Decision

 

 

                                                                                          Filed: December 8, 2011

 

State of Louisiana

Civil Service Commission

 

Docket No. S-17187

 

Sharon Holloway

 

Versus

 

Department of Public Safety and Corrections, Rayburn Correctional Center

______________________________________________________________________

 

Rule(s):        12.2; 13.19(m)

Topic(s):       Dismissal; sending inappropriate text messages, false statements during investigation; “four corners” rule

______________________________________________________________________

 

Appearances:          Barry W. Bolton, counsel for Sharon Holloway

                              Susan Wall Griffin, counsel for DPSC, RCC

 

Statement of the Appeal

 

The Department of Public Safety and Corrections (DPSC) employed Sharon Holloway as a Corrections Sergeant-Master at Rayburn Correctional Center (RCC).  She served with permanent status.

 

By letter dated June 16, 2011, DPSC dismissed Ms. Holloway from her position effective June 20, 2011.  DPSC alleges that on March 11, 2011, Ms. Holloway sent inappropriate text messages to a co-worker.  DPSC also alleges that on April 6, 2011, Ms. Holloway made false statements to an RCC investigator regarding the March 11, 2011 incident.  In support of the severity of the penalty imposed, DPSC refers to eight disciplinary actions previously taken against Ms. Holloway.

 

On June 24, 2011, Ms. Holloway appealed her dismissal.  In her appeal, she denies the allegations of the dismissal letter.  As relief, Ms. Holloway requests reversal of the dismissal, expungement of her personnel record, and an award of attorney’s fees.

 

I held a public hearing on November 21, 2011, in Angie, Louisiana.  Based upon the evidence presented and pursuant to 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 employed Sharon Holloway as a Corrections Sergeant-Master at RCC and she served with permanent status.  She was on the B-Team and worked the 5:45 a.m. to 6:00 p.m. shift.

 

2.  In early 2011, RCC posted an announcement for an open position in its Control Center.  Several RCC employees applied for the position, including Ms. Holloway[1] and her daughter, Andria Holloway, who was a Corrections Sergeant at RCC.

 

3.  On March 11, 2011, Ms. Holloway commenced a thread of text messages to a B-Team co-worker at RCC, Karen Myers, Corrections Sergeant-Master, using a cellular telephone.  The cellular telephone’s number was (985) 750-6465, and AT&T was its service provider.  The bills for the cellular telephone were in the name of Clem Holloway, who is Ms. Holloway’s elderly father.  Mr. Holloway’s AT&T bill also included charges for three other cellular telephones. 

 

4.  Ms. Holloway sent the text messages to Sergeant Master Myers’ cellular telephone, a Samsung Captivate.  Neither of the cellular telephones was owned or provided by RCC.  Both Ms. Holloway and Sergeant Master Myers were off-duty on March 11, 2011.

 

5.  The March 11, 2011 thread of text messages between Ms. Holloway and Sergeant Master Myers was as follows:

 

Ms. Holloway to Sergeant Master Myers at 8:05 a.m.

“I know you told me when i told you what i heard about flynn that that’s your pussy.  Who did you fuck this time.  WHO DID YOU FUCK TO GET MY DAUGHTER THE POSITION?”

 

Sergeant Master Myers to Ms. Holloway at 8:39 a.m.

“If I fuck anyone it will be for my own personal gain.  U are truly stupid.”

 

Sergeant Master Myers to Ms. Holloway at 8:43 a.m.

“Going to save this and show Tanner.”

 

Ms. Holloway to Sergeant Master Myers at 8:55 a.m.

“I am not on company time or email.  You started this.  Trying to have me and my daughter mad at each other.  Show it, you going to hurt yourself.  Remember, you reap what you sow.”

 

Sergeant Master Myers to Ms. Holloway at 8:57 a.m.

“Neither was Bryan Williams.  You’re making a fool of yourself.  Keep talking shit.”

Ms. Holloway to Sergeant Master Myers at 9:05 a.m.

“Do what you want.”

 

Sergeant Master Myers to Ms. Holloway at 9:09 a.m.

“Sgt. Master Andria Holloway.”

 

Ms. Holloway to Sergeant Master Myers at 9:10 a.m.

“Congratulations.” [2]

 

6.  Prior to March 11, 2011, Sergeant Master Myers and Ms. Holloway had communicated with each other with their cellular telephones on a regular basis.  Sergeant Master Myers’ cellular telephone was programmed so that when an incoming call or text message came from telephone number (985) 750-6465, her cellular telephone indicated that the incoming call or text message was from “Sharon Cell.”

 

7.  Prior to March 11, 2011, Ms. Holloway had given telephone number (985) 750-6465 to RCC as a contact number.[3]

 

8.  Sergeant Master Myers was upset by the text messages she had received from Ms. Holloway, so on March 29, 2011, she made a report to Darryl Mizell, who is a Corrections Captain with RCC’s Investigations Unit.  After interviewing Sergeant Master Myers and reading the text messages on her cellular telephone, he commenced an investigation of the incident.

