant/Appellee Department of State Civil Service
NOT DESIGNATED FOR PUBLICATION
Appealed from the
State Civil Service Commission
State of Louisiana
Suit Number S-16894
Honorable David Duplantier, Chairman; John McClure, Vice-Chairman;
Wilfred Pierre, G. Lee Griffin, D. Scott Hughes, Kenneth Polite, Jr. and
C. Pete Fremin
Daniel Frazier, Jr.
Baton Rouge, LA
Counsel for Plaintiff/Appellee
Valerie D. Harris
Philip H. Kennedy
New Orleans, LA
Counsel for Defendant/Appellant
LSU Behavioral Health Services
Adrienne T. Bordelon
Baton Rouge, LA
Counsel for Defendant/Appellee
Department of State Civil Service
BEFORE: GUIDRY, CRAIN, AND THERIOT, JJ.
GUIDRY , J.
On March 8, 2013, the Louisiana Supreme Court remanded this matter to this court to re-consider the appeal in light of its decision in City of Bossier City v. Vernon, 12-0078 (La. 10/16/12), 100 So, 3d 301. See Harris v. Louisiana State University Behavioral Health Services (Interim LSU Public Hospital), 12-0033 (La. App. 1st Cir. 12/21/12) (unpublished opinion).
This remand involves an appeal from the Louisiana Civil Service Commission's (Commission) modification of the Interim LSU Public Hospital's (LSU) decision to terminate employment of their permanent employee, Valerie D, Harris, LSU terminated Ms. Harris's employment following a January 26, 2010 incident. According to LSU, on that date Ms. Harris, a registered nurse of fifteen years, was assigned to monitor a patient, who had a history of destructive behavior, in the hospital psychiatric ward. This patient required "one-to-one" supervision, meaning hospital staff had to remain at arm's length from the patient at all times. Ms. Harris had a psychiatric technician assist her by providing the one-to-one supervision.
Thereafter, the patient flooded his room by stuffing scrubs into the toilet and flushing repeatedly. The record is in conflict as to what transpired after that, but ultimately, the hospital sustained significant water damage in and around the patient's room. In terminating Ms. Harris's employment, LSLT asserted that Ms. Harris failed to respond appropriately to the flooding of the patient's room, negligently damaged hospital property, and was insubordinate to her supervisor.
Ms. Harris appealed her termination, and a Commission Referee heard her appeal on September 30, 2010, and March 4, 2011. The Referee found Ms. Harris was negligent in her handling of the flooding, which not only showed her lack of concern and indifferent attitude toward the care of the patient at issue, but also resulted in property damage to LSU. Furthermore, the Referee found Ms. Harris to be insubordinate to her supervisor, Ms. Whitmore, by being noncompliant with Ms. Whitmore's direct order to complete an incident report. Ultimately, the Referee determined that LSU had cause to discipline Ms. Harris for all three of the alleged charges. Further, the Referee determined that because Ms. Harris's negligence contributed to the damaging of hospital property, she failed in her duty to safeguard the patient's safety and well-being, and she was insubordinate to her supervisor, her actions and inactions were manifestly detrimental to the mission of the hospital and the state service, and the penalty of termination was commensurate with the offense.
Thereafter, Ms. Harris filed an application for review of the Referee's decision with the Commission. In its opinion, the Commission found that although LSU failed to prove that Ms. Harris's actions or inactions caused damage to the hospital's property, it did find that LSU proved that Ms. Harris failed to provide proper supervision to ensure the patient was removed from an unsafe environment and was insubordinate to her supervisor. The Commission determined that the proven charges were enough for cause to discipline Ms. Harris. The Commission then noted that Ms. Harris had at that time been an employee with LSLT for fifteen years and had never previously been formally disciplined, and that while at first she had not complied with moving the patient from his room and completed the incident report, Ms. Harris eventually did comply on the night of the incident in both respects. The Commission decided that the aforementioned facts should mitigate the discipline handed down by LSU, and in place of termination, the Commission ordered that Ms. Harris be suspended without pay for 180 calendar days, retroactive to the date of her termination.
