Decision
Filed: July 31, 2012
State of Louisiana
Civil Service Commission
Docket No. S-17368
Mattie Green
Versus
Louisiana State University Health Care Services Division,
Earl K. Long Medical Center
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Rule(s): 12.2
Topic(s): Dismissal; inappropriate relationship with prison inmate; false statements during investigation
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Appearances: Mattie Green in proper person
Tamara Simien, counsel for LSUHCSD, EKLMC
Statement of the Appeal
The Louisiana State University Health Care Services Division (LSUHCSD) employed Mattie Green as a Health Information Outpatient Coder at Earl K. Long Medical Center (EKLMC) and she served with permanent status.
By letter dated February 17, 2012, LSUHCSD dismissed Ms. Green effective that same day. LSUHCSD alleges that in June 2011, Ms. Green, while employed at EKLMC and in violation of hospital policy, began an inappropriate relationship with Sidney Thomas, a Dixon Correctional Institute (DCI) inmate who worked as a trusty with a janitorial crew at EKLMC. LSUHCSD further alleges that Ms. Green and Mr. Thomas’s illicit relationship continued until her dismissal and that Ms. Green gave false and misleading statements during an official investigation.
On March 12, 2012, Ms. Green appealed her dismissal. In her appeal, she denies the allegations of the disciplinary letter. As relief, Ms. Green requests rescission of the disciplinary action, expungement of her personnel record, back pay, a formal apology, and monetary damages for emotional distress.
I held a public hearing on May 21, 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. LSUHCSD employed Mattie Green as a Health Information Outpatient Coder at EKLMC. She served with permanent status and had worked for LSUHCSD for approximately four years. Ms. Green had no previous disciplinary actions.
2. Ms. Green worked in the Medical Records Section at EKLMC with five other coders. Rosemary Dorman, Health Information Management Director, was Ms. Green’s direct supervisor.
3. DCI inmates work on janitorial crews at EKLMC. EKLMC also provides medical treatment for DCI inmates when necessary.
4. On or about June 9, 2011, Ms. Green met Sidney Thomas, a DCI inmate, while he was working as a trusty with an EKLMC janitorial crew. Over the next three weeks, Ms. Green and Mr. Thomas began to exchange pleasantries throughout the workday, and occasionally had conversations while walking in the parking lot. Mr. Thomas ceased to work as a trusty at EKLMC on or about June 29, 2011, although he remained a DCI inmate.
5. From July 1, 2011, until August 1, 2011, Ms. Green was absent from work on Family and Medical Leave Act (FMLA) leave for foot surgery.
6. On August 3, 2011, and without knowledge of the EKLMC administration, DCI sent Major Jacqueline Faulkenberry[1] to EKLMC to investigate a report from a “Ms. Addison” that Ms. Green was having sex with Mr. Thomas at EKLMC during work hours.
7. After the EKLMC administration found out about the DCI investigation, it halted the employee interviews being conducted by Major Faulkenberry and placed its attorney, Tamara Simien, in charge of an internal investigation.
8. On August 4, 2011, LSUHCSD placed Ms. Green on paid suspension pending investigation.
9. On August 31, 2011, Ms. Simien began interviewing Ms. Green’s co-workers. Anna Morgan, a Healthport contract employee, stated that she knew of a relationship between Ms. Green and Mr. Thomas, although she had never witnessed any specific misconduct.
10. On September 1, 2011, Ms. Simien interviewed Ms. Green. Ms. Green admitted meeting Mr. Thomas on or about June 9, 2011, a few weeks prior to her going on FMLA leave for foot surgery. Ms. Green denied having any relationship with Mr. Thomas other than exchanging pleasantries and occasional polite conversation.
11. By letter dated September 7, 2011, LSUHCSD informed Ms. Green that the investigation was complete and instructed her to return to work no later than September 15, 2011.
12. On September 22, 2011, Ms. Green called DCI and requested information so that she could correspond with Mr. Thomas and they began to correspond with each other.
13. On September 28, 2011, Mr. Thomas requested and DCI placed Ms. Green on his approved visitor and telephone call lists.
14. Ms. Green visited Mr. Thomas twice at DCI in November 2011, and again on December 3, 2011. During the December visit, they posed together for a photograph. Later that month, Mr. Thomas received notice that his pending parole was in jeopardy due to the allegations regarding his relationship with Ms. Green.
15. In early January 2012, Mr. Thomas contacted Ms. Green and asked her to send him a copy of the LSUHCSD investigation report and to write an affidavit denying the allegations for his parole hearing.
16. On February 1, 2012, DCI Warden Steve Rader contacted Ms. Simien and stated that DCI had intercepted a bulky package labeled “legal” that Mr. Thomas had attempted to mail to “Ms. Delois Thomas” and addressed to Ms. Green’s home address. The package contained copies of the letters issued by LSUHCSD to Ms. Green regarding her alleged relationship with Mr. Thomas, Ms. Simien’s investigatory report, documents regarding Mr. Thomas’ parole, and a locket containing a copy of the photograph taken of Mr. Thomas and Ms. Green on December 3, 2011.
17. The EKLMC Employee Handbook, Professional Conduct, Interpersonal Relationships, provides in pertinent part:
EKLMC employees are strictly prohibited from communicating or engaging in an interpersonal relationship with any correctional facility inmate. Employees are restricted to only the social amenities such as “hello”, “goodbye”, “thank-you”, etc. If an inmate is in need of instruction, employees are to relay instructions through the Department of Corrections officer in charge of the inmates. Violation of this regulation will result in disciplinary action.
18. LSUHCSD Policy 02-07-001, Disciplinary Actions: Causes for Disciplinary Action, Policy and Procedure, II. Policy, Level II, provides in pertinent part:
Level II violation is more serious and may result in suspension or termination if employee/patient safety, direct patient care, employee productivity, and/or performance of the daily operation is impacted.
