
    Mary PREEN v. DEPARTMENT OF WELFARE.
    No. 93-CA-1278.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 28, 1994.
    
      Raechelle Vix, Louise Bienvenu, Bienvenu, Wellman & Vix, New Orleans, for appellee.
    Ann Sico, Asst. City Atty., Elmer Gibbons, Deputy City Atty., Kathy Lee Torregano, City Atty., New Orleans, for appellant.
    Before SCHOTT, C.J., and WARD and JONES, JJ.
   1SCHOTT, Chief Judge.

This is an appeal from a decision by the New Orleans Civil Service Commission concerning the discharge of Mary Preen from the classified service of the City of New Orleans. The commission reinstated Preen from the date of her discharge until the date when her supervisor testified during the hearing before the commission’s hearing officer. The City has appealed seeking to have Preen’s original termination upheld and Preen has appealed seeking unconditional reinstatement.

Preen was hired as Director of Nursing at Touro Shakespeare Home on January 2, 1990, by Paul Lumbi, the Administrator of the home. On October 16,1990, he suspended her for five days for refusing to comply with his order to report to his office and for general insubordination. On October 23, 1990, her appointing authority, Dr. Morris F.X. Jeff, Director of the City Welfare Department, notified her that a pre-termination hearing would be held on October 31 and gave the following explanation:

|2Your recent five (5) day suspension by Mr. Lumbi for insubordination indicates that your overall inability to perform your supervisory duties commensurate to your job description and administration expectation, have resulted in Mr. Lumbi’s recommendation that you be terminated from your provisional position of Nursing Services Supervisor.

On November 13, 1990, Dr. Jeff gave Preen her formal letter of termination which contained the following:

I am writing to inform you that your provisional status as Nursing Services Supervisor is hereby terminated effective November 13, 1990. You were suspended by Mr. Paul Lumbi, Superintendent of Touro Shakespeare; effective October 28, 1990 until I reached a determination on your continued employment with the Welfare Department. The reason for your suspension and termination is your inability as Director of Nursing to relate to your supervisor Mr. Lumbi as well as carry out the directions given you by Mr. Lumbi.

Preen, a white woman, took an appeal to the commission alleging “age and racial discrimination” in general and specifically that her provisional appointment was terminated “to replace [her] with an unqualified younger female of the same race as Dr. Jeff and Mr. Lumbi, who is not on the appropriate list of eligibles.” Lumbi and Jeff are black men.

Art. 10 § 8(B) of the Louisiana Constitution of 1974 prohibits discrimination against a classified employee because of race, provides for an appeal to the commission by an employee who is discriminated against, and places the burden of proof on appeal to the commission upon the employee alleging such discrimination. Rule 4.7 of the Civil Service Commission of the City of New Orleans repeats the constitutional mandate placing the burden of proof of the employee who alleges discrimination.

Following a prolonged hearing before a hearing examiner the | scommission on March 24, 1993, rendered an extensive decision which accurately summarizes the testimony and reaches the following conclusion:

Upon careful review and extensive deliberation, the Commission finds in this record a number of acts and omissions which indicate discrimination on the basis of both race and age. We are extremely concerned, and declare unequivocally that such conduct has no place in the merit system. That being said, the Commission also finds in the record strong indications that the legitimate differences in management skills and styles between Appellant and her supervisor, Lumbi, made the termination of her Provisional appointment inevitable. While the reasons offered for termination of a Provisional employee must be stated in writing, they need not be extensively detailed. Neither must such reasons relate to negative performance. However, the reasons given must be truthful, accurate and not based on factors prohibited by law.

This constitutes a finding that Preen carried her burden of proving racial discrimination against her culminating in her termination by her supervisor, Lumbi. This is even clearer when the above quoted conclusion is read in the context of the commission’s whole opinion including these factual findings:

Maria Perez testified that Randall regularly referred to Appellant, her supervisor, as “that white woman”. Placey and Joy Perez, both white females, testified that they and other white employees were harassed until they resigned. They further testified that, from actions and attitudes displayed, they were led to feel that Lumbi wanted an all-black staff. Lumbi admitted to ex post facto promulgation of policy and procedure statements which Appellant was charged with violating.

The above only scratches the surface of the great body of evidence produced by Preen to prove Lumbi’s discrimination against her because of race.

