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Milton v. Department of Public Works

Court of Appeals of Louisiana, Fourth Circuit

March 22, 2017

SHEWANDA MILTON
v.
DEPARTMENT OF PUBLIC WORKS

         APPEAL FROM CITY CIVIL SERVICE COMMISSION ORLEANS NO. 8197 C\W 8273

          WILLIAM G. LEGRAND COUNSEL FOR PLAINTIFF/APPELLANT

          REBECCA H. DIETZ, City Attorney CHERRELL R. SIMMS, Senior Chief Deputy City Attorney ELIZABETH ROBINS, Deputy City Attorney ISAKA RACHELL WILLIAMS, Assistant City Attorney COUNSEL FOR DEFENDANT/APPELLEE

          (Court composed of Judge Terri F. Love, Judge Edwin A. Lombard, Judge Sandra Cabrina Jenkins)

          SANDRA CABRINA JENKINS JUDGE

         Shewanda Milton appeals the decision of the Civil Service Commission of the City of New Orleans ("the Commission") denying her appeal and upholding her termination by the Department of Public Works ("DPW"). For the reasons that follow, we find the Commission's decision was not arbitrary, capricious, or an abuse of discretion, and we affirm.

         FACTUAL AND PROCEDURAL BACKGROUND

         At the time of her termination, Shewanda Milton had been employed by DPW for nine years. For the last six or seven of those years, Ms. Milton worked as a senior parking control officer ("PCO"), whose primary duty is issuing citations to illegally parked vehicles. As a part of her job, Ms. Milton was required to carry a DPW-issued cell phone to access the Verrus parking payment application and verify whether a driver paid for parking by phone or internet prior to issuing a citation for a parking meter violation.

         On July 11, 2013, Ms. Milton worked from 9:00 a.m. until approximately 12:00 p.m., when she ended her shift early due to rain. During her three-hour shift, Ms. Milton issued thirty-three parking citations, of which twenty-one were parking meter violations. At the end of that day, DPW directed all PCOs to turn in their department cell phones to a supervisor for inspection. When Ms. Milton's supervisor, Valerie Petty, requested Ms. Milton to turn in her department cell phone, Ms. Milton admitted that she did not have it with her and had not used it during her shift that day.

         The next day, July 12, 2013, DPW issued a disciplinary notice to Ms. Milton placing her on a thirty-day emergency suspension for violation of departmental rules and regulations on July 11, 2013. The notice cited the following violations: failure to report to work with her required department cell phone; failure to safeguard her departmental equipment; issuing fraudulent tickets without proper verification through the Verrus application; and making false statements on citations that a required phone verification had been made. The notice also informed Ms. Milton that additional discipline, including termination, could be imposed following a full investigation of the matter.

         On October 17, 2013, DPW issued a notice of termination to Ms. Milton that detailed the findings from its investigation and pre-termination hearing.[1] During the course of the investigation, DPW reviewed all citations issued by Ms. Milton on July 11, 2013, and determined that Ms. Milton issued seven citations stating "no pay slip/no pay by phone" to drivers who had properly paid for their parking using the Verrus payment application. At the pre-termination hearing, Ms. Milton admitted that she violated departmental policies by failing to carry her department cell phone and failing to follow proper protocol once she realized she did not have her department cell phone. Ms. Milton then claimed that she had used another PCO's department cell phone and her own personal cell phone to check the Verrus payment application before issuing all citations for parking meter violations. In response to the finding that she issued seven citations improperly, Ms. Milton suggested that the Verrus application was not functioning correctly or provided incorrect information. In its investigation, however, DPW determined that there were no records or reports of any technical problems with the Verrus application on July 11, 2013. Based on its review of Ms. Milton's actions on July 11, 2013, DPW found Ms. Milton violated several departmental rules and Civil Service Rule IX, Section 1.1, regarding maintaining the standards of effective service, and concluded that termination was warranted.

         Ms. Milton timely appealed her termination by DPW to the Commission. On February 3, 2015, a hearing was held before an appointed Hearing Examiner. Three witnesses, including Ms. Milton, testified at the hearing.

         Ms. Petty, a Parking Control Supervisor, testified that she was Ms. Milton's immediate supervisor at the time of the incident on July 11, 2013. Ms. Petty stated that Ms. Milton's job as a senior PCO required her to patrol her assigned area and determine whether vehicles were parked illegally based on posted signage and meter payments. For vehicles parked in metered zones, Ms. Petty explained that PCOs must follow a certain procedure to verify whether there is a meter violation before issuing a citation. First, a PCO checks whether the meter is expired or whether the pay slip on the dashboard of the vehicle is expired; then, the PCO must access the Verrus application on her department cell phone to check whether a payment had been made for the metered space by phone or internet; if the Verrus application indicates no meter payment, only then can a PCO issue a citation for a meter violation.[2] Ms. Petty testified that all PCOs are issued a department cell phone, to be used exclusively for accessing the Verrus application during shifts, and that Ms. Milton was aware of the DPW procedures requiring the use of the Verrus application to verify parking meter violations.

         Regarding the incident involving Ms. Milton on July 11, 2013, Ms. Petty testified that on that day all supervisors were directed to retrieve the department cell phones from their PCOs to inspect whether any unauthorized programs had been downloaded onto the phones. When she requested Ms. Milton turn in her department cell phone, Ms. Petty recalled that Ms. Milton started looking through her belongings for the phone; after a few minutes, Ms. Milton stated that she must have left it in the hotel where the PCOs take breaks. Ms. Petty then told Ms. Milton that they should go back to the hotel to find the department cell phone; as they were leaving the office together, Ms. Milton admitted to Ms. Petty that she left her department ...


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