FROM CITY CIVIL SERVICE COMMISSION ORLEANS NO. 8179 C\W 8244
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.
composed of Judge Edwin A. Lombard, Judge Rosemary Ledet,
Judge Terrel J. Broussard, Pro Tempore).
Rosemary Ledet Judge.
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. For the reasons that follow, we affirm.
AND PROCEDURAL BACKGROUND
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. 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. 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.
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").
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
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
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
5, 2013, NORDC hand delivered to Mr. Green both the
Pre-Termination Notice and the 30-Day Notice. 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.
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.
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. Following the hearing, NORDC decided to
terminate Mr. Green.
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
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.
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.
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.
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 and Rule IX,
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.
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.
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
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.
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.
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.
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. 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.
PRECEPTS AND ...