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Rivet v. Department of Police

Court of Appeals of Louisiana, Fourth Circuit

October 24, 2018

QUINETTA RIVET
v.
DEPARTMENT OF POLICE

          APPEAL FROM CITY CIVIL SERVICE COMMISSION ORLEANS NO. 8431

          COREY S. LLOYD DONOVAN A. LIVACCARI LIVACCARI LAW LLC COUNSEL FOR PLAINTIFF/APPELLANT

          CORWIN ST. RAYMOND ASSISTANT CITY ATTORNEY ELIZABETH ROBINS DEPUTY CITY ATTORNEY SUNNI J. LEBEOUF CITY ATTORNEY COUNSEL FOR DEFENDANT/APPELLEE

          (Court composed of Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge Regina Bartholomew-Woods)

          Joy Cossich Lobrano Judge

         This is a civil service case. Plaintiff/appellant, Quinetta Rivet ("Rivet"), appeals the January 9, 2018 decision of the Civil Service Commission ("CSC" or "Commission") upholding the suspension and termination of her employment by the appointing authority, the New Orleans Police Department ("NOPD"). For the reasons that follow, we affirm the decision of the CSC.

         Rivet was employed by the NOPD as a police technician and had permanent status as a classified employee. She was not a commissioned police officer. She worked in an office where her job duties included answering telephone calls for the NOPD's child abuse unit. Rivet was disciplined for (1) leaving work without the permission of her supervisor, Sergeant Arnold Williams ("Sgt. Williams"); and (2) providing a false statement - that Sgt. Williams had given Rivet permission to leave work - to Sergeant Trinell Franklin ("Sgt. Franklin") of the Public Integrity Bureau ("PIB"), during Sgt. Franklin's disciplinary investigation of Rivet's conduct.

          Following a pre-discipline hearing, on July 9, 2015, Superintendent Michael Harrison issued a discipline letter to Rivet, stating that she violated NOPD internal rules relative to performance of duty, professionalism, and truthfulness. For the violations concerning performance of duty and professionalism, Rivet received three suspensions of three days each, for a total of nine days. For the violation concerning truthfulness, Rivet's employment with the NOPD was terminated.

         On July 10, 2015, Rivet appealed her termination to the CSC. The CSC hearing went forward on July 28, 2016, July 20, 2017, and August 8, 2017. [1] On December 13, 2017, the hearing examiner issued his report in which he recommended that the appointing authority met its burden of proof and established by a preponderance of the evidence that (1) Rivet was disciplined for cause; (2) Rivet's conduct impaired the efficiency of the public service; (3) the discipline imposed was commensurate with the offense; and (4) Rivet was not denied due process. On January 9, 2018, the CSC denied Rivet's appeal, upholding her suspension and termination. This appeal followed.

         This Court has summarized the governing standard of review and applicable legal principles as follows:

• An employer cannot subject a permanent classified civil service employee to disciplinary action except for cause expressed in writing. La. Const. Art. X, § 8(A); Walters v. Dep't of Police, 454 So.2d 106, 112 (La. 1984).
• Cause for discipline of an employee exists whenever the employee's conduct impairs the efficiency of the public service in which the employee is engaged. Cittadino v. Dep't of Police, 558 So.2d 1311, 1315 (La.App. 4th Cir. 1990).
• "The appointing authority is charged with the operation of his or her department and it is within his or her discretion to discipline an employee for sufficient cause." Whitaker v. New Orleans Police Dep't, 03-0512, p. 5 (La.App. 4 Cir. 9/17/03), 863 So.2d 572, 575.
• The employee may appeal from such a disciplinary action to the Commission. On appeal, the Commission has a duty to decide independently from the facts presented whether the appointing authority had good and lawful cause for taking the disciplinary action and, if so, whether the punishment imposed was commensurate with the infraction. Walters, 454 So.2d at 113.
• "The authority to reduce a penalty can only be exercised if there is insufficient cause." Whitaker, 03-0512 at p. 4, 863 So.2d at 575 (citing Branighan v. Dep't of Police, 362 So.2d 1221, 1223 (La.App. 4 Cir. 1978)). Further, a legal basis for any change in a disciplinary action can only be that sufficient cause for the action was not shown by the appointing authority. Branighan, 362 So.2d at 1221. The Commission may not merely substitute its judgment for the appointing authority's judgment. Whitaker, 03-0512 at p. 5, 863 So.2d at 576.
• On appeal, the standard of review is established by the constitutional rule that the Commission's decision is subject to review on any question of law or fact. La. Const. art. X, § 12. A multifaceted standard of appellate review applies. First, as in other civil matters, deference must be given to the Commission's factual findings, which should not be disturbed unless manifestly erroneous or clearly wrong. Second, in evaluating the Commission's determination as to whether the disciplinary action is both based on legal cause and commensurate with the infraction, the appellate court should not modify the Commission's decision unless it is arbitrary, capricious, or characterized by an abuse of discretion. Bannister [v. Department of Streets], 95-404 at p. 8, 666 So.2d [641] at 647 [ (La. 1996) ]. Arbitrary or capricious means there is no rational basis for the action taken by the Commission. Id.