Milton Barquet, a black man who was an operating engineer at the Lnursing home, gave a litany of instances when Lumbi tolerated unruly and inappropriate behavior on the part of black employees of the type for which he sought to terminate Preen. Bar-quet testified that Lumbi made this statement at a meeting of the nursing home supervisors:

I do not generally care for white people. I do not generally care for them, you know.

According to Barquet, Lumbi made this statement in response to some accusations made by volunteers who worked in the program and who, said Barquet, “were mostly white.” Asked how often he recalled hearing Lumbi express that opinion about white people he answered, “Well, on a few other occasions I heard him express that he does not generally care for the volunteers ...” Bar-quet testified concerning Lumbi’s close relationship with Sherleen Randall, a young black woman whom he appointed to succeed Preen. Barquet stated that Preen was generally regarded as better qualified than Randall and that Lumbi tolerated the same kind of insubordination from Randall which he used as his excuse for terminating Preen. Barquet testified that when he started working at Touro in 1986 the blaek/white ratio of employees was 85%/15% compared to 99% black at the time of the hearing.

Shawn Temple who was the Business Manager of the home from May to October 1990 testified as to an employee who was chronically tardy, whose time he would dock, but who would talk to Lumbi and have Temple cover this up by changing the record. Tem-pie further testified that Lumbi tolerated absenteeism on this employee’s part.

Maria Placey was the Social Worker at the home. She testified she was Hispanic and had a Master’s Degree in Social Work with seven years | ¡^experience in the field. She was replaced by a black woman without a Master’s degree who had been working at Wal-Mart. She worked closely with Preen and praised her highly for the excellent job she did, her good attitude and her relationship with other employees and subordinates. She said other employees who were black would regularly “yell at” Lumbi which he tolerated. She saw Lumbi’s own secretary who was black “yelling” and slamming doors and witnessed “screaming matches” between Lumbi and the secretary. She also heard Cora Charles, a black, refer to Nathalie Leathern, a white employee, in Lumbi’s presence as “poor white trash”, but Lumbi neither said nor did anything to reprimand Charles for saying this. Asked why she was testifying, Placey stated that she thought Preen “was railroaded” and “to see that justice was done and that the right thing would be done in the situation. Hopefully, it would not happen to anybody else.”

Sarah Benjamin, a Nurse’s Assistant at Touro, worked under Preen’s supervision as well as Randall’s when the latter succeeded Preen. She contrasted their attitudes, with Preen being fair to the employees, communicative, and not inclined to raise her voice or yell at employees while Randall would yell at them, was preferential in her treatment of them, and was difficult to communicate with. When Randall got Preen’s job Benjamin heard Randall often refer to Preen as “that white woman.”

Barbara Jackson, a twenty-seven year old black woman was also a Nursing Assistant who served under both Preen and Randall and who attested to Preen’s good attitude and ability as contrasted with Randall’s. She labeled Randall’s supervisory ability as a “joke”. She described Randall as unprofessional, constantly screaming and yelling at people. She too heard Randall often refer to Preen as “That white woman this and that white woman that.” Asked whether she considered these references by Randall to |aPreen as derogatory, Jackson stated:

“She was being derogatory. She was being racist.”

After a colloquy between Jackson and the Hearing Examiner about that statement being only an impression, the following ensued:

WITNESS:
Some of the statements that she would say were being directed towards me, and I felt that it was a racist remark.
MR. MISSHORE:
Well, to say that you felt that it was a racist remark is different from saying that Ms. Randall is a racist.

Linda Carson, a white woman, was Assistant Director of Nurses at Touro from 1988-1989 under Lumbi’s supervision. Asked whether he ever treated her in a manner that called attention to her being white, she gave the following testimony:

