Opinion
NUMBER 2015 CA 1469
06-03-2016
CARLISA P. HOUSTON v. ALEXANDRIA HOUSING AUTHORITY
Kevin G. Sanders Alexandria, LA Counsel for Plaintiff/Appellee, Carlisa P. Houston Lewis O. Lauve, Jr. Alexandria, LA Counsel for Defendant/Appellant, Alexandria Housing Authority Adrianne Bordelon Baton Rouge, LA Counsel for Byron P. Decoteau, Jr., Interim Director, Department of State Civil Service
NOT DESIGNATED FOR PUBLICATIONAppealed from the State Civil Service Commission
Docket Number S-17918Honorable David Duplantier, Chairman; John McCIure, Vice-Chairman; G. Lee Griffin, Ronald M. Carrere, Jr., D. Scott Hughes, C. Pete Fremin, and Kimberly Dellafosse, Members Byron P. Decoteau, Jr., Interim Director Department of State Civil ServiceKevin G. Sanders
Alexandria, LACounsel for Plaintiff/Appellee,
Carlisa P. HoustonLewis O. Lauve, Jr.
Alexandria, LACounsel for Defendant/Appellant,
Alexandria Housing AuthorityAdrianne Bordelon
Baton Rouge, LACounsel for Byron P. Decoteau, Jr.,
Interim Director, Department of State
Civil ServiceBEFORE: WHIPPLE, C.J., WELCH, AND DRAKE, JJ.WHIPPLE, C.J.
This matter is before us on appeal by defendant, the Alexandria Housing Authority ("AHA"), from an opinion of the State Civil Service Commission ("the Commission") reinstating the employment of Carlisa P. Houston with the AHA. For the reasons that follow, we affirm the decision of the Commission.
FACTUAL AND PROCEDURAL BACKGROUND
Houston was employed and serving, with permanent status, as a Public Housing Manager I for the AHA. As such, Houston was charged with managing the East and West Sycamore and Legacy Heights housing developments in Alexandria, Louisiana. Houston's job duties included: enforcing all of the property's lease requirements; managing the property as an asset and ensuring that it was properly cared for and well maintained; managing her staff; assessing units as they became vacant; scheduling necessary labor and materials to correct any deficiencies in a particular unit; and requesting that a quality control inspection ("QC inspection") be conducted once she determined that the unit was prepared for occupancy.
At the time of her dismissal, Houston, was a twenty-six-year employee and had been serving as a manager for twenty-three of those years.
According to Bobby R. Collins, the Executive Director of the AHA, a QC inspection is a "final" inspection for the purpose of ensuring that the manager has made the unit ready for occupancy.
On March 11, 2014, Houston requested that her supervisor, Stephan Fontenot, conduct a QC inspection at the 2260-B East Sycamore unit. Fontenot conducted the inspection, but found several deficiencies during his inspection, noting that a buffing machine, paint supplies, and a television had been left in the unit and that there was a hole in the bedroom wall. As a result of these findings, Fontenot issued Houston a letter of warning, citing her with a violation for "substandard work."
On March 14, 2014, Houston received a second letter of warning from Fontenot, again citing her for "substandard work" for prematurely requesting that he perform a follow-up QC inspection of the same 2260-B East Sycamore unit as well as a QC inspection of the unit at 2809-1A Loblolly Lane. As to the 2260-B East Sycamore unit, Fontenot again noted that there were deficiencies in the unit, which included door hardware that had been left on the kitchen counter and window sill. As to the 2809-1A Loblolly Lane unit, Fontenot noted that the deficiencies included an inoperable smoke detector, a vent screen found in a closet, and a used rug left in the closet.
Thereafter, by letter dated March 19, 2014, Houston was advised that she was being placed on a "Supervisory Plan" by the Executive Director of the AHA, Bobby R. Collins (the "appointing authority"), with three objectives set forth to assist her. Houston was further advised therein that the supervisory plan was not a disciplinary action, but that failure to comply with the plan would result in disciplinary action.
The three objectives set forth in the Supervisory Plan were as follows:
1. In management of your respective developments, you will comply with all lease requirements and properly enforce all provisions of the lease.