Abbott v. New Orleans Police Dep't, 2014-0993, pp. 7-8 (La.App. 4 Cir. 2/11/15), 165 So.3d 191, 197 (quotation omitted).

         On appeal, Rivet does not challenge her suspensions. Rather, she seeks appellate review of her termination, raising the following three issues: (1) whether there was legal cause for her discipline; (2) whether her discipline was commensurate with the offense; and (3) whether she was afforded due process.

         We first address Rivet's argument that the CSC erred in finding legal cause existed for her discipline. In an appeal before the CSC, "[t]he appointing authority has the burden of proving, by a preponderance of the evidence that the complained-of activity or dereliction occurred, and that such dereliction bore a real and substantial relationship to the efficient operation of the appointing authority." Cure v. Dep't of Police, 2007-0166, p. 2 (La.App. 4 Cir. 8/1/07), 964 So.2d 1093, 1094 (citing Marziale v. Dep't of Police, 2006-0459, p. 10 (La.App. 4 Cir. 11/8/06), 944 So.2d 760, 767).

         The CSC upheld NOPD's termination of Rivet's employment for violation of the Truthfulness Rule, which is found in NOPD Rule 2, Paragraph 3, and provides as follows:

Employees are required to be honest and truthful at all times, in their spoken, written or electronic communications. Truthfulness shall apply when an employee makes a materially false statement with the intent to deceive. A statement is material when, irrespective of its admissibility under the rules of evidence, it could have affected the course or outcome of an investigation or an official proceeding, whether under oath or not, in all matters and official investigations relating to the scope of their employment and operations of the Department as follows:
(a) employees shall truthfully state the facts in any oral, written, or electronic communication;
(b) employees shall not willfully or negligently make any false, misleading, or incorrect oral, written, or electronic communication;
(c) employees shall not willfully or negligently withhold relevant information of which they have knowledge, from any oral, written, or electronic communication;
(d) employees shall truthfully answer all questions directed to them on the order of the Superintendent of Police, the Superintendent's designee, a superior officer, or any judicial, departmental, or other official investigative body.

         In rendering its decision, the CSC considered the following testimony to be pertinent. Sgt. Williams testified that, on the morning of April 17, 2015, Rivet was the only employee on duty in the child abuse unit's office.[2] Sgt. Williams was in the office but was off duty and completing paperwork during his off-duty time. Shortly after Rivet arrived at work, she proceeded to Sgt. Williams' office, seeking permission to leave work to meet a repairman who was at her home. Sgt. Williams was adamant that he denied Rivet permission to leave work. Rather, he explained that he told Rivet that she could not leave work because she was the only person on duty, and someone needed to be in the office to answer the telephones. After he discovered that Rivet left the office, Sgt. Williams called her on her cell phone and repeated that she did not have permission to leave work, to which Rivet responded "Well, I'm doing what I have to do. It's an emergency." Rivet later returned to work after having been absent for three hours.

         Sergeant Randi Gant ("Sgt. Gant") testified that, on April 17, 2015, Rivet came into Sgt. Gant's office, visibly upset, and stated that she "wanted to talk to someone she could trust." Rivet was concerned that she was "going to get written up." Rivet then told Sgt. Gant that Sgt. Williams denied Rivet's request to take an early lunch to meet a repairman, but she left anyway.

         Rivet testified that when she asked Sgt. Williams for permission to leave work, he told her to "go, go," and she interpreted his response as permission to leave work. Rivet did not complete any emergency furlough paperwork. She did not recall which repairman had called her or what kind of emergency repair was done to her home. She failed to explain why she did not return to the office at the time that Sgt. Williams called to tell her she did not have permission to leave work.

         Sgt. Franklin testified that she was assigned Rivet's disciplinary investigation and took several administrative statements. Sgt. Williams gave a statement that he denied Rivet permission to leave work. Sgt. Gant gave a statement that Rivet admitted that Sgt. Williams denied Rivet permission to leave work but Rivet left work anyway. Rivet, however, gave a statement that Sgt. Williams did not refuse her request to leave work and told her to "go, go."[3] Sgt. Franklin concluded that Rivet violated the ...


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