A A number of times he did, yes.
Q Would you give us some specifics, please?
A I think the most specific case that I can state was when they came and it was both Mr. Lumbi and Ms. Ray, they came to me and asked me to fire individuals because I was white, and it would come better out of a white person. I kept asking them why, and they would never give me really a good solid reason, but they just said that was within my job description. They would say that to me, and Ms. Ray was our Director. So, I said okay and I would do it.
Q When you say Ms. Ray, she was the Director of what?
A The Director of Nurses.
Q And what was her skin color?
A She was black. She is a very fair skinned black.
|7Q, So, the Administrator and the Director of Nursing would come to you and ask you to fire other employees?
A Other black employees, yes, because it was better coming from a white person.
Q All right. Did you ever overhear Mr. Lumbi in your presence refer to you in a way that referred to your skin color or to some characteristic of your race?
A Mostly whenever I entered the room, it was more like, “Well, she is here now or we do not want to talk of her or she understands. She is not the same. She is not the same.” They were very subtle.
Q Was your impression that your skin color mattered to Mr. Lumbi?
A Yes, my skin color mattered.
Q Did Mr. Lumbi ever refer to you as your kind or that kind?
A Oh, yes.
Q How often?
A That is very difficult for me to state.
Q Was it more than once?
A Oh, yes, it was at least more than once.
Q Did you ever personally observe Paul Lumbi treat female, young female black employees in a preferential manner?
A I would say so, yes. They were, again, very subtle. He would take them into the office whenever we tried to reprimand them and mostly this was in nursing. He would take them into the office, and after a period of time which we were not even privy to these conversations, they would come out and everything was all better. We never knew what happened.

On cross examination Carson further testified as follows in response to a question as to how Lumbi would call attention to her being white:

IsA The mannerisms were if you walked into a room and now I was the Assistant Director, and I was in Management. Besides me at that particular time, there was one (1) other white person who worked the 11 (eleven) to 7 (seven) shift. She was an L.P.N. Her name was Susan Delaney. I know where she lives. It is over here. She still lives over there. She can testify to this as well if you want to corroborate the story. If he would walk into a room and it was ... Well, she is here now. It was the general tone that was set, and then I was told ... Well, we hired one (1) of your kind today. That was (1) of the comments that came through. I said, “One (1) of my kind? What does that mean?”
Q When they said that they hired one (1) of your kind, did that mean that they hired another nurse or another white person?
A Another white person.
Q And had they hired another white person?
A Yes, they did.
Q So, then, they were not lying when they said that they hired another one (1) of your kind?
A It was the attitude with which they said it.

Further along in cross examination the following ensued:

Q So, you just did not like the way that Mr. Lumbi expressed himself?
A When you are sitting in the room full of all black people who are professionals, and when somebody says, “Yes, we hired one (1) of your kind today,” it is pretty embarrassing whether you are white or whether you are black. I mean, what kind am I?
Q But that is just embarrassing to you?
A Well, I think that is pretty racial also.
Q You had your feelings hurt in other words?
A Well, wouldn’t you?
MS. JONES:
Objection. The witness’s feelings are irrelevant.
MS. MISSHORE:
^Overruled.
BY MR. EARLY:
Q So, you just did not like the tone of Mr. Lumbi’s voice?
A It was not just his voice. Ms. Ray and he would both thither, you know. They would talk to each other. They would whisper to each other, and I would say, “Well, what is so funny?” They would say, “You do not understand. You are not the right kind.” You know, it was like you felt very lost in this situation.
Q You never heard Mr. Lumbi ever make any racial jokes about white people, did you?
A I cannot recall a specific instance, but I know that there were a lot of laughter between them.
Q It was directed towards who?
A It was directed towards me and it was directed just generally. I do not like to use the derogatory comments that would come out of their mouths. I do not refer to people that way.

In her testimony Preen testified that her termination was unrelated to her job performance, but was orchestrated by Lumbi because he wanted an all black staff; that Lumbi, with Dr. Jeffs approval, pursued the policy: “Anyone who was white was either kept on provisional status or was harassed until they quit ...”

The evidence was overwhelming that Lum-bi at least tolerated, if not cultivated, an atmosphere of intolerance and antagonism toward white employees under his supervision. Furthermore, the only reasonable inference or conclusion that can be drawn from the evidence is that Preen’s termination was motivated purely by racial discrimination on Lumbi’s part. The reasons he gave for discharging her included all sorts of conduct such as poor attitude, insubordination, unpro-fessionalism, chronic tardiness, failure to follow directions and to communicate were all regularly tolerated | min other employees, especially black employees, but were used as his basis for terminating Preen.