On appeal, this court reversed the Commission's decision, finding that the Commission abused its discretion when it modified LSU's decision to terminate Ms. Harris's employment. Specifically, this court found that the Commission should not have modified LSU's decision of termination if it agreed with LSU that there was cause to discipline Ms. Harris, unless an abuse of discretion in the discipline was found to exist. Harris, 12-0033 at p. 5.
In City of Bossier City, 12-0078 at pp. 12-15, 100 So. 3d at 309-311, the Louisiana Supreme Court reiterated the Commission's role in reviewing the disciplinary action of an appointing authority. Reviewing Louisiana jurisprudence dating back over fifty years., the court noted the longstanding principle that in reviewing the disciplinary action of an appointing authority, a civil service commission or board must decide not only if a disciplinary action has been made in good faith for cause, but additionally must make an independent assessment of whether the particular punishment imposed is warranted. This duty of the Commission to not only ensure that the discipline was imposed in good faith for cause, but to independently ensure that the particular punishment imposed was proper, interposes a check on the appointing authority's ability to impose discipline. City of Bossier City, 12-0078 at pp. 15 & 17, 100 So. 2d at 311-312. (Emphasis added.)
The Commission's responsibility to undertake an independent review of the evidence, however, is in stark contrast to a reviewing court's authority in reviewing a Commission's decision. See City of Bossier City. 12-0078 at p. 14, 100 So. 3d at 311. In reviewing a Commission's decision, an appellate court has a multifaceted review function. Walters v. Department of Police of the City of New Orleans. 454 So. 2d 106, 114 (La. 1984). First, as in other civil matters, deference will be given to the factual conclusions of the Commission. Accordingly, in deciding whether to affirm the Commission's factual findings, a reviewing court should apply the clearly wrong or manifest error rule prescribed generally for appellate review. Bannister v. Department of Streets, 95-0404, p. 8 (La. 1/16/96), 666 So. 2d 641, 647.
Second, in evaluating the Commission's determination as to whether the disciplinary action is both based on legal cause and commensurate with the infraction, the court should not modify the Commission's order unless it is arbitrary, capricious, or characterized by an abuse of discretion. "Arbitrary or capricious" means the absence of a rational basis for the action taken. Bannister, 95-0404 at p. 8, 666 So. 2d at 647.
A permanent classified civil servant employee cannot be disciplined without cause. La. Const, art. 10, § 8. "Cause" sufficient for the imposition of discipline means "conduct that impairs the efficiency of the public service and bears a real and substantial relation to efficient and orderly operation of the public service in which the employee is engaged." Marsellus v. Department of Public Safety and Corrections, 04-0860, p. 5 (La. App. 1st Cir. 9/23/05), 923 So. 2d 656, 660, citing Wopara v. State Employees' Group Benefits Program, 02-2641, p. 3 (La. App. 1st Cir. 7/2/03), 859 So. 2d 67, 69.
In reviewing the disciplinary action taken by LSU against Ms. Harris, the Commission reviewed the record and the transcript of the proceedings before the referee. The Commission determined that three incidents occurred between 11:30 p.m. and 12:00 a.m. on the night at issue: 1) the failure of the psych tech to follow the policy of the agency as required when assigned to one-to-one supervision of a psychiatric patient, which resulted in damage to hospital property; 2) the failure of the appellant to properly supervise the psych tech to ensure that the patient was immediately removed from a potentially unsafe environment; and 3) appellant's disrespectful and unprofessional conduct towards her supervisor. However, the Commission determined that Ms. Harris should only be held responsible for her own actions.
