Rondell Young v. City of Biloxi, Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-CA-01848-COA
RONDELL YOUNG
APPELLANT
v.
CITY OF BILOXI, A BODY POLITIC AND ITS
CIVIL SERVICE COMMISSION
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEY FOR APPELLEES:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEES
10/10/2008
HON. JERRY O. TERRY, SR.
HARRISON COUNTY CIRCUIT COURT
SHANNON ADELE LADNER
RUSSELL S. GILL
GINA BARDWELL TOMPKINS
CIVIL - OTHER
EMPLOYEE DISCIPLINE AFFIRMED
AFFIRMED - 12/08/2009
BEFORE LEE, P.J., CARLTON AND MAXWELL, JJ.
LEE, P.J., FOR THE COURT:
PROCEDURAL HISTORY
¶1.
Rondell Young was suspended for three days without pay from his job as a code-
enforcement administrator for the City of Biloxi. Young appealed the disciplinary action to
the City of Biloxi Civil Service Commission (Commission). The Commission upheld the
suspension. Young then appealed to the Harrison County Circuit Court, which affirmed the
decision of the Commission.
¶2.
Young now appeals, asserting the following issues: (1) the actions of the Commission
were not made in good faith for cause, and (2) the Commission erred in finding that he failed
to satisfy his burden of proof by either testimony or written materials. Finding no error, we
affirm the decision of the Commission.
FACTS
¶3.
Young has been employed by the City of Biloxi for approximately thirty-one years.
At the time of the suspension, he was serving in the Community Development Department
as a code-enforcement administrator. Young’s job was to perform residential-building
inspections.
¶4.
Caryle Draper, a building-permit clerk with the Community Development
Department, received a phone call from a customer inquiring about a requested inspection.
At the time, Draper was assisting customers at the counter and answering telephone calls.
Draper called Young over the radio system to ask him if he was going to do the inspection
that day. She testified as follows regarding Young’s response:
[H]e stated that he did not know when he was going to get it because he had
just spent an hour and-a-half with [another customer], who was not happy and
had written a letter to the Mayor and he was probably going to write two more
letters to the Mayor. So he did not know when the inspection would be done.
And I went back to my desk and sat down with the radio and he continued to
talk and the phone was ringing and I had a customer at the counter, two
gentlemen were standing there and someone behind them and he was talking
about what was going on and like I said I did not catch all the information.
And he said he did not know when he was going to get to it and if they did not
like it they could kiss his ass.
¶5.
Young was suspended for using profanity over the radio. At the hearing, Young
denied making the statement and called into question Draper’s credibility. Draper testified
that she was sure she heard Young correctly because “[she] had to endure what the customer
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said to [her] after the comment was made.” She stated that she “was more embarrassed by
[the comment from the customer] then [sic] anything.” A hearsay objection was sustained,
and the comment made by the customer was not repeated by Draper. Draper testified that
the radio “stays on speaker at all times unless someone requests us to go to private.”
¶6.
The incident was reported to Jerry Creel, the Community Development Director.
Creel questioned Draper about the incident and requested that she prepare a written report.
Creel called Young into his office and asked Young whether he made the comment over the
radio. Young stated that he did not remember. Creel then gave Young a notice of intent to
initiate disciplinary action. Creel recommended a three-day suspension pursuant to Civil
Service Regulation 10.01(a)(2), which states, in part, that an employee can be suspended
without pay for “[c]onduct detrimental to the department or City including dishonesty,
intemperance, immoral conduct, insubordination, discourteous treatment of the public or a
fellow employee, or any other act of omission or commission tending to injure the public
service.” The recommendation was approved by the Director of Administration for the City
of Biloxi David Staehling and Biloxi Mayor A.J. Holloway.
STANDARD OF REVIEW
¶7.
The civil service commission reviews the employment decisions of a city to remove,
suspend, demote, or discharge a civil service employee. Miss. Code Ann. § 21-31-23 (Rev.
2007). A city’s disciplinary action may be reversed if it was made for political reasons,
religious reasons, or was not made in good faith for cause. Id. An administrative agency’s
conclusions will not be overturned on appeal “unless the agency’s order 1) is not supported
by substantial evidence, 2) is arbitrary or capricious, 3) is beyond the scope or power granted
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to the agency, or 4) violates one’s constitutional rights.” Sprouse v. Miss. Employment Sec.
Comm’n, 639 So. 2d 901, 902 (Miss. 1994).
DISCUSSION
I. GOOD FAITH
¶8.
Young argues that his suspension was not made in good faith for cause; rather, it was
based on a pattern of behavior toward Young by Creel. Young alleges that the motive for
his suspension stemmed from memoranda exchanged between himself and Creel in July
2006.