The Commission specifically rejected Lum-bi’s credibility and found that he completely failed to substantiate the ostensible reasons he gave for firing her. The commission stated that Lumbi criticized Preen for failing to perform duties he never outlined for her in the first place, he countermanded and undermined her authority, he charged her with violations of policy which were never promulgated, and he provided no documentation for the misconduct he charged Preen with even while citing unproduced documentation. The commission tersely concluded:

Lumbi’s testimony as to Appellant’s attendance and neglect of duty is not credible.

The Commission while totally rejecting Lumbi’s testimony, noted the following with respect to Preen’s appointing authority, Dr. Jeff:

It is noted that Appellant, a senior professional employee, attempted to meet with Dr. Morris Jeff on several occasions to discuss her concerns, but was never granted a meeting. Dr. Jeff, the Appointing Authority, testified that he relied on the supervisors’ recommendation in such matters, and never met with employees.

Finally, the commission criticized the appointing authority for allowing the destruction of subpoenaed documents while he was challenging the subpoenas.

Thus, not only did the commission conclude that Preen carried her burden of proving discrimination, but also it found that the appointing authority failed to carry his burden of proving cause for Preen’s termination. As discussed above, these findings and conclusions are amply supported by the record. Nevertheless, the commission did not reinstate Preen | ^unconditionally, but concluded as follows:

It is the commission’s ruling that not until the hearing of October 30, 1991 did Lumbi articulate adequately for Appellant his reasons for her dismissal. Not until that day was the Appointing Authority available to be confronted by Appellant on his decision to dismiss her. Thus a basic element of equitable treatment of this employee was delayed from October 15, 1990 until October 30, 1991. The Commission finds, in this violation of its rules of procedure, a constructive suspension of the decision to dismiss. Taken together with the dilatory and obstructive failure by Lumbi and other representatives to produce subpoenaed materials allegedly supporting the dismissal, these acts and omissions lead the Commission to conclude that Appellant was entitled under Rule IX, Section 1.3, to be retained in this position until October 23, 1991. The suspension and dismissal are therefore voided and superseded by dismissal effective October 23, 1991. Appellant is entitled to all back pay and emoluments for the period from October 16, 1990 through October 23, 1991.

We have concluded that the commission erred as a matter of law by failing to reinstate Preen unconditionally.

The most important consideration which the commission failed to make was the effect upon the case of its finding of discrimination. Once Preen established that her discharge was a matter of racial discrimination further inquiry into Lumbi’s (Jeffs) reasons for the discharge is unnecessary. The process was poisoned. She was the victim of their discrimination and any reasons they would concoct for the discharge were nugatory. Consequently, the reasons Lumbi gave at the hearing on October 30, 1991, were without effect because in discharging her he was engaging in racial discrimination.

Because of this conclusion we need not address the question raised in the commission’s decision of whether a disciplinary proceeding which is invalid because of the failure of the appointing authority to furnish the | ^employee a statement in writing of the reasons therefore as required by Rule IX Section 1.3 can somehow be validated when the appointing authority or his agent gives reasons for the first time at the hearing. But we do not intend to convey the impression that we approve of this theory.

In its brief the City makes much over the Preen’s supposed status as a transient or provisional as opposed to a permanent employee. However, the City concedes that in the case of racial discrimination all employees regardless of status are entitled to the same redress. Since Preen was the victim of racial discrimination when discharged, she is entitled to reinstatement regardless of her status. Parenthetically we note that the City filed an exception entitled “No Right Cause of Action” to Preen’s initial appeal to the commission based on the allegation that she had not received permanent status in the civil service, but the record shows that the appointing authority withdrew this exception before the healing began.

Accordingly, that part of the decision of the Civil Service Commission of the City of New Orleans vacating the dismissal of Mary Preen from the civil service of the City of New Orleans and reinstating her in her position is affirmed; that part of the decision making her dismissal effective on October 23, 1991, is reversed, and she is unconditionally reinstated to her position entitled to all back pay and emoluments.

AFFIRMED IN PART; REVERSED IN PART. .

WARD, J., concurs with reasons.

JONES, J., dissenting.

11 WARD, Judge,

concurs with reasons.

