Opinion
2013 CA 1085
04-28-2014
CLARENCE EVANS v. INTERIM LSU PUBLIC HOSPITAL
Rowena T. Jones New Orleans, Louisiana Counsel for Plaintiff-Appellant Clarence Evans Philip Kennedy New Orleans, Louisiana Tamara D. Sirnien Baton Rouge, Louisiana Counsel for Defendant-Appellee Louisiana State University Health Sciences Center, Interim LSU Public Hospital Adrienne Bordelon Baton Rouge, Louisiana Counsel for Shannon Templet Director, Department of Slate Civil Service
NOT DESIGNATED FOR PUBLICATION
ON APPEAL FROM THE STATE CIVIL SERVICE COMMISSION
NUMBER S-17209
STATE OF LOUISIANA
SHANNON S. TEMPLET, DIRECTOR
DEPARTMENT OF STATE CIVIL SERVICE
HONORABLE DAVID DUPLANTIER, CHAIRMAN;
JOHN MCLURE, VICE-CHAIRMAN
G. LEE GRIFFIN, KENNETH POLITE,
C. PETE FREMIN, D. SCOTT HUGHES
AND SIDNEY TOBIAS
Rowena T. Jones
New Orleans, Louisiana
Counsel for Plaintiff-Appellant
Clarence Evans
Philip Kennedy
New Orleans, Louisiana
Tamara D. Sirnien
Baton Rouge, Louisiana
Counsel for Defendant-Appellee
Louisiana State University Health
Sciences Center, Interim LSU
Public Hospital
Adrienne Bordelon
Baton Rouge, Louisiana
Counsel for Shannon Templet
Director, Department of Slate
Civil Service
BEFORE: KUHN, HIGGINBOTHAM, AND THERIOT, JJ.
Disposition: AFFIRMED.
KUHN, J.,
Clarence Evans appeals the termination of his position as a Police Officer 3-A with permanent status at the Interim Louisiana State University Public Hospital (ILSUPH) in New Orleans. This Court affirms.
FACTUAL AND PROCEDURAL BACKGROUND
By letter dated July 14, 2011, Evans was advised of his non-disciplinary removal from his position as a Police Officer 3-A effective July 22, 2011. ILSUPH stated in the letter that the Louisiana State Police had suspended Evans's university police officer's commission, which was legally required for his job. He was terminated pursuant to Civil Service Rule 12.6(a)(3), which states: "An employee may be non-disciplinarily removed under the following circumstances: . . . 3. When, as a result of conduct that was not work related, the employee fails to obtain or loses a license, commission, certificate or other accreditation that is legally required for the job."
Evans appealed his termination. After a hearing, the Civil Service Commission referee denied the appeal. Evans then sought review with the Civil Service Commission, which denied the request for review. Evans appeals and urges two assignments of error. In the first assignment of error, Evans contends that the referee erred in finding that Civil Service Rule 12.6(a)(3) applied. In the second assignment of error, he contends that the referee erred in failing to find that he had proven racial discrimination.
Evans's job duties as a Police Officer 3-A at ILSUPH included maintaining law and order, enforcing laws, investigating crimes and accidents, and providing emergency services. ILSUPH police officers are university police officers pursuant to La. R.S. 17.1805. La. R.S. 17:1805A(2) requires a commission, stating:
La. R.S. 17:1805A(1) states: "Those persons who are university or college police officers responsible for maintaining general order and exercising police power on the campus of a state-supported or a private college or university shall be designated as university or college police officers."
Each such person named as a police officer by the president of the college or university shall be commissioned as a university or college police officer by the Department of Public Safety and Corrections or as provided in Subsection E of this Section. Such commission shall remain in force and in effect at the pleasure of the employing college or university.
