Diane Beard VS Louisiana State University Health Care Services Division, Earl K. Long Medical Center and Calvin McKnight

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Download PDF NOT I ESIGNATED FOR YUBLICA I ION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2013 CA 0291 DIANNE BEARD V: RSUS UIS[ ANA S'I'A'TE UNIVERSITY HEAL'I' H CARE SERVICES DIV[ SION, EARL K. LONG MEDICAL CENTER AND CALVIN MCKN[ GHT N01 212 1 iudgment Rendered: x* APPEALED FROM THE STATE CIVIL SF.RVICE COMMISSION N AND FOR THE STATE OF LOUISIANA OCKET NUMBER 5- 17377 HONORABLE DAVID L, DUPLANT[ GR, CNAIRMAN Ebony Cavalier Attorney for Plaintiff/Appellant Baton Rouge, Louisiana Dianne Beard Adrienne T. Bordelon Attorney for DefendantiAppellee Baton 12ouge, Louisiana Department of State Civil Ser-vice Tamara D. Simien Attorney for Defendant/Appellee Baton Kouge, Louisiana LSU- Health Care Services Division Calvin McKnight Pro Se Baker, Louisiana Calvin McKnight BEFORF,: PET' 1' IGREW, McDONALD, AND McCLENDON, JJ. McUONALD, J. Plaintiff/appellant appeals a decision uf the State Civil Service Commission Commission) asserting four assignments of error in violation of Civil Service Rules 17. 15( 13. 12( a)( 2), a), 13. 11( d). and For the following reasons, we affirm the Commission' s decision. FACTS The appellant, Dianne Beard ( Beai ¢d), maintains that she has nineteen years experience in the_ biomedical instrumentation field. [ n February 2012, she was einployed by Louisiana State University Healtli Care Setvices Division ( LSU- HCSD) and worked ai Eatl K. Long Medical Center ( Earl K. Long) as an electronic technician. Due to loss of federaL funding, Earl K. Long proposed massive lay offs and abolished approximately one hundred positions. Ovcr sixty- fivc cmployces were laid off, including Beard. E3eard tiled an appeal to the Commission on March 21 , 2012, appealing ( 1) her lay olf; ( ) allegiug discrimination by Earl K Long regarding her lay off, and ( 3) 2 alleging discrimination by Earl K. Long regarding a promotional opportunity. alleged: Discriminatory actions and disparate treatments occurred when the Glectronic Technician Supervisor' s position became vacant and was posled at the LSU Health Sciences Center, Earl K. Long main campus, but was not posted at the LSU Surgical Center, located in the Biomedicat Instrumentation Departments on Parish. Perkins Road in East Baton Rouge As a result, a less qualified ma(e co- employee, Mr. Calvin McKnight, was promoted into that position. Appellant' s most recent Performance Planning and Review rating equaled and/ or exceeded that of the co- employee that was subsequently hired in the position. Thus had Earl K. Long Medical Center, properly posted noticc of the job vacancy at Appcllant' s job site at Biomedical Insn-umentation Department on Perkins IZoad, she would have had an equal opportunity to apply for this job. The non- posting of the job vacancy caused her to be passed over for a promotion in violation of the LSU I ealth Sciences Center, Earl K. Long Medical Center' s employment policy number 02- 02- 010, effective 1995 and as amei ded a d as it relates [ to] announcements of vacancies and hiring procedures. . . . Furthermore, LSU Health Sciences Center, Earl K. Loug Medical Center, intentionally and implicitly only posted notices of the vacancy where males were employed. 2 She On August 2, 2012, Civil Service Commission Referee Kathe Zohnan- Russell Possible Defects in Appeal. By this notice, the referee presented what she saw as defects in Beacd' s appeaL First, she believed issued a Notice to Employee of Beard failed to allege a right of appeal regarding her wrongful lay off claim pursuant to Civil Service Rule ( CSR) 13. 10. Second, the refecee found that Beard' s claim that she was a victim of discrimination relative to the tay off plan did not appear to CSR 13.] 1( d). comport with based on ender relative to }; Third, she found that Beard' s claim of discrimination arl K. Long' s alleged failure to post a notice of the supervisor position vacancy at her work ocation also failed to include required specific and detailecl factual allegations. Lastly, the referee questiorted whether Beard' s appeal was timely. Civil Se vice Rule 13. 11( d) provides, in pertinent part, "[ w] here a violation of the Article or a Rule is alleged to be a basis for appeal, specific facls supporting the conclusion that a violatior has occurred must be alleged in suCficient delail to enable the agency to prepare a defense." Moreover, CSR 13. 10, Appeals to the Commission, provides the exclusive listing of those persons who havc a right of appeal to the Commission. It states: Only the following persons have a right of appeal to the Commission: a) a state classified employee with permanent status who has been removed or subjected to one of the discipliilary actions listed in Rule 12. 2( b). b) a state classified employee who has been discriminated against in any employment action or decision because of his political or religious beliefs, sex or race. c) a state classified employee who has been advcrsely affected by a violation of any provision in the Civil Service Article or of any Civil Service Rule other than a rule in Chapter ] 0. Tlie referee did not address any civil service rules regarding appeals, finding that the submission of Beard° s appeal was untimely. 