Decision
Filed: February 28, 2013
State of Louisiana
Civil Service Commission
Docket Nos. 17137 and S-17255 (consolidated)
Gerald Klock
Versus
Department of Public Safety and Corrections, Public Safety Services,
Office of the State Fire Marshal ________________________________________________________________
Rule(s): 12.2
Topic(s): Dismissal; sixteen (16) hour suspension; insubordination and inappropriate behavior
________________________________________________________________
Appearances: Paul Bell, counsel for Gerald Klock
Adrienne Aucoin and Wayne R. Crouch, counsel for DPSC, PSS, OSFM
Statement of the Appeal
The Department of Public Safety and Corrections (DPSC), Public Safety Services (PSS), Office of the State Fire Marshal (OSFM) employed Gerald Klock as an Engineer 4 and he served with permanent status.
By letter dated March 18, 2011, and received by Mr. Klock on April 1, 2011, DPSC suspended him for sixteen (16) hours effective April 6, 2011. DPSC alleges that Mr. Klock violated supervisory directives to attend a mandatory conference on December 9, 2010, and timely submit a doctor’s certificate for his absences on December 9 and 10, 2010.
On April 29, 2011, Mr. Klock appealed his suspension under docket number 17137. In his appeal, he alleges that he was physically incapable of attending the conference and that his superiors had received a fax from his doctor stating that Mr. Klock was under his care for December 9 and 10, 2010. As relief, Mr. Klock requests rescission of the disciplinary action and back pay.
By letter dated August 9, 2011, and received by Mr. Klock on August 11, 2011, DPSC dismissed him from his position effective immediately. DPSC alleges that Mr. Klock engaged in inappropriate and insubordinate behavior.
On September 9, 2011, Mr. Klock appealed his dismissal under docket number S-17255. In his appeal, he denies the allegations of the dismissal letter and alleges that he is the victim of retaliation for reporting unethical and illegal conduct by OSFM employees. As relief, Mr. Klock requests reinstatement to his position, back pay, attorney’s fees and expungement of his personnel file. On September 19, 2011, I consolidated Mr. Klock’s two appeals for hearing in accordance with the provisions of Civil Service Rule 13.23.
I held a public hearing on September 25, 26, and 27, 2012, in Baton Rouge, Louisiana. Based upon the evidence presented and pursuant to the provisions of Article X, § 12(A) of the Louisiana Constitution of 1974, as amended, I make the following findings and reach the following conclusions.
Findings of Fact
1. DPSC, PSS, OSFM employed Mr. Klock as an Engineer 4 and he served with permanent status. Mr. Klock’s job duties included performing Fire Suppression System and Clean Agent System plan reviews. The plans are submitted for OSFM review by private sector construction professionals such as contractors and architects.
2. Linda Burch, Architect 4, was Mr. Klock’s direct supervisor. On June 3, 2010, Mr. Klock entered her office and yelled at her that he had reviewed plan reviews performed by other OSFM employees and that the plan reviews had been “rubber stamped.” Ms. Burch directed Mr. Klock to perform the plan reviews assigned to him and to refrain from reviewing other employees’ plan reviews.
3. On June 4, 2010, Mr. Klock met with Ms. Burch and her supervisor, Don Zeringue, Architect 6, in Mr. Zeringue’s office. Ms. Burch again directed Mr. Klock to refrain from reviewing other employees’ plan reviews. Mr. Klock repeated his claim that other employees were “rubber stamping” their plan reviews but gave no specific examples.
4. On June 15, 2010, Mr. Klock went to Ms. Burch’s office to discuss a sprinkler project he was reviewing. He told Ms. Burch that the reviewing architect, Gordon Cameron, had missed an issue in his review of the architectural plan of the building at issue. Ms. Burch informed Mr. Klock that it was not his job to review the work of the reviewing architects. Ms. Burch advised Mr. Klock to discuss any issues he had with Mr. Cameron’s review with him. Mr. Klock declined to do so. During this conversation, Ms. Burch had to direct Mr. Klock to stop yelling at her.
