Opinion
2015 CA 1370
06-02-2016
THELMA LAYTON v. DEPARTMENT OF PUBLIC SAFETY & CORRECTIONS - LOUISIANA STATE PENITENTIARY
Wendell C. Woods Baton Rouge, LA Attorney for Plaintiff/Appellant Thelma Layton Terri Cannon Louisiana State Penitentiary Angola, LA Attorney for Defendant/Appellee Department of Public Safety and Corrections Adrienne Bordelon Department of State Civil Service Baton Rouge, LA Attorney for Shannon S. Templet Director, Department of State Civil Service
NOT DESIGNATED FOR PUBLICATION On Appeal from the State Civil Service Commission In and for the State of Louisiana
No. S-17982 The Honorable David Duplantier, Chairman; John McLure, Vice-Chairman; G. Lee Griffin, Ronald M. Carrere, Jr., D. Scott Hughes, C. Pete Fremin and Kimberly Dellafosse; Members Shannon S. Templet, Director Department of State Civil Service Wendell C. Woods
Baton Rouge, LA Attorney for Plaintiff/Appellant
Thelma Layton Terri Cannon
Louisiana State Penitentiary
Angola, LA Attorney for Defendant/Appellee
Department of Public Safety and
Corrections Adrienne Bordelon
Department of State Civil Service
Baton Rouge, LA Attorney for Shannon S. Templet
Director, Department of State Civil
Service BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ. HOLDRIDGE, J.
Plaintiff-Appellant, Thelma Layton, appeals a State Civil Service Commission (Commission) decision upholding her dismissal from a permanent status position as a Corrections Sergeant at Louisiana State Penitentiary (LSP). For the reasons that follow, we affirm.
FACTS AND PROCEDURAL BACKGROUND
During the early morning hours of October 7, 2014, Layton was working in LSP's West Yard Kitchen and Dining Hall, which has two serving lines designated as Line 3 and Line 4. Layton was assigned to Line 3 and Sgt. Danielle Daigle was assigned to Line 4. Another officer, Sgt. Jennifer Winters, was providing assistance to both lines.
At some point, Layton left Line 3. Layton claims that she went to smoke a cigarette, not realizing that the inmates had begun to enter the serving lines. Therefore, she immediately put her cigarette out. Layton then walked by Line 4 and gave the unfinished cigarette to an inmate in Line 4 before returning to her position in Line 3.
Daigle and Winters witnessed Layton pass an object to the inmate in Line 4. It appeared to them to be a cigarette. Corrections officers are prohibited from giving anything of value to inmates. Officers who witness such incidents are required to immediately report them to their superior officer. Therefore, Daigle asked Winters to monitor Line 4 for her and went to report the matter to Lt. Bradley Arvie. As a result, Arvie performed a "shake down" of the inmate and found the unfinished cigarette in his pocket. The inmate told Arvie that Layton had given it to him. Arvie then questioned Layton, who stated that she had merely asked the inmate to hold it for her.
Shortly thereafter, Layton went to Arvie's office. Arvie was not there, but Winters and Sgt. Bernice Cavalier were. Upon entering the office, Layton began making negative comments about Daigle for reporting the incident. According to Winters, Layton referred to Daigle as a "whore."
A few minutes later, Daigle entered Arvie's office. When she did, Layton immediately began directing loud accusations at Daigle and pointing her finger in Daigle's face, telling Daigle to mind her own business. Daigle pointed back, denying Layton's claims. According to Daigle and Winters, Layton then pushed Daigle. Daigle immediately left to go report the incident to Arvie. Later, when approached by her superiors, Layton contended that it was she who had been pushed by Daigle; however, Winters, Cavalier, and Daigle all contradicted Layton's claim
In Winters' written statement, which was admitted into evidence, she reported that Layton pushed Daigle. At the hearing, Winters testified that everything in her statement was truthful and correct.
Daigle received a verbal reprimand for her role in the altercation with Layton in Arvie's office. However, by letter dated October 23, 2014, Layton was dismissed from her position effective October 30, 2014. The dismissal letter noted that Layton's actions of: giving a cigarette to an offender; calling Daigle a "whore" in front of fellow employees, Winters and Cavalier; pointing her finger in Daigle's face; accusing Daigle of telling Arvie that she was "dealing" with an offender; and pushing Daigle on her shoulder constituted aggravated malfeasance and unauthorized activities with offenders in violation of LSP Rules 13(a), 13(b), and 14(b).
The pertinent LSP Rules provide:
13. Malfeasance-Aggravated:
a. No employee shall threaten or attempt to intimidate another employee or a visitor. No employee shall assault or commit battery upon another employee or visitor.
b. Deliberate ... unsolicited words, comments, gestures or other acts that have the purpose or effect of ... creating an intimidating or offensive work environment are prohibited.