 

9.  In the course of his investigation, Capt. Mizell interviewed Ms. Holloway on April 6, 2011.  Ms. Holloway told Capt. Mizell that the cellular telephone used to send the text messages to Sergeant Master Myers on March 11, 2011, was hers, but that the text messages had been written and sent by Kenisha Parker, age 21, who is Ms. Holloway’s daughter.

 

10.  Corrections Services Employee Manual Rule 6 provides as follows:

 

FAILURE TO FOLLOW ORDERS: Employees must obey all Department Regulations, unit policy and procedures, post orders, Civil Service Rules and other written procedures and policies.   

 

11.  Corrections Services Employee Manual Rule 10 provides in pertinent part as follows:

 

FALSIFYING DOCUMENTS OR MAKING FALSE STATEMENTS: Knowingly making false statements or deliberately omitting important facts on official reports or documents or in other work-related circumstances is forbidden.

 

12.  Corrections Services Employee Manual Rule 13 provides in pertinent part as follows:

 

MALFEASANCE – AGGRAVATED

 

a.  No employee shall threaten or attempt to intimidate another employee or visitor.  No employee shall assault or commit battery upon another employee or a visitor.

 

b.  Deliberate and/or repeated unsolicited words, comments, gestures or other acts that have the purpose or effect of unreasonably interfering with another employee’s work performance or creating an intimidating or offensive environment are prohibited.

. . .

 

q.  Employees must cooperate with all Department and/or unit investigations and inquiries.

 

13.  Prior to the incidents at issue in this appeal, DPSC imposed the following disciplinary actions upon Ms. Holloway:

 

September 19, 1996 – fifteen (15) day suspension and demotion for falsifying documents and making false statements

 

March 24, 1997 – twenty (20) day suspension for failure to follow orders

 

October 26, 1999 – five (5) day suspension for failure to follow orders and malfeasance

 

October 22, 2001 – two (2) day suspension for failure to report for duty on time

 

July 22, 2002 – three (3) day suspension for failure to report for duty on time

 

December 20, 2002 – ten (10) day suspension for making false statements

 

April 4, 2008 – three (3) day suspension for possession of contraband

 

July 20, 2009 – two (2) day suspension for failure to follow orders

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.

 

DPSC charges Ms. Holloway with sending inappropriate text messages to a co-worker and making false statements to an RCC investigator who was investigating the incident.

 

Charge #1: Sending inappropriate text messages to a co-worker

 

The dismissal letter only includes two of the text messages from the March 11, 2011 thread allegedly sent by Ms. Holloway, and one of those text messages is not quoted in its entirety.  Therefore, only those two text messages as set forth in the dismissal letter will be considered as part of this charge, and then only insofar as they violate Rules 6 and/or 13 of the Corrections Services Employee Manual.  DPSC’s charges are restricted to the factual allegations contained in the disciplinary letter under Civil Service Rule 13.19(m), the “four-corners” rule.  See Leteff v. Department of Corrections, Headquarters, 462 So.2d 254, 257 (La. App. 1 Cir. 1984).  The text messages are: 1) “WHO DID YOU FUCK TO GET MY DAUGHTER THE POSITION?” and 2) “I am not on company time or email.  You started this.  Trying to have me and my daughter mad at each other.  Show it, you going to hurt yourself.  Remember, you reap what you sow.” 

 

The evidence adduced at the hearing indicates that these text messages were sent to Sergeant Master Myers’ cellular telephone.  I conclude they constituted an attempt to intimidate her and had the purpose or effect of creating an offensive and intimidating work environment as prohibited by Corrections Services Employee Manual Rules 6 and 13.  The question then becomes, who sent the text messages?

 

The text messages are phrased in the first person, and their content indicates that the writer was Ms. Holloway: “MY DAUGHTER”, “I am not on company time…”, “Trying to have me and my daughter…” (Emphasis supplied).  The subject of the text messages is a personnel matter at RCC.  The text messages were sent from a cellular telephone with a number given to RCC by Ms. Holloway as a contact number for her.  Sergeant Master Myers testified that she had received calls and text messages from Ms. Holloway from that cellular telephone on many previous occasions.  Ms. Holloway admitted to Capt. Mizell during the investigation that the text messages came from her cellular telephone.

 

However, Ms. Holloway also told Capt. Mizell during the investigation that her daughter, Kenisha Parker, had sent the text messages to Sergeant Master Myers using Ms. Holloway’s cellular telephone.  In support of this contention, Ms. Holloway presented the testimony of Ms. Parker.  Ms. Holloway did not testify at the hearing.

 

Ms. Parker testified that she sent the text messages to Sergeant Master Myers using Ms. Holloway’s cellular telephone.  According to Ms. Parker, the March 11, 2011 thread began with a text message from Sergeant Master Myers, but no documentation of this text message was produced at the hearing.  Ms. Parker stated that she had decided “immediately” to pretend to be her mother and respond to this text message because Sergeant Master Myers needed to be “put in her place.”