The termination letter stated that Evans's state police officer commission was suspended because he was deemed unfit for duty after an evaluation conducted by Dr. Jill S. Hayes, Ph.D., a clinical, forensic, and neuropsychologist. One of Evans's superiors, Thomas J. Freeman, Deputy Chief of Police at ILSUPH, contacted Sergeant Henry Clay Reavis, III, Commander of the Concealed Handgun/Special Officer's Section of the Louisiana State Police, to whom the Superintendent of the Louisiana State Police had delegated his authority to issue, suspend, and revoke police officers' commissions. Freeman notified Reavis of the results of Dr. Hayes's evaluation. On Reavis's request, Freeman forwarded him a copy of Dr. Hayes's report. On May 23, 2011, Reavis notified Freeman that the Department of Public Safety, Office of State Police, suspended Evans's police officer's commission. In the termination letter, Freeman stated that the suspension of Evans's commission made his continued employment as a member of the ILSUPH police department impossible because he was prohibited from carrying a weapon and effecting arrest.
According to the Referee's findings of fact, Evans underwent the evaluation due to several work issues. On November 12, 2010, Freeman emailed all ILSUPH officers that a planned transition to twelve-hour shifts had been indefinitely postponed. On November 16, 2010, Evans sent the following email in response:
So are we going back to the permanent off days? The current shift you have in place is just to [sic] turbulent for our lives. We was [sic] willing to stick this current schedule out until we go to the new 12 hour shift. But now that you have receded [sic] the 12 hour shift, I am equesting my old permanent off days back. The constant changing of off days every month is getting stressful and it's hard to plan
activities. Also, working 7 days straight is just not healthy. Plus isn't it more prudent to go to the 12 hour shift to improve the man power. From my understanding the reason departments go to 12 hours is because of lack of man power. There has to be a better way to do the shift schedule, compare to what you have in place now.
Then, on November 18, 2010, Evans was removed from the Emergency Response Team by Captain Jonathan Holdam based on poor performance on a November 16, 2010 SWAT tactical shooting program. In March 2011, Holdam met with Evans about firearm certification. Because Evans was removed from the Emergency Response Team, he could not carry the 40mm Glock he had been using and had to be recertified with a 9mm Glock. Evans told Holdam he could not meet the required certification because he could not purchase fuel for his vehicle (to get to the shooting range) or ammunition for his firearm. Holdam offered to buy ammunition for Evans. Evans then stated he could not get certified because his girlfriend could not care for their infant while he was at the range. Holdam told Evans he was responsible for addressing these issues. According to Holdam, during the discussion, Evans's speech was shaky, his eyes were tearing up, and his face became flushed. Evans said he could not think clearly and he would have to talk with Holdam at another time. Additionally, Evans's supervisor and other officers reported inappropriate comments and behavior by Evans to both Freeman and Holdam, including statements that "people were out to get him" and Freeman was "laying [sic] in wait" to get him.
Freeman testified that he heard Evans claimed there was a conspiracy in the making when he was asked to requalify with the 9mm Glock. Holdam testified that when Evans balked at requalifying, he spoke with Evans's shift supervisor, Ronald Young. Young told Holdam that Evans had conspiracy theories as to his superiors, thinking he had to requalify so that Holdam and Freeman could find a way to terminate him. Young also reported that Evans claimed a recent issue on leave with pay was to specifically target him. In Young's interview with Dr. Hayes, he said that Evans thought everything was a conspiracy and that the times he had to reassure Evans that no one was out to get him had gradually increased over the last two years and exhausted Young. Young also stated that whenever Evans talked about the job, he would bring up his conspiracy theory that everyone was out to get him and this concern would dominate the conversation; he asserted that Evans was "unable to let go of it."
Jack Conway, a lieutenant who also supervised the evening shift which Evans worked, testified that Evans seemed "paranoid about a lot of things at work." He stated:
I can remember one instance where we were having some driving questionnaires filled out and everybody on the shift was filling them out and I guess [Evans] had filled his out and he was thinking that it was just applying to him, asking if it just applied to him, was he the only one having to do that.Conway also testified that when Evans's child was born, Evans commented that he did not want anyone to know because he thought somehow that might get him fired.