.....
14. Unauthorized Activities with Offenders:
.....
b. Bringing or knowingly permitting the introduction of any unauthorized item or message for an inmate into or out of a departmental facility or office.
On October 27, 2014, Layton appealed her dismissal. In her appeal, she denied the allegations of the dismissal letter and alleged that she was the victim of racial discrimination and disparate treatment.
A Commission referee conducted a hearing on January 21, 2015. Following the hearing, the referee issued a decision finding that LSP had proven all of its charges and that Layton had failed to prove her allegation of racial discrimination. The referee further found that LSP's discipline of Layton was for legal cause and that the penalty imposed -dismissal- was commensurate with her offenses.
Layton's act of giving the cigarette (a thing of value) constituted a violation of LSP Rule 14, "Unauthorized Activities with Offenders." While LSP's dismissal letter specifically cited section 14(b) which prohibits the introduction of unauthorized items or messages for inmates, the referee instead found this action to be a violation of section 14(f) which prohibits a correctional officer from engaging in unprofessional relationships with inmates. The record suggests that her action could constitute a violation of either or both of these rules. Regardless of whether an inmate is allowed to possess a cigarette or not, Layton testified that she was aware that the rules prohibited her from giving anything of value to an inmate. See Celestine v. Dep't of Pub. Safety & Corr., 2006-1481 (La.App. 1 Cir. 5/4/07) (unpublished) ("No rule prohibits a guard from possessing soda and cookies, but the Referee was convinced that Sgt. Celestine acquired the soda and cookies from an inmate, Mr. Pryor. This is clearly prohibited by the rules, which Sgt. Celestine testified that he knew").
Layton filed an application for review of the referee's decision, which the Commission denied, making the referee's decision the final decision of the Commission. See La. Const. art. X, § 12(A); Civil Service Rule 13.36(g). This appeal followed.
DISCUSSION
Employees with permanent status may be disciplined only for cause expressed in writing. La. Const. art. X, § 8(A). "Cause" for dismissal of such a person includes conduct prejudicial to the public service involved or detrimental to its efficient operation. Mathieu v. New Orleans Pub. Library, 2009-2746 (La. 10/19/10), 50 So.3d 1259, 1262. The appointing authority bears the burden of proving such conduct by a preponderance of the evidence, meaning that the evidence as a whole must show the fact sought to be proven as more probable than not. Cole v. Div. of Admin., 2014-0936 (La.App. 1 Cir. 1/26/15), 170 So.3d 180, 184, writ not considered, 2015-0401 (La. 5/1/15), 169 So.3d 367.
Appellate courts reviewing civil service disciplinary cases are presented with a multifaceted review function. Initially, deference should be given to the factual conclusions of the referee and the Commission. Thus, a reviewing court should apply the clearly wrong or manifest error rule prescribed generally for appellate review. Mathieu, 50 So.3d at 1262. Then, the court must evaluate the imposition of a particular disciplinary action to determine if it is both based on legal cause and is 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; "abuse of discretion" generally results from a conclusion reached capriciously or in an arbitrary manner. Mathieu, 50 So.3d at 1262-63.
Disciplinary Action
On appeal, Layton primarily contests the credibility determinations made by the referee. It is well settled that credibility determinations, including the evaluation and resolution of conflicts in testimony, are factual issues to be resolved by the trier of fact and should not be disturbed on appeal in the absence of manifest error. See Commercial Flooring & Mini Blinds, Inc. v. Edenfield, 2013-0523 (La.App. 1 Cir. 2/14/14), 138 So.3d 30, 40.
The manifest error standard demands great deference to the trier of fact's findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said. Where documents or objective evidence so contradict the witness's story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness's story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. But where such factors are not present, and a factfinder's finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844-45 (La. 1989).
After conducting a thorough review, we find that the referee's credibility determinations and consequential findings of fact are reasonable in light of the record reviewed in its entirety. The evidence supports a finding that, at least by and large, inmates at LSP smoke homemade, unfiltered cigarettes called "bugles." Commercially-produced, filtered cigarettes, called "free world" cigarettes, are items of value in prison. Layton readily admitted that she gave a partial, "free world" cigarette to an inmate. Layton further admitted that she was aware of the rule that prohibits employees from giving items of value, however small, to inmates. The testimony was consistent that Layton should not have given the cigarette to the inmate; therefore, we find no error in the referee's finding of a violation in this regard.
In Layton's brief, as well as the referee's decision, it is alleged that LSP dismissed Layton for giving contraband to an inmate. However, Layton's dismissal letter makes no mention of the term "contraband," nor would the cigarette be considered "contraband" as that term is defined in LSP Rule 2. Rather, LSP's dismissal letter only refers to the giving of an "unauthorized item" to an inmate, which according to the record, includes items of value. The record further indicates that giving something of value to an inmate could also be considered as engaging in an unprofessional relationship with the inmate, as was found by the referee.