5. On July 26, 2010, and in connection with his review of a hospital sprinkler system plan, Mr. Klock told Ms. Burch and Mr. Zeringue that “surgical suites” should be classified as “Group 2” hazards rather than the lesser “Group 1 - Light Hazards” designation under Chapter 13 of the National Fire Protection Agency (NFPA) code. The OSFM utilizes the NFPA code as authority for its plan reviews. Ms. Burch and Mr. Zeringue instructed him to treat surgical suites as light hazards in Group 1, but Mr. Zeringue told Mr. Klock that he could request an opinion as to the proper hazard classification of surgical suites from NFPA.
6. Mr. Klock sent an email dated July 26, 2010, to NFPA. The subject of the email is “Occupancy Hazard Classification Requirements for Anesthesia and Surgical work areas”, and it states in relevant part as follows:
Finally, is the Occupancy Hazard and the Hydraulic Demand of the Sprinkler System protecting the Anesthesia work areas, Dry Sterilization Rooms and Surgical Suites based upon the type and volume of compressed gas stored and used in those particular areas of Health Care Facilities?
7. On July 27, 2010, at 2:18 p.m., Bob Caputo, NFPA Consultant, responded to Mr. Klock’s email by an email that states in relevant part as follows:
With regard to occupancy hazard classifications, NFPA 13, Chapter 5 describes the consideration of fuel loading within the area under consideration in determining the classification. While hospitals are listed in the annex section A.5.2 as a light hazard – hospitals, like most other facilities usually include more than one occupancy use group. The presence of the normal amount of compressed gas within a patient room is included within the light hazard environment however a storage room filled with compressed gas cylinders do not meet the threshold or limits of the light hazard definition.
8. On July 27, 2010 at 6:33 p.m., Mr. Klock sent Ms. Burch and Mr. Zeringue an email that states in relevant part as follows:
I strongly disagree with this conclusion and the NFPA reply supports my position. Mr. Bob Caputo, CFPS, CET intentionally dodged my direct question but did answer it in a sense.
. . .
As an actively licensed and Register Respiratory Therapist, ECMO Technologist and Professional Control System Engineer in the State of Louisiana, I can not (sic) follow these instructions with a clear conscience.
9. On July 28, 2010, Ms. Burch sent an email to Mr. Klock. The subject of the email is “Fw: Occupancy Hazard Classification Requirements for Anesthesia and Surgical work areas”, and it states in relevant part as follows:
Your refusal to follow these instructions limits your effectiveness as a reviewer and as a result your duties will be modified to allow for this statement. You are not to review any healthcare related projects including any projects whose occupancy classifications fall under NFPA 101 chapters 18, 19, 20, 21, 32 or 33.
10. On November 10, 2010, Margaret Hill, Architect 3, overheard Mr. Klock speaking in a loud and angry tone to a customer in a telephone conversation. Ms. Hill reported this conversation to Ms. Burch. When Ms. Burch attempted to discuss the incident with Mr. Klock later in her office, he repeatedly yelled at her, despite her directives to stop. Ms. Burch also directed Mr. Klock to lower his voice when speaking to customers. He told her he yelled at the customer because “Those clowns make me mad,” and that Ms. Burch was “unethical.”
11. On November 15, 2010, Ms. Burch met with Mr. Klock regarding a Fire Suppression System plan review. Mr. Klock wanted to cite fire alarm code violations in his review. Ms. Burch informed Mr. Klock that other employees are responsible for fire alarm issues and that he is responsible for sprinkler system issues. Mr. Klock responded that he disagreed with the way OSFM divides these tasks.
12. On November 16, 2010, Ms. Burch met with Mr. Klock to conduct his Performance Planning Review (PPR) evaluation. Mr. Klock told Ms. Burch in a loud and angry tone that she was “the stupidest supervisor that I have ever had.” Mr. Klock also told Ms. Burch that she was “unethical” and “incompetent,” and that he was going to have her architectural license revoked. The meeting ended when Mr. Klock turned red in the face and hurriedly left Ms. Burch’s office.
