NOT DESIGNATED FOR PUBLICATION

CARTER, C.J.

This is an appeal from a final decision of the Louisiana State Civil Service Commission to modify a reduction in pay penalty imposed by Defendant/Appellant, Interim LSU Public Hospital, on its permanent employee, Plaintiff/Appellee, Michelle Enriques. For the following reasons, we affirm the decision of the Louisiana State Civil Service Commission.

PROCEDURAL HISTORY

Ms. Enriques made an appeal to the Louisiana State Civil Service Commission ("Commission") on May 12, 2011, in which she challenged the decision of her employer, Interim LSU Public Hospital ("ILSUPH")1, to impose a pay reduction penalty equal to a three-day suspension in conjunction with ILSUPH's charge that Ms. Enriques failed to follow ILSUPH policy No. 8009, regarding sick leave, by not reporting her unscheduled work absences on March 21-23, 2011, to her supervisor.2

The Commission referee3 heard the appeal on June 29, 2011. The Commission referee concluded that while ILSUPH proved cause for disciplining Ms. Enriques for her failure to adhere to agency policy regarding sick leave, a pay reduction penalty equal to a three-day suspension was not commensurate with Ms. Enriques's offense. The Commission referee reduced Ms. Enriques's penalty to a reduction in pay equal to a one-day suspension in the opinion filed August 26, 2011.4

In response to the Commission referee's modification of the pay reduction penalty, ILSUPH filed an application for review with the Commission on September 12, 2011. After reviewing the application, the Commission denied ILSUPH's application for review on October 5, 2011.5

Following the denial of the Commission to review ILSUPH's application for review, ILSUPH appealed the Commission's decision to this court on November 2, 2011.

ASSIGNMENTS OF ERROR

ILSUPH avers the Commission erred as a matter of law when it failed to apply the new standards set forth by the Louisiana Supreme Court in Lange v. Orleans Levee District6; that is, the Commission failed to give ILSUPH the required deference by modifying ILSUPH's decision without finding the pay reduction penalty arbitrary, capricious, or an abuse of ILSUPH's discretion.

ILSUPH further avers the Commission erred as a matter of law when it modified the pay penalty imposed by ILSUPH on Ms. Enriques because the articulated reasons of the Commission for reducing the pay reduction penalty lack factual basis and/or, as a matter of law, provide no basis for modifying the original pay penalty imposed.

FACTS

Ms. Enriques is a permanent employee with the ILSUPH as a Registered Nurse (RN-2) in Ambulatory Care Services. By a letter dated March 24, 2011, ILSUPH notified Ms. Enriques that she was receiving a pay reduction penalty equal to a three-day suspension in conjunction with ILSUPH's charge that Ms. Enriques failed to follow ILSUPH policy No. 8009, regarding sick leave, by not reporting her unscheduled work absences on March 21-23, 2011, to her supervisor. Ms. Enriques was also placed on leave without pay for the March 21-23, 2011, unscheduled work absences.

ILSUPH Policy No. 8009 requires employees who are unable to report to work for their assigned shifts to speak to their department directors or other persons designated by the department directors when calling to request unscheduled leave. Leaving a message for the department director or other persons designated by the department director is not an acceptable request for unscheduled leave. Furthermore, Ms. Enriques's manager addressed the procedure for unscheduled leave in a January 15, 2010 staff meeting and instructed the staff that they were to call a designated number and leave a message when requesting unscheduled leave and to call their supervisor.

On March 20, 2011, Ms. Enriques was ill and knew she would not be able to report to work on March 21, 2011. She telephoned the designated number and left a voice mail regarding her absence. Ms. Enriques failed to notify her supervisor or speak to anyone in person. On March 21, 2011, Ms. Enriques telephoned the designated number and left a second voice mail indicating that she would be absent from work through March 23, 2011. Again, Ms. Enriques failed to notify her supervisor or speak to anyone in person.

To support the severity of the three-day penalty, ILSUPH cited a prior letter of reprimand for unauthorized absences. Previously, Ms. Enriques received, on August 13, 2010, a written reprimand dated July 30, 2010, for a previous unauthorized absent. By letter dated August 16, 2010, Ms. Enriques responded to this written demand. While Ms. Enriques's response was received by her employer, the response was not attached to ILSUPH's copy of the reprimand letter in accordance with Civil Service Rule 12.9(b). The importance of this prior reprimand is that an employee who fails to follow the proper procedure for reporting unscheduled work absences is subject to the following actions: upon a first offense, the employee receives a written letter of reprimand; upon a second offense, the employee is penalized with a three-day suspension without pay; and upon a third offense, the employee is terminated. Because ILSUPH viewed Ms. Enriques's failure to properly report her March 21-23, 2011 absences as a second offense, ILSUPH penalized her accordingly under Policy No. 8009 with a three-day pay reduction.