I respectfully concur. The City of New Orleans and the City Civil Service Board erred by proceeding on the assumption that Mrs. Preen was a temporary “provisional employee,” one who could be terminated without cause. As a consequence, the City and its appointing authority, Morris F.X. Jeff, failed to follow Civil Service Rules for termination of Mrs. Preen who was a permanent “regular” employee. She must be reinstated.

State statutes and Civil Service Rules categorizes classified employees as either “regular” employees or “working test” employees. Civil Service Rule 1, Sections 50 and 64. For the first six months of employment, all classified employees are “working test period employees.” Civil Service Rule VII, Section 1 et seq. After six months, “a working test employee” becomes a “regular” employee unless terminated. A “working test” employee is synonymous with a “probational” employee, but it is not the same as a temporary “provisional” employee.

Employment of temporary “provisional employees” is authorized by Civil Service Rule VI, Section 5.3., but it is clear a “provisional” employee is a temporary employee, one hired for a short duration.

5.3 Temporary appointments to positions in the classified service may be made for short periods without compliance with the provisions of this Part requiring certificate, as follows:
(a) Provisional appointments. When a vacancy is to be filled in a position of a class for which there are no eligibles available for certification, the appointing authority, with the prior approval of the Director, may make a provisional appointment.... Such provisional appointment shall terminate upon the regular filling of the vacancy in any manner authorized under these Rules, and in any event, within fifteen working days after a certification from which appointment can be required.
* * * * * *

I2AS Civil Service Rule 5.3 indicates, provisional employment contemplates appointment of temporary employees when qualified eligi-bles are not available. That is not the situation here. Mrs. Preen was eminently qualified and eligible for employment as a Nurse and as a supervisor, having worked as a nurse for more than 15 years and as a supervisor for 2 years. She was studying for a baccalaureate nursing degree from Loyola when she was first employed as a supervisor by the City. She was not a provisional appointment; hired only to be replaced when another qualified eligible nurse was available for appointment.

Preen’s exhibit # 5, shows that Mr. Lumbi recommended to Mr. Jeff that he appoint Mrs. Preen as “Nursing Service Supervisor (C5124)”, the title and classification clearly indicating that this was for permanent employment, not provisional. Preen’s exhibit # 7 shows that the Civil Service advertisement for a Nursing Services Supervisor was for employment as a permanent employee. Preen’s exhibit # 9 shows Preen took the Civil Service exam for a Nursing Services Supervisor, “Graduate Nurse II”, and she passed with 85%. Exams are not given to “provisional employees.” Finally, appointment of a provisional employee must be approved by the Director of Civil Service. Civil Service Rules 5.3(a). Neither Lumbi nor Jeff obtained approval.

The only evidence that Preen was appointed as a “provisional” employee are the letters of Lumbi and Jeff, confected only after Lum-bi became unhappy with Preen. Their conception of Preen’s status does not square with the facts or civil service rules, and their after-the-fact designation is meaningless. The record convincingly shows that Mrs. Preen was promoted to supervisor as a permanent employee.

By Civil Service Rules, after Mr. Jeff appointed Mrs. Preen as a Supervisor, she was a “working test” employee, Civil Service Rules VII, 1.1, who was on probation as a nursing supervisor for six months — from March 20 until September 20, 1990. Although an appointing authority may remove a working test employee within the six months probationary period for reasons listed in Civil Service Rule VII, Section 1.1, if a working test employee is not removed, then that employee becomes a regular employee with all rights as a Civil Service classified employee. In this case, Preen’s appointing authority, Morris F.X. uJeff, did not remove Preen within the six month working test period. It was not until October 23, 1990, well beyond the six month period, that Jeff sought to terminate Preen. At that time, by operation of Civil Service Rules, Preen was a permanent, “regular” employee. Rule I, Section 50.

As a consequence, Mrs. Preen had all of the rights of other Civil Service employees, and this means that before Jeff could terminate Mrs. Preen, he had to have “cause” to do so. Messrs Jeff and Lumbi, however, proceeded as if Mrs. Preen were only a temporary provisional employee whom they could terminate at will. Unfortunately, the Civil Service Commission proceeded on that same erroneous assumption.

In summary, since it is clear Mrs. Preen became a working test employee and then a regular employee, when Preen appealed her discharge to the Civil Service Commission, the City had the burden to prove there was “cause”. For this reason alone, if for no other, the proceedings are flawed because the Board held that Mrs. Preen had the burden to prove discrimination. The City candidly acknowledges there was no cause. The Commission wrongly acquiesced in Preen’s termination because it believed she was only a provisional employee.