13. The 2010 State Fire Marshal’s Office Annual Agency-Wide Conference was held on December 9, 2010, in Rayne, Louisiana from 9:00 a.m. until 3:30 p.m. The State Fire Marshal, Hillary Richard “Butch” Browning, Jr., had previously ordered that all OSFM employees of the SFM attend this conference.
14. On December 8, 2010, Ms. Burch asked Mr. Klock how he was getting to the conference. He responded that he would rather be transported in the state van than drive his own vehicle. Ms. Burch sent an email to the employees riding in the state van, including Mr. Klock, informing them that they would be leaving for the conference the next day at 7:30 a.m. and would be returning at 3:30 p.m. after the conference ended. Mr. Klock did not respond to the email or request permission not to attend the conference.
15. On December 9, 2010, at 8:21 a.m., Mr. Klock sent an email to Ms. Burch with the subject line “I wasn’t feeling well this morning and got here at 8:00.” The email states, “I missed my ride but I also need to check with Dr. Edwards and see if the pre-surgery Lab work that was done yesterday is still out of range and needs to be repeated.”
16. At 8:30 a.m., roll call was taken at the conference. Mr. Klock was not present. Instead, he worked his normal shift at the office in Baton Rouge and two hours of overtime.
17. On December 10, 2010, Mr. Klock did not report for work. At 6:50 a.m., he sent an email to Ms. Burch and Mr. Zeringue with the subject line, “I won’t be in the office today.” The email states that Mr. Klock was not feeling well and had not been able to sleep all night, and that he would be at home all day trying to get some rest unless his doctor contacted him regarding testing.
18. At 7:12 a.m., Mr. Zeringue sent an email to Ms. Burch with the subject line, “Fw: I won’t be in the office today.” The email states that, “We will need a doctor’s excuse for this absence 12-9 thru 12-10.” At 7:46 a.m., Ms. Burch forwarded this email to Mr. Klock.
19. At 8:03 a.m., Mr. Klock sent an email to Ms. Burch with the subject line, “Fw: I won’t be in the office today.” The email states, “OGB has all the information you should require. Any questions!” At 9:31 a.m., Ms. Burch responded to Mr. Klock’s email. Her response email states, “It is your responsibility to get the information we have requested. Doctor’s note is still required.”
20. At 2:14 p.m., Mr. Klock responded to Ms. Burch’s email. His response email states in pertinent part as follows:
I do not need a Doctor’s Note for yesterday because I worked a full 10 Hours. and (sic) the. (sic) Computer logs will confirm that…I have explained my health issue with you more times than I can count. STOP HARASSING ME! Have a great day. Wayne.
21. At 2:52 p.m., Mr. Zeringue sent an email to Mr. Klock. The email states, “We thought that you may have not attended the mandatory meeting yesterday based on some illness (which would require a doctor’s statement) – do you have an excuse for missing that meeting yesterday?”
22. On December 12, 2010, at 11:38 p.m., Mr. Klock responded to Mr. Zeringue’s email. His response email states in pertinent part as follows:
You know exactly why I did not attend the meeting in Rayne, LA on Thursday! . . . I arrived 8:00 a.m. at the office last Thursday because I woke up feeling nauseated.
…
When I logged on to my computer I sent Linda Burch an email explaining to her that I was waiting (sic) the results of the pre-surgery blood tests that had been drawn on me the previous morning. The first pre-surgery labs showed my sodium level low and they could not place me under anesthesia because of potential problems created because of the results of the test. Dr. Edwards made me drop by his office on Tuesday where I sat in his office for two hours waiting to receive the documentation needed to have the pre-surgery blood work redrawn. He told me that if my electrolytes were still out of range he was going to change my prescriptions so I could repeat whatever additional tests were required so I could be cleared for surgery.
The only time Dr. Karl LeBlanc has a surgery suite open to operate on me is 12-16-2010. This is because OLOL is booked up because of all the people wanting to have their surgeries performed before the end of the year because of insurance and test purposes. It is imperative to me to get myself cleared for surgery next Thursday. I was not going to ride to Rayne LA while waiting to be contacted by my primary care physician about the pending lab results. If they were still out of range I would have had to return to his office to pick up additional documentation for more tests and different prescriptions.