After the evidentiary hearing of this matter, the Commission concluded that based on the facts before it, although ILSUPH had cause to penalize Ms. Enriques for her infraction, ILSUPH could not use the prior letter of reprimand to support the severity of the penalty in this instance. Finding that the pay reduction penalty equal to a three-day suspension was not commensurate with her offense, the Commission reduced the pay reduction penalty to a one-day suspension and ordered Ms. Enriques to receive back pay, with interest. The Commission further ordered ILSUPH to modify its personnel records to reflect the reduction.

DISCUSSION

In Bannister v. Department of Streets, 95-040 (La. 1/16/96), 666 So.2d 641, 647 (cited with approval in Lange v. Orleans Levee District, 2010-0140 (La.

11/30/10), 56 So.3d 925), the Louisiana Supreme Court stated:

In determining whether an action of the Commission is based on legal cause and the articulated punishment is commensurate with the infraction, a reviewing court should not modify an order of the Commission unless such order is arbitrary, capricious, or characterized by an abuse of discretion. Lange, 56 So. 3d at 934 (citing Bannister, 666 So. 2d at 647) (emphasis added). Since "arbitrary or capricious" means the absence of a rational basis for the action taken, each case must be decided on its own facts with substantial deference afforded to the appointing authority. Deference must also be given to the factual conclusions of the Commission. Bannister, 666 So. 2d at 647.

As the reviewing court, our responsibility in this matter is two-fold: one, employing the clearly wrong-manifest error standard of review, we must examine the Commission's decision to reduce the pay penalty imposed by ILSUPH on Ms. Enriques and determine whether the Commission had legal cause to act and whether Ms. Enriques's punishment was commensurate with her offense; and two, we must determine whether the Commission's decision to reduce the penalty was arbitrary, capricious, or an abuse of its discretion.

Based upon the Commission's factual findings, it concluded that ILSUPH proved cause for discipline, in that Ms. Enriques failed to follow ILSUPH policy No. 8009, regarding sick leave, by not reporting her unscheduled work absences on March 21-23, 2011, to her supervisor. However, as articulated by the Commission, ILSUPH relied on a previous letter of reprimand to support the severity of the penalty, but failed to comply with the requirement of Civil Service Rule 12.9(b), in that ILSUPH failed to attach Ms. Enriques's response to the agency's copy of the letter of reprimand.

Civil Service Rules have the force of law. Jones v. Louisiana Department of Highways, 259 La. 329, 338, 250 So.2d 356, 359 (1971). Civil Service Rule 12.9(b) states: "An employee may respond in writing to an improvement letter. The employee's response must be attached to each copy of the letter kept by the agency" (emphasis added). Having determined that ILSUPH could not use the previous letter of reprimand to support the severity of a second penalty, but finding that ILSUPH had cause for discipline, the Commission reduced Ms. Enriques's penalty to a pay reduction equal to a one-day suspension.

Contrary to ILSUPH's argument, we fail to see how the Commission ignored the directive of the Louisiana Supreme Court in Lange. In fact, we fail to see how the Lange decision changes the standard of review of the Commission's authority to determine if a penalty is commensurate with an offense. The `arbitrary, capricious, or an abuse of the Commission's discretion' standard is articulated by the Louisiana Supreme Court in numerous cases such as Konen v. New Orleans Police Department, 226 La. 739, 749-50, 77 So.2d 24, 28 (1954); Jones v. Louisiana Department of Highways, 259 La. at 338, 250 So. 2d at 359; Walters v. Department of Police of City of New Orleans, 454 So.2d 106, 113 (La. 1984); and Mathieu v. New Orleans Public Library, 2009-2746 (La. 10/19/10), 50 So.3d 1259, 1262-63.

The Commission modified the penalty imposed upon Ms. Enriques by ILSUPH because it found the penalty was not commensurate with the offense. We do not find that the decision of the Commission, to reduce the penalty after its own review of the facts, is arbitrary, capricious, or an abuse of the Commission's discretion.

CONCLUSION

For the foregoing reasons, the final decision of the Louisiana State Civil Service Commission, to reduce Michelle Enriques's penalty to a reduction in pay equal to a one-day suspension, is affirmed. All costs of this appeal, in the amount of $722.00, are assessed against Defendant/Appellant, Interim LSU Public Hospital.

AFFIRMED.

GAIDRY, J., dissents and assigns reasons.

Civil Service Rule 12.9(c) state that an improvement letter can be used to support the severity of future discipline "only if" the improvement letter (1) advised the employee that the letter would be used for this purpose and (2) advised the employee of his right to respond. Rule 12.9(c) does not include a requirement that the response be attached to the improvement letter. Since the Civil Service Rules specifically list the requirements for use of an improvement letter to support the severity of future discipline, and do not include the requirement that the response be attached, we cannot assume that a failure to attach the response to an improvement letter prevents the use of the improvement letter to enhance future discipline. Since the Commission should only intervene when the appointing authority's decision is arbitrary and capricious or characterized by an abuse of discretion,1 it was inappropriate for the Commission to second-guess the appointing authority and reduce Ms. Enriques's penalty. For this reason, I respectfully dissent.