FROM CITY CIVIL SERVICE COMMISSION ORLEANS NO. 8413,
E. Williams LAW OFFICE OF DALE EDWARD WILLIAMS COUNSEL FOR
Stephanie Dovalina ASSISTANT CITY ATTORNEY Adam J. Swensek
CHIEF DEPUTY CITY ATTORNEY Cherrell S. Taplin SENIOR CHIEF
DEPUTY CITY ATTORNEY Rebecca H. Dietz CITY ATTORNEY COUNSEL
composed of Judge Edwin A. Lombard, Judge Rosemary Ledet,
Judge Terrel J. Broussard, Pro Tempore.
A. LOMBARD, JUDGE
Appellant, the Department of Property Management for the City
of New Orleans ("DPM"), seeks review of the
decision of the Civil Service Commission
("Commission"), reversing the termination of the
Appellee, Melissa Wilson. Finding that the DPM improperly
terminated Ms. Wilson in accordance with the requirements of
Civil Service Rule IX, we affirm the decision of the
Wilson, served as "Title Abstractor I" at the
Department of Property Management for the City of New Orleans
("DPM") with permanent status. Ms. Wilson's
primary duties consisted of processing work orders from
various other City departments; she was the only person
responsible for such task. Specifically, she entered
information from work orders into a spreadsheet, time stamped
them, then ensured the completion of the work orders. George
Patterson, Director of the DPM, expressed that processing
work orders is a vital task to the DPM because it is one of
the department's Key Performance Indicators
February 2015, Ms. Wilson ceased reporting to work. She later
produced physician documentation indicating she would be
receiving medical treatment and therefore, could not return
to work until her treating physician reassessed her condition
on March 30, 2015. Her treating physician submitted all
appropriate paperwork for Family Medical Leave Act
("FMLA") leave. However, on March 30, 2015, Ms.
Wilson failed to return to work. Instead, she produced a
second physician's letter that expressed her inability to
return to work until the completion of another medical
reassessment on April 13, 2015. Again, Ms. Wilson failed to
return to work on the date indicated in the letter. On April
14, 2015, Ms. Wilson produced a third physician's letter
that extended her absentee period until April 28, 2015. The
DPM honored all Ms. Wilson's requests for medical leave.
Wilson's absence, other employees of the DPM aided in
processing the work orders; yet, a backlog ensued because
they strained to process them. Mr. Patterson testified that
this departmental strain became untenable in late April.
Consequently, he sought approval from the Civil Service to
hire a temporary replacement during Ms. Wilson's absence.
Civil Service rejected his request because the payroll budget
could only be accessed to hire Ms. Wilson's permanent
April 28, 2015, Ms. Wilson did not return to work. On May 5,
2015, the DPM notified Ms. Wilson that a pre-termination
hearing would be held due to her inability to return to work.
In the DPM's notification, it expressed that Ms. Wilson
exhausted all her FMLA leave time and did not submit
certification that she could return to work in any capacity
from her medical provider.
pre-termination hearing, Ms. Wilson produced another
physician's letter, which permitted her return to work
with the condition the DPM took precautions for any sudden
loss of Ms. Wilson's balance. On May 15, 2015, the day
after the hearing, the DPM terminated Ms. Wilson. Mr.
Patterson stated he considered her to be a liability to both
the City and his department. Ms. Wilson believed at the time
of her termination she still possessed forty-nine (49) days
of unused sick leave and nearly two weeks of annual leave.
Wilson appealed her termination to the Commission, which
granted her appeal. On review, the Commission first found
that she could not perform the essential functions of her job
as of May 15, 2015. Nonetheless, the Commission also ruled
that the DPM improperly terminated Ms. Wilson when they did
not first permit her to exhaust all her allocated sick and
annual leave before her termination. The Commission
specifically found that the DPM failed to meet its burden of
proof that Ms. Wilson did not submit the proper documentation
to justify her absence, permanent disability, or inability to
resume her duties at the DPM. Subsequently, the Commission
reinstated Ms. Wilson and required the DPM to pay her backpay
timely filed the instant appeal in this Court, raising two
(2) assignments of error:
1. The Commission committed legal error by augmenting the
plain language of Civil Service Rule IX with additional
2. The Commission improperly substituted its judgment for the
Appointing Authority's judgment.
Louisiana Constitution bestows the Commission the authority
to modify, affirm or reverse all disciplinary actions. La.
Const. art. X, § 12; Pope v. New Orleans Police
Dep't., 04-1888, p. 5 (La.App. 4 Cir. 4/20/05), 903
So.2d 1, 4. A permanent status employee in the classified
city service must be terminated for good cause expressed in
writing. La. Const. art. X, § 8(A); Walters v.
Dep't of Police of New Orleans, 454 So.2d 106, 113
(La. 1984). A good cause for termination exists when the
employee's conduct is detrimental to the efficient
operation of the public service. Laviolette v. Dep't.
of Police, 16-0095, pp. 5-6 (La.App. 4 Cir. 8/24/16),
200 So.3d 962, 966 (citing Walters, 454 So.2d at
113). The Appointing Authority must prove a legal cause exist
to the Commission. Muhammad v. New Orleans Police
Dep't, 00-1034, pp. 4-5 (La.App. 4 Cir. 7/11/01),
791 So.2d 788, 791 (citing Wilson v. New Orleans Aviation
Board, 96-1350, p. 2 (La.App. 4 Cir. 1/15/97), 687 So.2d
593, 595). "Legal cause exists when the employee's
conduct impairs the efficiency of the public service in which
the employee is engaged." Id., 00-1034, p.7,
791 So.2d at 792 (citing Cittadino v. Department of
Police, 558 So.2d 1311 (La.App. 4 Cir. 1990)). The
Appointing Authority must also prove the "actions
complained of bear a real and substantial relationship to the
efficient operation of the public service." Id.
(citing Neff v. City Planning Comm'n, 95-2324
(La.App. 4 Cir. 9/11/96), 681 So.2d 6). Both requirements
must be proven by a preponderance of the evidence.
Court must review the Commission's finding of facts
pursuant to the clearly wrong or manifest error standard.
Id., 00-1034, pp. 4-5, 791 So.2d at 790-791; see
also Vara v. Dep't of Police, 16-0036, p. 5 (La.App.
4 Cir. 6/29/16), 197 So.3d 294, 297. The Commission's
conclusion of "whether the disciplinary action is based
on legal cause and the punishment is commensurate with the
infraction" should be reviewed determining whether the
finding is arbitrary, capricious or an abuse of discretion.
Id. The Commission's conclusion is arbitrary or
capricious if it lacks a rational basis. Bannister v.
Dep't. of Streets, 95-404 (La. 1/16/96), 666 So.2d
641. Therefore, this Court shall only modify the
Commission's reinstatement of Ms. Wilson if there is no
rational basis for the Commission's ruling.
Commission's alleged violation of Civil Service Rule
first assignment of error, the DPM argues that the
Commission's order to reinstate Ms. Wilson violated Civil
Service Rule IX, Section 1.1, because it created an
additional requirement to terminate employees under Rule IX.
Specifically, the DPM argues that the Commission
misinterpreted Rule IX because Rule IX does not require a
department to await an employee's exhaustion of her
accrued sick and/or annual leave before terminating an
employee. Civil Service Rule IX, Section 1.1, provides the
When an employee in the classified service is unable or
unwilling to perform the duties of his/her position in a
satisfactory manner, or has committed any act to the
prejudice of the service, or has omitted to perform any act
it was his/her duty to perform, or otherwise has become
subject to corrective action, the appointing authority shall
take action warranted by the circumstances to ...