I have no intention of wasting Dr. Edwards nurse’s time or his under the circumstances; just to satisfy your request for a Doctor’s note.
I have a feeling this whole email exchange is a reaction to the fact that I am about to expose Linda Burch and your misconduct to Human Resources and DPS. I have contacted The Engineering Licensing Board Enforcement Division. I asked them hypothetically if I would have complied with your instructions to send out form letters for Fire Suppression Reviews; would I be in violation of professional ethics and they have confirmed that I would definitely have been in violation. If you or Linda Burch held a PE License in Civil Engineering you would be subjected to disciplinary action. I asked if the same held true for Licensed Architects and they said I should consult their Enforcement Division to check into it. I haven’t yet but I would imagine it is comparable.
If you continue to want to make an issue of this we can discuss this with Felicia tomorrow morning.
See you tomorrow.
Wayne
23. On December 12, 2010, Mr. Klock responded in writing to his November 30, 2010 PPR evaluation conducted by Ms. Burch. In his response, Mr. Klock makes the following statements:
Since Linda Burch has a track record of showing total disregard for Public Safety or compliance with state law or NFPA code I wanted confirmation from Don Zeringue, John Moore or NFPA.
. . .
I have absolutely no problem cooperating with co-workers or applicants and I will accept any assignments and do whatever investigation is necessary. The only person I have a problem with is Linda Burch. I have already been told by The Engineering Licensing Board Enforcement Division; that if I would comply with a supervisor’s request to send out form letters for plan reviews I would be subject to disciplinary action by the Board.
. . .
I spent only a few minutes to pull up some approved reviews in SMART to see if Linda Burch had instructed other plan reviewers who knew nothing about fire suppression systems to send out form letters as Fire Suppression Reviews.
24. During the afternoon of December 15, 2010, Mr. Klock met with Ms. Burch, Mr. Zeringue and Erin St. Pierre, Attorney 3 to discuss his failure to attend the December 9, 2010 conference. During this meeting, Mr. Zeringue instructed Mr. Klock that he could lodge any complaints that he wished with the appropriate authorities, but that he must stop threatening coworkers with having their professional licenses revoked.
25. At 9:27 p.m., Mr. Klock sent an email to Ms. Burch and Mr. Zeringue. Attached to the email was a medical certification signed by Dr. Mark Edwards that states Mr. Klock has been under his care from “12-7-10 to 12-10-10” and is able to return to work on “12-13-10.”
26. On January 28, 2011, Mr. Klock met with Felicia Cooper, Deputy Assistant Secretary. In this meeting, Mr. Klock admitted that Ms. Burch had given him a directive to treat surgical suites as light hazards in his plan reviews, and that he disagreed with the OSFM position on that issue. Mr. Klock told Ms. Cooper that Ms. Burch and Mr. Zeringue were “despicable people” and that Ms. Burch does not care about public safety. He also requested that Ms. Cooper review the propriety of Ms. Burch’s and Mr. Zeringue’s order for him to treat surgical suites as light hazards.
27. On March 3, 2011, Mr. Klock again met with Ms. Cooper. She advised Mr. Klock that she agreed with Ms. Burch’s and Mr. Zeringue’s determination that surgical suites be treated as light hazards in the plan reviews. Mr. Klock advised Ms. Cooper that he disagreed and that he would not go along with their determination. Ms. Cooper ordered Mr. Klock to refrain from referring to Ms. Burch and Mr. Zeringue as “despicable people” but Mr. Klock immediately did so again.
28. On March 25, 2011, Mr. Klock entered Ms. Burch’s office and yelled that he wanted to file a complaint against a sprinkler system supplier/contractor. Ms. Burch ordered Mr. Klock not yell at her. Mr. Klock continued to yell at Ms. Burch, and stated that he could yell at her because she was “stupid” and “unethical.”
