Sharon Norbert VS LSU Health Sciences Center, University Medical Center
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2007 CA 0161 SHARON NORBERT VERSUS LSU HEALTH SCIENCES CENTER UNIVERSITY MEDICAL CENTER Judgment Rendered November 2 2007 Appealed from the Civil Service Commission Number S 15418 Honorable James A Smith Chairman Burl Cain Vice Chairman David Duplantier Charles W Dobie G Lee Griffin Rosa B Jackson and John McLure Daniel M Landry Lafayette III LA Counsel for Appellant Sharon Norbert Martha K Mansfield Counsel for Baton LSU Health Sciences Center Rouge LA Appellee University Medical Center Robert R Boland Jr Counsel for Baton Anne Soileau Dirctor Rouge LA Department State Civil Service BEFORE WHIPPLE GUIDRY AND HUGHES n V XV JI W r M1J tw I V uttAv j J 7L fo f GUIDRY J In this Sharon Norbert seeks review of appeal Civil Service Commission Center University Medical and had acted in Commission Center finding LSU had shown good faith For the reasons decision rendered a the by that LSU Health Sciences cause that follow terminating Norbert affirm in part reverse for we in part and remand FACTS AND PROCEDURAL HISTORY Norbert twenty 3 00 p m and employee of H a to R Block having most hospital admission technician for Norbeli worked from approximately injured two evenings medicine and lumbar Thereafter on work evenings 2004 Norbert back Accordingly pursuant to her doctor injuries work Norbert annual leave from LSU and 2004 position to past total of a at a desk work for LSU and in was accommodated s January because she takes her her body involved in at night an automobile aggravated her pre existing neck s recommendation that she and not requested and received paid sick leave and family medical leave from March 8 2004 to rests was on 14 at nights or accident while continued per week for LSU accommodated Norbert injections in the afternoon and March 4 for the performed while sitting her neck and back while In addition not a m seasonal was a January through April receiving sporadic workers compensation benefits request that she over admitting screening and discharging patients of her duties could be special lumbar chair 2004 for responsible eight hours and addition as a admission technician Norbert worked from 6 30 Norbert worked In 1998 20 was an LSU place throughout the hospital Additionally Norbert twelve years with employed by As two years which took about was through April 5 work her second seasonal job LSU advised Norbert that it effective June 21 2004 for However 2004 at H was during this time Norbert R Block removing By letter dated her from her permanent falsely representing that she could 2 June not work for LSD while Norbert at the same LSD appealed appeal s l proved Norbert filed with the Commission working which an cause good faith and with legal second seasonal denied was cause for Norbert application that the Commission erred in asserting a decision to the Commission s determined that LSU had Norbert time at H job R Block whereupon s dismissal and denied for review of the referee Norbert now referee a s decision appeals these decisions LSD established that it acted in finding in terminating her employment DISCUSSION Decisions of Commission Referees review decisions of the Commission itself as subject to the is same when Accordingly court required review disciplinary standard of review reviewing to the Commission s findings clearly erroneous or s of fact s the reviewing order unless it is court the are court appellate wrong standard of determination by the appointing authority is based with the infraction standard of same decision of the distlict a evaluating the Commission action taken commensurate as to the Decisions of the Commission the Commission apply the manifestly However in reverse subject are as on should arbitrary caplicious to whether the legal not or and cause modify or charactelized by an abuse of discretion Usun v LSD Health Sciences Center Medical Center of Louisiana at New Orleans 02 0295 02 0296 p 4 La App 1st Cir 14 2 03 845 So 2d 491 494 Article 1 0 may not be employee in of the Louisiana Constitution subjected to disciplinary sufficient for the provides that action except for imposition of discipline impairs the efficiency of the public service and bears relation I Cause wliting that 8 A At the to efficient and hearing documents Spencer v on Febmary and briefs orderly operation 13 public classified cause expressed means conduct real and substantial service in which the 2006 the A decision was parties agreed to submit the matter on stipulations placed on hold pending this court s determination of LSD Health Sciences Center Earl K 1st Cir 3 24 05 of the a a unpublished opinion Long Medical Center 2004 CA 0619 La The matter was 3 finally submitted on April 27 2006 App employee is engaged Marsellus 04 0860 p 5 La 9 23 05 In the instant was of incapable seasonal sick leave and she work not worked LSD terminated Norbert for working for LSD while medical at H also injury preventing dental or 97 1961 Ferguson v ones La constituting App 1st Cir 9 25 98 was a However seasonal at H on our from was Human See Sterling 453 and 454 Resources LSD to Pursuant have no paid work approximately 2004 and her to status sick leave and review of the record we policy by claiming 4 two see Office of App 1st Cir 1984 March 4 on v Penitentiary 97 1959 2d 448 during this time Norbert continued R Block abused the sick leave discipline La 2 misuse of sick leave and twenty two year employee of LSD 5 2004 Norbert received from LSD a 723 So So 2d 165 168 1 or She aggravated a nights doctor s and specific from March 8 family medical to was pre injury for which she had received accommodation recommendation that she based paid on may be utilized for Corrections Louisiana State automobile accident compensation through April for cause Department of Health and and neck existing back job second a Dsing sick leave for any treatment or listed in Rule 11 13 is As stated above Norbert workers working employee from performing his usual duties an Management and Finance 451 an provides that sick leave a optical consultation misconduct to involved in time R Block Department of Public Safety 97 1960 same evenings and nights due to her workers compensation related injury purpose other than the amounts the family medical leave and despite having previously requested that evenings or at falsely representing that she LSD asserted that Norbert while Particularly Civil Service rule 1 1 13 illness Department of Public Safety and Corrections 923 So 2d 656 660 R Block at H job case v 2004 leave work her second per week Accordingly find that LSD established that Norbert that she could not work for LSD due to her injuries and receiving leave while continuing Block despite her