2. You are to comply with any and all workplace protocols, directives and procedures that are not illegal, unethical and immoral.
3. You are to use responsible judgment in managing your properties and supervising your staff absent any written procedure or protocol, you shall address all issues within the best interest of the properties. If there is a problem and you are unsure how to address it, you shall immediately request the assistance of your supervisor.
Houston responded to the supervisory plan addressing, in turn, each of the three objectives. With reference to the first objective, Houston responded, "I need clarity. If the plan is to help me understand and help me improve in the area of work performance, then please provide me with specifics in writing. I need to understand which part of the lease requirements I have failed to comply with and which part I have improperly enforced." In regard to the second supervisory objective, Houston responded, "I need specifics. Exactly which procedures and with which protocols have I failed to comply?" Houston provided a similar response to the third objective, stating, "[A]gain, I need clarity. Please specify in writing in which area I have failed to use good judgment in managing properties and or supervising staff."
In response, Collins informed her and advised that the supervisory plan was based on a culmination of prior corrective actions and issues noted by her supervisor; that all of these issues had been brought to her attention either verbally or through written communication; that the supervisory plan was not meant to serve as a listing of prior performance issues; that Houston could refer to prior corrective actions for specific examples; and that the items listed in her plan were things that were expected of all housing managers.
On May 1, 2014, Collins issued Houston a pre-deprivation (Loudennill) letter proposing a disciplinary action of dismissal for insubordination, stating therein that Houston had committed additional violations on April 10, 2014, April 16, 2014, and April 25, 2014. He detailed the violations, as follows: (1) on April 10, 2014, Houston contacted Supervisor Shondriaka Cheatam to complete a QC inspection of the unit at 2713-ID Loblolly Lane, during which Cheatam noted three serious issues: (a) the front-loading washing machine was left full of water; (b) one of the bedrooms had no electricity; and (c) the fire extinguisher was expired; (2) on April 16, 2014, Houston had requested that Fontenot perform a QC inspection of the unit at 2206-B East Sycamore Drive and the unit at 2249-A West Sycamore Drive, during which Fontenot found deficiencies at both units, including an inoperable smoke detector that was painted over and fire extinguishers that were expired in both units; and (3) on April 25, 2014, Houston had requested that Fontenot complete a follow-up inspection at the 2206-B East Sycamore unit, during which inspection Fontenot noted that the smoke detector had not been replaced, and that after re-testing it, it again failed to respond. Only after multiple attempts did the smoke detector respond, and Houston was asked to replace the smoke detector before requesting additional inspection of the unit.
See Cleveland Board of Education v. Loudennill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985).
The letter also alleged that on March 25, 2014, despite the supervisory plan objective that Houston was to use responsible judgment in supervising her staff absent written procedure or protocol, she failed to properly supervise and monitor her staff, in that one of her subordinates, Mrs. Phillips, failed to delete or move scheduled items in their Outlook calendar from previous dates and Houston took no corrective action to correct this behavior. However, this charge was ultimately found to be meritless and is not at issue in this appeal.
Citing these additional violations, and noting that the core mission of the agency was to provide decent, safe, and sanitary conditions to its residents, Collins concluded that in each of these incidences, Houston had failed to deliver on that mission. Collins further noted that Houston had received corrective actions prior to the supervisory plan for substandard work on March 11 and 14, 2014, for not thoroughly inspecting a unit prior to requesting a QC inspection, and that her repeated failure to conduct thorough inspections before requesting a QC inspection demonstrated her failure to follow directives, which was considered subordination.
Houston responded to the Loudermill letter explaining that the electricity was working at the 2713-ID Loblolly Lane unit when she performed her inspection before requesting the QC inspection and that she had previously spoken to Collins about the broken washing machine in this unit and in other units and had sent Supervisor Graham an email requesting that the washing machine in that unit be replaced, all to no avail. Regarding the depleted or expired fire extinguishers, Houston stated that "as soon as the problem was identified" she immediately scheduled an inspection for all fire extinguishers at Sycamore Place and Legacy Heights, but it was later determined that all of the fire extinguishers in all nine developments had expired. With reference to the smoke detector at the 2206-B East Sycamore unit, Houston stated that she had personally inspected the smoke detector prior to requesting an inspection of the unit and it had worked perfectly on her first attempt.
