Dubois v. Department of Health & Human Resources

486 So. 2d 216, 1986 La. App. LEXIS 6457
CourtLouisiana Court of Appeal
DecidedMarch 25, 1986
DocketNo. 84 CA 1505
StatusPublished
Cited by4 cases

This text of 486 So. 2d 216 (Dubois v. Department of Health & Human Resources) 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
Dubois v. Department of Health & Human Resources, 486 So. 2d 216, 1986 La. App. LEXIS 6457 (La. Ct. App. 1986).

Opinion

SAVOIE, Judge.

Plaintiffs, Margie Dubois’, appeal from a decision of the Civil Service Commission (hereinafter referred to as the Commission) is before us for the second time. She appeals, contending that the Commission erred in upholding her termination of employment with the Department of Health and Human Resources, Belle Chasse State School.

On February 27, 1981, plaintiff, an 18-year State Civil Service employee, was terminated from her position at the Belle Chasse State School for excessive tardiness and failure to comply with and follow a supervisory plan. Cited in said letter of termination were numerous instances of plaintiffs failure to be present at work on time. This termination letter was signed by Gene I. Barrow, MR Facility Administrator III. Plaintiff timely appealed to the Commission, asserting numerous deficiencies in the procedure used and errors on the merits of the action taken against her. Subsequent to the Commission’s hearing, plaintiff's termination was upheld. From such ruling, plaintiff appealed.

On original hearing, this court, considering the testimony and evidence adduced, found that the parties hereto were evidently laboring under conflicting views as to the possible stipulation to Mr. Barrow’s “appointing authority.” We noted that a tenured Civil Service employee can only be discharged by the appointing authority and that such authority is to be strictly construed. Bennett v. Executive Department, Division of State Buildings, 334 So.2d 551 (La.App. 1st Cir.1976). Rule 1.4 of the Civil Service Rules defines “appointing authority” as the “agency, department, board or commission, and the officers and employers thereof authorized by statute or by lawfully delegated authority to make appointments to positions in the State Service.” By statute, assistant secretaries for each office within the DHHR are appointing authorities. LSA-R.S. 36:257. In the absence of a statutory grant of authority, an appointing authority may be lawfully delegated by one who has such authority. Civil Services Rules 1.4. In proof thereof, an authentic act delegating an appointed authority or certified copy thereof when entered into evidence shall be accepted as prima facie proof of the recitals contained therein. Civil Service Rule 13.19(t). Based thereon, this court remanded the case to the Commission for the introduction of further evidence to establish whether plaintiff’s termination letter was signed by the proper “appointing authority.” Dubois v. Department of Health and Human Resources, 448 So.2d 230 (La.App. 1st Cir.1984).

On remand, Mr. Barrow and Mr. Billy Ray Stokes, Assistant Secretary of the DHHR, testified. Mr. Stokes stated that a letter initialed by him on October 23, 1980, was intended as a delegation of his “appointing authority” to Mr. Barrow. Mr. Barrow testified that pursuant to that letter, he considered himself to be the delegated “appointing authority” at the time in question. As such, he considered that he had the power to discharge plaintiff.

Plaintiff appeals that decision in addition to asserting her prior contentions of the Commission’s errors, asserting that:

“1. The Commission erred in its statement of the appeal portion of its decision of January 28, 1983 by alluding to 19 written notifications to Mrs. Dubois as to her work hours and attendance and alleged misrepresentation of jury leave when in truth and in fact none of the allegations or the 19 written notifications were introduced into evidence in this proceeding and by including [219]*219this in the decision the Commission has enlarged not only the letter of dismissal and allowed for attachments to the letter of dismissal, which by law are not part of the letter of dismissal and should not be considered, to become part of this record.

“2. The Commission erred in holding that Mrs. Dubois was not entitled to a pre-termination hearing when a denial of such pre-termination hearing is a denial of due process and unconstitutional.

“3. The Commission erred in not granting the first Motion for Summary Disposition filed February, 18, 1982 on behalf of Mrs. Dubois in that the Commission’s own prior decision in the matter entitled in Re Jacqueline Levy, Docket No. 2467, the Commission itself held that placing an employee on leave without pay, whether you style it leave without pay or suspension, is in contravention of their own Rule No. 11.27 and the effect of the prior suspensions of Mrs. Dubois and the forced leave without pay she was forced to take in terms of waiting out the 30 minute periods of time for which she was not paid have the same force and effect as placing her on leave without pay.

“4. The Commission erred in not granting the first Motion for Summary Disposition filed February 18, 1982 on behalf of Mrs. Dubois in that by holding that Civil Service Rule 12.2 did not require notification of Mrs. Dubois of her right to appeal at the time that she was suspended should not be read retroactively with the amendment to 12.2 which required that permanent employees suspended be advised of their right to appeal. This was a denial of due process and equal protection of Mrs. Dubois and the amended Rule 12.2 should have been used as a basis for giving her the due process and equal protection that she is entitled to under the Constitution of the State of Louisiana and the United States of America and the Motion for Summary Disposition should have been granted on that basis.

“5. The Commission erred in holding that prior disciplinary actions can be considered by the appointing authority in determining what sanction to levy against an employee deemed guilty of further infractions; and, by further holding that if the employee does not timely appeal the previous disciplinary action, the validity of such previous actions is no longer subject to challenge. This is error in that to suspend someone from their job or force them to take leave without pay and not inform them under the Civil Service Rules, particularly 12.2 as amended, that they have a right to appeal and then come back in the decision of their case and say that because you did not timely appeal something that you did not even know you had the right to appeal in the first place, we are now going to hold it against you.

“6. The Commission erred in upholding the termination of Mrs. Dubois based upon the evidence presented, in that the only evidence ever introduced at any hearing was evidence of tardiness by one minute on two occasions and 21 minutes on a third occasion over an alleged 7 month period by an 18 year Civil Service State employee and this should not be a cause of sufficient gravity to warrant a punishment so severe as termination.

“7. The Commission erred in finding, at page 4 of their January 28, 1983 decision, and holding, that the supervisory plan and the policy of the Belle Chasse State School that an employee has to “wait out” and cannot report to their duty station until lk hour has elapsed if they are so much as one minute past the five minute grace period allowed in the first place is misinterpretation of the Civil Service Rule and in contravention of the Civil Service Rules, but then not allowing Mrs. Dubois to be reinstated and finding that she was legally fired for violation of this particular rule which the Commission in its own decision has found to be invalid. How can Mrs. Dubois have been fired and the firing upheld based upon a rule that is found in the very decision that upholds her firing to be invalid?

“8. The Commission erred in finding as a matter of law and fact that Mrs.

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Bluebook (online)
486 So. 2d 216, 1986 La. App. LEXIS 6457, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dubois-v-department-of-health-human-resources-lactapp-1986.