Nicole Dupree VS Department of Health & Hospitals, Office of Public Health
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2011 CA 0634 NICHOLE DUPREE VERSUS DEPARTMENT OF HEALTH AND HOSPITALS OFFICE OF PUBLIC HEALTH INJURY RESEARCH AND PREVENTION PROGRAM Judgment Rendered NOV 9 2011 Appealed from the J 6k State Civil Service Commission State of Louisiana Docket No S 1691 5 Honorable David Duplantier Chairman John McClure Vice Chairman G Lee Griffin Wilfred Pierre D Scott Hughes Kenneth Polite Jr and Helen Jones Members Floyd J Falcon Jr Baton Rouge LA Counsel for PlaintiffAppellant Nichole Dupree Neal R Elliott Jr Counsel for Adrienne Bordelon Appellee Defendant Louisiana Department of Baton Rouge LA Health and Hospitals Office of Public Health Robert R Boland Jr Counsel for Baton Rouge LA Shannon Templet Director Louisiana Department of State Civil Service BEFORE WHIPPLE KUHN AND GUIDRY JJ GUIDRY J A state employee serving with permanent status appeals a decision of the State Civil Service Commission referee upholding an agency disciplinary action s to terminate her employment Based on our review of the matter we affirm FACTS AND PROCEDURAL HISTORY Nichole Dupree was employed with the Louisiana Department of Health and Hospitals DHH as a Program Manager 1 B in the Injury Research and Prevention Program of the Office of Public Health She served with permanent status By a certified letter dated May 7 2010 Clayton Williams assistant secretary of the Office of Public Health notified Mrs Dupree that after considering her response to the notice of the proposed disciplinary action the appointing authority had decided to proceed with disciplinary action which was to terminate her from her position as a Program Manager 1 B The stated reason for the disciplinary action was public payroll fraud through falsification of time and attendance records and violation of policy and procedure on compensatory time This charge was premised on two occurrences The first occurrence was relative to Ms Dupree requesting and being credited with unapproved leave time for a professional development conference she attended in Austin Texas in December 2008 The second occurrence was relative to Ms Dupree requesting and being credited with approved leave time for a professional development conference held in New Orleans in October 2009 Ms Dupree appealed the decision of the appointing authority to the State Mr Williams was appointed to the position of assistant secretary by Governor Bobby Tindal on January 19 2010 Prior to that date Dr Rony Francois served in that position z Civil Service Rule 1 defines appointing authority as the agency department board or 4 commission and the officers and employees thereof authorized by statute or by lawfully delegated authority to make appointments to positions in the State Service 2 Civil Service Commission by a petition for appeal filed on May 19 2010 The referee assigned by the Commission to hear and decide the matter found the evidence in part supported the charge and upheld the disciplinary action It is from this decision that Ms Dupree appeals ASSIGNMENTS OF ERROR By this appeal Ms Dupree contends that the referee erred in upholding the appointing authority sdisciplinary action in the following respects 1 The RefereeCivil Service Commission erred in finding that the appointing authority proved by a preponderance of the evidence that appellant violated the Agency scompensatory time policy with respect to the New Orleans conference 2 The RefereeCivil Service Commission erred in finding cause sufficient to warrant appellant stermination 141 STANDARD OF REVIEW Generally decisions of Civil Service Commission Referees are subject to the same standard of review as decisions of the Commission itself Decisions of the Civil Service Commission are subject to the same standard of review as a decision of a district court Usun v LSU Health Sciences Center Medical Center of Louisiana at New Orleans 020295 p 4 La App 1st Cir 2845 So 2d 03 14 491 494 Factual determinations should not be reversed or modified unless clearly wrong or manifestly erroneous Gorbaty v Department of State Civil Service 99 1389 p 4 La App 1st Cir 6762 So 2d 1159 1162 writ denied 002534 00 23 La 11 774 So 2d 147 However in evaluating the determination as to 00 13 whether the disciplinary action taken by the appointing authority is based on legal cause and commensurate with the infraction the reviewing court should not 3 See Civil Service Rule 13 20 4 Ms Dupree also asserted that t RefereeCivil Service Commission erred in failing to he award appellant attorney fees However Ms Dupree failed to brief this assignment of error s therefore we deem this assignment of error to be abandoned in accordance with Uniform Rules Courts of Appeal Rule 212 4 3 modify or reverse the Commission order unless it is arbitrary capricious or s characterized by abuse of discretion Usun 020295 at 4 845 So 2d at 494 DISCUSSION In her first assignment of error Ms Dupree asserts that the referee erred in finding that the appointing authority proved by a preponderance of the evidence that she had violated the DHH compensatory time policy In upholding the disciplinary decision of the appointing authority the referee found that DHH failed to prove its charges against Ms Dupree arising out of the Austin conference Therefore Ms Dupree conduct as it relates to the Austin s conference is not at issue However in regards to the New Orleans conference the referee found On October 19 2009 Ms Dupree claimed 10 hours of compensatory time for her attendance at the New Orleans conference None of the 10 hours was for travel time This finding is based on my review of the conference schedule Ms Dupree overtime request form and her s failure to testify otherwise Ms Dupree knew she was not claiming compensatory time for travel time which was the only valid basis for a compensatory time claim under the circumstances Her claim for 10 hours of compensatory time was therefore baseless false and in violation of DHH policy We find no error in this determination by the referee At the hearing before the referee Ms Dupree testified that she lived in New Orleans and she acknowledged receiving a March 2 2009 memo by email from the human resource director stating Employees attending conferences shall be granted compensatory time for travel to and from the conference when such travel occurs outside of the s employee established working