I agree with the dissent, racism is not the same as discrimination. But as I view this appeal neither racism nor discrimination is an issue because the City had the burden to show cause and there is nothing, zero, in the record that shows Morris F.X. Jeff had cause for terminating Mary Preen.

| JONES, Judge,

dissenting.

The majority opinion refers to a “great body of evidence” produced at trial to prove that Paul Lumbi, Administrator of Touro Shakespeare Nursing Home and Ms. Preen’s supervisor, discriminated against Ms. Preen because of race. This evidence included the testimony of Milton Barquet, a former employee of Touro-Shakespeare who was suspended pending termination and whose appeal of that action was pending before the Civil Service Commission at the time of Ms. Preen’s hearing. Mr. Barquet testified that Mr. Lumbi did not care for white people, specifically the volunteers at Touro-Shake-speare who were mostly white. According to Mr. Barquet, Mr. Lumbi excepted Ms. Leat-hum, the office manager at Touro-Shake-speare who he likes and who is white. Mr. Barquet, who worked at Touro-Shakespeare since 1986, testified that there were less white people employed at Touro-Shake-speare now. This fact was cited in isolation and there was nothing to suggest that in 1986 a different administration of the nursing home or administrative policy was in place. The statistics quoted by the majority, a 99% black staff at Touro-Shakespeare, do not seem unusual for lower wage scale, public sector employment. In fact, Ms. Preen testified that she applied for a position elsewhere while employed at Touro-Shakespeare because she was seeking higher wages.

Mr. Barquet also testified that Ms. Preen was generally considered more qualified than Ms. Randall, her successor as Director of Nurses. The record 12reflects that although Ms. Randall had never served as director of a nursing facility she had worked as a LPN at Touro-Shakespeare for several years. Ms. Randall had received a bachelor’s degree while Ms. Preen was still working on her bachelor’s degree. As a result of her advanced schooling Ms. Preen recommended that she be appointed Assistant Director of. Nurses and she was provisionally employed as Acting Director of Nurses after Ms. Preen’s suspension and subsequent dismissal. Mr. Lumbi testified that his goal was to hire a Director of Nurses with five years experience as a registered nurse and one year experience as Director of Nurses. When Ms. Preen was hired as the Assistant Director of Nurses and provisionally appointed to Director of Nurses she lacked these qualifications.

Another example of discrimination cited by the majority was that of Shaun Temple. Mr. Temple, who is white, was the business manager at Touro-Shakespeare who resigned as a result of personnel conflicts with a black employee that he repeatedly recorded as arriving to work tardy. Mr. Temple testified that Mr. Lumbi would have him change this worker’s time records. Mr. Temple did not testify that Mr. Lumbi asked him to do so because of any racially motivated policy.

The majority wrote that the testimony of Maria Placey supported a finding of discrimination. Ms. Placey, who is hispanic, is the former social worker at Touro-Shakespeare. She voluntarily resigned in July of 1990 and was replaced by a black woman without a Master’s Degree who had been working at Wal-Mart. She also testified that the former Director of Nurses had referred to a coworker as “poor white trash” in Mr. Lumbi’s presence and was not reprimanded. She testified that she considered this same coworker to be “poor white trash.”

Ms. Sarah Benjamin and Ms. Barbara Jackson, nursing assistants who are lablack, testified that they heard Sherleen Randall, Ms. Preen’s assistant, refer to Ms. Preen as “that white woman.” Ms. Preen reported this to Mr. Lumbi who did meet with Ms. Preen and Ms. Randall on more than one occasion to improve their working relationship. Ms. Jackson, who was suspended by Ms. Randall, allegedly resigned due to harassment by Ms. Randall and Mr. Lumbi and had an appeal pending before the Civil Service Commission at the time of Ms. Preen’s hearing.

Finally, the majority cited the testimony of Linda Carson, a former Assistant Director of Nurses at Touro-Shakespeare who is white. Ms. Carson was terminated from Touro-Shakespeare and appealed her dismissal but later dropped her appeal. She testified that while employed at the nursing home Mr. Lumbi “called attention to her being white”. She also testified that she found this embarrassing and it hurt her feelings. This conduct of Mr. Lumbi is what the majority calls racial discrimination.

