Opinion
NUMBER 2014 CA 0634
11-07-2014
R.G. DETILLIER v. EAST JEFFERSON LEVEE DISTRICT
Henry P. Julien, Jr. New Orleans, LA Counsel for Defendant/Appellant, East Jefferson Levee District Floyd J. Falcon, Jr. Daniel L. Avant Baton Rouge, LA Counsel for Plaintiff/Appellee, R.G. Detillier Adrienne Bordelon Baton Rouge, LA Counsel for Shannon S. Templet, Director, Department of State Civil Service
NOT DESIGNATED FOR PUBLICATION Appealed from a Decision of the State Civil Service Commission
Docket Number S-17481
Honorable David Duplantier, Chairman; John McLure, Vice-Chairman; G. Lee Griffin, Ronald M. Carrere, Jr., D. Scott Hughes, C. Pete Fremin, and Sidney Tobias; Members
Shannon S. Templet, Director Department of State Civil Service
Henry P. Julien, Jr.
New Orleans, LA
Counsel for Defendant/Appellant,
East Jefferson Levee District
Floyd J. Falcon, Jr.
Daniel L. Avant
Baton Rouge, LA
Counsel for Plaintiff/Appellee,
R.G. Detillier
Adrienne Bordelon
Baton Rouge, LA
Counsel for Shannon S. Templet,
Director, Department of State Civil
Service
BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.
WHIPPLE, C.J.
This is an appeal by defendant, the East Jefferson Levee District, from an opinion of the State Civil Service Commission reversing a decision of a hearing referee and ordering that plaintiff, R.G. Detillier, be reinstated to his position of Levee Foreman B with the East Jefferson Levee District. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
On September 15, 2012, R.G. Detillier, an employee of the East Jefferson Levee District ("Levee District"), serving with permanent status as a Levee Foreman B, filed an appeal with the State Civil Service Commission ("the Commission") of the termination of his employment. Therein, Detillier contended that he had been a permanent employee of the Levee District since January 2, 2008, and that he had received a written Separation Notice on September 6, 2012, stating that he had voluntarily resigned or abandoned his job during an emergency, which he adamantly denied.
Detillier set forth in his appeal that on Monday, August 27, 2012, a state of emergency was declared by Govenor Jindal due to the approach of Hurricane Isaac. Further, although Detillier's normal work schedule was Monday through Thursday, 6:00 a.m. to 4:30 p.m., all Levee District employees were required to be on 24-hour call during an emergency. Emergency crews were also afforded emergency temporary housing at the Levee District Maintenance Facility. Detillier reported to work at 6:00 a.m. that Monday morning and worked late hours throughout the week, staying overnight at the Maintenance Facility, until after the hurricane had passed.
On Wednesday, August 29, 2012, the storm came through and quickly downgraded to a tropical storm after making landfall. However, the water near Detillier's home in St. John Parish began to rise on Wednesday, causing his home to sustain flooding in the yard and garage. On Thursday, August 30, 2012, Detillier left the work facility when he got off of work at 4:30 p.m. and went to assess the damage to his home in LaPlace, Louisiana. The trip to his home took over two hours. By the time he arrived home, it was already dark; thus, he was unable to assess the damage that evening.
On Friday, August 31, 2012, Detillier reported back to work at 6:00 a.m. After he arrived at work, he received a phone call from his wife advising that their generator, which supplied power to a window air conditioning unit and refrigerator, had stopped working. Detillier advised his wife to find a neighbor to assist her, but the entire neighborhood was evacuated. Detillier informed his immediate supervisor, Kerry Migliore, of the impending problem at his home. Detillier received another call from his wife around 10:00 a.m. regarding her plight in being unable to restart the generator. While trying to verbally "walk his wife through" the generator checklist in an attempt to fix the problem, Daniel Abadie, the superintendent of operations of the Levee District, told Detillier to get off of his cell phone, as he was not allowed to talk on a cell phone while at work. Detillier explained that he was talking to his wife and that he had problems at home, after which Abadie told him to get off of the cell phone "now."
At that point, Detillier ended his cell phone call, unplugged his phone from the area where it had been charging in the office, and went to the back to the area where his men had been working. Detillier thanked all of the men in his crew for their hard work during the storm, as well as the cooks who had been preparing their meals that week and his co-workers. He then went into Migliore's office, handed him his radio and key to his truck, and told him, "I've had enough of this [s---], I'm out of here." Migliore, who was aware Detillier had an emergency situation at his home in St. John Parish with rising water, told Detillier he could go home.