On May 21, 2014, the appointing authority issued a disciplinary letter to Houston dismissing her from her position effective that day for improperly performing her job duties. Houston appealed her dismissal to the Commission, who appointed a referee to hear the case. After a public hearing on November 14, 2014, the referee rendered a decision in favor of the appointing authority, finding that the AHA proved that Houston had improperly requested premature QC inspections on three occasions to the detriment of the state service, thereby establishing cause for discipline against Houston. The referee further agreed that the penalty imposed, i.e., dismissal, was commensurate with the offense. Thus, the referee denied the reinstatement and relief sought by Houston on appeal.
Houston then filed a request that the Commission review the referee's decision. In accordance with Louisiana Civil Service Rules, Rule 13:36, the Commission listened to the recordings of the public hearing conducted by the referee and held an evidentiary hearing on May 6, 2015, to take additional testimony limited to "the operation of the smoke detectors and fire extinguishers during the inspections of April 16, 2014 and April 25, 2014." Following the hearing, on June 9, 2015, the Commission rendered its opinion, granting Houston's application for review and reversing the decision of the referee, and ordering that Houston be reinstated to her position, retroactive to the date of her dismissal. The Commission further ordered that all documents referring to her dismissal be removed from her personnel file and that the AHA pay Houston back wages, subject to an offset in favor of the AHA for all wages earned and unemployment compensation received, with legal interest on the difference. Concluding that the action of the appointing authority was unreasonable, the Commission further ordered that the AHA pay Houston $1,500.00 in attorney fees.
The AHA then filed the instant appeal contending that the Commission erred: (1) in reversing the decision of the referee, who concluded that the AHA had proven cause for discipline against Houston, while making no specific finding that the referee was clearly wrong or manifestly erroneous; (2) in reversing the decision of the referee, who found that the AHA had proven that the discipline imposed was commensurate with the stated infraction, while making no specific finding that the referee's decision was arbitrary, capricious, or an abuse of discretion; (3) in finding that the testimony of Collins was uncorroborated "hearsay testimony," when letters of warning with attached photographs, a supervisory plan letter, a pre-Loudermill letter, and a termination letter were all admitted into evidence without objection from opposing counsel for the purpose of supporting the testimony of Collins; (4) in finding that the testimony of Collins was uncorroborated "hearsay testimony," when Houston was present at the hearing, and testified to the pictures attached to the letters of warning, and repeatedly admitted to the infractions cited by Collins in his testimony, thus negating the need for corroborating evidence; (5) in accepting the testimony of Houston that the fire extinguishers in question were in the "green" zone and thus operable, when such testimony was contrary to that previously given by Houston at the hearing before the referee, where she testified that she did not dispute that the fire extinguishers were expired and that she could not recall whether the fire extinguishers were actually charged; (6) in failing to consider the entire record from the hearing before the Civil Service Referee, including all testimony and exhibits admitted into evidence; and (7) in awarding attorney fees in light of the entire record, which clearly shows that the decision of the AHA was reasonable under the circumstances.
DISCUSSION
Louisiana Constitution Article 10, Section 12(A) provides that the State Civil Service Commission shall have the exclusive power and authority to hear and decide all removal and disciplinary cases. It may appoint a referee, with subpoena power and power to administer oaths, to take testimony, hear, and decide removal and disciplinary cases. La. Const. art. X, § 12(A). However, the decision of a referee is subject to review by the Commission on any question of law or fact. 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. La. Const. art. X, § 12(A).
