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Hampton v. Department of Fire

Court of Appeals of Louisiana, Fourth Circuit

May 3, 2017

DANIEL HAMPTON
v.
DEPARTMENT OF FIRE

         APPEAL FROM CITY CIVIL SERVICE COMMISSION ORLEANS NO. 8201

          Louis L. Robein, Jr. Christina L. Carroll ROBEIN URANN SPENCER PICARD & CANGEMI, APLC COUNSEL FOR PLAINTIFF/APPELLEE, DANIEL HAMPTON.

          Renee Goudeau Assistant City Attorney Elizabeth Robins DEPUTY CITY ATTORNEY Adam J. Swensek CHIEF DEPUTY CITY ATTORNEY Rebecca H. Dietz CITY ATTORNEY COUNSEL FOR DEFENDANT/APPELLANT, DEPARTMENT OF FIRE.

          Court composed of Judge Edwin A. Lombard, Judge Rosemary Ledet, Judge Terrel Broussard, Pro Tempore

          TERREL BROUSSARD, PRO TEMPORE JUDGE.

         The defendant-appellant and "Appointing Authority", the New Orleans Fire Department ("NOFD"), appeals a decision of the Civil Service Commission ("Commission") dated July 7, 2016, in favor of the plaintiff-appellee, Daniel Hampton, ordering the NOFD to restore any back pay and emoluments related to his emergency suspension on July 2, 2013. For the following reasons, we hereby affirm the Commission's ruling.

         FACTS AND PROCEDURAL HISTORY

         Mr. Hampton was a Firefighter with status as a permanent employee in the NOFD. On May 24, 2016, the Commission rendered a decision that granted in part Mr. Hampton's appeal challenging an emergency suspension, and denied in part his appeal regarding the subsequent termination. [1] On June 1, 2016, NOFD requested a rehearing solely on the Commission's decision to reverse the emergency suspension arguing that there is no procedural requirement for a pre- disciplinary hearing regarding an emergency suspension.[2] The Commission granted NOFD's motion for rehearing, but affirmed its decision that NOFD owed back pay and emoluments related to the emergency suspension of Mr. Hampton on July 2, 2013. In its well-written reasons attached to the July 7, 2016 judgment, the Commission stated, in pertinent part:

On August 19, 2013, Appellant [Mr. Hampton] received notice from NOFD that it was terminating his employment due to Appellant's failure to improve his performance following a 90-day review period. This notice also informed Appellant that NOFD was "still awaiting the results of [Appellant's] July 2, 2013 drug test." On August 28, 2013, Appellant attended a pre-termination meeting during which members of NOFD's senior leadership addressed Appellant's poor performance and subsequent failure to improve.
By NOFD's own account, the pre-termination meeting was Appellant's "opportunity to address [his] work performance." The pre-termination meeting was focused on Appellant's work performance and NOFD did not address the July 2, 2013 drug test and instead focused on Capt. Howley's special report and Civil Service Rules regarding service ratings. The Commission also notes that, at the time of the August 28th pre-termination meeting, Appellant had presumably served an almost two-month suspension as a result of the July 2nd allegations.
* * *
NOFD argues that there is no requirement for a pre-disciplinary hearing prior to placing an employee on an emergency suspension. However, La. R.S. § 33:2181 requires that, prior to the issuance of discipline, all fire employees be afforded specific due process protections. There is no distinction or exception for emergency suspensions contained within the statute or case law interpreting the statute. The only way NOFD can argue that it was not required to provide Mr. Hampton with an opportunity to respond to the allegations related to his July 2, 2013 drug test prior to placing Mr. Hampton on an emergency suspension is to allege that the emergency suspension was not discipline. NOFD cannot take this position given that Appellant was prevented from reporting to work and was not paid. Indeed, NOFD acknowledged that Appellant's emergency suspension was in fact discipline during its presentation.
NOFD relies upon this Commission's Rules in support of its argument that a pre-disciplinary hearing is only required when a classified employee is being considered for termination. However, this Commission's decision was not based on a violation of its Rules, but upon a violation of La. R.S. § 33:2181.
NOFD next argues that it provided Appellant with written notice - via July 9, 2013 letter to Appellant - of NOFD's investigation prior to commencing a formal investigation. First, such a notice is only part of the due process required by § 33:2181. Second, this notice came one week after Appellant's emergency suspension had already begun.
NOFD's reliance on the Louisiana Civil Service Commission's rules is misplaced. The State's current rules define discipline only as "suspension without pay, " SCS Rule 12.3. The state repealed its rules regarding emergency suspensions cited by the City in its brief to the Commission. Now, the State's rules allow for an emergency suspension without pay only when an employee is under criminal investigation. (Footnote omitted). Under the State's rules, a "suspension" pending an administrative investigation must be with pay, and is thus not discipline under the state's definitions. SCS Rule 12.10(a)-(d). (Emphasis in original)
As the City points out, the Commission found that the NOFD established, by a preponderance of the evidence, that the Appellant reported to work on July 2, 2013 impaired by prescription medication. However, such a finding does not speak to the procedural ...

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