Due to these reports, Evans was suspended with pay on April 11, 2011, and referred to Dr. Hayes for an evaluation to determine his fitness for duty. Dr. Hayes interviewed and tested Evans and talked to four other ILSUPH police officers, including Freeman and Holdam. She diagnosed Evans with a delusional disorder, finding he had delusions of persecution that sometimes dominated his thinking while he was working. Dr. Hayes concluded that Evans could become a danger to himself or others and was unfit for duty.
Holdam notified Evans that as of May 19, 2011, after ILSUPH received Dr. Hayes's report, Evans was placed on medical leave under the Family and Medical Leave Act (FMLA). Holdam said that it had been determined that Evans would require continued treatment from his healthcare provider to treat the issue indicated by Dr. Hayes.
After making the factual findings stated above, the referee concluded that ILSUPH acted properly in terminating Evans's employment under Civil Service Rule 12.6(a)3. The referee initially determined that a police commission was legally required for Evans's job pursuant to La. R.S. 17:1805 and that Evans's commission was suspended on May 23, 2011, and never reinstated. He then interpreted the language in Rule 12.6(a)3, "as a result of conduct that was not work related," to mean that removal is "appropriate even when the employee's lack of a required credential is due to non-work related conduct" and that it did not exclude the conduct at issue in this case. Thus, he rejected Evans's contention that his circumstances did not fall under Rule 12.6(a)3.
The referee then dismissed Evans's argument that his removal was a "ruse" used by ILSUPH. According to the referee, the evidence showed that ILSUPH had reasonable grounds to question Evans's fitness for duty before referring him to Dr. Hayes, in light of his declining job performance and inappropriate comments and behavior. He noted that the decision to suspend Evans's commission was made by Louisiana State Police, not ILSUPH.
The referee found irrelevant the testimony of Dr. Megan A. Ciota, a second psychologist who evaluated Evans at his request and who disagreed with Dr. Hayes's diagnosis and opinion. The referee noted that Dr. Ciota's evaluation was not provided to ILSUPH or Reavis before the decision was made to suspend Evans's commission. The referee commented that, even if the evaluation had been timely provided to Reavis, he did not believe the Civil Service Commission had jurisdiction to consider a collateral attack on the State Police's decision to suspend the commission.
The referee rejected Evans's racial discrimination and retaliation claims. He pointed out that under Civil Service Rule 13.19(r), Evans had the burden of proving racial discrimination and retaliation. According to the referee, Evans, an African-American, failed to adduce any credible evidence that ILSUPH discriminated against him based upon his race. The referee noted Holdam's testimony that ILSUPH had removed both Caucasians and African-Americans when they lost their commissions. As to retaliation, the referee found it implausible that Evans's superiors would remove him from his position due to the email he sent to Freeman as to twelve-hour shifts. The referee said that the only evidence Evans submitted to support the retaliation claim was his own self-serving testimony.
Civil Service Rule 13.19(r) states:
Subject to the provisions of Subsections (m) and (s), when a classified employee alleges that he has been discriminated against because of his political or religious beliefs, sex. or race, the facts expressed in writing by the appointing authority as cause for the demotion, suspension, dismissal, or other action, shall be accepted as prima facie true. Evidence shall not be received from an appointing authority to supplement or enlarge the facts as so expressed. The appointing authority may rebut any proof offered by the appellant employee in contradiction of the facts expressed in writing by the appointing authority. The burden of proof as to the facts shall be on the appellant and the Commission or a referee may, in its or his discretion, require him to open the case.
DISCUSSION
On appeal, Evans contends that the Commission's decision upholding Evans's non-disciplinary removal should be reversed because the Commission misapplied Civil Service Rule 12.6(a)(3) and ILSUPH failed to meet its burden of proof as to the Rule's essential elements. Evans also contends that he met his burden of proving racial discrimination.