3 She issued a notice to Beard ou nugust 2, 2012, questioning whether Beard h d tiled hei ¢ appeal timely as to her sexual discrimination claim, and whether she had alleged a right of ap eal to the Commission. Beard was given ten calendar days to amend her appeal and/ or to show cause in writing why the referee should not sumrnarily dismiss it. Upon her request, Beard was given an extension of time to amend her pleadings. She filed a supplEmental pleading, re- asser-ting that LSU- HGSD violated its own policies as it relates to announcements of vacancies and hiring procedures. She alleged that posted notices of vacancies were only posted at locations where males were employed. 1n Beard' s pleadings, she contended that Calvin MeKnight should not have been coi sidcrcd a supervisor because he was actually performing the duties of a technician. Further, in conflict with her initial allegations that she became aware of McKnight serving as a supervisor in September 2011, she maintained that she originally believed McKnight was serving as a temporary supervisor, because the actual then supervisor was on medical leave. I3ut, in a com ersation with the Human Resources Director on February 8, 2012, she was told that McKnight was a supervisor. Beard asserts she did not receive written notice until February 23, 2012, making her appeal on March 21, 2012 timely. DISCUSSION We review the factual decisions of the Commission under a manifest error/ clearly wrong standard. Therefore, regardless ol what factual 6ndings were established, o' what decision we think should be made, unless it is clearly or legally wrong, we are not empowered to substitute our judgment. See Bao ¢nett . Saizon, 08- 0336 (La. App. l Cir. 9/ 23iO4), 994 So. 2d 668, 672. The refecee concluded from Beard' s pleadings that she received an email in late September 2011 that made her aware of McKnight' s promotion to su ervisor. Civil Service Rule 13. 12( a)( 2) requires an appeal to be made within thirty days of finding out the facts thal give rise to an appeaL Beard' s appeal, filed in March 2012, was filed 4 considerably after September 201 l. Regarding F3eard' s lay- off claims, the referee noted that pursuant to CSR 13. 10, an employee appealing any action other than a reinoval or disciplinary action only has a right of appeal to the Commission if the employee alleges being adversely affected by a violation of a civil service article or ruie, or being discriminated against because of religious or politieal beliefs, sex, or race. Civil Service Rule 13. 10( b) establishes the types of discrimination claims that can be appealed to the Commission in non- disciplinary matters. Civil Service Rule 13. 11( d) requires that the notice of appeal allege detailed facts ufficient to enable the agency to prepare a defense. The referee concluded that Beai ¢d failed to allegc specific facts to support her allegation of discrimination in Earl K. Long' s decision to abolish her position and that there was no evidence that Earl K. Long violated any civil service article or rule when deciding which positions to include in the lay off and/ or to abolish. In further addressing Beard' s allegation that her lay of f violaled civil service rules, the referee noted that CSR 17. 15( c) provides, in relevant part that: "[ b] ased on the budget and organiaatioual priorities, the appointing authority will determine vhich positions are to be abolished." Beard complained that McKnigllt°s years of service were considerably less than hers and that CSR 17. 1 $( c) provides that employees shall be laid off on the basis of the least years of service. However, CSR 17. 15( d) states that einployees in positions targeted for abolishment shall move into vacant positions, and there were no vacant pQSitions 17. I R( e), McKnight' s position as to move Beard int. In accordance with CSR lectronic Technician Supervisor, being of a higher pay range than Beard' s Electronic Technician position, made Beard incligible for the supervisory positioil even if it had been vacant 7 he referec concluded that Beard' s greater years of service were irrelevant as to McKnight' s position. ln response to the referee' s decision to summarily dismiss Beard' s appeal, Beard 5 subrnitted a letter to the Director of Civil Service requesring a review by the Commission of the summary dismissal of her appeal. Subsequently, the Commission notified the parties that it had denied Beard' s request for review and this final decision by the Commission is the basis for this appeal. After carefully reviewing the applicable law and the entire record, even on rulings that technically are not subject to appeal ( for example, violation of LSU- HCSD' s internal policies) we find no disciimination or violation of law. decision of the Civil Service Commission is affinned. Costs of this appeal are assessed to the appellant, Dianne Beard. AFFIRMED. 6 Accordingly, the