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Green v. New Orleans Recreation Development Commission

Court of Appeals of Louisiana, Fourth Circuit

May 10, 2017

COREY GREEN
v.
NEW ORLEANS RECREATION DEVELOPMENT COMMISSION

         APPEAL FROM CITY CIVIL SERVICE COMMISSION ORLEANS NO. 8179 C\W 8244

          Morris W. Reed, Jr. COUNSEL FOR PLAINTIFF/APPELLEE.

          Elizabeth S. Robins DEPUTY CITY ATTORNEY Isaka R. Williams ASSISTANT CITY ATTORNEY Cherrell S. Taplin SENIOR CHIEF DEPUTY CITY ATTORNEY Rebecca H. Dietz CITY ATTORNEY CITY OF NEW ORLEANS COUNSEL FOR DEFENDANT/APPELLANT.

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

          Rosemary Ledet Judge.

         This is a civil service case. The Appointing Authority, the New Orleans Recreation Development Commission ("NORDC"), appeals the August 18, 2016 decision of the City of New Orleans Civil Service Commission (the "Commission"). In its appeal, NORDC raises the following two issues: (i) the timeliness of the appeal filed by the employee, Corey Green, of his termination; and (ii) the sufficiency of NORDC's evidence to meet its burden of establishing legal cause for the sanctions it imposed on Mr. Green-a thirty-day emergency suspension and termination.[1] For the reasons that follow, we affirm.

         FACTUAL AND PROCEDURAL BACKGROUND

         On June 3, 2007, NORDC hired Mr. Green. At all relevant times, NORDC employed Mr. Green as a Recreation Center Manager assigned to the Behrman Recreation Center in New Orleans, Louisiana.[2] On May 15, 2013, NORDC placed Mr. Green on a two week (a ten calendar day) suspension-the 10-Day Suspension-for numerous performance issues.[3] The 10-Day Suspension was from May 15, 2013 to May 28, 2013; Mr. Green was to return to work on May 29, 2013. On that date, however, NORDC placed Mr. Green on a thirty-day emergency suspension (the "30-Day Emergency Suspension"). On that same date, NORDC issued a Notice of Disciplinary Action, which stated the following reason for the 30-Day Emergency Suspension (the "30-Day Notice"):

It has been determined that during the term of [the 10-Day Suspension] you have done the following:
• Entered the Behrman Recreation Center;
• Utilized the facility and allowed other individuals to use the facility; and
• Improperly collected monies from these persons/teams.

         On May 30, 2013, Mr. Green appealed the 10-Day Suspension; this appeal was assigned Docket No. 8176. On the appeal form, Mr. Green listed his address as 842 LeBoeuf Street, New Orleans, Louisiana (the "LeBoeuf Street Address").

         On June 6, 2013, NORDC issued a notice of pre-termination hearing to be held on June 14, 2013 (the "Pre-Termination Notice"). The Pre-Termination Notice stated the following:

On May 29, 2013, you were placed on emergency suspension and specifically informed that you were not to enter Behrman Recreation Center or any other NORDC facility during your suspension.
NORDC has determined that you have disregarded that direction and while on suspension you have continued to utilize Behrman Gymnasium, conduct unauthorized structured basketball games, and allowed the collection of fees for the usage of the facility.

         On June 5, 2013, NORDC hand delivered to Mr. Green both the Pre-Termination Notice and the 30-Day Notice.[4] NORDC also mailed letters including both notices by regular and certified mail to Mr. Green; all the letters were addressed to 2700 Valentine Court, New Orleans, Louisiana (the "Valentine Court Address"). None of the letters were returned undelivered. The return receipt, green cards that NORDC received for the two letters it sent to that address by certified mail were signed by someone other than Mr. Green.

         On June 10, 2013, Mr. Green appealed the 30-Day Emergency Suspension. This appeal was assigned Docket No. 8179. On the appeal form, Mr. Green checked off not only "Suspended, " but also "Dismissed (Fired)." In addition, he attached to the appeal form copies of both the 30-Day Notice and the Pre-Termination Notice. On the appeal form, he again listed the LeBoeuf Street Address.

         On June 14, 2013, the pre-termination hearing was held. Mr. Green failed to attend. Although an attempt was made to contact him by telephone before the hearing commenced, this attempt was unsuccessful.[5] Following the hearing, NORDC decided to terminate Mr. Green.

         On June 17, 2013, NORDC issued a Notice of Termination to Mr. Green (the "Termination Notice"). NORDC mailed letters including the Termination Notice by both regular and certified mail to the Valentine Court Address. The Termination Notice included the following detailed summary of the factual basis for the termination:

On May 15, 2013 you were placed on disciplinary suspension for two weeks [ten calendar days] due to numerous performance issues. . . . When you were informed of this suspension by COO [Chief Operations Officer] Mary-Jo Webster, you were also directed to return all keys to Behrman Center that were in your possession. This direction was reiterated over the next two weeks by Shawn Wyatt [Mr. Green's supervisor] and Jerry Smith [Chief Program Officer], by email and numerous phone calls, and the keys were never returned.
On May 25th, 2013, NORDC CEO [Chief Executive Officer] Victor Richard went to the Behrman Recreation Center unannounced and found an unauthorized full court adult basketball game underway with two referees and the Rec Center scoreboard in use. Players informed Mr. Richard that you organized the games and had been on premises overseeing the activities but had stepped out briefly. Further investigation confirmed that you have managed an AAU [Amateur Athletic Union] basketball team and organized non-NORDC related league play in the Behrman Recreation Center, during your suspension.
On May 29, 2013 you were placed on emergency suspension [for thirty days] due to your conduct during your disciplinary suspension . . . In the letter notifying you of this suspension, you were specifically directed not to enter the Behrman Recreation Center or any other NORDC facility during this suspension.
On June 5th, 2013, NORDC Chief Program Officer Jerry Smith went to the Behrman Recreation Center and found you present while unauthorized adult league play was occurring on the basketball court. Mr. Smith presented you with copies of both letters of suspension (5/29) and notice of your pre-termination letter scheduling the hearing for June 14th, 2013 and had an NOPD officer escort you out of the premises.
NORDC has determined that you disregarded specific direction and while on suspension you continued to utilize Behrman Gymnasium and both allowed and managed unauthorized usage of the gymnasium. You also collected money from individuals using the gym without permission or authority.
NORDC and City policy forbids private unauthorized usage of City property, and forbids a City employee from unauthorized collection of fees. We have determined that your repeated violations of NORDC policy and direction warrant termination, and therefore effective Friday, June 14th, 2013 your employment with the City of New Orleans is terminated.

