Isaac v. Dep't of Health & Hospitals/Ocdd Pinecrest Supports & Servs. Ctr.

256 So. 3d 1106
CourtLouisiana Court of Appeal
DecidedSeptember 21, 2018
DocketNUMBER 2018 CA 0087
StatusPublished

This text of 256 So. 3d 1106 (Isaac v. Dep't of Health & Hospitals/Ocdd Pinecrest Supports & Servs. Ctr.) 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
Isaac v. Dep't of Health & Hospitals/Ocdd Pinecrest Supports & Servs. Ctr., 256 So. 3d 1106 (La. Ct. App. 2018).

Opinion

GUIDRY, J.

A state employee serving with permanent status appeals a decision of the State Civil Service Commission ("Commission") upholding an agency's disciplinary action to terminate his employment. Based on our review, we affirm.

FACTS AND PROCEDURAL HISTORY

Derry Isaac, Jr. was employed by the Louisiana Department of Health and Hospitals1 at the Pinecrest Supports and Services Center (appointing authority2 ), in the Office for Citizens with Developmental Disabilities, as a Residential Services Specialist 5. He served with permanent status. By a certified letter dated March 24, 2017, Shannon H. Thom, the administrator of the Pinecrest Supports and Services Center, notified Mr. Isaac that he was being terminated, effective April 7, 2017, for insubordination *1109and failing to fully cooperate with an investigation in violation of the rules 39 and 44 of the Pinecrest Rules of Conduct, because he failed to answer questions during a polygraph examination.

Mr. Isaac appealed his termination to the Commission. The referee3 assigned by the Commission to decide the matter found the evidence supported the charge and the disciplinary action imposed. The referee's decision became the final decision of the Commission when the Commission denied Mr. Isaac's application for review. See La. Const. art. X, § 12 (A) and Civil Service Rule 13.36(g). Mr. Isaac appeals that decision herein.

ASSIGNMENTS OF ERROR

In this appeal, Mr. Isaac contends that the referee erred in upholding the appointing authority's disciplinary action in the following respects:

1) The referee and the Civil Service Commission erred in finding that the appointing authority proved by [a] preponderance of the evidence that appellant, Derry [Isaac], Jr. refused to answer questions during the polygraph examination.
2) The referee and the Civil Service Commission erred in finding that the appellant, Derry [Isaac], Jr. was insubordinate and failed to fully cooperate with an investigation thus violating Pinecrest Rules of Conduct Nos. 39 & 44.
3) The referee and the Civil Service Commission erred in failing to find that the appointing authority acted arbitrarily and capriciously in terminating appellant, a loyal 15 year employee.

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 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, 02-0295, p. 4 (La. App. 1st Cir. 2/14/03), 845 So.2d 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. 6/23/00), 762 So.2d 1159, 1162, writ denied, 00-2534 (La. 11/13/00), 774 So.2d 147. However, in evaluating the determination as to whether the disciplinary action taken by the appointing authority is based on legal cause and commensurate with the infraction, the reviewing court should not modify or reverse the Commission's order unless it is arbitrary, capricious, or characterized by abuse of discretion. Usun, 02-0295 at p. 4, 845 So.2d at 494.

DISCUSSION

In his first two assignments of error, Mr. Isaac asserts that the referee erred in finding that the appointing authority proved by a preponderance of the evidence that he refused to answer questions during the polygraph examination and that his actions constituted insubordination.

The primary focus of Mr. Isaac's argument is that because he did not outright refuse or plainly state that he refused to answer any questions, the appointing authority did not have grounds for finding that he refused to submit to the polygraph examination. At the hearing before the referee, Mr. Isaac testified that he appeared for the polygraph test on the date scheduled, and the examiner informed him that he would be questioning him about a *1110November 2016 complaint of abuse. Mr. Isaac said he explained to the examiner that he had been advised by his attorney4 that he did not have to answer questions about the incident because he had been cleared.5 In response, Mr. Isaac said the examiner concluded the meeting without asking him any questions.

Mr. Isaac acknowledged that he sought the advice of a pre-paid attorney after he was directed to report for the polygraph test, and consistent with the advice he received, he believed that he did not have to answer questions about the November 2016 incident. He testified that he indicated to the examiner that he did not have any objections to taking the polygraph test. As he explained, "I told [the examiner] that I was cleared. I said, any questions you ask me, I agree to answer. I agree to the test, but that incident, I've been cleared." This testimony prompted the following question from the referee: "So the point was, you couldn't answer any questions that related to that November incident; is that what you are saying?" Mr. Isaac responded, "[y]es, sir."

As a follow up to the referee's question, on cross examination, the following colloquy transpired:

Q. And was it clear to you that the - - that the polygraph was about that incident?
A. Yes. He told me that the polygraph was.
Q. Right. So that - - that's what happened based on your - - if it would have been about something else, you would have - - it would have gone forward?
A. Yes, sir.
Q. But because it was about an incident you felt you were cleared of, you told him on advice of counsel that you didn't have to answer; is that right?
A. Yes, sir.
Q. Okay. And at that point, he said, okay?
A. Yes.

While Mr. Isaac argues that the examiner took it upon himself not to administer the polygraph test, the examiner's actions were clearly induced by Mr. Isaac's statement, which resulted in Mr. Isaac not taking the polygraph test he had been ordered to take. An employee must follow an order unless it calls upon the employee to do something illegal, immoral, unethical, or in dereliction of duties. Paulin v. Department of Health and Hospitals. Office of Behavioral Health, 13-1916, p. 6 (La. App. 1st Cir. 6/6/14),

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Norbert v. Lsu Health Sciences Center
978 So. 2d 947 (Louisiana Court of Appeal, 2007)
Jones v. Dept. of Health & Human Resources
430 So. 2d 1203 (Louisiana Court of Appeal, 1983)
Dunlap v. LSU HEALTH SCIENCES CENTER
938 So. 2d 109 (Louisiana Court of Appeal, 2006)
Evans v. DeRidder Mun. Fire
815 So. 2d 61 (Supreme Court of Louisiana, 2002)
Usun v. LSU HEALTH SCIENCES CENTER
845 So. 2d 491 (Louisiana Court of Appeal, 2003)
Paulin v. Department of Health
146 So. 3d 264 (Louisiana Court of Appeal, 2014)
Cole v. Division of Administration
170 So. 3d 180 (Louisiana Court of Appeal, 2015)
Gorbaty v. Department of State Civil Service
762 So. 2d 1159 (Louisiana Court of Appeal, 2000)
Ben v. Housing Authority of New Orleans
879 So. 2d 803 (Louisiana Court of Appeal, 2004)
Jones v. Department of Public Safety & Corrections
923 So. 2d 699 (Louisiana Court of Appeal, 2005)

Cite This Page — Counsel Stack

Bluebook (online)
256 So. 3d 1106, Counsel Stack Legal Research, https://law.counselstack.com/opinion/isaac-v-dept-of-health-hospitalsocdd-pinecrest-supports-servs-ctr-lactapp-2018.