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Edmonds v. Department of Public Works

Court of Appeals of Louisiana, Fourth Circuit

December 5, 2018

ZEPPORIAH EDMONDS
v.
DEPARTMENT OF PUBLIC WORKS ZEPPORIAH EDMONDS
v.
DEPARTMENT OF PUBLIC WORKS ZEPPORIAH EDMONDS
v.
DEPARTMENT OF PUBLIC WORKS ZEPPORIAH EDMONDS
v.
DEPARTMENT OF PUBLIC WORKS

          APPEAL FROM CITY CIVIL SERVICE COMMISSION ORLEANS NO. 8444 C/W 8467, 8485

          Brett John Prendergast ATTORNEY AT LAW COUNSEL FOR PLAINTIFF/APPELLANT

          Elizabeth Robins DEPUTY CITY ATTORNEY Corwin M. St. Raymond ASSISTANT CITY ATTORNEY Sunni J. LeBeouf CITY ATTORNEY COUNSEL FOR DEFENDANT/APPELLEE

          (Court composed of Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge Regina Bartholomew-Woods)

          REGINA BARTHOLOMEW-WOODS, JUDGE.

         These consolidated appeals challenge various final decisions of the New Orleans Civil Service Commission, the review of which this Court possesses jurisdiction pursuant to La.Const. art. X, section 12. For the reasons that follow, we reverse the decision of the Civil Service Commission, and order that Ms. Edmonds be reinstated to her former position as Parking Administrator.

         PROCEDURAL BACKGROUND

         Zepporiah Edmonds was a long-time employee of the City of New Orleans ("the City") Department of Public Works ("DPW"). In 2006, Ms. Edmonds was promoted to the classified position of Parking Administrator, and held that position at all times relevant to the instant appeals. In September and October of 2015, Ms. Edmonds filed two appeals with the City's Civil Service Commission ("the Commission"). The first appeal was filed in response to a letter concerning a pre-termination hearing, and the second was filed in response to a notice of emergency suspension.

         On January 11, 2016, Ms. Edmonds was terminated by DPW's Director, Colonel Mark Jernigan. DPW alleged four bases for her termination. However, these appeals concern only one basis, that being her alleged failure to cooperate with an investigation initiated by the City's Office of the Inspector General ("OIG"). Ms. Edmonds also appealed her termination to the Commission in February of 2016.

         A hearing examiner for the Commission heard testimony over a period of nine (9) days between April 21, 2016, and March 13, 2017. On August 2, 2017, the hearing examiner rendered a written report concluding "that the DPW failed to prove by a preponderance of evidence that [Ms. Edmonds'] emergency suspension and termination were for cause."

         On September 5, 2017, the Commission rendered its decision finding that Ms. Edmonds "did engage in misconduct" regarding the OIG investigation, but that "such misconduct did not warrant termination."[1] However, the Commission found "[t]here was nothing in the record to assist the Commission in determining what an appropriate level of discipline would be in the matter now before us." The Commission therefore remanded the matter back to the hearing examiner to determine the appropriate level of discipline.

         Upon remand, a hearing was conducted and the hearing examiner issued a report, describing the parties as having provided "no assistance whatsoever in determining what the appropriate level of discipline should be in accordance with the Commission's mandate." A review of the hearing transcript indicates that the parties did indeed simply rehash the merits of their cases, though DPW suggested a 166-day suspension would be appropriate, along with demotion.[2] However, the examiner concluded that an appropriate penalty could be recommended based on the record and his personal experience, with reference to the New Orleans Police Department Penalty Matrix. The hearing examiner accordingly recommended a one-day suspension.

         On November 16, 2017, the Commission rendered a 2-1 decision. The majority declined to follow the recommendation of the hearing examiner. However, the Commission agreed several mitigating factors existed, to wit: a lack of prior discipline during Ms. Edmond's thirty-two (32) year career at DPW; her prior cooperation with OIG investigations; her "serious personal illness;" and indications that she had been "overwhelmed" by her workload during the relevant period. Nonetheless, the Commission reaffirmed its position that Ms. Edmonds' engaged in "serious misconduct" and accordingly found "involuntary demotion to a lower classification" to be an appropriate penalty. The Commission ordered DPW to reinstate Ms. Edmonds to the position of Assistant Parking Administrator "at a step that would result in no greater than a $3, 000/yr. reduction in salary." The Commission reasoned that such reduction would be equivalent to a sixty-day unpaid suspension. DPW was also instructed to remit all back pay and emoluments consistent with her reclassification dating back to January 11, 2016. The dissenting commissioner would have simply imposed a sixty-day unpaid suspension.