         On October 23, 2013, NORDC filed a motion for summary disposition of Mr. Green's appeal of his termination in Docket No. 8179. In its motion, NORDC contended that Mr. Green's June 10, 2013, appeal of his termination, which did not occur until June 14, 2013, was premature. NORDC further contended that the Pre-Termination Notice, a copy of which was attached to the appeal form, was not a disciplinary action and thus was not appealable.

         On November 18, 2013, the Commission granted NORDC's motion for summary disposition, finding the appeal of the termination premature by four days. On that same date, Mr. Green filed another appeal challenging his termination. This appeal was assigned Docket No. 8244. On the appeal form, Mr. Green once again listed the LeBoeuf Street Address. In response, NORDC filed a second motion for summary disposition seeking to have Mr. Green's appeal of his termination in Docket No. 8244 dismissed as untimely. Opposing the motion for summary disposition, Mr. Green contended that the Termination Notice was not provided to him until October 23, 2013. He noted that the address to which NORDC sent the June 17, 2013, Termination Notice was not his correct address.

         Addressing the second motion for summary disposition, the Commission, in its August 15, 2014 order (the "Order"), reiterated its ruling that Mr. Green's appeal in Docket No. 8179 was premature; it stated:

An employee cannot appeal a disciplinary action that has not yet transpired. The appeal must, at a minimum, be contemporaneous with the deprivation and not later than the time prescribed by Rule II, Section 4.3[6] and Rule IX, Section 1.3.[7]

         As to Mr. Green's November 18, 2013, appeal of his termination, the Commission noted that both the Pre-Termination Notice and the Termination Notice were sent to Mr. Green's last address of record. The Commission further noted that this address differed from the address on his appeal forms.

         In its Order, the Commission adopted the reasoning in Lewis v. Louisiana State University, 08-2592 (La.App. 1 Cir. 6/12/09) (unpub.), 2009 WL 2486878. In Lewis, the First Circuit held that the employer's use of the address maintained in the employee's personnel record failed to comply with due process requirements given the employer had actual knowledge that the employee was incarcerated. In so holding, the First Circuit reasoned that an employer must act in good faith in providing notice to an employee.

         Deferring a decision on the NORDC's second motion for summary disposition, the Commission remanded for an evidentiary hearing. In its Order, the Commission stated the following:

All three appeals are consolidated for hearing. However, the sole issue to be considered in the case of Docket No. 8244 is the issue of the Appellant's change of address, and the hearing Officer shall receive evidence directly related to the question of the change of address, including the manner in which Appellant gave notice of same to the Appointing Authority and the Appointing Authority's USPS [United States Postal Service] =return receipts' for the letters it sent.

         On January 7, 2015, this court denied NORDC's writ application seeking review of the Order-the Commission's August 15, 2014, ruling. Green v. New Orleans Recreation Dep't, 14-1319 (La.App. 4 Cir. 8/15/14) (unpub.). Based on the record before us, we found no error in the Commission's ruling remanding the matter and directing the hearing officer to receive further evidence on the issue of Corey Green's change of address. Id.

         On May 6, 2015, a hearing was held before the Hearing Examiner on Mr. Green's three consolidated appeals. At the hearing, the NORDC called the following four witnesses: (1) Victor Richard, NORDC's Director or CEO; (2) Mary-Jo Webster, NORDC's Deputy Director or COO; (3) Shawn Wyatt, NORDC's Director of Recreation Centers and Mr. Green's supervisor; and (4) Deborah Calderon, NORDC's Human Resources or Personnel Administrator. Mr. Green testified on his own behalf.

         On July 25, 2015, the Hearing Examiner issued a report to the Commission. The Hearing Examiner found that NORDC met its burden of proof and established that Mr. Green was disciplined for legal cause in each of the three disciplinary actions. Given NORDC prevailed on the merits, the Hearing Examiner stated that the issue of whether Mr. Green's appeal in Docket No. 8244 was timely was "somewhat moot." Nonetheless, the Hearing Examiner complied with the Commission's instructions and made a record regarding the untimeliness of that appeal.

         On August 18, 2015, the Commission, contrary to the Hearing Examiner's recommendation, rendered a decision making the following two pertinent findings: (i) Mr. Green's appeal of his termination in Docket No. 8244 was timely; and (ii) NORDC failed to meet its burden of proof as to legal cause with respect to two of the three sanctions it imposed on Mr. Green-the 30-Day Emergency Suspension and the termination.[8] The Commission thus overturned those sanctions and directed NORDC to reinstate Mr. Green with full back pay and emoluments of employment. From the Commission's decision, NORDC appeals.

         LEGAL PRECEPTS AND ...


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