Harrell v. Dep't of Health and Hospitals, Office for Citizens with Developmental Disabilities, Pinec

Decision Date10 September 2010
Docket NumberNos. 2010 CA 0281, 2010 CA 0282.,s. 2010 CA 0281, 2010 CA 0282.
Citation48 So.3d 297
PartiesClara HARRELL v. DEPARTMENT OF HEALTH AND HOSPITALS, OFFICE FOR CITIZENS WITH DEVELOPMENTAL DISABILITIES, PINECREST SUPPORTS AND SERVICES CENTER Brenda Prater v. Department of Health and Hospitals, Office for Citizens with Developmental Disabilities, Pinecrest Supports and Services Center.
CourtCourt of Appeal of Louisiana — District of US

Daniel E. Broussard, Jr., Alexandria, LA, Attorney for Plaintiffs-Appellants, Clara Harrell and Brenda Prater.

William F. Coco, Alexandria, LA, Attorney for Defendant-Appellee, Department of Health & Hospitals.

Before CARTER, C.J., GAIDRY and WELCH, JJ.

CARTER, C.J.

**3 In these consolidated cases, Clara Harrell and Brenda Prater were permanent-status civil service employees of the Louisiana Department of Health and Hospitals, Office for Citizens with Developmental Disabilities, at the Pinecrest Supports and Services Center (hereinafter referred to as "Pinecrest"). Ms. Harrell and Ms. Prater appeal an adverse ruling by the State Civil Service Commission (the Commission) upholding their termination by the appointing authority from their previous state employment as Residential Services Specialists at Pinecrest. After a thorough review of the record and the applicable law and jurisprudence, we affirm the Commission's decision, finding Ms. Harrell's and Ms. Prater's terminations were based on legal cause and commensurate with the infractions.

BACKGROUND

Prior to their terminations, Clara Harrell and Brenda Prater were both serving in supervisory positions with permanent civil service status, having been employed as Residential Services Specialists (RSS-6 and RSS-5, respectively) on Home 315 at Pinecrest. Pinecrest is a state institution for the care of persons with serious mental and physical disabilities, and Home 315 is an assisted living facility for special needs residents at Pinecrest, many of whom are nonverbal.1 After written notice, Ms. Harrell and Ms. Prater were terminated for cause on September 26, 2008. They were charged with physically, emotionally, and psychologically abusing Pinecrest **4 Home 315 residents in a variety of specifically outlined ways. The main allegations of abuse involved the use of two-pound hand weights placed in the day hall, the bathroom, and on Ms. Harrell's desk in June, July, and August 2008. Allegedly, Ms. Harrell and Ms. Prater hit several residents in the knees with the hand weights in an attempt to stop residents from "acting out," and they instructed subordinate employees to display the hand weights to control the behavior of residents while at Home 315 and on trips away from the Pinecrest facility. 2

Ms. Harrell and Ms. Prater each denied all of the charges against them and each requested an appeal of their dismissals to the Commission, alleging that their terminations were in retaliation for their having filed a grievance in June 2008.3 The appeals were consolidated for a three-day public hearing before the Commission's duly-appointed referee, during which testimony and evidence were presented. The evidence included the written statements of two former Pinecrest employees who did not testify at the hearing and the results of Ms. Harrell's polygraph test. At the end of the hearing, the matter was taken under advisement; and on September 15, 2009, the referee rendered a decision denying Ms. Harrell's and Ms. Prater's appeals. The referee found that Pinecrest had satisfied its burden of proof by proving legal cause for discipline in that Ms. Harrell and Ms. Prater physically, emotionally, and psychologically abused Pinecrest residents. The referee further concluded that the disciplinary action of termination was **5 commensurate with the proven infractions involving abuse of the Pinecrest residents whom Ms. Harrell and Ms. Prater were responsible for caring and supporting. Ms. Harrell and Ms. Prater filed an application for review of the referee's decision, which was denied by the Commission on November 5, 2009. This appeal followed.

ASSIGNMENTS OF ERROR

Ms. Harrell and Ms. Prater assert that the Commission, through its referee, erred when the referee: (1) rejected their appeal since the evidence did not support the conclusion; (2) admitted hearsay statements of former employees; (3) rejected un-rebutted evidence of Ms. Harrell's polygraphtest; and (4) improperly cross-examined the polygraph expert.