In civil service disciplinary cases, decisions of the Commission are subject to the same standard of review as a decision of a district court. Harrell v. Department of Health and Hospitals, Office for Citizens with Developmental Disabilities, Pinecrest Supports and Services Center, 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, reconsideration denied, 2010-2310 (La. 2/25/11), 58 So. 3d 454. Factual findings of the Commission are subject to the clearly wrong or manifest error standard of review. Bannister v. Department of Streets, 95-0404 (La. 1/16/96), 666 So. 2d 641, 647. Moreover, it is the province of the Commission to determine the weight to be given to evidence in an administrative hearing. Evans v. DeRidder Municipal Fire, 2001-2466 (La. 4/3/02), 815 So. 2d 61, 69, cert. denied, 537 U.S. 1108, 123 S.Ct. 884, 154 L.Ed 2d 779 (2003). As to the determination of whether the disciplinary action is based on legal cause and commensurate with the offense, the Commission's ultimate decision should not be modified unless it is arbitrary, capricious, or characterized by abuse of discretion. Harrell v. Department of Health and Hospitals, Office for Citizens with Developmental Disabilities, Pinecrest Supports and Services Center, 48 So. 3d at 301. An administrative agency's conclusion is "capricious" when it has no substantial evidence to support it; it is "arbitrary" when the evidence has been disregarded or not given the proper weight. Marsellus v. Department of Public Safety and Corrections, 2004-0860 (La. App. 1st Cir. 9/23/05), 923 So. 2d 656, 661.
Employees serving with permanent status in the classified civil service may be disciplined only for cause expressed in writing. La. Const. art. X, § 8(A). "Cause" for the dismissal of such a person includes conduct prejudicial to the public service involved or detrimental to its efficient operation. Lange v. Orleans Levee District, 2010-0140 (La. 11/30/10), 56 So. 3d 925, 934. Stated differently, disciplinary action against a civil service employee 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. Bannister v. Department of Streets, 666 So. 2d at 647. Thus, the burden is upon the appointing authority to prove by a preponderance of the evidence that the employee's conduct did, in fact, impair the efficient and orderly operation of the public service. Harrell v. Department of Health and Hospitals, Office for Citizens with Developmental Disabilities, Pinecrest Supports and Services Center, 48 So. 3d at 301.
Assignments of Error Numbers Three and Four
For ease of discussion, the assignments of error are not addressed in the numerical order assigned by the AHA.
In these assignments of error, the AHA contends that the Commission erred in rejecting Collins' testimony as uncorroborated hearsay testimony, and in accordingly failing to find that the charge had been proven as to the inspection at 2713-ID Loblolly Lane, where the letters of warning with attached photographs, a Supervisory Plan letter, a pre-Loudermill letter, and a termination letter were all admitted into evidence without objection for the purpose of supporting the testimony of Collins, and where Houston was present at the hearing, testified regarding the photographs attached to the letters of warning and "repeatedly admitted" to the infractions cited by Collins in his testimony. According to the AHA, under these circumstances, there was no need for any additional corroborating evidence. Thus, the AHA contends the Commission erred in failing to find that this charge was shown to establish cause for discipline, because the Commission erroneously rejected this testimony outright as inadmissible hearsay. We find no merit to this contention.
With reference to the April 10, 2014 QC inspection at 2713-ID Loblolly Lane, the record reflects that the Commission did state that the only evidence in the record supporting the referee's conclusion that there were unresolved problems with the unit when Houston requested the inspection was the "hearsay testimony" of Collins.
Hearsay evidence, if competent and relevant, is admissible in administrative hearing. LSA-R.S. 23:1317; Harrell v. Department of Health and Hospitals, Office for Citizens with Developmental Disabilities, Pinecrest Supports and Services Center, 48 So. 3d at 305 (The general rule in administrative hearings is to allow hearsay evidence and to recognize that the inability to cross-examine the declarant affects the weight that the evidence carries. Harrell v. Department of Health and Hospitals, Office for Citizens with Developmental Disabilities, Pinecrest Supports and Services Center, 48 So. 3d at 305.)
Moreover, the Commission clearly recognized that hearsay is admissible in its proceedings, specifically noting as follows, in its "Conclusions of Law":
[E]ven though the rules prohibiting the admission of hearsay are relaxed in administrative hearings, any hearsay evidence that is admitted must be corroborated by competent evidence in order to form the basis of a finding of fact. Superior Bar & Grill, Inc. v. State of Louisiana, through the Department of Public Safety and Corrections, 94-1879 (La. App. 1 Cir. 5/5/95), 655 So. 2d 468; Driscoll v. Stucker, 2004-0589 (La. 1/19/2005), 893 So. 2d 32. We
find that Mr. Collins' hearsay testimony was not corroborated by any competent evidence, such as the testimony of the AHA employee who actually conducted the investigation. Therefore, the referee erred in concluding that AHA proved cause for discipline against appellant with this charge. [Emphasis added.]