 

I find Ms. Parker’s testimony to be completely unworthy of belief.  Ms. Holloway is her mother and Ms. Parker lives with her, so Ms. Parker’s bias is obvious.  Ms. Parker stated that she was at home during the text messaging, but her later testimony suggests that she may have been working at Walmart that day.  Despite Ms. Holloway’s admission to Capt. Mizell that the cellular telephone was hers, Sergeant Master Myers’ testimony that she frequently received calls from Ms. Holloway from that cellular telephone, and Sgt. Andria Holloway’s testimony that the cellular telephone was Ms. Holloway’s, Ms. Parker insisted that the cellular telephone stayed at her elderly grandfather’s house.  The grandfather, Clem Holloway, was billed by AT&T for three other cellular telephones, and did not testify at the hearing.    

 

I do not believe that Ms. Parker concocted a plan to pretend to be her mother “immediately” upon the alleged receipt of the first text message from Sergeant Master Myers, and I find that Sergeant Master Myers did not begin the text message thread anyway.  Both Sergeant Master Myers and Ms. Parker’s sister, Sgt. Andria Holloway, testified that Ms. Parker did not use the kind of profanity contained in the text messages.  The nature of the entire thread indicates knowledge that Ms. Parker was unlikely to have, e.g. the reference in the first text message to “flynn.”  For these reasons, I give no weight whatsoever to Ms. Parker’s testimony.  I find that Ms. Holloway sent the text messages at issue to Sergeant Master Myers.

 

Ms. Holloway’s sending the text messages to Sergeant Master Myers constituted an attempt to intimidate her and had the purpose or effect of creating an offensive and intimidating work environment.  Sergeant Master Myers testified that she was upset about the text messages for several days, which finally led her to report the incident to RCC.  The text messages were patently offensive and could only have been intended by Ms. Holloway to create an offensive and intimidating work environment for Sergeant Master Myers.

 

A prison is a unique workplace.  A relatively small number of correctional officers are responsible for a large number of offenders.  Teamwork and cooperation are essential, and thus RCC cannot tolerate behavior that creates an offensive and/or intimidating work environment, even when the behavior occurs off-duty.  An agency may discipline an employee for off-duty conduct in violation of a departmental rule when the prohibition against the conduct is reasonably necessary for the continued efficiency of the public service.  Crowe v. Department of Public Safety and Corrections, Public Safety Services, Office of State Fire Marshal, CSC Docket No S-14679.  Such is the case here.  Although both parties were off-duty, I conclude that Ms. Holloway’s sending the text messages to Sergeant Master Myers was detrimental to the state service.  DPSC has proved cause for discipline against Ms. Holloway with this charge.

 

Charge #2: Providing false information during the investigation

 

In light of my finding the Ms. Holloway sent the text messages rather than her daughter, I conclude that Ms. Holloway provided false information to Capt. Mizell during the investigation when she told him that Ms. Parker had sent the text messages.  An employee’s provision of untruthful information to his agency has been held to constitute cause for discipline.  Barquet v. Department of Welfare, 620 So.2d 501 (La.App. 4 Cir. 1993).  Corrections Services Employee Manual Rules 10 and 13 require RCC employees to cooperate in investigations by telling the truth.  Ms. Holloway violated these rules by providing false information to Capt. Mizell, and thereby impeded his investigation.  DPSC has proved cause for discipline against Ms. Holloway with this charge.

 

As to the penalty, the Civil Service Commission and its Referees have a duty to decide “whether the punishment imposed is commensurate with the dereliction.”  Guillory v. Department of Transp. & Development, 475 So.2d 368, 370-371 (La. App. 1st Cir. 1985).  Ms. Holloway sent inappropriate text messages to a co-worker and then provided false information during the subsequent investigation, all to the detriment of the state service.  Prior to the incidents at issue in this appeal, DPSC had imposed disciplinary action upon Ms. Holloway eight times, including multiple suspensions for insubordination and providing false information.  Based upon the forgoing reasons, I conclude that DPSC proved legal cause for discipline and that the penalty imposed, dismissal, is commensurate with the offenses, particularly in view of Ms. Holloway’s extensive prior disciplinary record.

 

Accordingly, I hereby deny this appeal.

 

 

____________________________

Paul St. Dizier

Civil Service Commission Referee

 

 

 

 

 


[1] In this decision, I will refer to Sharon Holloway as “Ms. Holloway,” while Andria Holloway will be referred to as “Sgt. Andria Holloway.”

[2] While it could be argued that Sergeant Master Myers’ text messages in this thread are themselves inappropriate and in violation of DPSC policy, Ms. Holloway did not allege a claim of disparate treatment in her appeal.  Disparate treatment is a form of non-merit factor discrimination and must be specifically alleged in the appeal under Civil Service Rule 13.11(d).     

[3] This finding is based on Ms. Holloway’s written response that she submitted at the Second Level VR-1 hearing conducted by RCC on May 24, 2011.  The written response was prepared and signed by Ms. Holloway’s attorney and was signed by Ms. Holloway, so it is a non-hearsay admission under Louisiana Code of Evidence Art. 801 D(2).