29. In the morning on April 1, 2011, Ms. Cooper gave the March 18, 2011 suspension letter to Mr. Klock. A short while later, Mr. Klock approached Ms. Burch, Mr. Zeringue and Ms. Cooper. In an angry tone of voice, Mr. Klock demanded to discuss the suspension letter with Ms. Cooper and State Fire Marshal Browning, but Ms. Cooper declined. Mr. Klock looked at Ms. Burch and loudly stated, “I’ll take care of this myself!”
30. Later that day, Mr. Klock went to Mr. Browning’s office and had a meeting with him, Ms. St. Pierre, and Ms. Cooper. Mr. Klock told Mr. Browning that the OSFM was unethical and conducted improper plan reviews, and that he was going to report Mr. Browning and other coworkers to the Engineering Licensing Board and the Architectural Licensing Board. Mr. Browning told Mr. Klock to put his complaints in writing. He told Mr. Klock he was free to make reports to licensing boards, but directed him to cease threatening coworkers with revocation of their professional licenses.
31. At 4:17 p.m., Ms. Cooper sent Mr. Klock an email that states, “Wayne: until further notice from me or the Fire Marshal, if you have need to communicate with your supervisor, Linda Burch, please communicate by email only or speak with Chief Architect Don Zeringue.”
32. At 2:07 p.m., Mr. Klock sent an email to Mr. Browning. This email states in pertinent part, “Per your order, I will submit the laws that I think are being violated by this office on a regular basis…My efforts to correct these activities have been ignored for over a year and a half now. It is placing the Public in Jeopardy. I am appalled by this, not only as an employee of the DPS Fire Marshal’s Office but also as a PE in Control Systems Engineer and a citizen of the State of Louisiana.”
33. On May 12, 2011, Ms. Cooper gave Mr. Klock a memorandum that responded to the issues raised by Mr. Klock in his April 1, 2011 email to Mr. Browning. This memorandum concludes as follows: “All five issues/allegations stated by you in your email to the Fire Marshal dated April 1, 2011, have been addressed and none of the issues are sustained. The Fire Marshal welcomes any questions of the Louisiana Professional Engineering and Land Surveying Board, the Louisiana State Board of Architectural Examiners and any other boards and authorities regarding its Life Safety and Property Protection Licensing Law and plan review processes.”
34. DPSC Policy and Procedure Order No. 03-01.18(C), Violence in the Workplace, states as follows:
1. It is the Department’s policy to promote a safe environment for its employees and to communicate the attitude that violent behavior will not be excused or tolerated.
2. Violence, threats, harassment, intimidation or other disruptive behavior in the workplace will not be tolerated. All reports of such incidents will be taken seriously and dealt with appropriately.
3. Inappropriate behavior can include oral or written statements, gestures or expressions that communicate a direct or indirect threat of physical harm.
35. OSFM Policy and Procedural Order No. 201(B)(15)(a), Relations with other employees, states as follows:
(a) An employee shall never behave disrespectfully or use threatening or insulting language toward any other employee engaged in the execution of their position or duties.
(b) No employee shall draw or lift a weapon towards, offer violence against, strike or attempt to strike another employee.
36. OSFM Policy and Procedural Order No. 201(D)(3)(a), Code of Conduct & Ethics – Lawful Orders, states as follows:
An employee shall promptly obey any and all lawful orders of a superior officer or supervisor. Unless exigencies dictate otherwise, lawful orders shall be handled as soon as practicable and reasonable. A “lawful order” is any order or assignment in keeping with the performance of any duty, issued either verbally or in writing over the signature of the Secretary, Deputy Secretary, Fire Marshal, or or any other superior officer, supervisor or any order presented by the various manuals, orders, regulations or directives of the Office of the State Fire Marshal necessary for the preservation of good order, efficiency or proper discipline within the Office. This will include orders relayed from a superior officer or supervisor by a member of the same or lesser grade.
