Filed: August 19, 1999

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STATE OF LOUISIANA

CIVIL SERVICE COMMISSION

DOCKET NO. S-13251

CINDY CARR

VERSUS

LOUISIANA STATE UNIVERSITY

HEALTH CARE SERVICES DIVISION

MEDICAL CENTER OF LOUISIANA

AT NEW ORLEANS

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Rules: 12.2

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Appellant was employed by the Health Care Services Division of Louisiana State University as a Registered Nurse and was serving with permanent status.

By letter dated July 23, 1998, over the signatures of Pamela Wright, RN Manager, Betty Adams, Associate Nursing Administrator, Lewis Hughes, Assistant Administrator, and John Berault, Chief Executive Officer, Appellant was notified that her suspension of July 22, 1998, was confirmed and would last until July 30, 1998. The letter charges Appellant with disruptive behavior in the workplace on July 22, 1998. The letter goes on to inform Appellant that she was terminated from her position effective July 30, 1998, at the close of business. Appellant is charged with falsification of records and absence from her post of duty. In support of the severity of the penalty, the letter mentions a prior letter of reprimand for excessive tardiness, a prior five-day suspension and a prior thirty-day suspension.

Appellant's counsel filed a notice of Appeal on August 11, 1998 wherein Appellant complains of the termination. Appellant denies the charges and alleges that the penalty is too severe for the charged offense. As relief, Appellant seeks reinstatement with back pay and other benefits and attorney's fees.

A public hearing was held in New Orleans on May 24 and 25, 1999, before a Referee appointed by the Commission. Pursuant to the provisions of Article X, Section 12(A) of the Louisiana Constitution of 1974, as amended in 1982, the Referee makes the following findings.

At the outset of the hearing counsel for Appellant Requested Summary Disposition of the Appeal. The basis for the Request is that Appellant did not receive a proper pre-depravation hearing. Counsel argued that the pre-depravation hearing was not held before the decision-maker. The Referee finds no merit in the argument. Civil Service Rule 12.7 requires that a pre-depravation hearing be held prior to imposing a disciplinary action, however there is no requirement that it be held before the decision-maker. It has been held that the purpose of a pre-depravation hearing is simply to guard against taking a mistaken action. See the decision of the State Civil Service Commission in the Appeal of Eric Bowen, Docket No. S-11603 issued October 20, 1997.

Accordingly, this Request for Summary Disposition is denied.

1. On July 22, 1998, Appellant was presented with a draft of a letter of termination. The occurrence was inside of an office. Angie Celius, the Union President, was with Appellant at the request of Appellant.

2. Upon receiving the draft of the letter, Appellant began to talk to Ms. Celius about the letter. Appellant uttered words of profanity about the letter. Appellant's voice was above normal but she was not yelling.

3. A Registered Nurse came into the office and began to question Appellant about an incident on July 20, 1998.

4. Appellant spoke to Ms. Celius about that incident. Appellant use words of profanity. However, although her voice was louder than normal, she was not yelling.

5. During the entire incident Ms. Celius was yelling and uttering profanity.

6. Appellant was told that she was suspended and that she would have to leave.

7. Appellant and Ms. Celius left. They did not use profanity or speak in a loud tone as they left.

In Civil Service appeals of disciplinary actions, the appointing authority bears the burden of proof as to cause. Louisiana Constitution of 1974, Article X, Section 8(A); Shelfo v. Louisiana Health and Human Resources Administration, 361 So. 2d 1268 (La.App. 1 Cir. 1978); Stiles v. Department of Public Safety, 361 So. 2d 267 (La.App. 1 Cir. 1978); Department of Public Safety v. Rigby, 401 So. 2d 1017 (La.App. 1 Cir. 1981); Dent v. Department of Corrections, 413 So. 2d 920 (La.App. 1 Cir. 1982). The facts must be clearly established. Herbert v. Department of Police, 362 So. 2d 1190 (La.App. 4 Cir. 1978); Savoie v. State of Louisiana, Department of Corrections, Louisiana Training Institute at East Baton Rouge, 394 So. 2d 1285 (La.App. 1 Cir. 1981); Jones v. Department of Health and Human Resources, 430 So. 2d 1203 (La.App. 1 Cir. 1983); Thornton v. Department of Health and Human Resources, 394 So. 2d 1269 (La.App. 1 Cir 1981).

The Referee concludes that the Agency has failed in its burden of proving cause for the Emergency Suspension. In order for an agency to prove cause for disciplinary action there must be impairment to public Service. See. Edwards v. Department of Corrections, 461 So.2d 678 (La.App. 1st Cir. 1984); Department of Corrections v. Murray, 439 So.2d 484 (La.App. 1st Cir. 1983). Further, any impairment to public service must be attributable to the employee being disciplined. See. Howard v. Housing Authority of New Orleans, 457 So.2d 834 (La.App. 1st Cir. 1984).

In this matter appellant was given a draft of a letter of termination. The occurrence was inside of an office. When presenting an employee with a proposal for disciplinary action and inviting comments from the employee, the agency should anticipate that some unpleasant and uncomplimentary comments might be made. The Agency is well advised to have such an event inside of an office or some other place away from the other employees and the general public.

