Opinion
NO. 2012 CA 0033
12-21-2012
VALERIE D. HARRIS v. LOUISIANA STATE UNIVERSITY BEHAVIORAL HEALTH SERVICES (INTERIM LSU PUBLIC HOSPITAL)
Philip H. Kennedy New Orleans, Louisiana Counsel for Defendant/Appellant LSU Behavioral Health Services Adrienne T. Bordelon Baton Rouge, Louisiana Counsel for Defendant/Appellee Shannon S. Templet, Director of the Department of State Civil Service Daniel Frazier Baton Rouge, Louisiana Counsel for Plaintiff/Appellee Valerie D. Harris
NOT DESIGNATED FOR PUBLICATION
Appealed from the Decision of
The State Civil Service Commission
David Duplantier, Chairman
Shannon S. Templet, Director
State of Louisiana
Case No. S-16894
Philip H. Kennedy
New Orleans, Louisiana
Counsel for Defendant/Appellant
LSU Behavioral Health Services
Adrienne T. Bordelon
Baton Rouge, Louisiana
Counsel for Defendant/Appellee
Shannon S. Templet, Director of the
Department of State Civil Service
Daniel Frazier
Baton Rouge, Louisiana
Counsel for Plaintiff/Appellee
Valerie D. Harris
BEFORE: CARTER, C.J., KUHN, GUIDRY,
GAIDRY, AND McCLENDON, JJ.
GAIDRY , J.
This is an appeal from the Louisiana Civil Service Commission's ("Commission") modification of the Interim LSU Public Hospital's (Appellant) decision to terminate employment of their permanent employee Valerie D. Harris (Appellee). For the following reasons, we reverse the decision of the Commission and reinstate Appellant's original action.
FACTS AND PROCEDURAL HISTORY
An appeal to the Commission Referee was made by Ms. Harris on April 19, 2010, in which she challenged the decision of her employer, Interim LSU Public Hospital ("ILH"), to terminate her employment in conjunction with an incident at her place of employment occurring on or about January 27, 2010.
The record states that on the aforementioned date, Ms. Harris, a registered nurse of fifteen years, was assigned to monitor a patient in the hospital psychiatric ward. This patient, known here as JS, was known by Ms. Harris and other staff to have destructive tendencies and posed a danger to himself and others. JS was required to have "one-to-one" supervision, meaning hospital staff had to remain in visual contact with JS at all times. The supervision was the responsibility of Ms. Harris, and she had a psychiatric technician ("psych tech") named Robert Butler to assist her by actually maintaining visual contact with JS and staying within arm's length of him at all times.
The patient is represented by his initials to protect his confidentiality with his health care provider.
Reports are in conflict with what occurred on the night of January 27, 2010, but at some point JS flooded his bathroom by stuffing scrubs into the toilet and flushing, as well as running the sink. Water began to flood the rest of his room to a depth of three to four inches, making the floor wet and slippery. According to Ms. Harris, at 11:30 p.m. Mr. Butler was starting his shift when JS was in his bathroom. Mr. Butler could hear water running in the bathroom but did not check to see what JS was doing. Mr. Butler later stated he was not aware he had to observe the patient while he was in the bathroom, and that he never received training on the "one-to-one" observation procedure. Ms. Harris alleges such training should have been given to him by her supervisor, Rhonda Whitmore.
Ms. Harris states she became aware of what JS was doing in his bathroom when Mr. Butler yelled to her that the entire room was flooded, and she then notified housekeeping staff. She allegedly told Mr. Butler to move JS out of his room to an observation room, known as the "quiet room." Ms. Harris states that Ms. Whitmore then arrived to observe the situation and became verbally abusive toward Ms, Harris to the point she asked Ms. Whitmore to move into a private room to discuss the matter.