doctor to work her second recommendation that she have s no job work at H R status Emphasis added However dismissal from permanent of cause justifying dismissal 1123 some Ryder v La App 1126 disciplinary a action that disciplinary can be taken lesser form against of 1st Cir Ryder 400 court must standard of review conclusion of Human Resources can her See Marsellus is arbitrary 04 0860 her need Block court to In implies a at p to on 8 923 So not requesting that she disregard of evidence work not rest 1st Cir 3 24 05 an 2d at 661 A to or of the proper 13 723 So 2d at 455 her cause evenings to or for terminating well as nights for LSD due to policy as body while working evenings particular the Commission relied App cause substantial evidence her violation of the sick leave take her medicine and La legal substantiated competent evidence on an Spencer v LSD Health Sciences Center Earl CA 0619 was in 2d arbitrary and capricious or when it has capricious 1960 at p employment based dishonesty a or even with the offense proven commensurate The Commission determined that LSD established s justify 400 So be considered to constitute apply the abuse of discretion weight thereof Sterling 97 Norbert not Repeated improper conduct after lesser the conclusion is contrary the word Thus employee might form So 2d at 1126 public body a or Likewise state action disciplinary 1981 reviewing whether a penalty is support it classified most extreme action has been taken the totality of individual lesser offenses for dismissal appellate a Department of Health and single paIiicularly aggravated incident In employment is the K for H unpublished opinion Long Medical R of this Center 2004 support its determination that termination appropriate 5 In due to Spencer these at job was injured in an LSD from November 19 2001 during the time he second job employee automobile accident and injuries which rendered him totally incapacitated sick leave from his However two year a at sick leave was on the Chicken Shack he received through January 9 2002 Spencer continued to from his employment with Chicken Shack The Commission that he had misrepresented determining based duties at duties at LSD on an job duties accurate the time he during However First we Spencer some was a for twenty second jobs while on Spencer was over LSD his to However thirty hours s was not to a s totally work termination at the finding treating physician and of his usual duties at incapacitated On taking paid sick leave short term LSD and his from his usual appeal this court was a employee having only worked for LSD for long term employee having worked for stock clerk are LSD worked substantially supervisor for LSD with eighty five to ninety at care LSD his of paperwork Based on Spencer s treating physician determined that totally incapacitated from his employment with sick leave continuing paid sick leave from LSD the circumstances Spencer was his key distinctions between Spencer and the instant misrepresentation of his job duties was at description percent of his job duties involving taking he while to be Additionally though both Spencer and Norbert two years at decision However Norbert two years different note s LSD ultimately upheld Spencer the Chicken Shack that affirmed the Commission case his work doing light duty work LSD terminated Spencer employment claiming that he committed payroll fraud by claiming incapacitated paid LSD and he received during this time Spencer continued per week at the Chicken Shack as a to work six days paid and lead worker assistant supervIsor Norbert however move was an admission technician whose duties throughout the hospital Norbert s physician 6 indicated on her required her to family medical leave request that she April her 5 2004 physician two days a Despite being s have was to sick leave and paid on work status no recommendation Norbert worked week for descriptions in the total of about a record different from her duties Norbert at s R Block R Block Norbert at LSD on approximately were primarily on the job substantially sat at a desk required her moving throughout hospital Further the Commission requesting that she medicine and duties as R Block However based at H job duties and had assistance whereas her job duties the at H through medical leave based family eight hours At H LSD from March 8 2004 Norbeli obtain treating physician to obtain or operation a more Accordingly we particularly egregious analogous to Spencer However not was an because of the need nights s misrepresenting his effort rise dishonesty to to the while defraud her employer and conduct found in efficient cases case do not rise to the level of the Spencer Rather the facts of this case are involving violation of sick leave policy 451 So 2d at 169 was determined upholding a Jackson to sick leave policy and dishonesty 22 1998 to a modifying DHH s forty five day v Depmiment Nos dismissal for violation of ninety day suspension 7 and be the Hospitals Hammond Developmental Center CSC Docket July as an accommodate her arguably impairing the suspension for abuse of leave policy and insubordination 12335 and S 125262 to degree of dishonesty found in Spencer find that the facts of this Ferguson so otherwise have been entitled not to Such job Spencer misrepresented his job duties dishonesty that preceded Spencer where suspension of Health and take her convenient work schedule whether not See in dishonesty to Rather it could be viewed was not those found in appropriate penalty dishonesty in s entitled her second job of LSD does or analogize Norbert to which he would benefit to which she to evenings with request however s a injuries more body obtain sick leave to effort his to her rest work not seems Therefore character after content a careful and proper reVIew weight termination constituted excessive of the record of the evidence discipline as we penalty Commission remand this was s abuse an decision insofar matter to of as not commensurate discretion it s gIVen the penalty of with the relative decision Accordingly upholds LSD the Commission for whole find that the seriousness of the offenses proven and that the Commission that a we to uphold the reverse termination of Norbert and s imposition of appropriate discipline short of termination CONCLUSION For the decision foregoing finding legal reasons cause affirm the discipline portion of the Commission but reverse Commission s remanded the Commission for determination of the to decision for we of temlination to be the upholding the penalty of termination imposed All costs of this portion of the This matter IS appropriate discipline short appeal are to be borne by appellant Sharon Norbert AFFIRMED IN PART REVERSED IN PART AND REMANDED 8 s the
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