Frye v. Louisiana State University Medical Center in New Orleans

584 So. 2d 259, 1991 La. App. LEXIS 1934, 1991 WL 119701
CourtLouisiana Court of Appeal
DecidedJune 27, 1991
DocketNo. 90 CA 0553
StatusPublished
Cited by4 cases

This text of 584 So. 2d 259 (Frye v. Louisiana State University Medical Center in New Orleans) 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
Frye v. Louisiana State University Medical Center in New Orleans, 584 So. 2d 259, 1991 La. App. LEXIS 1934, 1991 WL 119701 (La. Ct. App. 1991).

Opinion

SAVOIE, Judge.

This case is a Civil Service appeal. Plaintiff, Timothy Frye, an L.S.U. Medical Center employee, appeals from the decisions of the Civil Service Commission Referee and the Civil Service Commission upholding his suspension without pay for one day.1 He was suspended for failing to secure an electrical disconnect box which subsequently disappeared.

On appeal, plaintiff raises seven assignments of error:

1. The Appeals Referee erred in not finding that the Appellant had been denied a pre-disciplinary conference prior to being suspended.
2. The Appeals Referee erred in finding that in June of 1985 the Appellant was denied a merit step increase due to his alleged excessive use of leave and belligerent and unprofessional attitude in that said finding is not based on any evidence.
3. The Appeals Referee erred in finding that on June 23, 1986 the Appellant was allegedly reprimanded for his attitude toward his job in that there simply is no evidence to support this finding.
4. It was erroneous for the Referee to conclude that the Appellant did not secure the subject materials when the evidence clearly shows that he took those measures that were normally required of him in his day to day routine: particularly as was requested by his temporary supervisor on this project, Miguel Lopez.
5. The Appeals Referee was clearly wrong in concluding and/or inferring that the Appellant was only willing to pay for the replacement cost of the missing and/or stolen electrical disconnect box. The evidence is abundantly clear that the Appellant was never informed either by his immediate supervisor (Carlton Roy) or the Assistant Director (Froe-ba) that he had the option of replacing the missing item with a duplicate and/or comparable replacement of same.
6. The evidence clearly preponderates that the Appellant was the only witness with personal knowledge that there were other comparable electrical disconnect boxes available to the Appointing Authority to complete the assemblage of the lightpoles: consequently, the Appeals Referee was clearly wrong in finding otherwise.
7. As there is no presumption nor admission of guilt on the part of the Appellant by offering to pay for the missing and/or stolen electrical disconnect box, the Referee was manifestly wrong in concluding that he therefore must be [261]*261guilty of the charges leveled against him which resulted in his suspension.

ASSIGNMENT OF ERROR NO. 1

Plaintiff contends that he was denied due process because he did not have a presuspension hearing.2 This court in Ayio v. Parish of West Baton Rouge School Board, 569 So.2d 234 (La.App. 1st Cir. 1990), recently held that a public employee was entitled to a due process hearing before being suspended indefinitely without pay. In deciding that Ayio was entitled to a presuspension hearing, we discussed due process as follows:

Exactly what process is due in a given case is dependent upon the peculiar facts present. Due process is not a technical conception with a fixed content regardless of the time, place and circumstances, but is a flexible standard which requires such procedural safeguards as a particular situation demands.
Relying on Cleveland Bd. of Educ. v. Loudermill, appellant argues the dictates of due process required he be given notice and an opportunity to be heard prior to his suspension. In Loudermill, the Supreme Court held that a public employee who had a property interest in continued employment must be given notice and an opportunity to respond prior to his termination. We believe a determination as to whether an employee is entitled to the same protections with regard to a suspension for cause requires a balancing of the following competing interests delineated by the Supreme Court in Loudermill: 1) the private interest affected by the official action in question; 2) the risk of an erroneous deprivation of such interest through the procedure utilized; and, 3) the Government’s interest in the expeditious removal of unsatisfactory employees and the avoid-anee of administrative burdens.

Ayio, 569 So.2d at 236.

We weighed the three competing interests in Ayio as follows. As to the private interest affected, we found that the deprivation of income due to the suspension was severe, particularly where Ayio’s suspension without pay was of indefinite duration, making it practically indistinguishable from a termination in terms of its immediate effect on the employee. As to the risk of erroneous deprivation, we found that the risk was as great in the case of a suspension as in the case of termination, particularly where numerous factual disputes existed as in Ayio’s case. Based on these two factors we concluded that “the reasoning of Loudermill required that appellant be given notice and an opportunity to respond prior to his suspension in this ease.” As to the government’s interest, we noted that the employer’s interest in the immediate suspension of Ayio did not outweigh his private interest in continuing to receive his salary. In this respect, we noted that at least some of the instances of incompetence with which Ayio was charged occurred several months before he was suspended, which indicated no exigency was felt to exist by the employer.

We find the Ayio case distinguishable from this case. In this case, the private interest affected is a deprivation of income for only one day, quite unlike the complete loss of income due to a termination or an indefinite suspension without pay. In support of this point is the U.S. Supreme Court’s statement in Loudermill, 105 S.Ct. at 1493, that “We have described ‘the root requirement’ of the Due Process Clause as being ‘that an individual be given an opportunity for a hearing before he is deprived of any significant property interest.’ ” (Ci[262]*262tations and footnote omitted; second emphasis ours). Moreover, in Bell v. Department of Health and Human Resources, 483 So.2d 945, 951 (La.), cert. denied, 479 U.S. 827, 107 S.Ct. 105, 93 L.Ed.2d 55 (1986), in determining whether some downwardly reallocated employees were entitled to a due process pre-reallocation notice and hearing, our supreme court considered that the employees were not deprived “of a significant property interest, a prerequisite to any heightened due process inquiry,” unlike the Loudermill situation. (In Bell, while the reallocated employees were challenging the reallocation, their pay was frozen; while they no longer earned merit raises in the former pay range, they did earn increases at their new (lower) pay range.)

While the risk of erroneous deprivation in some suspensions may be as great as in terminations, in this case the plaintiff admitted that he had failed to secure the missing equipment for which he was responsible, leading to its loss. The most troubling factor is the testimony of the supervisor who suspended the plaintiff that he would not have done so had the plaintiff personally replaced the disconnect; the plaintiff did forward a check for the value of the disconnect to the supervisor, but the supervisor did not accept the check due to notations on it.

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Frye v. LOUISIANA ST. UNIV. MED. CTR.
584 So. 2d 259 (Louisiana Court of Appeal, 1991)

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584 So. 2d 259, 1991 La. App. LEXIS 1934, 1991 WL 119701, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frye-v-louisiana-state-university-medical-center-in-new-orleans-lactapp-1991.