ILH's appreciation of the facts comes mostly from the observations of Ms. Whitmore. She was notified by staff around 11:45 p.m. that JS had flooded his room. When she arrived, Ms. Whitmore reported seeing Mr. Butler sitting outside the door to JS's room with JS sitting on the bed in his room. Mr. Butler explained to Ms. Whitmore that JS had flooded his room but was not sure how he did it. JS then offered to show Ms. Whitmore how he did it, and he got off his bed and walked across the floor to show her. As he walked across the floor, Ms. Whitmore allegedly observed water splashing about JS's feet. She then told Mr. Butler that JS had to be moved from his room immediately and be taken to the quiet room for his own safety. Ms. Whitmore then went to the nurses' station to see to whom JS was assigned. She learned Ms. Harris was JS's nurse, but that she apparently had remained at the nurses' station and did nothing throughout the entire incident. Ms. Harris allegedly told Ms. Whitmore she left it to Mr. Butler to handle the problem. Ms. Whitmore told Ms. Harris she had to complete an incident report, but received no acknowledgement of any kind from Ms. Harris. Ms. Whitmore told Ms. Harris again to fill out an incident report, and still allegedly received no response from Ms. Harris. Ms. Whitmore repeated herself again, and Ms. Harris responded by saying that Ms. Whitmore had already said what she needed to do three times.
There is some confusion as to whether Ms. Whitmore told Ms. Harris to write an incident report three or four times.
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Mr. Butler reported that JS was left unattended and unobserved in the bathroom for approximately twenty minutes. Once the flooding started, JS remained in his room for another fifteen or twenty minutes. Mr. Butler stated he was waiting on instructions from Ms. Harris on how to handle the situation.
According to ILH, the incident resulted in significant water damage in and around JS's room, and that this damage reached its level of severity due to Ms. Harris's failure to take control of the situation. Furthermore, Ms. Harris's choosing to ignore Ms. Whitmore's repeated requests to complete an incident report was an act of insubordination. Based upon their findings, it was ILH's decision to terminate Ms. Harris's employment.
Ms. Harris acknowledges receiving notice of her termination on March 25, 2010 in her appeal; however, over the acknowledgement of receipt line at the end of ILH's notice of termination is written "refused to sign" and dated March 25, 2010. Receipt of the notice was witnessed, as evidenced by a witness's signature of the same date below the receipt acknowledgement. The notice also advised that Ms. Harris had the right to appeal the action to the Commission Referee within thirty calendar days following receipt of the notice. Ms. Harris timely filed her appeal to the Referee.
The Referee heard the appeal on September 30, 2010, and on March 4, 2011. The Referee found that Ms. Harris was negligent in her handling of the flooding which caused property damage to ILH, and that ILH had cause to discipline Ms. Harris for her negligence. 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, and that ILH had cause to discipline Ms. Harris for her insubordination.
Ms. Harris filed an application to review the Commission Referee's decision on May 11, 2011. An opinion on the application was rendered on October 6, 2011. In the opinion, the Commission found that ILH did prove some but not all of its charges against Ms. Harris, but 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 ILH for fifteen years and had never previously been formally disciplined, and that while at first she had not complied with moving JS from his room and completed an 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 ILH, 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.
Following the decision by the Commission to modify ILH's action, ILH made an application to appeal the decision with this court on November 4, 2011.
ASSIGNMENTS OF ERROR
The Appellant alleges the Commission erred as a matter of law when it failed to apply the new standards set by the Louisiana Supreme Court in Lange v. Orleans Levee District, 2010-0140 (La. 11/30/10), 56 So.3d 925. The Commission failed to give ILH the required deference and modified ILH's decision without finding it arbitrary, capricious, or an abuse of discretion.
The Appellant also alleges the Commission erred as a matter of law when it modified the penalty ILH imposed because the articulated reasons for reducing the penalty lack factual basis and/or, as a matter of law, provide no basis for modifying the penalty imposed.
STANDARD OF REVIEW
In evaluating the Commission'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 order unless it is arbitrary, capricious, or characterized by abuse of discretion. Pitcher v. Dept. of Social Services, 2011-1163 (La. App. 1 Cir. 2/10/12), 2012 WL 602057, p. 2 (Unpublished) writ denied 2012-0594 (La. 4/20/12), 85 So.3d 1276, see also Lange, 56 So.3d at 934. In other words, we must review the Commission's order to modify the disciplinary action against Ms. Harris and determine whether doing so was arbitrary, capricious, or an abuse of the Commission's discretion.