The Commission determined that any damage to the hospital property as a result of the flooding of the patient's room was caused by the psych tech's failure to fulfill the requirements of one-to-one observation by not being within arm's length of the patient while he was in the bathroom. The Commission noted, as detailed in the record, psych techs are employed in psychiatric facilities to assist professional medical staff with the patients, and on the night in question, the psych tech was assigned to one-to-one observation of the patient in order to assist the medical personnel, i.e. nurses, with maintaining control of this patient. Accordingly, the Commission determined that any damage to the hospital's property was caused by the psych tech's failure to properly observe the patient, and not by any action or inaction of Ms. Harris.
However, the Commission found that once the psych tech saw water on the floor of the bathroom and bedroom and communicated a need to move the patient to Ms. Harris, she should have gone to the room, assessed the situation and ensured that the psych tech moved the patient from the room. The Commission determined that leaving the patient in a room filled with water created a potentially hazardous situation and such failure to immediately ensure that the patient is moved to a safe environment cannot be tolerated.
Additionally, the Commission determined that Ms. Harris's failure to answer and acknowledge the questions and directions of her supervisor, who asked Ms. Harris three times to complete an incident report without response, was disrespectful and thus insubordinate. The Commission noted that insubordination by its very nature is detrimental to the state service.
Ultimately, the Commission determined that LSU had proven two of the three charges against Ms. Harris and thus, had cause to discipline Ms. Harris for her actions. However, the Commission found, after considering all of the factors surrounding Ms. Harris's actions, that the penalty of termination was too severe. The Commission stated that Ms. Harris's failure to provide proper supervision and rude and unprofessional behavior is unacceptable, but that there were factors that mitigated in favor of a penalty less severe than dismissal. The Commission noted that Ms. Harris had been a fifteen-year employee who had not previously been disciplined. Additionally, the Commission noted that although Ms. Harris did not immediately ensure the patient was moved and she was disrespectful to her supervisor, she did ultimately assist in the moving of the patient and she complied with the directive regarding the incident report.
From our review of the record, we do not find that the Commission's factual findings are clearly wrong or manifestly erroneous. The record demonstrates that the psych tech was told repeatedly by hospital staff, including Ms. Whitmore, to move the patient to another room, but it was not until Ms. Harris approached him and said let's move the patient that the patient was finally moved. Additionally, the record contains an incident report prepared by Ms. Harris and signed by the psych tech on the date of the incident in question detailing the events that transpired.,
Further, considering the totality of the circumstances, we do not find that the Commission's order reducing Ms. Harris's termination to a suspension without pay for 180 calendar days retroactive to the date of her termination is arbitrary and capricious or characterized by an abuse of discretion.
The record in the instant case is in contrast with the factual circumstances in Lange v. Orleans Levee District, 10-0140 (La. 11/30/10), 56 So. 3d 925, wherein the Louisiana Supreme Court found that the Commission abused its discretion in reversing the termination of an employee and ordering that the plaintiff he reinstated to a lesser position. The court in Lange noted that "[a]lthough longtime employment and lack of prior discipline may be mitigating factors in the determination of an employee's punishment, plaintiff's unblemished history with OLD is overshadowed by the gravity of the charges against him and the distrust they engendered. That eroded confidence is the proper context in which to consider these charges." Lange. 10-0140 at p, 17, 56 So. 3d at 936. Accordingly, the only evidence mitigating in favor of. a lesser penalty in Lange was the plaintiff's longtime employment and lack of prior discipline, which paled in comparison to the charges against the plaintiff and the fiduciary nature of his position. In light of such evidence, the supreme court found that the Commission in Lange abused its discretion in reversing the appointing authority's discipline, Lange, 10-0140 at p. 17, 56 So. 3d at 936.
However, in the instant case, the Commission determined that Ms. Harris's subsequent actions on the night of the incident in question, in addition toher years of employment and absence of prior disciplinary action, mitigated her behavior and warranted a lesser penalty than, termination. From our review of the record, we find, unlike the record in Lange, that the instant record provides a rational basis for the Commission's decision to reduce Ms. Harris's termination to a suspension without pay for 180 calendar days.
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Therefore, we affirm the decision of the Commission. Ail costs of this appeal are assessed to the Interim LSU Public Hospital.
AFFIRMED.