As shown in the record, and as the Commission was obviously aware, Collins served as the Executive Director and appointing authority of the AHA, and his job duties specifically included overseeing the performance of housing authority employees. In that capacity, Collins prepared and sent Houston both the March 11, 2014 and March 14, 2014 letters of warning; prepared and issued the supervisory plan to Houston to help her improve her allegedly substandard work performance; responded in writing to Houston's response to the supervisory plan; and prepared and sent to her the Loudermill letter, setting forth in detail the instances in which she purportedly failed to conduct thorough inspections before requesting a QC inspection, which actions and conduct were deemed by the appointing authority as demonstrating her insubordination in failing to follow directives. Collins also issued Houston's discipline letter, again detailing therein the instances in which he concluded she had wrongfully failed to conduct sufficiently thorough inspections before properly requesting a QC inspection. As the AHA notes, all of this evidence was admitted in these proceedings. However, as the record demonstrates, Houston provided explanations for her conduct, which the Commission apparently accepted in rejecting the appointing authority's claim that her conduct constituted cause for discipline warranting termination.
Even if we were to find that the Commission erred in rejecting Collins' characterization of the facts giving rise to the disciplinary action herein, or otherwise failed to accept his testimony, we again note that the Commission received and heard Houston's testimony and her explanation as to her conduct and the circumstances giving rise to these charges. Clearly, the Commission did not view the facts of this case in the same light as the appointing authority. As the trier of fact, the Commission was free to accept, in whole or in part, the testimony of any witness, including hearsay testimony rejected as baseless, unsupported, or incompetent. Thus, even if we were to find error by the Commission in its treatment of Collins' testimony, we find the decision is amply supported by the record and was not manifestly erroneous.
Moreover, given our resolution of the remaining assignments of error, we would be constrained to find any such error to be harmless. Thus, we reject as meritless these assignments of error.
Assignments of Error Numbers One, Two, Five, and Six
In these assignments of error, the AHA contends that the Commission erred in failing to consider the entire record, including all testimony and exhibits admitted into evidence from the November 14, 2014 public hearing before the referee, and in making several factual findings regarding smoke detectors and fire extinguishers when there was no testimony or other evidence in the record that would support such finding. The AHA further argues that the Commission erred in finding that it had not proven cause for discipline against Houston, particularly where there was no specific finding by the Commission that the referee was clearly wrong or manifestly erroneous. The AHA further argues that the Commission erred in finding that the AHA had not proven that the discipline was commensurate with the stated infraction, where the Commission made no specific finding that the referee's decision was arbitrary, capricious, or an abuse of discretion.
In the instant case, after listening to the recording of the November 14, 2014 public hearing conducted before the referee and taking additional testimony from Fontenot and Houston at the May 6, 2015 hearing, which was limited to the operation of the smoke detectors and fire extinguishers during the April 16, 2014 and April 25, 2014 inspections, the Commission reversed the referee's findings with regard to the charges that Houston made premature requests for QC inspections on April 10, 2014, April 16, 2014, and April 25, 2014, on the basis that the AHA failed to prove that there was cause for discipline against Houston on these charges.
In reviewing the Commission's decision, we are mindful that the Commission has the exclusive power and authority to hear and decide all removal and disciplinary cases. La. Const. art. X, § 12(A). The Commission may appoint a referee and, if appointed, the decision of a referee is subject to review by the Commission on any question of law or fact. La. Const. art. X, § 12(A). On review of a referee's decision, the Commission may hold new hearings or take additional evidence or both and render its decision thereon and listen to pertinent portions of the sound recordings of the proceedings conducted before the referee or read the transcript of the proceedings before the referee, and thereafter, reverse or modify the referee's decision on an issue of fact or law. See Louisiana State Civil Service Rules, Rule 13.36(e).
