Rosemari E. Gahn VS LSU Health Sciences Center - University Medical Center
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2009 CA 2062 ROSEMARI E GAHN VERSUS I CENTER UNIVERSITY MEDICAL CENTER LSU HEALTH SC f On Appeal from a Decision of the State Civil Service Commission Docket No 16533 Honorable James A Smith Chairman John McLure Vice Chairman Chatham H Reed David L Duplantier G Lee Griffin Wilfred Pierre and Burl Cain Members Mark E Falcon Attorneys for Daniel L Avant Plaintiff Appellee Avant Rosemari E Gahn Falcon Baton Rouge LA Laura D Holmes Attorney for Appeal Counsel St Francisville LA Defendant Appellant LSU Health Sciences Center University Medical Center BEFORE PARRO KUHN AND McDONALD JJ Judgment rendered JUL 9 2010 PARRO J In this appeal Louisiana State University Health Sciences Center University Medical Center LSU challenges the Louisiana State Civil Service Commission s Commission decision that granted a civil service employee appeal reversed the s reduction in her pay awarded reimbursement for the pay reduction with interest and awarded attorney fees in favor of the employee On appeal LSU seeks reversal of the judgment on the ground that the Commission erred in its factual findings in its weighing of the evidence in its determination of cause and in its awarding of attorney fees Appeals of final decisions of the Commission are subject to review on any question of law or fact by the court of appeal wherein the Commission is located LSA Const art X A 12 A reviewing court should not disturb the factual findings made by the Commission in the absence of manifest error Walters v Department of Police of City of New Orleans 454 So 106 113 La 1984 We have carefully reviewed the 2d record and find no manifest error by the Commission No person who has gained permanent status in the classified state or city service shall be subjected to disciplinary action except for cause expressed in writing Const art X LSA A 8 Cause exists whenever the employee conduct is detrimental to s the efficient and orderly operation of the public service that employed him Greenleaf v DHH Metropolitan Developmental Center 594 So 418 427 La App 1st Cir 2d 1991 writ denied 596 So 196 La 1992 An appellate court should not reverse 2d the Commission determination of the existence or non existence of cause for a s disciplinary action unless the decision is arbitrary capricious or an abuse of discretion See Walters v Department of Police of City of New Orleans 454 So at 113 The 2d burden of proof as to the facts in an appeal to the Commission of a disciplinary action is on the appointing authority See LSAConst art X A 8 Civil Service Rule c 19 13 After a thorough review of the record we are unable to find that the Commission was arbitrary or capricious or abused its discretion in finding that LSU failed to prove cause for subjecting its employee Rosemari E Gahn to disciplinary action 2 Civil Service Rule 13 grants the Commission the discretionary power to award 35 attorney fees when the action of an appointing authority is modified or reversed and an abuse of that discretion must be shown for this court to modify or vacate the award Morgan v Louisiana State University 06 0570 La App 1st Cir 4960 07 2d So 1002 1007 Having found no manifest error with the Commission factual s findings and having concluded the Commission reversal of the disciplinary action and s order of reimbursement for the reduction in pay with interest were not arbitrary or capricious and did not constitute an abuse of discretion we find the Commission acted well within its discretion in awarding attorney fees in this case Accordingly we affirm the decision of the State Civil Service Commission in accordance with URCA Rule 2 16 5 6 7 and 8 4 A 2 The costs of this appeal in the amount of 1 are assessed to LSU Health Sciences Center 50 121 University Medical Center AFFIRMED Civil Service Rule 13 provides a 35 When the Commission or a referee approves a settlement recision or modification of an action that has been appealed or renders a decision including a decision on application for review which reverses or modifies an action that has been appealed the appellee may be ordered to pay attorney sfees in amount not to exceed 500 1 13
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