Opinion
No. 2008 CA 0269.
September 26, 2008.
APPEALED FROM THE STATE CIVIL SERVICE COMMISSION, IN AND FOR THE STATE OF LOUISIANA, DOCKET NUMBER 16,186, HONORABLE JAMES A. SMITH, CHAIRMAN; BURL CAIN, VICE-CHAIRMAN; CHATHAN H. REED, DAVID DUPLANTIER, G. LEE GRIFFIN, ROSA B. JACKSON, AND JOHN McLURE.
Sherman Augustine, Cottonport, LA, In Proper Person, Plaintiff-Appellant.
L. Bruce Dodd Baton Rouge, LA, Attorney for Defendant — Appellee Dept. of Public Safety Corrections, La. State Penitentiary.
Robert R. Boland, Jr., Baton Rouge, LA, Attorney for Defendant — Appellee Anne Soileau, Director of the Dept. of State Civil Service.
BEFORE: PARRO, McCLENDON, AND WELCH, JJ.
The plaintiff, Sherman Augustine, appeals a decision of the State Civil Service Commission ("Commission"), summarily dismissing his appeal to that body as moot. Finding no error in the Commission's decision, we affirm in accordance with Uniform Court of Appeal Rules 2-16.1(B).
Mr. Augustine, a classified employee with permanent status, is employed as a Corrections Master Sergeant with the Department of Public Safety and Corrections ("Department") at Louisiana State Penitentiary in Angola, Louisiana. Previously, while working at the Louisiana State Penitentiary, Mr. Augustine was removed from his position. Following his appeal to the Commission (docket number S-16091), the Commission reinstated Mr. Augustine to his former position with back pay, subject to offsets for wages earned and unemployment benefits received, and legal interest on the difference. Mr. Augustine appealed, claiming that the Commission erred by not reinstating leave time that he exhausted before his removal, and further, seeking an award of overtime compensation, vacation pay, and attorney fees. This court affirmed the decision of the Commission. See Augustine v. Dept. of Public Safety and Corrections, Louisiana State Penitentiary, 2007-1289, p. 2 (La.App. 13t Cir. 2/20/08) ( unpublished opinion).
On June 10, 2007, Mr. Augustine filed the instant appeal with the Commission, requesting the enforcement of the Commission's earlier decision in docket number S-16091 and claiming that the Department had not complied with the Commission's decision with respect to back pay and legal interest. The Commission referee assigned to the matter issued a notice to the Department of possible defects in the Department's action in docket number S-16091 and requested that the Department provide documentation demonstrating that the issues regarding back pay and interest had been resolved.
On July 11, 2007, the Department responded, asserting that it had complied with the decision in docket number S-16091 and had fulfilled its obligations under that order, because the Department had paid Mr. Augustine all back pay owed to him on May 11, 2007, in the gross amount of $21,690.54, plus all legal interest owed to him on June 22, 2007, in the gross amount of $948.08. The Department attached to its response documentation concerning those payments.
Mr. Augustine then complained to the referee about the timeliness of the back wage and interest payments, questioned whether the Department had compensated him for the pay period that ended on May 11, 2007, and complained that he had not received payment for overtime that he would have worked during the time period he was terminated. The Department then provided the referee with additional information concerning its payments to Mr. Augustine. However, Mr. Augustine again complained that the Department had not compensated him for overtime and compensatory time that he normally would have earned if he had not been terminated.
On October 17, 2007, the referee found that the Department had paid Mr. Augustine all the back wages and interest he was due. As to Mr. Augustine's contention that he was entitled to lost overtime and compensatory time that he would have earned if he had not been terminated, the referee noted that she was unable to find any law or rule to substantiate such a claim. Therefore, the referee concluded that Mr. Augustine was not entitled to such relief and dismissed his appeal as moot. Thereafter, on December 14, 2007, the Commission denied Mr. Augustine's application for review, and the decision of the referee became the decision of the Commission. See La.Const. art. X, § 12(A). Mr. Augustine appealed to this court.
On appeal, Mr. Augustine asserts that the Commission erred in: (1) its determination that Mr. Augustine was not entitled to lost overtime pay and (2) failing to acknowledge that the Department acted unreasonably and violated Civil Service Rule 13.38 with regard to its payment of legal interest.