STANDARD OF REVIEW

In civil service disciplinary cases, decisions of the Commission and its referees are subject to the same standard of review as a decision of a district court. Lasserre v. Louisiana Public Service Com'n, 04-0615 (La.App. 1 Cir. 4/8/05), 903 So.2d 474, 477. Factual findings of the Commission referee are subject to the clearly wrong or manifest error standard of review. Bannister v. Department of Streets, 95-0404 (La.1/16/96), 666 So.2d 641, 647. It is the province of the Commission referee to determine the weight to be given to evidence in an administrative hearing. Evans v. DeRidder Mun. Fire, 01-2466 (La.4/3/02), 815 So.2d 61, 69, cert. denied, 537 U.S. 1108, 123 S.Ct. 884, 154 L.Ed.2d 779 (2003). As to the determination of whether the disciplinary action is based on legal cause and commensurate with the offense, the Commission's decision should not be modified unless it is arbitrary, capricious, or characterized by abuse of discretion. Lasserre, 903 So.2d at 477. An administrative agency's determination is "capricious" **6 when it has no substantial evidence to support it; it is "arbitrary" when the evidence has been disregarded or not given the proper weight. Marsellus v. Dept. of Public Safety and Corrections, 04-0860 (La.App. 1 Cir. 9/23/05), 923 So.2d 656, 661.

DISCUSSION

A classified employee with permanent status may not be subjected to disciplinary action except for cause expressed in writing. LSA-Const. art. 10, § 8(A). Cause sufficient for the imposition of discipline means conduct that impairs the efficiency of the public service and bears a real and substantial relation to the efficient and orderly operation of the public service in which the employee is engaged. Wopara v. State Employees' Group Benefits Program, 02-2641 (La.App. 1 Cir. 7/2/03), 859 So.2d 67, 69. The appointing authority (Pinecrest in this case) must prove by a preponderance of the evidence that the employee's conduct did, in fact, impair the efficient and orderly operation of the public service. Id. A preponderance of the evidence means evidence which is of greater weight than that which is offered in opposition. Proof is sufficient to constitute a preponderance when, taken as a whole, it shows the fact of causation sought to be proved as more probable than not. Brown v. Dept. of Health & Hospitals Eastern Louisiana Mental Health System, 04-2348 (La.App. 1 Cir. 11/4/05), 917 So.2d 522, 527, writ denied, 06-0178 (La.4/24/06), 926 So.2d 545.

Pinecrest imposed the sanction of termination based upon the written charge that Ms. Harrell and Ms. Prater had physically, emotionally, and psychologically abused Pinecrest residents. Ms. Harrell and Ms. Prater deny they were abusive and argue that Pinecrest failed to prove by a **7 preponderance of the evidence that they were abusive to Pinecrest residents. Ms. Harrell and Ms. Prater also maintain that their dismissal was due to retaliation because they had filed a grievance against Pinecrest administration. However, the Commission's referee found that the retaliation theory was not supported by any evidence adduced at the hearing, and the Commission's referee rejected Ms. Harrell's and Ms. Prater's self-serving testimony denying any abusive conduct. The Commission referee's comprehensive findings of fact specifically focusing on the abusive actions demonstrated by Ms. Harrell and Ms. Prater included:

* * *

7. Two-pound hand weights were in the Home 315 day hail, bathroom and onMs. Harrell's desk. These hand weights should have been kept in a locked cabinet, but were not.
8. In approximately June, 2007, Ms. Harrell was talking to her subordinate Kemberly Kidd Freeman, an RSS-2 at Pinecrest. Ms. Harrell picked up a two-pound hand weight that was located to the right of the television in the Home 315 day hall, and Ms. Harrell stated to the effect that, "I'm going to show you how to deal with Pinecrest resident number 5012, when he gets out of hand."
9. Ms. Freeman understood Ms. Harrell to mean that she harmed resident 5012 with the hand weight. Ms. Freeman walked away as she did not want to hear any more.

* * *

13. After Ms. Harrell, Ms. Prater and Roger Guidry, an RSS-1, went in the Home 315 bathroom with resident number 4303, Ms. Freeman heard resident number 4303 begin to holler repetitively like "Scooby Doo." The hollering was not a happy sound and was especially unusual as resident number 4303 is non-verbal. Ms. Freeman was not allowed to go into the bathroom.

* * *

15. Pinecrest staff are obligated to promptly report the abuse of Pinecrest residents.
16. Although Ms. Freeman made reports of abuse, she was reluctant to report abuse involving Ms. Harrell because she had been told she was "out of line," "to mind her own business," and that Ms. Harrell was Mike Lienhop's [a Regional **8 Administrator 4 at Pinecrest] "baby" and that anything said about Ms. Harrell would not be acted on.

* * *

18. In July, 2008, Mr. Simon, then an RSS-2, walked in on Ms. Harrell and Ms. Prater, who were alone in the Home 315 bathroom with resident number 5012. Both Ms. Harrell and Ms. Prater were actively participating in striking resident number 5012 in the knees with a hand weight. According to Mr. Simon the force of the blows was a 6 on a scale of 1 to 10. At the hearing on June 1, 2009, Mr. Simon could not recall whether Ms. Harrell or Ms. Prater had the hand weight.
19. In July or August, 2008, Mr. Simon saw Ms. Harrell and Ms. Prater standing over resident number 5012, who was seated in his recliner in the Home 315 day hall. A hand weight was visible on a table and resident
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