Opinion
2015 CA 0040
09-18-2015
TERRY WRIGHT v. DEPARTMENT OF HEALTH AND HOSPITALS, EASTERN LOUISIANA MENTAL HEALTH SYSTEMS
Floyd J. Falcon, Jr. Baton Rouge, Louisiana Counsel for Plaintiff/Appellee Terry Wright Jenna Young Stephanie M. Borghardt Neal R. Elliot, Jr. Baton Rouge, Louisiana Counsel for Defendant/Appellant Department of Health & Hospitals, Eastern Louisiana Mental Health Systems Adrienne Bordelon General Counsel Department of State Civil Service Baton Rouge, Louisiana Counsel for Shannon S. Templet, Director, Department of State Civil Service
NOT DESIGNATED FOR PUBLICATION On Appeal from a Decision of the State Civil Service Commission In and for the Parish of East Baton Rouge State of Louisiana
No. S-17840
Honorable David Duplantier, Chairman; John McClure, Vice-Chairman; G. Lee Griffin, D. Scott Hughes, C. Peter Fremin, Sidney Tobias and Ronald M. Carrere, Members Shannon S. Templet, Director Department of State Civil Service Floyd J. Falcon, Jr.
Baton Rouge, Louisiana
Counsel for Plaintiff/Appellee
Terry Wright
Jenna Young
Stephanie M. Borghardt
Neal R. Elliot, Jr.
Baton Rouge, Louisiana
Counsel for Defendant/Appellant
Department of Health & Hospitals,
Eastern Louisiana Mental Health
Systems
Adrienne Bordelon
General Counsel
Department of State Civil Service
Baton Rouge, Louisiana
Counsel for Shannon S. Templet,
Director, Department of State
Civil Service
BEFORE: McDONALD, McCLENDON, AND THE RIOT, JJ. McCLENDON, J.
Terry Wright, who was employed as a corrections guard with permanent status by the Louisiana Department of Health and Hospitals ("DHH") at its Eastern Louisiana Mental Health System ("ELMHS") facility, was terminated by DHH for an incident that occurred on October 29, 2012. Mr. Wright appealed to the Louisiana Civil Service Commission, and the matter was assigned to a Referee. Following the hearing, the Referee reversed DHH's dismissal of Mr. Wright. The Commission affirmed the Referee's ruling. DHH appealed the Commission's ruling to this court. For the following reasons, we reverse the Commission's ruling and reinstate the discipline imposed by DHH.
FACTS AND PROCEDURAL HISTORY
On October 29, 2012, Mr. Wright, who had been working at ELMHS for nine years, was assigned to the Administrative Special Security Area wing of the ELMHS facility, working the 6:00 a.m. to 6:00 p.m. shift. At approximately 7:15 a.m., Mr. Wright was alone and seated on a couch in the day room when he was approached by a client, who requested to be transferred to an empty room. Client #3922 overheard this conversation and also approached Mr. Wright, asking to be transferred to the same empty room. When Mr. Wright informed the clients that he did not have the authority to make room transfers, Client #3922 became hostile and physically and verbally aggressive toward Mr. Wright.
Mr. Wright's statements regarding what happened thereafter vary, but it is undisputed that Client #3922 sustained injuries. Initially, Mr. Wright, in a written statement made shortly after the incident, indicated that Client #3922 "lunged" towards him, stumbled and hit his head on an iron table.
Later on the same day, Mr. Wright gave a statement to DHH investigator Rachel Dixon. In this statement, Mr. Wright claimed that Client #3922 backed up and fell, landing face first on the floor.
After interviewing other ELMHS personnel, Ms. Dixon completed her report on October 31, 2012. The report was then reviewed by the investigative review committee. After a review of the contents of Ms. Dixon's report and a discussion among the committee members, the committee, on December 10, 2012, confirmed that Mr. Wright physically abused Client #3922.
On March 9, 2013, during further investigation, Mr. Wright gave another statement to polygraphist Don Zuelke. In this statement, Mr. Wright stated that Client #3922 was "acting out, cursing and disturbing other clients" and came toward Mr. Wright as he was sitting on the couch. Mr. Wright indicated that he may have pushed the client away from him but stated he did not intend to hurt him. Mr. Wright could not say whether or not he caused the client's injuries.
However, no actual polygraph test was administered.