Ms. Celius was at the conference at the request of Appellant. Ms. Celius was loud and she used profanity. Although Ms. Celius's conduct may have risen to the point where it could be described as disruptive, it cannot be use as cause for disciplinary action against Appellant.

Accordingly, this Appeal is granted as to the issue of the Emergency Suspension. The order is found at the end of this decision.

1. At or about 3:00 p.m. on June 29, 1998, at the conclusion of Appellant's regular shift, Appellant and another Nurse were asked to work overtime for the next shift because there was a need for their services.

2. Appellant agreed and was assigned to the Level III nursery. Upon receiving her assignment Appellant discovered that one of the infants she was to care for was scheduled for surgery. Appellant felt unconvertible with that assignment because she was not familiar with the assignment.

3. Appellant arranged with another Nurse, Ms. McGee, to switch assignments and Ms. McGee assumed responsibility for the infant scheduled for surgery.

4. At or about 5:30 p.m. Appellant approached Ms. McGee and asked Ms. McGee if Ms. McGee wanted to go to lunch. Ms. McGee replied that she could not go because she had to stay and take care of the infant.

5. At or about 6:00 p.m. or 6:15 p.m. Appellant approached Ms. McGee again and asked Ms. McGee if Ms. McGee wanted to go to lunch. Ms. McGee replied the same as she did earlier. Whereupon Appellant asked Ms. McGee if Ms. McGee wanted Appellant to bring something back to her. Ms. McGee replied affirmatively.

6. Both Ms. McGee and Appellant were handling assignments in the Level III nursery. However, their stations were on opposite sides of a hallway.

7. Later that evening, the Charge Nurse asked Ms. McGee if Ms. McGee knew where Appellant was. Ms. McGee, assuming that Appellant had gone to lunch, told the Charge Nurse that Appellant was at lunch. However, Ms. McGee did not know that Appellant had gone to lunch.

8. At about 8:00 p.m. more Nursed were to report for work. The Agency determined that it did not need the services of the two nurses who had been asked to work overtime.

9. The Charge Nurse began to look for Appellant to inform Appellant that the overtime had been cancelled.

10. While on her unit, Appellant spoke to a Security Guard at 6:30 p.m.

11. Appellant was observed by one of Appellee's witnesses at or near the Level III nursery at 7:00 p.m.

12. At 7:10 p.m. an off duty hospital employee came to the hospital to go to lunch with appellant. Appellant spoke to a hospital Security Guard as she left for lunch.

13. Appellant and the off duty employee went to a drive through window at a nearby McDonald's.

14. Appellant returned from lunch at 7:50 p.m. She had something for Ms. McGee when she returned. Soon after Appellant's return, the Charge Nurse found Appellant.

15. While on duty, the Nurses are permitted to move about to go to the restroom and to get supplies, etc.

16. At or about 7:00 p.m., Appellant took vital signs on two infants under her care. She recorded the vital signs on Hospital records.

17. Although the 7:00 p.m. vital signs may not have been recorded on Hospital records at 7:00 p.m., they were taken at 7:00 p.m.

18. Nurses are permitted to take vital signs on patients and write them down on their personal notes if the Hospital Records are not available when the Nurse takes the vital signs. Under such circumstances the Nurse is to record the vital signs on the Hospital records later. When this is done the time for the vital signs recorded on the Hospital records will be the time that the vital signs were taken.

Appellant is charged with the unauthorized absence from place of duty and with falsifying records. The Referee concludes that Appellee has failed to carry its burden of proving these charges. Some witnesses supported Appellee's position that Appellant was gone from 6:00 p.m. or 6:15 p.m. until 7:50 p.m. However, Appellant testifying in her own behalf disputes this. Other witnesses supported Appellant's position that she was there until 7:10 p.m. when Appellant went to lunch.

One witness called by Appellee testified on direct examination that she observed Appellant at or about the nursery at 7:30 p.m. or 7:45 p.m. This testimony refutes the positions of both Appellant and Appellee as to the whereabouts of Appellant at that time.

Considering the testimony of all of the witnesses, the Referee concludes that Appellee has not carried its burden of proving the charges in the letter of disciplinary action.

Appellant is also charged with falsification of records. This charge rest upon the assumption that Appellant was not at her duty station at 7:00 p.m. As mentioned above, The Referee concludes that Appellee failed in its burden of proving this.

A prior reprimand and two prior suspensions are mentioned in the letter of disciplinary action. They are mentioned solely to support the severity of the penalty in the instant action. Since the Referee did not find cause for disciplinary action in the instant matter, the Referee did not make any findings or conclusions with respect to the prior actions mentioned in the letter of disciplinary action.

Accordingly, this appeal is granted as to both the Emergency Suspension and the Termination. Appellant is ordered reinstated as of July 22, 1998, and is to receive back pay plus legal interest from that date until such time as she is actually restored to her former position. Appellee is entitled to an offset in its favor for any wages earned and/or unemployment compensation benefits collected by appellant during this period. All details of this attempted disciplinary action are ordered removed from Appellant’s records. The Referee finds Appellee's actions to be unreasonable in this instance and in accordance with the provisions of Civil Service Rule 13.35 awards attorney's fees to Appellant in the amount of $ 1,500.00. The check for attorney's fees is to be made payable jointly to Appellant and her counsel of record.

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Donald J. Cicet

Civil Service Commission Referee