¶9.
Young testified that since Creel assumed his position as director, the two have had
disagreements over inspections.
Young alleges that Creel’s actions in overruling his
decisions on inspections and not following proper procedures led him to write the
memoranda. The first memorandum Young gave to Creel pointed to specific instances where
Young had failed two inspection sites, and the contractors contacted Creel who overturned
Young’s decisions. The second memorandum concerned the order in which the inspections
were performed. Creel’s response stated, in part, that:
You are a good inspector, but I cannot help but be amazed at your willingness
to listen to, and readily believe, one side of an issue without thoroughly
checking to see if a situation is true and how it may have evolved. Knee jerk
reactions to one-sided information and writing disrespectful memos is both
unprofessional and immature.
¶10.
Young next argues that Creel’s treatment toward him regarding leave time shows that
the suspension was not in good faith. In October 2000, Young was appointed to serve on the
Harrison County Planning and Zoning Commission. Young obtained approval from his
superiors prior to accepting the appointment. The job required him to attend a three-hour
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meeting once a month. On September 8, 2006, Creel held a staff meeting wherein he
addressed the approval of leave for non-city related functions. Following the meeting,
Young submitted a request for leave for three hours for the Planning and Zoning Commission
meeting. Creel approved the request but only “if [Young’s] inspections are caught up at time
of meeting.” Young argues that this shows that he was singled out by Creel because as a
building inspector, his responsibilities accumulate daily and are never caught up. Young
attended the meeting and later received a letter of reprimand because all of his inspections
were not current. This letter was received on the same day as the suspension letter.
¶11.
Young next argues that Creel wrongfully suspended him based on unverified
information from Draper. Young argues that Draper had no credibility because she did not
produce the identities of the customers who allegedly overheard the comment. Draper
testified at the hearing that she had no doubt that she heard the comment correctly. Further,
Civil Service Regulation 10.01(a)(2) authorizes suspension without pay for “discourteous
treatment of the public or a fellow employee.” Therefore, it was not necessary for the
customers who overheard the comment to be identified.
¶12.
The job of this Court is to determine “whether or not, from an examination of the
record there exists credible evidence substantiating the [C]ommission’s action.” Grant v.
City of Columbus, 812 So. 2d 976, 978 (¶6) (Miss. 2002). “[T]his Court must not reweigh
the facts of the case or insert its judgment for that of the agency.” Allen v. Miss. Employment
Sec. Comm’n, 639 So. 2d 904, 906 (Miss. 1994). Creel testified repeatedly that Young was
disciplined for using profanity over the radio. Draper testified that she was sure she heard
Young’s comment correctly.
We find that sufficient evidence was presented for the
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Commission to find that it was Young’s inappropriate comment, not the memoranda, that led
to the suspension. Therefore, we find that this issue is without merit.
II. SUBSTANTIAL EVIDENCE
¶13.
Young argues that the decision of the Commission was not based on substantial
evidence.
Young asserts that the evidence he presented at the hearing before the
administrative law judge was sufficient to show that the decision of the Commission should
be reversed.
¶14.
In support of his allegations that the City’s actions were not in good faith, Young
presented the testimony of two fellow employees who stated that they had never received any
conditions on their leave-request forms. Young also called Patricia Rose to testify as to
Draper’s credibility. Rose testified as follows:
I had one incident where [Draper] had come up to the counter and just out of
the blue had said that I had said something that I hadn’t. And so I went to Mr.
Creel and told him I said, “I just want to make you aware of the fact I didn’t
say what she said I said.” . . . He said, “Well, don’t worry about it. You know
I know how she is . . . .”
¶15.
Young also attempted to call Bill Prince as a witness, but the Commission did not
allow Prince to testify because Young failed to give timely notice that he would be called as
a witness. Young argues that the exclusion of this testimony was unduly prejudicial and
resulted in an unfair hearing. A proffer was made at the hearing that Prince had been the city
building official from 1988 to 2005, and during that time, he never heard Young use
profanity on the radio. Young himself testified that he never used profanity over the radio,
and we cannot find that the absence of Prince’s testimony prejudiced Young.
¶16.
Despite the evidence presented by Young, we find that the Commission had
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substantial evidence to find that Young’s suspension was not based on political or religious
reasons and was made in good faith for cause. The Commission conducted a thorough
investigation and held a public hearing, which lasted approximately seven hours. We find
substantial evidence in the record to support the Commission’s findings. Therefore, we find
that this issue is without merit.
¶17. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
KING, C.J., MYERS, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS,
CARLTON AND MAXWELL, JJ., CONCUR.
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