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Daisy v. Plaquemines Parish Government

Court of Appeals of Louisiana, Fourth Circuit

August 30, 2017

LOUKISHA A. DAISY
v.
PLAQUEMINES PARISH GOVERNMENT

         APPEAL FROM PLAQUEMINES PARISH CIVIL SERVICE COMMISSION NO. 2015-003

          Christine L. DeSue Richard R. Schulze COUNSEL FOR PLAINTIFF/APPELLANT

          Rachel E. Linzy Javier Jalice THE KULLMAN FIRM COUNSEL FOR DEFENDANT/APPELLEE

          Court composed of Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge Sandra Cabrina Jenkins

          SANDRA CABRINA JENKINS JUDGE

         This is a civil service matter which began when plaintiff Loukisha Daisy appealed the termination of her employment by the Plaquemines Parish Government (the "PPG"). On February 24, 2016, after a one-day hearing before the Plaquemines Parish Civil Service Commission (the "Commission"), Daisy's appeal was granted, and she returned to work. After the Commission paid Daisy back pay, she filed applications with the Commission seeking additional back pay, exceptional pay, and attorney's fees. On November 15, 2016, the Commission denied her applications. Daisy appeals that decision.

         For the reasons that follow, we affirm in part, reverse in part, and remand.

         FACTUAL AND PROCEDURAL BACKGROUND

         On March 25, 2014, Daisy submitted an application for employment for the position of Chief Internal Auditor at the PPG. On May 20, 2014, the Commission sent a letter offer to Daisy stating that "[a]s a condition of employment, we require that you agree to complete all required courses and possess a CPA within one (1) year of your hire date." Daisy agreed and accepted the offer.

         On June 2, 2014, Daisy began employment as Chief Internal Auditor for the PPG. In accordance with the Plaquemines Parish Civil Service Rules ("Civil Service Rules"), Daisy began serving a six-month probationary period, which was extended for an additional six months, or until June 2, 2015. On June 2, 2015, Daisy gained permanent civil service status.

         On June 11, 2015, Daisy was informed that the PPG was considering termination of her employment. Daisy was suspended, effective immediately, until a final determination was made as to her employment status. On June 25, 2015, a predetermination hearing was held during which Daisy was afforded an opportunity to present evidence, statements or information to be considered in determining her employment status.

         On June 30, 2015, the PPG terminated Daisy's employment on the following grounds: (1) Daisy failed to obtain her CPA license within one year of her date of hire; (2) Daisy failed to produce and tender monthly audit reports in accordance with her job description and the Plaquemines Parish Charter; and (3) at the predetermination hearing, Daisy submitted a "fraudulently confected" letter from a PPG audit committee member purporting to extend the time for her to obtain her CPA license from one year to two years from her date of hire.

         On July 23, 2015, Daisy filed a Petition of Appeal to the Commission. Daisy's appeal sought relief from two actions by the PPG: (1) dismissal; and (2) "other, " which she described as "[d]id not receive exceptional pay or proper pay increases." Daisy's Petition of Appeal requested "reinstatement of [her] position, clearing her name and any payments and benefits for which she [was] entitled."

         On December 18, 2015, the PPG filed a Motion for Partial Summary Disposition seeking dismissal of Daisy's claim for exceptional pay.

         On January 6, 2016, the Commission began an evidentiary hearing on Daisy's appeal. Before the testimony began, the Commission orally granted the PPG's Motion for Partial Summary Disposition on the grounds that Daisy's claim for exceptional pay was not properly appealable under the Civil Service Rules, and that, even if the matter were appealable, it was not timely filed. The Commission also stated that "if [Daisy's] appeal is granted the [exceptional pay] matter may still be heard in any post-decision finding of fact regarding the reinstatement and back pay that may be owed."

         On February 24, 2016, the Commission issued a written judgment granting Daisy's appeal. Specifically, the Commission found that, because the PPG did not enforce the CPA license requirement during Daisy's probationary period, and instead waited until after the period ended to terminate her employment, the PPG waived the CPA condition under which Daisy was employed. With respect to Daisy's failure to provide audit reports, the Commission found that because the PPG's audit committee members did not request or require monthly reports from Daisy, this could not be used as a basis for disciplinary action. Finally, with respect to the letter purporting to extend the time for Daisy to complete the CPA requirement, the Commission found no fraud on the part of Daisy. The Commission concluded, with respect to the three grounds for discipline, that the PPG had not established legal cause or conduct by Daisy that impaired the efficiency or operation of public service.

         On March 22, 2016, the PPG appealed the Commission's February 24, 2016 judgment to this Court. On April 28, 2016, the PPG filed a Motion to Withdraw and Dismiss its appeal. Daisy returned to her job as Chief Internal Auditor.

         On August 3, 2016, Daisy filed an Application for Attorney's Fees with the Commission in which she sought reimbursement of $32, 305.18 in attorney's fees and expenses incurred appealing her wrongful termination.

         In August 2016, the PPG paid Daisy $22, 827.70 in net back pay. On August 29, 2016, Daisy filed a "Memorandum in Support of Dispute Regarding Back Pay and Exceptional Pay" with the Commission. As part of her dispute as to the amount of back pay due, Daisy argued that the PPG wrongfully denied her back pay during a two-month period in which the wrongful termination hearing was continued, and that the calculation of back pay should have included judicial interest and reimbursement of retirement contributions withheld during her period of dismissal. She also re-urged her claim for exceptional pay.

         On October 20, 2016, the Commission heard oral argument on Daisy's dispute over attorney's fees, back pay, and exceptional pay. On November 15, 2016, the Commission issued a written decision denying Daisy's requests for attorney's fees, back pay during the period of the continuance, and exceptional pay.

         On December 8, 2016, Daisy filed a Notice of Appeal to this Court from the Commission's November 15, 2016 decision.

         DISCUSSION

         Standard of Review

         This court reviews the Commission's findings of fact using the clearly wrong or manifest error standard of review. Liang v. Dept. of Police, 13-1364, p. 8 (La.App. 4 Cir. 8/20/14), 147 So.3d 1221, 1225. In reviewing the Commission's determinations on questions of law, this court exercises its constitutional duty to review questions of law de novo and render a judgment on the record. Id. "[T]he appropriate standard of appellate review of actions by the Civil Service Commission is to determine whether the conclusion reached by the Commission is arbitrary or capricious." Aucoin v. Dept. of Police, 16-0287, p. 2 (La.App. 4 Cir. 3/29/17), -- So.3d --, 2017 WL 1164939, *4. "Arbitrary and capricious" means that there is no rational basis for the action taken. Williams v. Dept. of Utilities, 03-1473, p. 6 (La.App. 4 Cir. 1/28/04), 867 So.2d 26, 30.

         Assignments ...


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