hours Participation in conferences including all related meetings presentations and other events is aimed at personal and professional development and for this reason Exempt employees will not earn compensatory time while attending a conference As the New Orleans conference did not require travel according to the above quoted provision Ms Dupree was not entitled to receive compensatory time for in her attendance at the conference Nevertheless she submitted a request for the time and the request was approved by her immediate supervisor At the hearing before the referee Ms Dupree explained that on October 19 2009 when she submitted her request for 10 hours in compensatory time for the New Orleans conference which was held October 11 15 2009 she did not recall the above quoted policy However two days later on October 21 2009 she stated that she remembered the policy in response to a request for compensatory time from two subordinates According to Ms Dupree the subordinates request is what triggered her memory regarding the policy and upon her remembrance she sent an email to those persons she supervised to make sure they were aware of the policy The referee however was not persuaded by Ms Dupree assertion that she s did not remember the policy at the time she submitted her request for compensatory time In so finding the referee stated Despite Ms Dupree assertion that she forgot about the March 2 s 2009 memorandum I conclude that she knew before the New Orleans conference that she was only entitled to compensatory time for travel Only nine months earlier Dr Francois had denied her claim for additional compensatory time for the Austin conference undoubtedly a memorable workplace event for Ms Dupree A few days after the New Orleans conference she reminded her subordinates of the DHH policy regarding the earning of compensatory time at conferences including a reference to her past experience that Dr Francois will only approve compensatory time for travel for a conference As a supervisor Ms Dupree had a heightened responsibility to be aware of and comply with DHH compensatory time policy She failed to do s so instead she intentionally attempted to obtain compensatory time under false pretenses an action that is manifestly detrimental to the state service DHH has proved cause for discipline against Ms Dupree It is the province of the Commission through its referee to determine the weight to be given Ms Dupree testimony in the administrative hearing s See Marsellus v Department of Public Safety and Corrections 040860 P 7 La App 1st Cir 9 923 So 2d 656 661 05 23 When there is a conflict in testimony reasonable evaluations of credibility and reasonable inferences of fact should not 5 be disturbed on review When there are two permissible views of evidence the fact s finder choice cannot be manifestly erroneous Rosell v ESCO 549 So 2d 840 844 La 1989 As such we find no manifest error in the referee finding s Accordingly we must now consider Ms Dupree second assignment of s error relative to the disciplinary action imposed Article 10 Section 8 of the A Louisiana Constitution provides that a classified employee may not be subject to disciplinary action except for cause expressed in writing Such cause is defined as conduct that impairs the efficiency of the public service and bears a real and substantial relation to the efficient and orderly operation of the public service in which the employee is engaged Dunlap v Louisiana State University Health Sciences Center 05 1605 pp 4 5 La App 1 st Cir 6 938 So 2d 109 112 06 9 In reviewing whether a penalty is commensurate with the offense proven an appellate court must apply the abuse of discretion or arbitrary and capricious standard of review A conclusion of a public body is capricious when it does not have substantial evidence to support it or the conclusion is contrary to substantiated competent evidence Likewise the word arbitrary implies a disregard of evidence or of the proper weight thereof Norbert v LSU Health Sciences Center 070161 p 5 La App 1st Cir 11 978 So 2d 947 950 07 2 writ denied 080218 La 4 978 So 2d 348 08 18 At the hearing before the referee Mr Williams the assistant secretary for the Office of Public Health explained that Ms Dupree actions impaired the s efficiency of state government because the misrepresentation of the compensatory time and not following the rules result in cost to the Department and especially in difficult budget times we being careful about how time is spent and whether re we grant or disallow compensatory time which turns into money and I think either the subordination issue as well you can run an agency t if people do not follow the policies R As pointed out by the appointing authority Ms Dupree conduct could be s viewed as insubordination in light of her prior knowledge of the compensatory time policy Even though Ms Dupree did enforce the policy as it related to her subordinates as a supervisor her actions still did not set a good example Moreover we observe that this matter involves a situation where there existed a policy that specifically governed her conduct and Ms Dupree violated that policy Cf Lasserre v Louisiana Public Service Commission 04 0615 pp 67 La App 1st Cir 4 05 8 903 So 2d 474 478 479 where this court reversed the disciplinary decision of the appointing authority after noting that the employee s conduct did not violate any established rule or policy of the agency As such although we may have imposed a discipline other than the ultimate penalty of termination considering the substantial deference that must be afforded the appointing authority we cannot say that the decision was arbitrary capricious or characterized by an abuse of discretion See Mathieu v New Orleans Public Library 09 2746 pp 1014 La 10 50 So 3d 1259 1265 1268 where 19 despite the fact the employee had worked for the City of New Orleans for 25 years with no prior disciplinary record and that at the time of her errant conduct the library lacked a director and had a shortage of personnel the Louisiana Supreme Court reversed the appellate court and reinstated the termination decision of the appointing authority CONCLUSION Therefore considering the foregoing review of the evidence and the applicable law we affirm the decision of the State Civil Service Commission All costs of this appeal are assessed to the appellant Nichole Dupree AFFIRMED h
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