As previously noted, LSP Rule 14 prohibits various unauthorized activities with inmates, including giving unauthorized messages or items to inmates and/or engaging in unprofessional relationships with them.
The evidence also indicates that upon witnessing Layton pass the cigarette to the inmate, Daigle was duty-bound to report the incident to her superior officer. Nevertheless, Layton was angry that she had done so. Shortly thereafter, while in Arvie's office with Winters and Cavalier, Layton spoke negatively about Daigle for reporting the incident and, according to Winters, referred to Daigle as a "whore." Although Ms. Layton admitted making certain comments about Daigle's action, she denied calling Daigle a "whore." However, the referee's decision makes clear that he credited the testimony of Winters and not that of Layton. He likewise credited Winters' testimony that, with respect to Daigle's report of the incident, Layton loudly told Daigle, "You need to mind your own business!" Based on the record as a whole, we find no manifest error in the referee's credibility determinations. Nor do we find any error in the referee's conclusion that Layton had violated LSP policy by her use of intimidating and offensive language.
The referee found that Layton had referred to Daigle as a "whore" twice; the first time, before Daigle entered the Arvie's office, and the second time, during her altercation with Daigle. However, Layton's dismissal was based solely on the former, which is all we address herein.
We note that Layton's statements about Daigle made in front of Winters and Cavalier could have also constituted a violation of LSP Rule 12(e), which provides, in part:
12. Malfeasance:
.....
e. Negative comments about other employees, their personal characteristics, and/or job performance ... should not be made in the presence of offenders, fellow or subordinate employees or visitors. [Internal reference omitted.]
In her brief, Layton asserts that the referee manifestly erred in crediting Winters' testimony. First, she points out that Cavalier did not corroborate Winters' testimony regarding the use of the word "whore." However, Cavalier was occupied heating up food in the microwave oven and further testified that she did not hear everything that was said. Second, Layton argues that Winters' testimony should not be credited because Sgt. Winters could not remember an inconsequential fact, (i.e. where she got coffee from on the morning of the incident); however, the record reflects that Winters voluntarily and candidly explained to the referee that she could only testify, with regard to that specific fact, as to what she had been told by someone else who could recall. Contrary to Layton's assertion, this voluntary explanation by Winters does not establish that the authorities at LSP had obviously instructed or fed her the testimony that they wanted her to provide.
See note 10, infra.
Likewise, with regard to the charge that Layton committed a battery upon Daigle by pushing her, we note that the referee was again presented with conflicting testimony. According to Daigle and Winters, Layton pushed Daigle. Conversely, Layton insisted that she had been pushed by Daigle; however, Layton's claim was contradicted by Daigle, Winters, and Cavalier. In his decision, the referee specifically found Layton to be lacking in credibility and expressly accepted the testimony of other witnesses. In making factual determinations, the trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. Commercial Flooring & Mini Blinds, 138 So.3d at 40. When a factfinder's finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Rosell, 549 So.2d at 845. Indeed, we find no such error in the instant matter. In sum, the record reasonably supports the referee's conclusions that Layton violated LSP policy and rules by: giving a partial "free world" cigarette (a thing of value) to an inmate; engaging in loud, aggressive, and/or offensive language; and committing a battery on a fellow employee.
With respect to these violations, we must now determine whether the disciplinary action of dismissal was based on legal cause (i.e., conduct that impaired the efficient operation of LSP) and, if so, whether it was commensurate with Layton's infractions.
On appeal, Layton only briefly asserts that her act of giving a partial cigarette to an inmate did not affect the efficient operation of LSP and thus, was insufficient to support her dismissal. Significantly, Layton does not argue that her aggressive and offensive language or her battery on Daigle did not impair the efficient operation of LSP. Rather, she merely disputes the referee's conclusion that she committed these violations. However, we have already determined that the relevant factual findings made by the referee were not clearly wrong.
Moreover, based on our review of the record, we are unable to discern any error in the referee's determination that Layton's dismissal by LSP was both based on legal cause and was commensurate with her infractions.
A penal institution is a quasi-military installation which necessarily operates under an exacting set of rules and regulations. See Jones v. Dep't of Pub. Safety & Corr., 2004-1766 (La.App. 1 Cir. 9/23/05), 923 So.2d 699, 700. Keeping order and maintaining security within the institution are fundamental to its efficient operation. These objectives can only be achieved through personnel acting in a strict and consistent manner; discipline and respect for fellow employees are essential.