On November 18, 2013, Mr. Wright was notified that ELMHS's proposed discipline for the incident was that he be terminated. On December 2, 2013, Mr. Wright met with Hampton Lea, ELMHS's CEO, and Cindy Peters, ELMHS's Human Resources Director, to address his proposed dismissal. At the meeting, Mr. Wright's statements were somewhat consistent with the statement he had given to the polygraphist. Additionally, Mr. Wright indicated that after he told Client #3922 to calm down, Client #3922 struck him in the nose, prompting Mr. Wright's reaction. Mr. Wright also informed Mr. Lea and Ms. Peters that he did not admit that he pushed Client #3922 in his initial statements because his supervisor Vernon Douglas instructed him not to admit same. According to Mr. Wright, Mr. Douglas told him that Mr. Wright would "be in trouble" if he reported pushing the client, so Mr. Wright testified that he just did as his supervisor asked when he gave his initial statements. Mr. Douglas was not called by either party to testify at the initial hearing. After this meeting, Mr. Lea decided to formalize the proposed dismissal.
On December 9, 2013, Mr. Wright received a letter of dismissal from DHH. The letter stated that Mr. Wright violated the DHH Abuse and Neglect Policy, which defines "abuse" as "physical contact such as hitting, slapping, punching, kicking, choking, scratching, ... the use of physical force which is unnecessary or excessive" and states that violation of this policy "will be grounds for disciplinary action up to and including termination." The letter further stated that DHH's Abuse and Neglect Policy also makes it clear that "giving untruthful information during an investigation" is considered a violation of the policy and can result in termination. Mr. Wright appealed his dismissal on December 27, 2013.
A hearing on the incident and Mr. Wright's dismissal was set for February 24, 2014, before a Civil Service Commission Referee. At the hearing, Mr. Wright testified that Client #3922 struck him as he was trying to get up from the couch, so Mr. Wright took an "open hand swipe" at Client #3922. According to Mr. Wright, Client #3922 then "stumbled over the stool, hit the table, and fell to the floor."
Following the hearing, the Referee reversed DHH's dismissal of Mr. Wright. In so ruling, the Referee noted that while Mr. Wright's "out-of-court statements and his testimony at the hearing are somewhat inconsistent," DHH failed to prove that Mr. Wright "physically abused Patient #3922 or that the force used by Mr. Wright to defend himself was unnecessary or excessive." DHH appealed the Referee's decision to the Civil Service Commission. The appeal was denied, and the Commission signed a final decision confirming the Referee's ruling.
DHH now appeals to this court, alleging that the Commission erred in confirming the Referee's findings that: (1) DHH failed to prove cause for discipline; (2) Mr. Wright pushed Client #3922 with an open hand as opposed to hitting the client; (3) DHH relied on hearsay evidence; (4) the statements of Diana Armas were not supported by competent evidence.
APPLICABLE LAW
A classified employee subjected to disciplinary action shall have the right to appeal, and the burden of proof on appeal to the Commission, as to the facts, shall be on the appointing authority. See LSA-Const. art. 10, Sec. 8(A). The appointing authority's burden is to prove its case by a preponderance of the evidence. Shortess v. Dep't of Pub. Safety and Corrections, 06-1532 (La.App. 1 Cir. 5/28/08), 991 So.2d 1067, 1071. However, once that burden is met and disciplinary action is imposed, the state employee bears the burden of proving his dismissal (or other action) was arbitrary or capricious. Id.
In reviewing a Commission decision, a court of appeal owes great deference to the factual determinations of the Commission, and an appellate court will not overturn those determinations in the absence of clear or manifest error. Also, when evaluating the Commission's determination as to whether the appointing authority's disciplinary action is commensurate with the infraction, an appellate court should not modify the Commission's order unless it is arbitrary, capricious, or an abuse of discretion. Bannister v. Dep't of Streets, 95-0404 (La. 1/16/96), 666 So.2d 641, 647. "Arbitrary or capricious" means the absence of a rational basis in the record for the action taken. Id. In other words, 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. Id.
No person who has gained permanent status in the classified state or city service shall be subjected to disciplinary action except for cause expressed in writing. LSA-Const. art. 10, Sec. 8(A). "Cause" for the dismissal of such an employee includes conduct prejudicial to the public service involved or detrimental to its efficient operation. In other words, the employer must prove by a preponderance of the evidence that the employee's conduct did, in fact, impair the efficiency and operation of the public service in which the employee is engaged. Shortess, 991 So.2d at 1071.