Generally, decisions of Civil Service Commission referees are subject to the same standard of review as decisions of the Commission itself Decisions of the Civil Service Commission are subject to the same standard of review as a decision of a district court. Usun v. LSU Health Sciences Center Medical Center of Louisiana at New Orleans, 2002-0295 (La. App. 1st Cir. 2/14/03), 845 So.2d 491, 494. Factual determinations of the Commission or referee should not be reversed or modified unless clearly wrong or manifestly erroneous. Usun, 845 So.2d at 494. However, as to the Commission's or referee's decision as to the interpretation of laws and regulations, this Court performs its traditional plenary functions and applies the error of law standard. Adikema v. Department of Public Safety and Corrections-Office of Youth Development, 2006-1854 (La. App. 1st Cir. 9/14/07), 971 So.2d 1071, 1074.
We note that in the appeal of disciplinary terminations, in evaluating the 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 Civil Service Commission's order unless it is arbitrary, capricious, or characterized by abuse of discretion. Usun v. LSU Health Sciences Center Medical Center of Louisiana at New Orleans, 2002-0295 (La. App. 1st Cir. 2/14/03), 845 So.2d 491, 494.
Rules adopted by the Commission have the force and effect of laws. La. Const. art. X, sec. 10(A)(4). It is well settled that Civil Service rules must be construed according to the rules of interpretation applicable to legislation. Lowery v. Department of Health and Hospitals, 2013-0811 (La. App. 1st Cir. 3/12/14), ___ So.3d ___, ___. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. La. C.C. art. 9; Lowery, ___ So.3d at ___.
Evans contends that the referee did not apply Civil Service Rule 12.6(a)(3) correctly because ILSUPH did not prove that Evans's commission was lost due to "conduct that was not work-related." He argues that all conduct in this case was work-related because the State Police suspended his work-related commission after contact by his work supervisors, whose contact was based on a fitness-for-work report arranged by his employer, performed by a work-hired and work-affiliated psychologist and based on work-related observations from work supervisors. Evans's attempt to cast the behavior at issue as work-related conduct based on the aforementioned factors fails. Rule 12.6(a)(3) clearly contemplates that the commission itself is work-related because it is necessary for the job. That Evans's supervisors brought his problematic behavior to the attention of the commissioning authority and also referred him for a psychological evaluation does not in and of itself make the conduct work-related. While the problematic conduct occurred at the workplace, Evans's problem was based upon "a behavior issue," as Freeman testified, which was "loosely" related to job performance. Freeman also testified that there were no issues with Evans's work; likewise, in his interview with Dr. Hayes, Ronald Young, Evans's shift supervisor, also stated that Evans's work performance was good. Freeman stated that if Evans had simply been disobeying orders, he would have taken disciplinary action against him, but it "wasn't a disciplinary thing." Jack Conway, another of Evans's supervisors, was asked, "The paranoia or whatever it - however you want to describe it that you noticed, did that give you some concern in any way about Officer Evans?" He replied:
It did give me some concern. I mean, it did not, as far as I could determine, affect the job performance he was doing, but I think it was something to raise my antenna that - you know, I guess any time you have somebody that is a Police Officer and they carry a gun and they think people are out to get them possibly, it just seemed way out of the norm. I just thought it was something somebody ought to check out.
Based on the evidence and testimony at the hearing, we find no error in the referee's conclusion that Rule 12.6(a)(3) applied to the circumstances of this case.