Correctional officers have a difficult and dangerous responsibility. They must keep incarcerated felons from harming themselves, each other, and the officers charged with their supervision. Therefore, correctional officers must necessarily rely on each other for the accomplishment of their mission and for their own safety, as well as the safety of the public. See Morris v. Dep't of Pub. Safety & Corr., 2008-1664 (La.App. 1 Cir. 2/13/09) (unpublished). Officers must present a united front to the inmate population; otherwise, inmates could perceive any dissension and try to exploit it. When correctional officers engage in negative and offensive language about a fellow officer, or worse yet, inflict physical force or violence upon them, the united front falls apart, and the ability of correctional officers to meet their responsibilities is seriously impaired. Moreover, to maintain proper order, it is essential that guards remain strictly professional in dealing with inmates and refrain from showing preferential treatment to any particular inmate by giving them an item of value. Indeed, giving unauthorized items to an inmate also presents the obvious potential for the introduction of items that pose an even greater threat to security and order, such as narcotics or a weapon. See Celestine v. Dep't of Pub. Safety & Corr., 2006-1481 (La.App. 1 Cir. 5/4/07) (unpublished).
In the instant matter, we find that Layton's misconduct impaired the public service by placing the safety of prison personnel and inmates at an increased risk of an incident occurring on the premises. Moreover, Layton's inappropriate actions, which resulted in the violation of at least three rules, particularly when taken together, indicate a serious breach of necessary prison security measures. Therefore, we find that the sanction of dismissal imposed by LSP and upheld by the Commission was not arbitrary, capricious, or an abuse of discretion.
Also admitted into evidence at the hearing was a 2009 memorandum circulated by the warden of LSP, which provides, in pertinent part:
The use of abusive or obscene language or threats is strictly prohibited. Any loud, disruptive, or aggressive behavior (verbal or otherwise: whether contact is made or not) between ANY employees of [LSP] will be dealt with severely.
Such behavior will not be tolerated as it is detrimental to the safe and efficient operation of the institution. ANY employee who participates in such conduct will be subject to severe disciplinary action, regardless of who is determined to be the aggressor.
I intend to take severe disciplinary action—up to and including termination of employment—for ANY employee, regardless of rank, found to be in violation of such conduct. It is the responsibility of every employee to promptly report to supervisors any violation or breaches of professional conduct of staff.
Discrimination
Layton also contests the referee's determination that she failed to satisfy her burden of proof on her claim of racially disparate treatment. Louisiana Constitution article X, § 8(B) provides, in pertinent part:
No classified employee shall be discriminated against because of his political or religious beliefs, sex, or race. A classified employee so discriminated against shall have the right of appeal to the appropriate commission.... The burden of proof on appeal, as to the facts, shall be on the employee.
In her appeal, Layton, who is black, alleged that her dismissal was the result of racial discrimination; specifically she claimed that she was the victim of disparate treatment because severe disciplinary action was not also meted out to Daigle, who is white. To establish a claim of disparate treatment, plaintiff must show that LSP gave preferential treatment to employees outside the protected class under "nearly identical" circumstances. Wright v. Bennett, 2004-1944 (La.App. 1 Cir. 9/28/05), 924 So.2d 178, 193. However, Layton fails to satisfy this test as she and Daigle did not engage in nearly identical conduct resulting in disciplinary action. Layton gave the unfinished cigarette to an inmate in violation of a rule, not Daigle. And it was Layton who made disparaging comments about Daigle in front of other employees and then instigated the verbal exchange with Daigle. Most significantly, it was Layton who became physically aggressive and who committed a battery on Daigle. Accordingly, we find no error in the referee's rejection of Layton's discrimination claim of racially disparate treatment.
Pursuant to Civil Service Rule 13.11(d), a notice of appeal must allege, in detail, the specific facts supporting the charge of discrimination.
"In disparate treatment cases, the plaintiff-employee must show 'nearly identical' circumstances for employees to be considered similarly situated." Berquist v. Wash. Mut. Bank, 500 F.3d 344, 353 (5th Cir. 2007). --------
Fair Hearing
Lastly, Layton argues that she was denied a fair hearing. As an initial matter, we note Layton made no objection during the proceedings with respect to any purported deficiencies. Furthermore, our review of the record does not reflect that. Layton was denied the right to present evidence or subpoena witnesses. Clearly, Layton had the opportunity to question each testifying witness at the hearing and did so. Indeed, the crux of Layton's argument appears to be that the Department failed to subpoena some of the witnesses she needed to satisfy her burden of proof on her disparate treatment claim. This purported deficiency is imputable to Layton, not the Department. Accordingly, we find no merit in Layton's argument that she was denied a full and fair hearing.
CONCLUSION
For the reasons set forth herein, the decision of the Civil Service Commission is affirmed. All costs of this appeal are assessed to Thelma Layton.
AFFIRMED.