Opinion
2022 CA 0198
12-22-2022
MANDY TUMLIN v. LOUISIANA DEPARTMENT OF WILDLIFE & FISHERIES
J. Arthur Smith, III Baton Rouge, Louisiana Attorney for Plaintiff -Appellant Mandy Tumlin David W. Boggs Christopher S. Bates Baton Rouge, Louisiana Attorneys for Defendant -Appellee Louisiana Department of Wildlife & Fisheries
NOT DESIGNATED FOR PUBLICATION
ON APPEAL FROM THE STATE CIVIL SERVICE COMMISSION EAST BATON ROUGE PARISH, LOUISIANA DOCKET NUMBER S- 18625 HONORABLE MARTHA K. MANSFIELD, CHIEF REFEREE PRESIDING
J. Arthur Smith, III Baton Rouge, Louisiana Attorney for Plaintiff -Appellant Mandy Tumlin
David W. Boggs Christopher S. Bates Baton Rouge, Louisiana Attorneys for Defendant -Appellee Louisiana Department of Wildlife & Fisheries
BEFORE: MCDONALD, McCLENDON, and HOLDRIDGE, JJ.
MCDONALD, J.
This is an appeal from a decision of the Louisiana Civil Service Commission (CSC) upholding the Louisiana Department of Wildlife and Fisheries' (LDWF) disciplinary action to terminate Mandy Tumlin, an employee serving with permanent status. After review, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Since approximately 2010, LDWF had responded to sea turtle and marine mammal strandings on behalf of the National Oceanic and Atmospheric Administration (NOAA). Ms. Tumlin was employed as a biologist by LDWF. Since approximately 2016, Ms. Tumlin had served as the statewide coordinator for LDWF Turtle and Marine Mammal Stranding Programs. Among her duties, Ms. Tumlin was responsible for administering LDWF response for stranded sea turtles and marine mammals and ensuring the timely completion of a report for each stranding response.
In May 2019, LDWF decided to end its relationship with NOAA relative to the turtle and marine mammal stranding programs. As part of the transition, NOAA notified LDWF Program Manager Nicole Lorenz that a large amount of outstanding stranding report data had not been entered into NOAA's database. Ms. Lorenz gave Ms. Tumlin multiple deadlines to complete the outstanding data entry. Ms. Tumlin admits that she did not timely complete the data entry.
In early December 2019, Ms. Lorenz sent Ms. Tumlin notice of proposed disciplinary action. Ms. Tumlin responded to the notice, providing explanations for the delayed data entry. Thereafter, by letter dated December 17, 2019, LDWF notified Ms. Tumlin that she was being dismissed for her failure to perform assigned duties and for insubordination.
Ms. Tumlin appealed her termination to the CSC. A CSC Referee conducted a three-day hearing on the appeal at which the parties introduced documentary evidence and several witnesses testified. On September 21, 2021, the CSC Referee rendered a decision denying Ms. Tumlin's appeal and concluding that, “[g]iven the pervasive pattern of failing to perform her duties and insubordination, Ms. Tumlin's actions constitute[] legal cause for discipline, and dismissal is commensurate with the offenses." The CSC Referee's decision thereafter became the final CSC decision. See La. Const, art. 10, §12(A).
Ms. Tumlin appealed the CSC decision claiming the Referee committed legal and/or factual error by finding: (1) there was legal cause for her termination, (2) her actions impaired LDWF's operations, (3) her testimony was not credible, (4) LDWF proved the allegations in the termination letter, and by (5) refusing to issue subpoenas she requested. Although we do not address each assignment of error individually, this opinion disposes of all issues raised by the assignments of error. See Clattenberg v. Our Lady of the Lake Hospital, Inc., 15-1470 (La.App. 1 Cir. 4/15/16), 2016 WL 1534874, *2.
DISCUSSION
An employee with permanent status in the classified civil service may be disciplined only for cause expressed in writing. La. Const, art. 10, §8(A). Cause for dismissal includes conduct prejudicial to the public service involved or detrimental to its efficient operation. Paulin v. Department of Health and Hospitals, Office of Behavioral Health, 13-1916 (La.App. 1 Cir. 6/6/14), 146 So.3d 264, 267. The appointing authority bears the burden of proving such conduct by a preponderance of the evidence. Id. at 268.
On appeal, the CSC's final decision is subject to appellate review of any question of fact or law. La. Const, art. 10, §12(A). An appellate court applies a manifest error standard of review to the CSC's factual findings and an "error of law" standard to CSC decisions as to jurisdiction, procedure, and interpretations of laws and regulations. James v. LSU Health Sciences Center Medical Center of Louisiana of New Orleans, 01-1853 (La.App. 1 Cir. 11/8/02), 834 So.2d 470, 472, writ denied, 03-0214 (La. 4/21/03), 841 So.2d 792. Further, in evaluating the CSC's determination as to whether the disciplinary action is based on legal cause and commensurate with the committed offense, the appellate court should not modify the CSC's decision unless that decision is arbitrary, capricious, or characterized by an abuse of discretion. Paulin, 146 So.3d at 268.