Some examples of Level II violations include the following:
. . .
9. Inappropriate conduct with prison inmates.
19. LSUHCSD Policy 4528-09, Investigations Policy, V. Responsibilities, provides in pertinent part:
G. Employees are required to cooperate in an investigation. This may include participation as a witness; providing details; confirming and/or documenting information; identify other potential witnesses or parties.
Disciplinary action up to and including dismissal may occur where the employee refuses to cooperate and/or violates this policy.
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.
LSUHCSD charges Ms. Green with inappropriate conduct and/or having an inappropriate relationship with Sidney Thomas, a DCI inmate, who worked as a trusty with a janitorial crew at EKLMC. This relationship allegedly began in early June 2011, and continued for the duration of Ms. Green’s employment at EKLMC. LSUHCSD also charges Ms. Green with giving false and misleading statements during an official investigation.
Charge #1: Inappropriate conduct and/or relationship with an incarcerated offender
At the hearing, Ms. Green testified that prior to the conclusion of LSUHCSD’s investigation in early September 2011, she did not have an interpersonal relationship with Mr. Thomas beyond exchanging daily pleasantries and polite conversation. She further testified that after the conclusion of the investigation and Mr. Thomas was no longer a trusty at EKLMC, she began to correspond with him and they developed a friendship.
Ms. Thomas provided the only competent evidence of her interactions with Mr. Thomas; LSUHCSD’s case consisted primarily of hearsay. Although the rules prohibiting the admission of hearsay are relaxed in administrative hearings, any hearsay evidence that is admitted must be corroborated by competent evidence in order to form the basis of a finding of fact. Superior Bar and Grill, Inc. v. State of Louisiana, through the Department of Public Safety and Corrections, 94-1879 (La. App. 1 Cir. 5/5/95); 655 So.2d 468. “Ms. Addison,” Major Faulkenberry, and Ms. Simien did not testify, nor did anyone with personal knowledge of inappropriate behavior on Ms. Thomas’ part. Anna Morgan did testify, but she admitted that she had never seen any specific misconduct between Ms. Green and Mr. Thomas.
On February 1, 2012, DCI informed LSUHCSD that Ms. Green and Mr. Thomas had been in contact with each other and appeared to be in a relationship based on the contents of the package it had intercepted from Mr. Thomas. LSUHCSD contends that the contents of the intercepted package prove that Ms. Green and Mr. Thomas were engaged in an ongoing interpersonal relationship that began in June 2011. This contention is without merit.
The package contained documents concerning the LSUHCSD investigation and a copy of the photograph of Ms. Green and Mr. Thomas taken on December 3, 2011, at DCI. Ms. Green testified that her relationship with Mr. Thomas began after the conclusion of LSUHCSD’s investigation in early September 2011, several months after Mr. Thomas ceased to work at EKLMC. The package does not refute Ms. Green’s testimony that her relationship with Mr. Thomas did not begin until after early September 2011.
LSUHCSD introduced two policies regarding interactions between employees and inmates. Inmates may be present at EKLMC as patients or as trusties with a janitorial crew.
The EKLMC Handbook states that employees are strictly prohibited from communicating or engaging in an interpersonal relationship with any correctional facility inmate. LSUHCSD Policy 02-07-00, Disciplinary Actions: Causes for Disciplinary Action provides that inappropriate conduct with a prison inmate is a Level II violation.
LSUHCSD maintains that a strict interpretation of those two policies prohibit all employees from communicating with or engaging in an interpersonal relationship with prison inmates, even if the inmates are not receiving medical treatment or working with a crew at EKLMC. LSUHCSD asserts that the reason for the prohibition is the possibility that at any time an inmate may become a patient at the hospital or a worker with the janitorial crew, so EKLMC employees should not communicate with or have a relationship with any inmate at any place or at any time.
I conclude that LSUHCSD’s interpretation of the two policies at issue is unduly strict and unreasonable. The EKLMC Handbook provides the contextual meaning for the prohibition:
Employees are restricted to only the social amenities such as “hello”, “goodbye”, “thank-you”, etc. If an inmate is in need of instruction, employees are to relay instructions through the Department of Corrections in charge of the inmates. (Emphasis supplied.)
The “instruction” language in the above provision indicates that LSUHCSD’s prohibition of employee and inmate interpersonal relationships only applies when the inmate is a trusty or patient at the hospital. Therefore, Ms. Thomas’ actions were not in violation of the hospital policies. While Mr. Thomas was a trusty at EKLMC, Ms. Green’s interactions with him were limited and superficial. Ms. Green and Mr. Thomas did not develop an “interpersonal relationship” within the purview of the policy until Mr. Thomas was no longer a trusty at the hospital and the policy was inapplicable. LSUHCSD has thus failed to prove cause for discipline against Ms. Green with this charge.
Charge #2: Giving false and misleading testimony during an official investigation
LSUHCSD did not produce any competent evidence to support its charge that Ms. Green gave false and misleading testimony during its internal investigation. Therefore, I conclude that LSUHCSD failed to prove cause for discipline against Ms. Green with this charge.
Accordingly, for the foregoing reasons, I hereby grant this appeal. The dismissal is reversed and all documents concerning the dismissal shall be removed from Ms. Green’s personnel file. I further order that LSUHCSD pay Ms. Green back wages, subject to an offset for any wages earned and/or unemployment compensation benefits received by Ms. Green since her dismissal, with legal interest on the difference.
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Kathe Zolman-Russell
Civil Service Commission Referee
[1] I have taken judicial notice of Ms. Faulkenberry’s first name and job title from the Integrated Statewide Information System (ISIS).