Based on this evidence the majority concluded that Mr. Lumbi “tolerated, if not cultivated, an atmosphere of intolerance and antagonism toward white employees under his supervision.” The majority infers and suggests that this is the new standard in determining racial discrimination. This holding appears to be a great departure from case law in this area. Discrimination has generally been narrowly interpreted in the past. Specifically, I refer to this court’s recent holding in Knight v. Department of Police, 619 So.2d 1116 (La.App. 4th Cir.1993). In Knight, this Court reversed a Commission’s decision upholding the termination of a white police officer based on a finding that he discriminated against a black female subordinate. In that opinion this Court wrote:

Knight appealed to this court. He does not dispute that he made racist remarks about one police officer while speaking with another police officer in a telephone conversation, but he argues that the administrative investigation and the civil service hearing were flawed. He also argues that the disciplinary action is | unusually severe and unwarranted.
Officer John Reilly who was working on the command desk of police headquarters paged his field supervisor, Captain Loren-za Knight, through a digital recorder which required that Knight telephone the calling number. Knight returned the call to police headquarters from a pay telephone. Officer Reilly reported a problem with another police officer, Cathy Carter, who refused to investigate a traffic accident in spite of being ordered to do so. When Reilly reported that Carter had just gone home, ignoring the order, Captain Knight made derogatory statements about Carter in particular and about the black race in general.
Black’s Law Dictionary, Fifth Edition defines discrimination as:
... Unfair treatment or denial of normal privileges to persons because of their race, age, nationality or religion ...
Discrimination is unfair treatment as distinguished from racism which may indicate a state of mind. Racism may be the product of a malevolent heart, but it is not the same as discrimination. Both may be evil, and discrimination may be the product of racism, but discrimination requires an act. It means treating individuals differently, or denying them normal privileges because of race. In either case, some act is required. Knight may have racist thoughts and beliefs, but he was not guilty of discrimination because he did not act, no matter how vile his conversation nor wicked his thoughts....

Id. at 1117, 1120. Emphasis added.

To the extent that the majority’s opinion in the instant case represents a broader definition of discrimination I embrace it. In as much as Knight is the law, I must dissent from the majority’s finding that Ms. Preen was discriminated against by her supervisor, Mr. Lumbi, or the appointing authority, as represented by Dr. Jeff. This is a case where neither vile conversation nor wicked thoughts, let alone unfair treatment, have been proven. The record is void of any support for the majority’s conclusion that Ms. Preen’s termination was motivated purely by racial discrimination on Mr. Lumbi’s part. Neither the | shearing examiner nor the Commission made a specific finding that Ms. Preen was discriminated against by Mr. Lumbi or Dr. Jeff.

The hearing examiner, who had the benefit of hearing all the witnesses and weighing their credibility wrote in his report to the Commission:

... it was the impression of the Hearing Examiner that certain reasons for the termination were articulated by Mr. Lumbi and appeared to have at least some basis in fact. Several flaws and/or administrative problems at Touro-Shake-speare were brought out, but as counsel for appellant was reminded, it is the appellant’s burden to prove discrimination and the competence of Mr. Lumbi is not the issue before the Commission.

Emphasis added.

In the Commission’s opinion, which the majority relies upon, the language is ambiguous. The opinion reflects that the Commission found in the record “a number of acts and omissions which indicate discrimination on the basis of both race and age.” Yet the Commission fails to say by whom and against whom. The examples of discrimination, which are the same as those cited in the majority opinion, do not involve acts committed against Ms. Preen by Mr. Lumbi nor Dr. Jeff. Furthermore, the Commission failed to reinstate Ms. Preen. Obviously the Commission did not find her termination was racially motivated or it would have granted Ms. Preen the relief she sought. Thus, it is my opinion that the Commission, not unlike the hearing examiner, was concerned with the climate and racially conscious conduct at Touro-Shakespeare. However, neither fact-finder was convinced that Ms. Preen met her burden of proving discrimination.