37. OSFM Policy and Procedural Order No. 201(B)(2)(b), Conduct Unbecoming an Employee, states as follows:
Unbecoming conduct is that conduct which:
1. Brings the Department or any of it subdivisions into disrepute; or
2. Reflects discredit upon the employee as a member of the Department; or
3. Impairs the operations or efficiency of the Department, the employee, or state service; or
4. Impairs the operations or efficiency of the Department, the employee, or state service; or
5. Detrimentally affects the moral of the Department’s personnel.
Discussion and Conclusions of Law
An employee with permanent status in the classified civil service may be disciplined only for cause expressed in writing. Cause for disciplinary action is conduct of the employee that is prejudicial to the public service or detrimental to its efficient operation. Bannister v. Dept. of Streets, 666 So.2d 641 (La. 1996). The right of a classified state employee with permanent status to appeal disciplinary actions is provided for in Article X, § 8(A) of the Louisiana Constitution of 1974. That section states that “[t]he burden of proof on appeal, as to the facts, shall be on the appointing authority.” The appointing authority is required to prove its case by a preponderance of the evidence, which is evidence that is of greater weight or more convincing than that which is offered in opposition thereto. Proof is sufficient to constitute a preponderance when, taken as a whole, it shows the fact or causation sought to be proved as more probable than not. Wopara v. State Employees’ Group Benefits Program, 2002-2641 (La. App. 1 Cir. 7/2/03); 859 So.2d 67.
Docket No. 17137: the sixteen (16) hour suspension
DPSC charges Mr. Klock with violating supervisory directives to attend the December 9, 2010 conference and to timely submit a doctor’s certificate for his absences on December 9 and 10, 2010.
Prior to the conference date, Mr. Klock was ordered by State Fire Marshal Browning to attend the mandatory State Fire Marshal Conference on December 9, 2010. He did not do so; instead, he worked his regular shift and two hours of overtime at the Baton Rouge office.
Mr. Klock claims that he could not leave Baton Rouge that day, as he had to be close to his doctor’s office for testing. However, Mr. Klock never told any of his superiors prior to the conference date that he could not leave Baton Rouge on December 9, 2010, nor did he obtain supervisory approval to miss the mandatory conference.
On December 10, 2010, Mr. Zeringue ordered Mr. Klock to provide a doctor’s certificate for his absences on December 9 and 10, 2010. While Mr. Klock did not attend the conference on December 9, 2010, he did work, so no certificate was necessary for that day.
However, Mr. Klock did not report for duty on December 10, 2010; indeed, he informed Ms. Burch and Mr. Zeringue that morning by email that he would be absent due to illness. Mr. Klock thus had a duty to promptly obey Mr. Zeringue’s directive and produce a doctor’s certificate for his absence on December 10, 2010. He did not do so. Instead, Mr. Klock responded to Mr. Zeringue’s directive by flippantly stating in emails that “OGB has all the information you should require. Any questions!” and “I have no intention of wasting Dr. Edwards nurse’s time or his under the circumstances; just to satisfy your request for a Doctor’s note.” Mr. Klock did not provide the doctor’s certificate until December 15, 2010, almost a week later.
In violation of supervisory directives, Mr. Klock did not attend the December 9, 2010 conference, nor did he timely produce a doctor’s certificate for his absence on December 10, 2010. He not only failed to comply with supervisory directives, his email responses to Mr. Zeringue’s directive to produce a doctor’s certificate were dismissive and disrespectful. State classified employees must obey the orders of their superiors, and failure to do so impairs the efficiency of the public service. Ben vs. Housing Authority of New Orleans, 2003-1664, (La.App. 1 Cir. 5/14/04); 879 So.2d 803. Insubordination by its very nature is detrimental to the state service. Housing Authority of Morgan City v. Gibson, 598 So.2d 545 (La.App. 1 Cir. 1992). DPSC has proved cause for discipline against Mr. Klock with these charges.
Docket No. S-17255: the dismissal
DPSC charges Mr. Klock with engaging in inappropriate and insubordinate behavior.