First, we find no error of law in the CSC Referee's denial of Ms. Tumlin's subpoena requests. In her request, Ms. Tumlin described the documents and expected testimony of over 30 witnesses she sought to subpoena. After reviewing the requests and the reasons therefor, the CSC Referee granted some and denied others. On review, the CSC affirmed the CSC Referee's decision. After our own review of the requests, specifically in the context of the LDWF's allegations against Ms. Tumlin, we find no error. Under Louisiana Civil Service Rules 13.19Q) and 13.21(e), the CSC and its referees have the authority to limit corroborative evidence and to deny evidence that is not relevant. The CSC Referee presumably determined that the requested documents as well as the testimony of many of the denied witnesses was either cumulative or irrelevant. We find no error in this procedural decision.
Louisiana Civil Service Rule 13.19(j) provides, "The Commission or referee may limit corroborative evidence." Louisiana Civil Service Rule 13.21(e) provides, "No subpoena shall be issued unless the request therefor complies with this Rule and the person authorized to issue the subpoena is satisfied that the testimony of the witness or the production of the books, paper, or other items is relevant to the issues before the Commission."
Further, we conclude that the CSC Referee's decision is not arbitrary, capricious, or characterized by an abuse of discretion and her factual findings are amply supported by the record. In her decision, the CSC Referee set forth detailed factual findings and determined that LDWF carried its burden of proving that Ms. Tumlin's conduct constituted cause for her termination. In reaching her determination, the CSC Referee found as follows:
Lack of Diligence in Performing Job Duties
Ms. Tumlin was the statewide coordinator for both the marine mammal and the sea turtle stranding programs. As such, it was her responsibility to ensure timely entry of data regarding strandings. This was true regardless of whether she personally responded to the stranding or a fellow employee did so. At various times when queried, she responded that she had eight (8) months to complete data entry, that fellow employees had not sent their raw data to her, that NOAA's database was down, or too slow, and ultimately, that she was too busy to complete the data entries.
Notably, she did not inform her chain of command that she was having trouble entering the information until she was given specific directives and deadlines to complete all data entries. In fact, her supervisors had no idea until NOAA brought it up in a meeting that the data had not been entered. I note also that she had been disciplined and reprimanded in the past for failing to complete tasks. Thus, it is unlikely that she did not know she had to complete these tasks, and to do so within the timeframes given.
Ms. Tumlin testified quite strongly that she should not have had to perform data entry, pointing out that the task was not in her job description. I am not persuaded ....
Regardless of whether she believed the task was beneath her, or difficult and time consuming, Ms. Tumlin knew or should have known that her supervisors expected the tasks to be completed at minimum by September 19, 2019. She failed to meet this deadline. After the fact, her supervisor set a new deadline for completion. Ms. Tumlin argues that this means she
did not fail to meet the deadline, because setting a second one obviated the first. I disagree.
The facts establish an intentional pattern of non-compliance with NOAA's deadlines as well as those imposed by her chain of command. After hours of testimony from Ms. Tumlin, and both Mr. Barham and Capt. Ricks, I am convinced that Ms. Tumlin was indeed passionate about protecting wildlife; however, her devotion to duty went only so far as those parts of her job she found exciting or that offered her the admiration of people outside the agency. She ignored the ministerial and less satisfying parts of her position, despite being given ample opportunities to comply with her supervisor's directives.
Further, I do not find that this action was the product of animosity toward her by her supervisor[,] Ms. Bass, nor did anyone try to force her out of her job. It was clear during her testimony that Ms. Tumlin believed the action was taken for personal reasons, but the facts do not substantiate her belief.
Thus, I find the agency has proved this charge. Impairment was proved by the fact that due to her inaction, valuable data was not provided to NOAA regarding strandings and ultimately information about the overall health of the mammal and sea turtle populations along the Louisiana coast was not made available on a timely basis.
Insubordination
It is well established that an employee must follow an order unless it calls upon [her] to do something "illegal, immoral, unethical, or in dereliction of [her] duties." Department of Corrections, Louisiana State Penitentiary v. Cage, 418 So.2d 3 (La.App. 1 Cir. 1982). Failure to follow supervisory directives constitutes insubordination, which by its very nature is detrimental to the state service. Housing Authority of [City of] Morgan City v. Gibson, 598 So.2d 545 (La.App. 1 Cir. 1992).
Ms. Tumlin consistently made excuses for her actions. She said she was too busy to complete all of the required data entry, but didn't ask for help during the months, and even years, that the entries were not completed. The common thread is a failure to take responsibility for her inaction. Despite three (3) days of testimony and numerous excuses, what is clear is that she was given a directive in September 2019 to complete all data entry. She did not do so. The failure to follow a supervisory directive is insubordination. LDWF has proved this charge.