Evans also complains on appeal that it was error to find the commission was legally required for his job because the Civil Service Rules and the ILSUPH job description did not have this requirement. Alisha Collins, the human resources representative from ILSUPH, testified that an officer's commission was a requirement for an employee to act as a police officer for the hospital. She explained that, based on the state's job description for a police officer 3-A, sixty percent of the officer's job duty was to provide protection and safety to the agency and its patients. The state's requirements also included the provision that the officer must be able to qualify with an issued firearm. She added that to carry a firearm, the police officer had to possess a commission. Freeman and Holdam also testified that a commission was necessary. According to Reavis and Freeman, the commission authorized a university police officer to carry a weapon and to make arrests, investigate crimes, apprehend criminals, ensure physical security, deter crimes, and gather intelligence.
Evans next argues that ILSUPH should have considered alternatives short of removal, such as leave without pay, suspension, leave with pay under the Family and Medical Leave Act (FMLA), or reassignment, because Rule 12.6(a)(3) states that an employee "may" be removed. However, the testimony showed that a commission was required to perform police officer work at ILSUPH so that any other accommodation would have been impractical. Holdam testified that initially Evans was on suspension with pay before he saw Dr. Hayes, then after he saw her, he was on FMLA leave with the intention that he could return to work after treatment. Freeman testified that he and Holdam were considering putting Evans on medical leave, but after his commission was suspended, Evans could do nothing as a police officer. According to Freeman, ILSUPH did not have a spot "where he could function without the ability to make arrests and things of that nature." Freeman stated there were "very limited positions within the Hospital" where a non-commissioned officer could "even work." When Holdam was asked if he was aware of other officers working without a commission, he said he was not. Reavis testified there was no appeals process for the suspension of a commission and explained that he suspended the commission to allow Evans to obtain treatment and demonstrate a fitness for duty; he stated that if Evans did not show his fitness within a six-month period, Reavis would revoke the commission.
Evans testified that new hires did not have a commission and that he initially did not have a commission. He testified that he could not recall officers working without a commission and added that he believed there were "one or two officers" working without a commission, but he did not identify them. Kerry Sanders, a co-employee of Evans who had worked at ILSUPH for fifteen years, testified that the only time period he could think of where officers did not have a commission was at the beginning of their employment. Therefore, Evans's argument that the ILSUPH should have dealt with his suspended commission in another way lacks merit.
Evans also asserts that a reviewing court must determine if the appointing authority acted in good faith and that there is no evidence of subterfuge in an attempt to evade Civil Service rules, relying in part on City of Bossier City v. Vernon, 2012-0078 (La. 10/16/12), 100 So.3d 301. In that case, the supreme court stated that a civil service commission or board must decide if a disciplinary action has been made in good faith for cause and additionally must make an independent assessment of whether the particular punishment imposed is warranted. City of Bossier City, 100 So.3d at 311. However, this Court recently noted that the Commission's responsibility to undertake an independent review of the evidence is in "stark contrast" to a reviewing court's authority in reviewing a Commission's decision. Harris v. Louisiana State University Behavioral Health Sciences, 2012-0033 (La. App. 1st Cir. 8/6/13), 2013 WL 4007773, 2 (unpublished). In reviewing a Commission's decision, this Court does not make an independent assessment of whether the appointing authority acted in good faith. See Harris, 2012- 0033 at p. 2; 2013 WL 4007773, 2. Moreover, City of Bossier City involved a disciplinary removal whereas the instant case concerns a non-disciplinary removal. Therefore, this Court does not find that there is a requirement that it review the appointing authority's action for good faith.
We note that to support his contention that the appointing authority was not in good faith, Evans asserts his employer forced a fitness for duty evaluation with an LSU-affiliated psychologist and limited the people with whom the doctor could speak; he also asserts that his employer's notification of the State Police of the results of the evaluation instead of continuing him on leave demonstrated bad faith. As earlier stated, the referee rejected Evans's contention that his removal was a "ruse." The referee's finding was not manifestly erroneous as the evidence in the record showed the action of Evans's superiors referring him for a fitness for duty evaluation was a reasonable response to his behavior and not as a conspiracy to have him terminated.
