Diane Beard VS Louisiana State University Health Care Services Division, Earl K. Long Medical Center and Calvin McKnight
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NOT I ESIGNATED FOR YUBLICA I ION
STATE OF LOUISIANA
COURT OF APPEAL
2013 CA 0291
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
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
Attorney for Plaintiff/Appellant
Baton Rouge, Louisiana
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
BEFORF,: PET' 1' IGREW, McDONALD, AND McCLENDON, JJ.
Plaintiff/appellant appeals a decision uf the State Civil Service Commission
Commission) asserting four assignments of error in violation of Civil Service Rules
13. 12( a)( 2),
13. 11( d).
For the following reasons, we affirm the
Commission' s decision.
The appellant, Dianne Beard ( Beai•d), maintains that she has nineteen years
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)
Discriminatory actions and disparate treatments occurred when the
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
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
subsequently hired in the
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
. . .
Furthermore, LSU Health Sciences Center, Earl K.
Loug Medical Center, intentionally and implicitly only posted notices of
the vacancy where males were employed.
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
Notice to Employee
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).
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
Lastly, the referee questiorted whether
Beard' s appeal was timely.
Rule 13. 11( d)
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
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
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.
We review the factual decisions of the Commission under a manifest error/ clearly
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
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.
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
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-
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,
that CSR 17. 15( c)
that: "[ b] ased on the
budget and organiaatioual priorities, the appointing authority will determine vhich
Beard complained that McKnigllt°s years of service
were considerably less than hers and that CSR 17. 1 $( c) provides that employees shall
However, CSR 17. 15( d) states
that einployees in positions targeted for abolishment shall move into vacant positions,
17. I R( e), McKnight' s position as
to move Beard
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
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
decision of the Civil Service Commission is affinned.
Costs of this appeal are assessed to the appellant, Dianne Beard.