         Both Ms. Edmonds and DPW have appealed the decisions of the Commission. Specifically, Ms. Edmonds seeks review of the Commission's September 5, 2017 decision finding she engaged in misconduct warranting discipline with respect to the OIG investigation, arguing the Commission "manifestly erred" in making several findings. She further appeals her demotion, arguing such discipline is not commensurate with the conduct in question. DPW also appeals the Commission's decision regarding Ms. Edmonds' discipline, suggesting that its decision to terminate was indeed warranted. Ms. Edmonds' also appeals the Commission's denials of her motions to reconsider its decisions.

         FACTUAL BACKGROUND

         The OIG investigation in question commenced in 2014, a time at which the OIG was conducting a number of investigations into the Parking Division. In summary, the OIG sought to determine whether certain Parking Control Officers ("PCOs") had issued citations to patrons and employees of hotels in retaliation against those hotels after being asked to leave the establishments for loitering. OIG Investigator Eddie Hernandez first met with Ms. Edmonds on August 11, 2014. Ms. Edmonds and Mr. Hernandez had differing accounts of exactly what occurred during this initial meeting. It is unclear exactly what Mr. Hernandez requested at that time because he did not put anything into a formal written document. The Commission's September 5, 2017 ruling even stated that it was "surprised that Mr. Hernandez did not make his original request for information in writing." Ms. Edmonds did testify that Mr. Hernandez "scribbled some stuff on the back of a piece of paper" that did not concern the retaliatory actions of the PCOs, and it is not clear if the list was given to her or retained by Mr. Hernandez. She also stated "[h]e couldn't even find the paper. That's why he sent me an email[, ]" referring to a December 18, 2014 e-mail requesting she send a copy of the list of items he requested. Mr. Hernandez confirmed this during his testimony. Mr. Hernandez also testified that he asked his supervisor whether he needed to type anything up for the meeting and was told that it was not necessary. Apparently, as a result of Ms. Edmonds' perceived lack of cooperation, the OIG has instituted a "Zepporiah Rule" now requiring all requests be put in writing for record purposes.

         The Commission was presented with texts exchanged between Ms. Edmonds and Mr. Hernandez, specifically one sent to Ms. Edmonds on September 17, 2014, asking if "the items" were ready to be picked up. Ms. Edmonds responded with a time at which Mr. Hernandez could stop by the office, but she was unable to fulfill the commitment because she was at Tulane Hospital for an unspecified reason. Communications continued into November, when Ms. Edmonds indicated her absence from work "until further notice" due to an illness. She also conveyed her understanding that Mr. Hernandez was working with Sherida Emery in her absence. Mr. Hernandez replied that he had contacted Ms. Emery, but that Ms. Emery had not responded. Ms. Edmonds responded that she was chagrined at her office's lack of response, but added that Ms. Emery was "overwhelmed" and "working triple duty which is causing her to be pulled in many different directions."

         Ms. Emery testified that she worked to fulfill Mr. Hernandez's requests while Ms. Edmonds' dealt with her illness, though she did not possess the same authority as Ms. Edmonds and therefore was unable to make a request of Xerox for the records in question. As a result, she contacted Xerox and obtained contact information for an individual named Brett Peze, who could provide Mr. Hernandez with the information he needed. Later in the hearings, Richard Boseman, Administrator for the Hearing Center and Parking Administrator, testified that he was familiar with the capabilities of the Xerox system used by DPW, and that any reports such as that requested by Mr. Hernandez would need to be requested directly from Xerox.

         The Commission also reviewed several other e-mails. The first, the e-mail from Mr. Hernandez on December 18, 2014, requested Ms. Edmonds provide "a copy [of] the list of items that I requested that we discussed earlier this year." The Commission interpreted the e-mail to suggest that Mr. Hernandez did not recall what information he had initially requested in the August, 2014 meeting. In the second e-mail, Ms. Edmonds contacted Mr. Hernandez again on February 13, 2015, responding to his February 9, 2015 follow-up to an e-mail he had sent earlier that year. The Commission described the latter e-mail, sent January 12, 2015, as "far more indicative of the types of inquiries the Commission has reviewed as part of an OIG investigation." She apologized for the delay, indicating a misunderstanding on her part, as she believed an answer had been provided earlier. She also indicated that she was in the midst of organizing for the upcoming Mardi Gras holiday, yet she provided written answers to the numerous questions posed by Mr. Hernandez. Her e-mail indicated that the Parking Division was transitioning from Xerox to Duncan Solutions as its vendor, and confirmed that an individual named Brett Peze would be the appropriate contact person for tickets issued prior to the transition. Ms. Edmonds added in her response her understanding that "[y]ou [Mr. Hernandez] agreed to contact Mr. Peze directly." Notably, she made this statement in response to his question "Is Brett Peze the best person for me to speak with concerning the tickets [prior to DPW's transition from Xerox to ...


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