DISCUSSION
Rule 12.1 of the Louisiana Civil Service Commission states that an appointing authority may discipline, remove, or separate an employee under his or her jurisdiction. In the instant case, ILH is the appointing authority who had employed Valerie Harris, and she performed duties as a registered nurse under ILH's supervision and jurisdiction. Rule 12.1 therefore gives ILH the authority to discipline and punish Ms. Harris.
When an appointing authority chooses to discipline one of its employees, Rule 12.7 requires that the employee be given oral or written notice of the proposed action, the factual basis for, and a description of the evidence supporting the proposed action, and a reasonable opportunity to respond. The record shows Ms. Harris did receive written notice of her termination on or about March 25, 2010, and although the notice does not show that she signed for its receipt, Ms. Harris acknowledged receipt in her appeal to the Commission. The notice contained a factual account of the incident in question, insofar as the evidence was gathered on behalf of ILH, and the notice informed Ms. Harris that she had a right to respond to the notice within thirty days of its receipt. We are therefore satisfied that ILH has fully complied with Rule 12.7.
Rule 12.8 describes the content of the written notice and the manner in which it must be served on the disciplined employee with greater specificity:
12.8 Written Notice to Employee of Discipline and Removal
When an appointing authority decides to discipline or remove a permanent employee, the employee must be given written notice of the action being taken before the time the action becomes effective. The written notice must:
(a) state what action is being taken and the date and time the action will become effective;
(b) describe in detail the conduct for which the action is being taken including, where pertinent, dates, times, places, and names of persons directly involved in or affected by such conduct (unless their identities are protected by law, in which case, identification may be made as permitted by law);
(c) contain the following notice: "You have the right to appeal this action to the State Civil Service
Commission within 30 calendar days following the date you receive this notice. The appeal procedure is contained in Chapter 13 of the Civil Service Rules, which is available from the Department of State Civil Service or your Human Resource office."
(emphasis theirs)
It is clear from the record that each requirement of Rule 12.8 was included in the notice. It is apparent that Ms. Harris received the notice no later than March 25, 2010, and termination became effective at 11:59 p.m. of the same day. The action taken is clearly written in the heading of the notice, the factual narrative is detailed to the point it gives a basis for the charges against Ms. Harris, and the required language of part (c) is given verbatim at the end of the notice.
Provisions (a) and (b) of Rule 12.8.1 state that written notice is considered given when it was hand delivered to the employee or a person of suitable age and discretion who resides with the employee. We are unable to tell from the record to whom exactly the notice was given, but we are certain that Ms. Harris received it since she acknowledges receiving the notice in her appeal and never raises lack of notice as an issue in her appeal to the Commission.
The importance of going through ILH's compliance with these rules is that ILH's actions must follow the standard put forth in Lange and echoed in Nguyen v. Department of Police, 2011-0570 (La. App. 4 Cir. 8/31/11), 72 So.3d 939, which essentially requires two things before an appointing authority can terminate employment. The employee must first receive due process, as the employee has a property interest in maintaining his/her employment. Lange, 56 So.3d at 930. While there are no specific requirements as to how due process must be carried out, the method must be essentially fair to the employee by adequately giving notice of the appointing authority's action and an adequate opportunity for the employee to respond. Id. The method in which ILH notified Ms. Harris and the guidelines put forth by the Commission's Rules more than adequately satisfy this requirement of due process.