At the outset, we reject the AHA's contention that the Commission erred in failing to consider the entire record, including all testimony and exhibits admitted into evidence from the November 14, 2014 public hearing before the referee. Indeed, the opinion of the Commission specifically states, "In accordance with Civil Service Rule 13.36, we listened to the recordings of the public hearing conducted by the referee and held an evidentiary hearing on May 6, 2015, limited to issues related to operation of the smoke detectors and fire extinguishers during the inspections of April 16, 2014 and April 25, 2014." Thus, we find that the Commission did, in fact, consider the entire record of these proceedings. Moreover, the AHA has cited no authority to support the conclusion that the Commission was actually obligated to do so or to otherwise give particular deference to the findings of the referee.
In Wheeler v. Department of Public Safety and Corrections, Washington Correctional Institute, 544 So. 2d 66, 67 (La. App. 1st Cir. 1989), this court was presented with the issue of what standard of review is applicable to the Civil Service Commission when it reviews a decision of a referee, and stated as follows:
La. Const. art. 10, § 12(A) grants to the State Civil Service Commission the "exclusive power and authority to hear and decide all removal and disciplinary cases...." As an aid in the performance of its constitutional "power and authority," the Commission is authorized to appoint "a referee, with subpoena power and power to administer oaths, to take testimony, hear, and decide removal and disciplinary cases." The constitution further provides that the decision of the referee is subject to review by the Commission on any question of law or fact.
The constitution does not provide for a standard of review for the Commission when reviewing decisions of a referee. Appellant suggests in argument that we impose a standard of review on the Commission. However, inasmuch as the State Civil Service Commission is created by the constitution and has the authority to adopt rules which have the effect of law, La. Const. art. 10, § 10 (A)(4), we conclude that the Commission is the proper party to determine if a standard of review should be applicable.
Moreover, to the extent that the AHA contends that the decision must be set aside because the Commission failed to discuss the QC inspections of March 11, 2014 and March 14, 2014 in its opinion, we note that generally, when a judgment is silent as to a claim, demand, or issue before the court, the relief is deemed to have been rejected or denied. See Barham & Arceneaux v. Kozak, 2002-2325 (La. App. 1st Cir. 3/12/04), 874 So. 2d 228, 241, writ denied, 2004-0930 (La. 6/4/04), 876 So. 2d 87.
As to the AHA's contention that the Commission erred in finding that it had not proven cause for discipline against Houston, particularly where there was no specific finding by the Commission that the referee was "clearly wrong or manifestly erroneous," we note that La. Const. art. X, § 12(A) provides that "the decision of a referee is subject to review by the Commission." We are aware of no authority that requires the Commission to review the finding of its appointed referee under the manifest error standard or otherwise give deference to the referee's findings. Instead, La. Const. art. X, § 12(A) provides that on review of a referee's decision, the Commission may hold new hearings or take additional evidence, or both, and render its decision thereon. After doing exactly that, the Commission rendered its own findings herein.
With regard to the April 16, 2014 request for a QC inspection at 2206-B East Sycamore, the Commission noted that Houston testified that she had checked the smoke detector in the unit prior to requesting the QC inspection, and that it was operational at that time, in that the alarm sounded when she pressed the button. The Commission noted that Fontenot testified that when he tested the smoke detector that day, it was inoperable. The Commission further found that when the re-inspection of that unit occurred on April 25, 2014, Fontenot had to press the button on the unit three times before it sounded, which he characterized as a failure of the smoke detector. The Commission concluded from the testimony at the hearing that in order to determine if a smoke detector is working properly, a stick would be used to press the button, and that a "failure to press the button in exactly the right location could result in the failure of the alarm to sound." The Commission then concluded that there was no cause for discipline established as to this charge. On review, we are unable to find manifest error in these determinations and conclusions by the Commission.
