Cortez v. Department of Transportation & Development

168 So. 3d 614, 2014 La.App. 1 Cir. 0851, 2014 La. App. LEXIS 3040, 2014 WL 7278257
CourtLouisiana Court of Appeal
DecidedDecember 23, 2014
DocketNo. 2014 CA 0851
StatusPublished

This text of 168 So. 3d 614 (Cortez v. Department of Transportation & Development) 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
Cortez v. Department of Transportation & Development, 168 So. 3d 614, 2014 La.App. 1 Cir. 0851, 2014 La. App. LEXIS 3040, 2014 WL 7278257 (La. Ct. App. 2014).

Opinion

PETTIGREW, J.

]2In this employment termination case, the terminated employee, Lome Cortez (Cortez), appeals the decision of the Civil Service Referee (Referee) as well as the denial by the Louisiana State Civil Service Commission (the Commission) of his application seeking review of the Referee’s decision. After a thorough review of the record, we affirm.

FACTUAL AND PROCEDURAL HISTORY

Cortez began his employment with the defendant, Department of Transportation and Development (DOTD), on July 14, 2003; and prior to his termination on June 26, 2013, he was a classified civil service employee serving with permanent status as an Information Technology Technical Support Specialist I for DOTD District 02, in the Houma, Louisiana sub-district area.

On June 4, 2013, Cortez received, by hand delivery, a written pre-deprivation notice from his Appointing Authority and ITS (Intelligence Transportation Systems) Director, Engineer 8, Stephen W. Glascock (Glascock). In that 6-page letter, Glas-cock detailed a sequence of events involving Cortez that had occurred on April 18 and 19, 2013, and informed Cortez that his conduct during those detailed events constituted violations of PPM No. 29, Employee Conduct; PPM No. 51, Use of Computers, and PPM No. 53, Violence in the Workplace. The letter provided Cortez with four detailed descriptions of his conduct allegedly in violation of PPM No. 29, and two detailed descriptions for each of the alleged violations of PPM Nos. 51 and 53. In conclusion, the letter informed Cortez:

Your unprofessional and inappropriate behavior, as well as your failure to follow direct orders, has violated the aforementioned prohibitions of PPM No. 29, PPM No. 51, and PPM No. 53. Your conduct has been highly disruptive to. the DOTD working environment ... you were unable to perform your job functions, you caused a considerable amount of time to be lost, reducing efficiency, as work productivity ceased to exist by both yourself and all those involved in these issues, you created a negative public image by having the general public witness your behavior, you failed to follow directives, and you impeded an investigation .... Additionally, your actions lower morale of your co-workers, and inefficiently manages (sic) DOTD’s resources.

[617]*617laCortez was additionally informed of his right to respond in writing and also that a pre-deprivation hearing had been scheduled for June 12, 2013. Cortez, through counsel, responded to the charges by letter dated June 18, 2013.

On June 26, 2013, by hand-delivery, Cortez received a written disciplinary action notice from Glascock that he was being dismissed from employment with DOTD effective on 4:00 p.m. that same date. Glascock, again, detailed the incidents and violations by Cortez’s conduct underlying his decision to terminate him. He acknowledged receipt and consideration of Cortez’s written response, via counsel, and informed Cortez of his right to appeal his dismissal.

Cortez filed a notice of appeal with the Commission on July 12, 2013, that was assigned to Referee Brent C. Frederick. Cortez was properly notified that the hearing would be held on October 8, 2013. The record contains a letter dated October 2, 2013, to Referee Frederick from counsel for DOTD, “confirming the substance of [a] status conference call” between them and counsel for Cortez, during which allegations were raised “concerning the ownership and presentation of firearms by Mr. Cortez.” The letter stated that DOTD, in an abundance of caution, had requested security measures. The letter also indicated that the Referee agreed to arrange for the presence of a law enforcement officer and metal detection devices at the hearing.

On October 3, 2013, Cortez filed a “Motion to Preclude the Introduction of Any Evidence by the [DOTD] or, in the alternative, Motion to Recuse Brent C. Frederick as Referee.” In a memorandum in support thereof, Cortez referred to allegations by DOTD that concerned statements made by Cortez at a private camp on July 4, 2013, which apparently led to the conference call and request for added security at the hearing on Cortez’s appeal of his dismissal. Without any substantiation whatsoever in the memorandum, Cortez accused DOTD of fabricating the incident with the intent to “preemptively torpedo [Cortez] to the Referee via a pretextual ‘perceived security concern’ of the DOTD.”

In its opposition memorandum, DOTD provided more detail concerning the status conference and request for security. Counsel for DOTD stated that the request came as a 14result of an incident witnessed by John Arceneaux, an employee of DOTD, “which involved Mr. Cortez brandishing weapons and ammunition while naming several high-ranking DOTD employees — one of which will be present at the hearing on appeal.” DOTD indicated that the incident had been reported by Mr. Arceneaux to his DOTD supervisors and to the Louisiana State Police.

On October 7, 2013, the Referee denied Cortez’s motions, and the appeal went forth as scheduled on October 8, 2013. Following that hearing, on December 6, 2013, the Referee rendered a decision including very detailed and thorough findings of facts and conclusions of law. In summary, the Referee found that the evidence established that Cortez was insubordinate to his superiors, engaged in inappropriate and unprofessional behavior, impeded an investigation, and violated agency policy, all to the detriment of state service; therefore, DOTD proved legal cause for terminating Cortez. Cortez then requested review of that decision by the Commission. That request was denied, and this appeal by Cortez of those decisions followed.

STANDARD OF REVIEW

An appellate court should affirm the Commission’s conclusions as to the existence or cause for dismissal of a permanent employee when the decision is not [618]*618arbitrary, capricious, or an abuse of the Commission’s discretion. Additionally, the decision of the Civil Service Commission is subject to review on any question of law or fact upon appeal and the court may only review findings of fact using the manifestly erroneous/clearly wrong standard of review. When there is a conflict in testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on review. The Commission’s findings of fact cannot be manifestly erroneous where there are two permissible views of the evidence. Sumling v. Department of Health, 2014-1423 (La.11/7/14), 152 So.3d 134.

ASSIGNMENTS OF ERROR NOS. ONE and TWO

In these two assignments of error, Cortez asserts the Referee abused its discretion and erred in denying, both, his motion to preclude the introduction of evidence by DOTD as well as his alternative motion to recuse Referee Frederick. We note at the outset that |fiCortez has not stated any, nor have we found a valid legal basis for a motion to preclude the presentation of any and all evidence by a party at a hearing, for any grounds, We find such a motion to be an anomaly and, therefore, the Referee did not err in denying it. Pursuant to La. C.C.P. art. 154, if a valid ground for recusation is set forth in the motion, the judge shall either recuse himself, or refer; the motion to another judge or a judge ad hoc.

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Related

Whalen v. Murphy
943 So. 2d 504 (Louisiana Court of Appeal, 2006)
Sumling v. Department of Health
152 So. 3d 134 (Supreme Court of Louisiana, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
168 So. 3d 614, 2014 La.App. 1 Cir. 0851, 2014 La. App. LEXIS 3040, 2014 WL 7278257, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cortez-v-department-of-transportation-development-lactapp-2014.