Civil Service Rule 1338 relative to action required following the Commission's or referee's decision, provides in pertinent part as follows:
(a) Following the granting of an appeal of a separation and within fifteen (15) calendar days from the date of the mailing of the decision, the Appellant shall present himself ready for work at the time and place of his employment as it existed prior to the separation, shall be returned by the appointing authority to the regular payroll at that time, and shall, at that time or as soon thereafter as possible, present to his employer satisfactory proof of all wages earned and unemployment compensation received, if any, during the period of Appellant's separation, or, if no wages or unemployment compensation have been so received, Appellant shall present a written and signed statement to that effect to his employer upon his return. Further, within fifteen (15) days following receipt of such information the appointing authority shall deliver to the office responsible for the actual disbursement of the funds representing the back pay due a request for such disbursement which office shall promptly cause such disbursement, and the appointing authority shall otherwise comply with the orders contained in the decision. Further, within thirty (30) days from receipt by the Appellant of the check representing the back pay due, the Appellant, at his sole option, may repurchase all or part of the annual leave balance held by him at his separation the value of which was paid to him at his separation pursuant to Rule 11.10(a). All of the above shall apply unless otherwise stayed by a court of competent jurisdiction.
Decisions of the Commission are subject to the same standard of review as a judgment of a district court. When reviewing the Commission's findings of fact, the appellate court is required to apply the manifestly erroneous or clearly wrong standard of review. Usun v. LSU Health Sciences Center Medical Center of Louisiana at New Orleans, 2002-0295, p. 4 (La.App. 1st Cir. 2/14/03), 845 So.2d 491, 494. With respect to the Commission's decisions as to jurisdiction, procedure, and interpretation of laws and regulations, the "error of law" standard is applicable, whereby the appellate court reviews the Commission's decision for legal error. Adams v. Department of Health and Hospitals Office of Public Health, 99-1982, p. 4 (La.App. 1st Cir. 9/22/00), 767 So.2d 943, 945, writ denied, 2000-2917 (La. 12/15/00), 777 So.2d 1227.
Mr. Augustine initially made a claim for lost overtime pay in his appeal in docket number S-16091. On appeal, this court acknowledged that mandatory overtime compensation is included within salaries and wages paid to a civil service employee who has been illegally discharged from his employment. Augustine, 2007-1289 at pp. 3-4. See also La.R.S. 49:113; Alongi v. Department of Police, 480 So.2d 1001, 1002 (La.App. 4th Cir. 1985), writ denied, 481 So.2d 1351 (La. 1986); Hebbler v. New Orleans Fire Dep't, 299 So.2d 825, 827 (La.App. 4th Cir. 1974), judgment affirmed in part, reversed in part on other grounds, 310 So.2d 113 (La. 1975). However, since Mr. Augustine made no allegations in his appeal regarding mandatory overtime, this court determined that Mr. Augustine had failed to establish that he worked mandatory overtime. Therefore, this court concluded that the Commission did not err in dismissing Mr. Augustine's claim for overtime compensation, because the Commission had no basis on which to make such an award.
In this appeal, we again find no error in the Commission's decision to dismiss Mr. Augustine's claim for overtime pay. As previously noted, mandatory overtime pay is included within the salaries and wages paid to a civil service employee who has been illegally discharged from his employment. Again, however, Mr. Augustine has neither established nor alleged that he worked mandatory overtime at the Louisiana State Penitentiary. Instead, Mr. Augustine asserted that he had a history of working overtime, that overtime was available at Louisiana State Penitentiary during the time period he was terminated, and that he planned on working overtime during the time period he was terminated. These allegations describe overtime work that is of an optional or discretionary nature — not of a mandatory nature. We can find no authority to support Mr. Augustine's claim that the pay he may have earned for optional or discretionary overtime he may have worked had he not been terminated should be included in the "salaries and wages" owed to him under La.R.S. 49:113. Accordingly, we find no error in the Commission's conclusions in this regard.
Insofar as Mr. Augustine complains that the Commission failed to acknowledge that the Department acted unreasonably by violating Civil Service Rule 13.38 with regard to the timeliness of its payment of legal interest, we note that Civil Service Rule 13.38 only provides for a time limit within which funds representing back pay must be disbursed to the employee. The rule does not address the time period within which legal interest must be disbursed or paid to the employee. Nevertheless, the Commission found that the Department paid Mr. Augustine all legal interest he was due, and the Commission's decision in this regard has not been challenged in this appeal. Accordingly, we find that the Department did not violate Civil Service Rule 13.38 with regard to its payment of legal interest, and further find no error in the Commission's actions in this regard.
For all of the above and foregoing reasons, we find no error in and hereby affirm the Commission's final decision in this matter in accordance with Uniform Court of Appeal Rules 2-16.1(B).
All costs of this appeal are assessed to the plaintiff/appellant, Sherman Augustine.