Finally, as to the charge that on April 16, 2014, Houston again prematurely requested QC inspections at 2249-A West Sycamore and 2206-B East Sycamore, because Fontenot found during the inspections that the fire extinguisher inspection tags had expired (for which the appointing authority apparently blamed Houston), the Commission noted that the testimony adduced at the hearing indicated that the AHA (and, therefore, not Houston) made the decision to have the fire extinguishers inspected by an outside third party only once a year. The Commissioner further noted that when Houston inspected the fire extinguishers on April 16, 2014, she had functionally inspected them by examining their pressure gauges, which showed both extinguishers were in the "green" zone and were thus operable. The Commission then concluded that although the fire extinguisher tags were expired on both units when Fontenot conducted the QC inspections, this operational deficiency was the result of the agency's decision to have all of the fire extinguishers inspected once a year. The Commission thereby found that the AHA failed to prove cause as to that charge, a finding with which we agree, considering the record in its entirety.
It is within the province of the Commission to determine the weight to be given Houston's testimony in the administrative hearing. See Marsellus v. Department of Public Safety and Corrections, 923 So. 2d at 661. Moreover, under principles which govern our review of the Commission's decision, where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on review. When there are two permissible views of evidence, the fact finder's choice cannot be manifestly erroneous. Rosell v. ESCO, 549 So. 2d 840, 844 (La. 1989). Herein, the Commission clearly found Houston's explanations credible and made the decision to credit her testimony over Collins' testimony. Under the precepts set forth above, we find no error in the Commission's findings.
With reference to the AHA's contention that the Commission erred in finding that the AHA had not proven that the discipline was commensurate with the stated infraction, we note that the Commission has a duty to decide whether the appointing authority had good or lawful cause for taking disciplinary action and, if so, whether the punishment imposed was commensurate with the infraction. SeeBergeron v. Housing Authority of Morgan City, 2007-1605 (La. App. 1st Cir. 8/8/08), 993 So. 2d 685, 687.
In reviewing the Commission's exercise of its discretion in determining whether a disciplinary action is based on legal cause and the punishment is commensurate with the infraction, this court should not modify the Commission's order unless it is arbitrary, capricious, or characterized by an abuse of discretion. See Harrell v. Department of Health and Hospitals, Office for Citizens with Developmental Disabilities, Pinecrest Supports and Services Center, 48 So. 3d at 301. By constitutional mandate, the Commission 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. Harris v. Louisiana State University Behavioral Health Sciences, 2012-0033 (La. App. 1st Cir. 8/6/13) (unpublished opinion), citing City of Bossier City v. Vernon, 2012-0078 (La. 10/16/12), 100 So. 3d 301, 309-311. See also LSA-Const. art. X, §§ 8(A) and 12(A). 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 v. Vernon, 100 So. 3d at 311-312. From our review of the record, we are unable to find that the Commission's factual findings are clearly wrong or manifestly erroneous. Further, on the record before us, we do not find the Commission's order reinstating Houston to her employment, retroactive to the date of termination, to be arbitrary and capricious; nor can it be fairly characterized as an abuse of discretion.
Thus, we likewise find no merit to these assignments of error.
Assignment of Error Number Seven
In its final assignment of error, the AHA contends that the Commission erred in awarding Houston $1,500.00 in attorney fees. Because we find no error with the decision of the Commission, we affirm the award of attorney fees herein.
The AHA does not assign error to the specific amount awarded; instead, through this assignment of error, the AHA challenges the Commission's determination that attorney fees were warranted herein.
CONCLUSION
For the above and foregoing reasons, the June 9, 2015 opinion of the State Civil Service Commission is hereby affirmed. Costs of this appeal in the amount of $1,063.50 are assessed to the appellant, the Alexandria Housing Authority.
AFFIRMED.
After reviewing the Civil Service Rules and finding that the Commission has not yet promulgated a rule with regard to the Commission's standard of review when reviewing the decision of a referee, we agree with the Wheeler court that we are not the proper party to determine whether a standard of review should be applicable when the Civil Service Commission reviews a decision of a referee. See Burst v. Board of Commissioners, Port of New Orleans, 93-2069 (La. App. 1st Cir. 10/7/94), 646 So. 2d 955, 957-958, writ not considered, 95-0265 (La. 3/24/95), 651 So. 2d 284. See also Louisiana State Civil Service Rules, Rule 13.36(f).