Bernard v. Avoyelles Parish School Bd.

640 So. 2d 321, 93 La.App. 3 Cir. 534, 1994 La. App. LEXIS 396, 1994 WL 16898951
CourtLouisiana Court of Appeal
DecidedFebruary 16, 1994
Docket93-534
StatusPublished
Cited by7 cases

This text of 640 So. 2d 321 (Bernard v. Avoyelles Parish School Bd.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bernard v. Avoyelles Parish School Bd., 640 So. 2d 321, 93 La.App. 3 Cir. 534, 1994 La. App. LEXIS 396, 1994 WL 16898951 (La. Ct. App. 1994).

Opinion

640 So.2d 321 (1994)

Elton BERNARD, Plaintiff-Appellee,
v.
AVOYELLES PARISH SCHOOL BOARD, Defendant-Appellant.

No. 93-534.

Court of Appeal of Louisiana, Third Circuit.

February 16, 1994.

*322 Louis Berry, Alexandria, for Elton Bernard.

David Edwin Lafargue, Marksville, for Avoyelles Parish School Bd.

Before COOKS, SAUNDERS and WOODARD, JJ.

SAUNDERS, Judge.

This is an appeal by defendant, Avoyelles Parish School Board (the Board), from the trial court's reversal of the Board's decision to terminate plaintiff, Elton Bernard, from *323 his position as a tenured school bus driver in Avoyelles Parish on May 29, 1985. Bernard was charged with two violations under the school bus operators' tenure law, LSA-R.S. 17:493. The first count was willful neglect of duty for failure to receive medical treatment during the period that he was on leave, failure to report to work following the end of his Board approved leave without pay of February 28, 1985, and also as a result of his incarceration for a felony which prevented him from performing the duties of a bus driver. Plaintiff's disability itself was cited as the second count for which a termination of employment can be based.

In reversing the Board's decision, the trial court held that the Board was arbitrary and capricious in dismissing plaintiff who was a tenured school bus driver.

For the following reasons, we reverse the judgment of the trial court and reinstate the decision of the Avoyelles Parish School Board.

FACTS

Plaintiff, Elton Bernard, a tenured school bus driver for the Mansura area, began his employment with the Avoyelles Parish School Board in 1968. Mr. Bernard apparently performed his duties well until the 1983-84 school year when he began being absent on a regular basis. After he had exhausted his ten (10) days of sick leave with pay allowed during a school year, several informal conferences were held concerning this absenteeism with Mr. Jerome St. Romain, Principal of the Mansura Elementary School. One such conference was held in January of 1984 wherein Mr. Bernard indicated that his attendance would improve. Despite this assurance, Mr. Bernard continued to miss an excessive number of days. On March 30, 1984, Mr. Bernard was notified by Mr. St. Romain that the absentee problem had continued and that Mr. Bernard had missed driving his bus 52 days for the 1983-84 school year which was not acceptable. This problem was also noted in the April 24, 1984, "Principal's Form for Evaluation of Bus Drivers" wherein Mr. Romain rated Bernard "unsatisfactory" as to dependability and punctuality and made the following notation, "Mr. Bernard is an excellent Bus driver. He must improve on his attendance during the school year."

Sometime in April of 1984, Mr. Bernard saw Dr. F.P. Bordelon for a physical examination which was required yearly by the Avoyelles Parish School Board. He told Dr. Bordelon that he was experiencing problems with his hands getting numb. In a note to the Board, Dr. Bordelon diagnosed this problem as Carpal Tunnel Syndrome and advised that "he may need surgery." He recommended that Mr. Bernard be excused from his school bus duties for the month of May, 1984, and evidently this leave was approved. Mr. Bernard testified that Dr. Bordelon further recommended that he see physicians in New Orleans for further testing and that he not drive his school bus until this problem was corrected.

On August 29, 1984, Mr. Bernard again saw Dr. Bordelon and Dr. Bordelon sent a letter to the Board requesting that the Board "grant a leave of absence for this semester to Elton Bernard in order that he may receive treatment for bilateral Carpal Tunnel Syndrome." Based upon this recommendation, the Board granted Mr. Bernard a leave without pay through September 30, 1984.

In either September or October of 1984, Mr. Bernard saw Dr. Naum Klainer, a New Orleans orthopedic surgeon, who confirmed Dr. Bordelon's diagnosis. Dr. Klainer indicated that Mr. Bernard was unable to work for an undetermined length of time and would probably need surgical intervention. Mr. Bernard continued to seek treatment from Dr. Klainer. On January 18, 1985, Dr. Klainer advised the Board that both hands needed surgery and two separate surgeries would be scheduled with a six (6) week recovery period for each. The first surgery was scheduled for February 21, 1985. Neither of these surgeries ever occurred.

As a result of his medical condition, Mr. Bernard requested and received three (3) leaves of absence, the last of which ended on February 28, 1985. Mr. Bernard failed to return to work following the end of his Board approved leave, nor did he request any additional leave.

*324 In addition to his medical condition, Mr. Bernard also experienced legal problems. In 1983, Mr. Bernard was charged in the U.S. District Court for flood insurance fraud. In November of 1983, Mr. Bernard was convicted of this felony offense and sentenced to three (3) years incarceration. Mr. Bernard appealed this conviction to the U.S. Fifth Circuit Court of Appeal sometime in late 1984 or early 1985, but subsequently abandoned this appeal at which time he was ordered to report to the federal correctional camp in Texarkana, Texas, on March 11, 1985, to commence serving this three (3) year sentence.

PROCEDURAL HISTORY

On May 3, 1985, because of Mr. Bernard's failure to return to work following the end of his February 28, 1985, approved leave, failure to request additional leave, failure to obtain the necessary medical treatment during these extended leaves which would allow him to return to work, and also his incarceration which began on March 11, 1985, Mr. Ronald Mayeux, Superintendent of Schools for Avoyelles Parish, recommended to the Board that Mr. Bernard be dismissed for willful neglect of duty and physical disability to perform his duties. On May 8, 1985, Mr. Bernard was notified of this recommendation and was advised that a hearing would be held on May 29, 1985.

Although incarcerated at that time, Mr. Bernard was allowed to attend this hearing and was represented by counsel. After hearing the testimony and viewing the evidence, the Board unanimously voted that Mr. Bernard was guilty on both counts and moved to uphold the Superintendent's recommendation that Mr. Bernard be dismissed from his position.

On May 29, 1986, Mr. Bernard filed a petition with the district court for a full hearing to review the action of the Board. Trial was held on January 4, 1993. The trial court reversed the decision of the Board dismissing Mr. Bernard finding that the Board was arbitrary and capricious in this dismissal. The trial court ordered that Mr. Bernard be reinstated in his position effective May 29, 1985, and that the Board reimburse him for all back salary, together with legal interest from May 29, 1985, on the sums due prior thereto and legal interest on each salary installment due thereafter until he was reinstated.

It is from this judgment that the Board appeals.

STANDARD OF REVIEW

Where an administrative agency or hearing body is the trier of fact, the reviewing court will not review the evidence before such a body except for the following purposes: (1) to determine if the hearing was conducted in accordance with the authority and formalities of the statute; (2) to determine whether or not the fact findings of the body were supported by substantial evidence; and, (3) to determine whether or not the hearing body's conclusions from these factual findings were arbitrary or constituted an abuse of the hearing body's discretion. Roberts v.

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Bluebook (online)
640 So. 2d 321, 93 La.App. 3 Cir. 534, 1994 La. App. LEXIS 396, 1994 WL 16898951, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bernard-v-avoyelles-parish-school-bd-lactapp-1994.