The evidence clearly establishes that Ms. Preen was insubordinate and this evidence was unrefuted. In fact, Mr. Lumbi’s decision to suspend Ms. Preen resulted from an incident in which she stormed out of a staff meeting he was holding and her refusal to meet with him despite his requests. He later visited her office to discuss the incident and she was sitting idly in conversation uwith a co-worker although she had given him some pretext concerning work for not meeting with him. Ms. Placey, Ms. Preen’s own witness, testified that although she had not witnessed Ms. Preen yell at nor disrespect Mr. Lumbi, “Ms. Preen sometimes became impatient or exasperated. Ms. Preen would not be outdone.” Ms. Preen’s case, including all of her allegations and evidence offered at trial, was put forth to show that although she was terminated for insubordination there were many black employees at Touro-Shakespeare who violated policies and were not reprimanded. Examples of such violations included her predecessor as Director of Nurses who reportedly yelled at Mr. Lumbi, Mr. Lumbi’s secretary who also yelled at him, LPNs and nursing assistants who did not report to work timely nor who had excessive absences. Therefore Mr. Lumbi’s treatment of her was unequal.

It is my opinion that where there is no showing of an act of racial discrimination by Mr. Lumbi, Ms. Preen’s discipline for insubordination is justified by the nature of her insubordination. There is a very definite difference between the acts committed by other so-called “insubordinate” employees and the acts of Ms. Preen. Ms. Preen simply cannot show that Mr. Lumbi’s discipline of her was racially motivated when she is guilty of continuous and extreme acts of insubordination.

The record indicates that Mr. Lumbi disciplined and/or fired white as well as black employees; including a disproportionate number of witnesses called by Ms. Preen. Introduced into evidence were numerous memoranda written by Mr. Lumbi documenting inadequacies he found in Ms. Preen’s performance. These memoranda concerned her failure to supervise her employees due to unaccounted for absences, failure to meet expectations on work assigned to her, failure to work cooperatively with her assistant, and failure to monitor supplies.

kMs. Preen as well as some of her witnesses indicated they perceived an atmosphere of favoritism in that Mr. Lumbi, a black male, preferred young black females. This is not the same as alleging that Mr. Lumbi discriminated against white employees. Furthermore, there is nothing in the record concerning actions nor attitudes by Mr. Lumbi supporting Ms. Preen’s allegations that he wanted an all-black staff. Ms. Preen’s allegation that Mr. Lumbi harassed white employees until they quit is contradicted by her witnesses who testified Mr. Lumbi was seldom there and exercised little control over the facility. Finally, Ms. Preen testified that as a department head she had authority to hire nurses. She did not indicate that Mr. Lumbi prevented her from hiring any white nurses. Clearly, there was ample evidence that Mr. Lumbi had a legitimate basis for terminating Ms. Preen.

Civil Service Commission Rule IX, Sec. 1.3 provides:

In every case of termination, suspension, reduction in pay, or fíne of any employee in the classified service, or of involuntary retirement or demotion of the employee, within five (5) working days of the effective date of the action, the Appointing Authority shall furnish the employee and the Director of Personnel a statement in writing of the reasons therefor. The notification also must advise the employee of the possible right of appeal, which must be exercised within thirty (30) calendar days of the date of the disciplinary letter.

The Department cites Mr. Lumbi’s letter of October 15, 1990 suspending Ms. Preen for insubordination, which clearly states that she has 30 days to appeal to the Commission. A subsequent letter mailed to Ms. Preen on November 5, 1990 confirms that a pre-termi-nation hearing was rescheduled to accommodate her. It refers to an October 28th recommendation by Mr. Lumbi to Dr. Jeff that she be terminated and again notifies her of her right to appeal. Finally, on November 13, 1990, Dr. Jeff issued a letter of termination outlining reasons derived from Mr. Lumbi and from Ms. Preen’s pre-termination hearing. It includes notice of her right to appeal. Because the Appointing Authority, as ^represented by Dr. Jeff, did not provide Ms. Preen a written statement of reasons within five days of the disciplinary action it did not comply with the notification requirements in the Commission rules for classified employees.

I would amend the Commission’s decision to reflect that Ms. Preen’s suspension and dismissal is effective as of the date the Appointing Authority furnished notice, November 13,1990. I would limit the Commission’s award of back pay and emoluments to the period between October 16, 1990 through November 13,1990. I would affirm the decision of the Commission with this amendment.  