Ms. Tumlin's [T]estimony
I found Ms. Tumlin's testimony to be self-serving and lacking credibility. She testified that she was singled out and picked on. The agency established that, because she was the only statewide coordinator, she was responsible for all data entry, whether she did it herself or a fellow employee performed the task. It was natural that she was called to task for incomplete or missing entries.
* * * *
Conclusion
[I]t is the duty of the [CSC] and its Referees to independently decide from the facts presented whether the appointing authority has legal cause for taking disciplinary action and, if so, whether the punishment imposed is commensurate with the dereliction. ... Given the pervasive pattern of failing
to perform her duties and insubordination, Ms. Tumlin's actions constitute legal cause for discipline, and dismissal is commensurate with the offenses.
The record supports the CSC Referee's above factual findings. Moreover, we conclude that the CSC Referee's determination that termination was commensurate with Ms. Tumlin's infractions of insubordination and lack of diligence in performing her duties, was not arbitrary, capricious, or an abuse of discretion. Insubordination alone has been held sufficient legal cause for termination, because, by its very nature, the refusal to obey a direct order impairs the efficient operation of a public service. See Housing Authority of City of Morgan City, 598 So.2d at 550. A fortiori, in this case, Ms. Tumlin's insubordination plusher lack of diligence in duty performance was sufficient legal cause for her termination.
CONCLUSION
For the foregoing reasons, we affirm the Louisiana Civil Service Commission's September 21, 2021 decision and assess costs of the appeal to Mandy Tumlin.
AFFIRMED.
HOLDRIDGE, J., agrees in part and dissents in part.
I respectfully agree in part and dissent in part. I agree that the Louisiana Department of Wildlife and Fisheries (LDWF) had a cause to discipline Mrs. Tumlin; however, the disciplinary action imposed, termination of employment, is not commensurate with her offense. The record reveals that although Mrs. Tumlin submitted untimely data entries to her employer, she did comply with the extended deadline given to her after she failed to meet the initial deadline. As a fifteen-year employee of the LDWF, the only disciplinary actions taken against her include (October 6, 2017- reduction in pay, May 1, 2019-letter of counseling, and May 20, 2019-letter of reprimand), all of which are not similar to the reason why she was terminated from her employment.
When reviewing the disciplinary action taken against Mrs. Tumlin, it appears that it is not commensurate with her offense, i.e., untimely data entries. The record does include a rational basis for the LDWF to take disciplinary action against her; however, the record does not appear to have a rational basis for the LDWF to terminate her employment. See Honore' v. Dep't of Pub. Works, 2014-0986 (La.App. 4 Cir. 10/29/15), 178 So.3d 1120, 1131, writ denied, 2015-2161 (La. 1/25/16), 185 So.3d 749; see also Lawrence Potier v. City of Baton Rouge/Parish of East Baton Rouge, 2022-0137 (La.App. 1 Cir. 11/4/22), 2022 WL 16707827 (wherein this panel recently approved a lesser disciplinary action for a more serious offense.) While the LDWF argued that Mrs. Tumlin's actions impaired their operations, it presented no evidence to show that it was prejudiced or harmed by giving her the one extension deadline to complete the data entries. During the hearing, when asked what harm resulted from her actions, Mr. Longman, an employee of LDWF, stated "the failure to ... input data timely caused biological harm, because of the ... dataset, and also the failure to respond ... was somewhat of an embarrassment to the Agency." Thus, it appears that termination was an overly harsh penalty under the facts of this case.
Termination from permanent employment is the most extreme form of disciplinary action that can be taken against an employee. Hills v. New Orleans City Council, 98-1101 (La.App. 4 Cir. 12/09/98), 725 So.2d 55, 58. Cause that may justify some other lesser form of disciplinary action may not necessarily justify a dismissal. Dept. of Public Safety and Corrections, Office of State Police v. Mensman, 95-1950 (La. 4/8/96), 671 So.2d 319, 321. In reviewing the disciplinary action taken by the Appointing Authority, "the Commission must consider whether the punishment was commensurate with the proven infractions under the circumstances." Id., 95-1950. The nature of the offense in question is one factor to be considered by the Commission when determining whether the punishment imposed is commensurate with the offense. Other factors to be considered include the employee's work ethic, prior disciplinary records, job evaluations, and any grievances filed by the employee. See Hills, 725 So.2d at 58. In this case, no evidence was presented to justify the punishment of termination to Mrs. Tumlin.
Although the record reveals that Mrs. Tumlin failed to timely meet deadlines when inputting data entries, the facts of this case do not warrant the most extreme form of disciplinary action. Therefore, I would agree with the decision that the LDWF had grounds to discipline Mrs. Tumlin, but would reverse the Commission's decision to uphold Mrs. Tumlin's termination of employment from the LDWF.