The second requirement of Lange, and the one more pertinent to the issues raised on this appeal, is that the action must befor cause—any cause based on merit. Disciplinary action will be deemed arbitrary and capricious unless there is a real and substantial relationship between the improper conduct and the efficient operation of the public service. Shortess v. Dept. of Public Safety and Corrections, 2006-1532 (La. App. 1 Cir. 5/28/08), 991 So.2d 1067, 1071. An administrative agency's conclusion is "capricious" when it has no substantial evidence to support it. Pitcher, 2012 WL 602057 at p. 2. Likewise, the word "arbitrary" implies a disregard of evidence or of the proper weight thereof. Id. Cause for dismissal includes conduct prejudicial to public service involved or detrimental to its efficient operation. Mathieu v. New Orleans Public Library, 2009-2746 (La. 10/19/10), 50 So.3d 1259, 1262. The Commission found, through competent evidence, Ms. Harris guilty of damaging the property of ILH through her negligence, and of insubordination to Ms. Whitmore. Both charges are detrimental to ILH's efficient operation, and Ms. Harris' negligence resulted in a patient's room being flooded, causing extensive water damage to said room and to the floor directly beneath it. Additionally, Ms. Harris's being willfully uncooperative with Ms. Whitmore exacerbated the situation.
When both the requirements of due process and a finding of cause are satisfied, the appointing authority's disciplinary action should be given weight unless it was considered arbitrary, capricious, or an abuse of discretion (i.e., the discipline was not commensurate with the charged violation). Lange, 56 So.3d at 936. The Commission should not modify ILH's decision of termination if it had agreed with ILH that there was cause to discipline Ms. Harris, unless an abuse of discretion in the discipline was found to exist. The Commission should not "second-guess" the appointing authority's decision in a disciplinary action against its own employees, unless it is found that the appointing authority acted arbitrarily, capriciously, or in abuse of its discretion. Nguyen, 72 So.3d at at 945. Neither this court nor the Commission can serve as a type of pardon board for an appointing authority's decision in a disciplinary action such as this. Despite what we may personally feel for Ms. Harris's situation, sympathy is not a legal standard that we follow. Nguyen, 72 So.3d at 944.
The Commission reasoned that Ms. Harris's punishment should be mitigated by her length of service without a negative mark on her record. We disagree. In Lange, the employee had a 23-year long service record without any violations, until he committed the violations that terminated his employment. The appointing authority felt his violations overshadowed his unblemished record, and the supreme court refused to overstep the decision of an appointing authority who was in a better position to make that decision. Lange, 56 So.3d at 936. Likewise, we will not presume to know better how to discipline ILH's employees. Our purpose is to ensure that the disciplinary action taken was substantiated by competent evidence and that it is commensurate with the offense. Pitcher, 2012 WL 602057 at p. 2.
The Commission relied upon the cases Walters v. Department of Police, 454 So.2d 106 (La. 1984) and Guillory v. Department of Transportation and Development, 475 So.2d 368 (La. App. 1 Cir. 1985) to reach their decision as to whether the punishment imposed is commensurate with the dereliction. Walters, 454 So.2d at 113. Neither the Commission nor the reviewing courts are in the best position to discipline an appointing authority's employees. The Commission or the reviewing court may reach a finding as to whether the appointing authority's disciplinary action is arbitrary, capricious, or an abuse of discretion; however, if the reviewing court decides the action is none of those things, its work is finished. The appointing authority then resumes with its disciplinary action.
CONCLUSION
The Commission abused its discretion when it modified ILH's decision to terminate Ms. Harris's employment. Since the Commission found that Ms. Harris was indeed negligent and insubordinate, there was cause for ILH to take disciplinary action, and the decision to terminate her employment with ILH was not arbitrary, capricious, or an abuse of discretion, and the discipline was commensurate with the charged violation.
DECREE
The decision of the Civil Service Commission to modify Ms. Valerie Harris's punishment is reversed, and the original punishment imposed by Interim LSU Public Hospital is reinstated. All costs of this appeal are assessed to the Appellee, Valerie D. Harris.
REVERSED.
2012 CA 0033
VALERIE D. HARRIS
VERSUS
LOUISIANA STATE UNIVERSITY BEHAVIORAL HEALTH SERVICES
(INTERIM LSU PUBLIC HOSPITAL)
McCLENDON, J. , concurs and assigns reasons.
While I am concerned about the severity of the disciplinary action, I find that the result reached by the majority is legally correct.