On multiple occasions between June 2010, and March 2011, Mr. Klock yelled at Ms. Burch, despite her repeated directives that he not do so. On November 10, 2010, Mr. Klock told Ms. Burch that she was “unethical.” On November 16, 2010, Mr. Klock told Ms. Burch in a loud and angry tone that she was “the stupidest supervisor that I have ever had” and that she was “unethical” and “incompetent.” On January 28, 2011, and twice on March 3, 2011, Mr. Klock referred to Ms. Burch and Mr. Zeringue as “despicable people.” The second time on March 3, 2011, was immediately after Ms. Cooper had directed him not to do so. On March 25, 2011, he told Ms. Burch he could yell at her because she was “stupid” and “unethical.”
On June 3, 2010, June 4, 2010, June 15, 2010, December 12, 2010, and April 1, 2011, Mr. Klock made unfounded complaints regarding the work of other OSFM employees. On November 10, 2010, Mr. Klock yelled at an OSFM customer during a telephone call because, in his words, “Those clowns make me mad.” Mr. Klock refused to abide by the agency’s position on the classification of surgical suites, which required Ms. Burch to modify his job duties. He insisted on reviewing the work and second-guessing the decisions of his coworkers and supervisors, although that was not his job. During his PPR evaluation session on November 16, 2010, Mr. Klock threatened Ms. Burch with having her professional license revoked. I also conclude his statement to Ms. Burch on April 1, 2011, that “I’ll take care of this myself!” was a repeat of that threat, which violated Mr. Zeringue’s December 15, 2010 directive to him not to threaten coworkers.
The above incidents clearly show a pattern of extremely disrespectful, insubordinate behavior by Mr. Klock toward his superiors. His failure to obey the directives of Ms. Burch, Mr. Zeringue, and Ms. Cooper manifested his refusal to submit to supervisory authority. Refusing to obey orders constitutes cause justifying severe disciplinary action. Wells v. Department of Public Safety and Corrections, 498 So.2d 266 (La.App. 1 Cir. 1986); Ferguson v. Department of Health and Human Resources, 451 So.2d 165 (La.App. 1 Cir. 1984). Mr. Klock’s conduct was entirely inappropriate and disruptive to the operations of the agency. DPSC proved cause for discipline against Mr. Klock with these charges.
Other issues
Mr. Klock contends that he is the victim of retaliation for reporting unethical and illegal conduct by OSFM employees. Mr. Klock also contends that his superiors attempted to force him to engage in unethical conduct. Neither of these contentions has any merit.
Retaliation is a form of non-merit factor discrimination. Under Civil Service Rule 13.19(r), Mr. Klock bears the burden of proof on this issue. He also bears the burden of proving his claim that his superiors tried to pressure him into engaging in unethical conduct. However, I conclude that Mr. Klock failed to produce any credible evidence in support of these claims.
Mr. Klock and his expert witness, a Professional Mechanical Engineer, testified at the hearing that Mr. Klock was a licensed Professional Engineer and his superiors were not; thus, Mr. Klock’s views and opinions were controlling. I reject this testimony. Mr. Klock was not the State Fire Marshal; he was a subordinate, non-supervisory employee. Moreover, I conclude from the testimony of Mr. Klock’s superiors and DPSC’s expert witness, an expert in sprinkler systems and fire protection, that no OSFM employee acted unethically or illegally, or ordered Mr. Klock to do anything illegal or unethical.
Conclusion
The Supreme Court of Louisiana has held that it is the duty of the Commission 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. AFSCME, Council #17 v. State ex rel. Dept. of Health and Hospitals, 2001-0422 (La. 6/29/01); 789 So.2d 1263. Mr. Klock asserts his dismissal is too severe. I disagree. On multiple occasions over an extended period of time, Mr. Klock engaged in inappropriate and insubordinate behavior that was manifestly detrimental to the state service. Based upon the forgoing reasons, I conclude that DPSC proved legal cause for discipline and that the penalties imposed, a sixteen-hour suspension and dismissal, are commensurate with the offenses.
Accordingly, I hereby deny this appeal.
____________________________
Brent C. Frederick
Civil Service Commission Referee