In addition to having to show legal cause sufficient to warrant disciplinary action, the Commission also must impose disciplinary action commensurate with the infraction. Shortess, 991 So.2d at 1072-73. Dismissal from permanent employment is obviously the most extreme form of disciplinary action that can be taken against a classified state employee; thus, cause that may justify some other lesser form of disciplinary action may not justify a dismissal. Bailey v. Dep't of Pub. Safety and Corrections, 05-2474 (La.App. 1 Cir. 12/6/06), 951 So.2d 234, 240.
DISCUSSION
In its first assignment of error, DHH contends that the Referee focused solely on the issue of abuse but failed to consider Mr. Wright's failure to give truthful information during the investigation. DHH notes that its Abuse and Neglect Policy provides that "giving untruthful information during an investigation" is "grounds for disciplinary action up to and including termination." DHH avers that the Referee acknowledged that Mr. Wright's out-of-court statements, which were admitted into evidence, were inconsistent. DHH concludes that considering Mr. Wright's untruthful statements alone, physical abuse aside, as well as two prior disciplinary actions and two prior reprimands, there was cause for dismissal.
The record reflects that Mr. Wright received letters of reprimand on four prior occasions. The first two letters, dated February 5, 2007 and June 3, 2008, concerned Mr. Wright's failure to answer calls while "on call," both resulting in a reduction in pay. The third letter, dated July 14, 2009, involved an altercation between Mr. Wright and another client, but no disciplinary action was taken. The fourth letter, dated December 19, 2011, involved Mr. Wright having a personal cell phone in a direct patient care area, resulting in a reduction in pay.
On appeal, Mr. Wright does not contest that his statements during the investigation were untruthful. Rather, he contends that he was only following instructions from his supervisor. Mr. Wright avers that DHH failed to produce his supervisor as a witness at the hearing. Mr. Wright asserts that an adverse presumption should arise that if the supervisor were called, he would have admitted that he advised Mr. Wright not to mention that he pushed the client. Mr. Wright concludes that the Referee and Commission did not err in failing to uphold his termination on this basis.
Regardless of whether Mr. Wright was following his supervisor's instructions, no one disputes that Mr. Wright provided untruthful information during the course of the investigation. In his initial statements, Mr. Wright indicated that he never touched Client #3922. It was not until nearly five months later when Mr. Wright, faced with taking a polygraph exam, admitted to the polygraphist that he pushed Client #3922. While the Referee acknowledged the inconsistencies in the multiple statements given by Mr. Wright during the course of the investigation, the Referee did not address whether DHH was within its authority to terminate Mr. Wright for his failure to provide truthful information during the course of the investigation.
DHH contends that the evidence suggests that Mr. Wright used more physical force than just pushing the client with an open hand. The Referee, however, concluded that Mr. Wright struck the client with an open hand. Given our determination that assignment of error number one has merit, we do not reach this issue. --------
Given Mr. Wright's position at ELMHS and his direct involvement with the clients at the facility, truthfulness during the course of an investigation regarding how a patient sustained an injury is of utmost import. In this regard, Mr. Lea testified:
[B]asically any time we put our clients in jeopardy like that and we're in a situation where we have clients injured, then it does away with the trust our clients have in treatment[,] and our business is treatment. So, if our clients don't trust our staff and trust our clinicians to - to treat them appropriately and care for them appropriately, then our job ... is three times as hard as it normally is.Clearly, Mr. Wright's failure to provide truthful information about the incident impaired the efficient operation ELMHS.
Additionally, Mr. Lea testified that consideration must be made for the safety of the clients, and appropriate action must be taken if an employee's acts "[put] our clients at significant risk." Mr. Lea opined that while other action could be considered if it were an isolated incident, taking into account the nature of the injuries to the client, and because Mr. Wright had previously been reprimanded for abuse, his dismissal was warranted. Considering the foregoing, along with Mr. Wright's other prior disciplinary actions and reprimands, we conclude that the Referee and Commission abused their discretion in reversing DHH's decision to dismiss Mr. Wright. Because we find merit in assignment of error number one, we pretermit discussion of DHH's remaining assignments of error.
CONCLUSION
For the foregoing reasons, the September 3, 2014 Commission ruling denying DHH's application for review and affirming the Referee's ruling is hereby reversed. We reinstate DHH's decision to terminate Mr. Wright. Costs of this appeal are assessed to appellee, Terry Wright.
REVERSED.