As to Evans's complaint regarding Dr. Hayes's connection with LSU, she was an adjunct faculty member of the LSU Medical School. She testified that being adjunct faculty involved "nothing other than writing a book and putting LSU's name on the book." She did not get the services of any LSU facilities or other services. Dr. Hayes testified that the conclusions she reached about Evans were not influenced by her affiliation with the LSU system.
Evans contends that the referee erred in finding that he did not prove he was the victim of racial discrimination. Evans argues that the supervisors who arranged the evaluation by Dr. Hayes were all white and only Young, who did not testify at the civil service hearing but who did provide Dr. Hayes with information, was black. Evans asserts on appeal that in his testimony, he named several officers recently separated who were black and the testimony was undisputed; however, Evans actually testified that two black officers were forced to resign and a third black officer was terminated. Evans argues that the referee ignored evidence that a white officer, Brent Blache, was accused of misbehavior on multiple occasions but retained by ILSUPH. However, Holdam testified that he never received any reports that Blache was exhibiting bizarre or unusual behavior. Freeman testified that their concern was not that Evans was disobeying orders because if that had been the case, he would have taken disciplinary action against him. Thus, Evans did not show that he and Blache were treated differently due to their race. Evans is correct that the referee mischaracterized Holdam's testimony about being aware of both white and black officers losing commissions. Holdam actually testified that he was aware of both black and white officers being separated from the department since he had been employed. However, this statement did follow questioning about whether Holdam would allow an officer to work without a firearm, to which he replied negatively.
Evans introduced into evidence ILSUPH records showing that Blache was issued a reduction in pay from May 31, 2010 through July 25, 2010 due to rude and discourteous behavior unbecoming of a police officer while directing traffic at ILSUPH on April 9, 2010. Blache also received a one-day suspension on August 22, 2008 for defacing an identification badge (he added a "Tactical Commander" sticker) and failing to follow a direct order (he was using the phone in an unauthorized location), which occurred in June 2008, and a ten-day suspension on May 11, 2009 for failing to follow a direct order (he failed to report an altercation between fellow officers), allowing contraband on the premises (another officer had an assault rifle in the parking lot), and an unauthorized absence from his post (he left his post to view the rifle in the parking lot), which occurred in March 2009. The last disciplinary action stated that Blache had been counseled on many occasions as to his job performance by Holdam and that further violations would result in progressive disciplinary action, up to and including termination of his employment.
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The burden of proof in a Civil Service Commission appeal based on discrimination is on the employee. La. Const. Art. 10, sec. 8(B). An employee in a civil service discrimination action must prove his claim by a preponderance of evidence. Hargrove v. New Orleans Police Dept., 2001-0659 (La. App. 4th Cir. 5/22/02), 822 So.2d 629, 640, writ denied, 2002-2387 (La. 12/13/02), 831 So.2d 985. Once the employee establishes a prima facie case of racial discrimination, a presumption is created that the employer has unlawfully discriminated against the employee and the burden shifts to the employer to prove that the adverse employment actions were taken for a legitimate nondiscriminatory reason. Moore v. Ware, 2001-3341 (La. 2/25/03), 839 So.2d 940, 950. As earlier stated, the referee's findings of fact should not be reversed unless clearly wrong or manifestly erroneous. Usun, 845 So.2d at 494. An employee's unsubstantiated testimony is insufficient to carry the burden of proof. See Hargrove, 822 So.2d at 642. Evans's uncorroborated assertions that his dismissal was racially motivated are not sufficient to support his discrimination claim. See Pembrick v. Charity Hospital of La. at New Orleans, 268 So.2d 265, 266 (La. App. 1st Cir.), writ refused, 270 So.2d 123 (La. 1972). We find no error in the referee's rejection of Evans's racial discrimination claims.
CONCLUSION
Accordingly, the State Civil Sendee referee's decision is affirmed. All costs associated with this appeal are assessed to appellant, Clarence Evans.
AFFIRMED.