Detillier became ill over the weekend, and as that Monday was the Labor Day holiday, he called his supervisor, Migliore, on Tuesday morning to report that he was ill and would be going to see a doctor as soon as he could get an appointment. Detillier could not get an appointment on Tuesday, but was able to get an appointment to see the doctor on Wednesday morning, September 5, 2012.
However, before Detillier was able to return to work, on September 6, 2012, he received a letter dated September 4, 2012, from Paula Doucet, Human Resource Analyst C, in reference to an alleged "Voluntary resignation/Job Abandonment" of August 31, 2012, to which Doucet had attached a Separation Notice and Lasers Refund of Accumulated Contributions. On September 15, 2012, Detillier filed an appeal of the termination of his employment, denying that he had abandoned his job during an emergency as indicated in the separation letter, and seeking reinstatement to the position of Levee Foreman B and reimbursement of all lost wages since August 31, 2012.
A hearing was held on July 31, 2013 before a referee. Thereafter, on September 26, 2013, the referee issued a decision finding that Detillier had voluntarily resigned his position as Levee Foreman B on August 31, 2012. Detillier then filed an application for review of the referee's decision with the State Civil Service Commission pursuant to Civil Service Rule 13.36. The State Civil Service Commission granted Detillier's request for review, and on February 5, 2014, issued its opinion, reversing the decision of the referee and finding that the referee had erred in concluding that Detillier voluntarily resigned.
Civil Service Rule 13.36(a) provides that any party may file with the Commission an application requesting the Commission to review a decision of a referee on any question of law or fact. According to Rule 13.36(f), after consideration of the application for review of the Referee's decision, along with the pleadings and exhibits specified pursuant to subsection (b)(5) of this Rule, the Commission may:
1. Remand the appeal with instructions to the referee; or
2. Hold new hearings or take additional evidence or both, and render its own decision thereon.
3. Reverse or modify the Referee's decision on an issue of law.
4. Affirm the Referee's decision by denying the application for review.
5. Listen to pertinent portions of the sound recordings of the proceedings conducted before the Referee or read and review the transcript of the proceedings before the Referee, and, thereafter, reverse or modify the Referee's decision on an issue of fact, and/or take any of the actions specified in 1 through 4 above.
The Levee District then filed the instant appeal of the Commission's Opinion, contending that the Commission erred: (1) in failing to properly interpret Detillier's statement that "I am tired of this [s---], I am out of here!" as a voluntary resignation; (2) in failing to consider the fact that during an emergency, only the Executive Director, as the Appointing Authority of the agency, could grant leave to Detillier and that such permission was neither sought nor granted; (3) in misinterpreting post-emergency leave slips; and (4) in misinterpreting the facts, which clearly showed that Detillier's actions and words constituted a voluntary resignation.
DISCUSSION
On appeal, factual determinations of the Commission are entitled to great weight and should not be reversed unless clearly wrong or manifestly erroneous. James v. LSU Health Sciences Center Medical Center of Louisiana at New Orleans, 2001-1853 (La. App. 1st Cir. 11/8/02), 834 So. 2d 470, 472, writ denied, 2003-0214 (La. 4/21/03), 841 So. 2d 792. Additionally, the reviewing court should not modify or reverse the Commission's order unless it is arbitrary, capricious, or characterized by an abuse of discretion. Shortess v. Department of Public Safety and Corrections, 2006-1532 (La. App. 1st Cir. 5/28/08), 991 So. 2d 1067, 1071. However, as to the Commission's decision regarding the interpretation of laws and regulations, this court performs its traditional plenary functions and applies the error of law standard. Adikema v. Department of Public Safety and Corrections - Office of Youth Development, 2006-1854 (La. App. 1st Cir. 9/14/07), 971 So. 2d 1071, 1074.
Rules adopted by the Commission have the force and effect of laws. LSA-Const. art. X, § 10(A)(4); Shortess v. Department of Public Safety and Corrections, 2006-2313 (La. App. 1st Cir. 9/14/07), 971 So. 2d 1051, 1055, writ denied, 2007-2293 (La. 1/25/08), 973 So. 2d 761. Further, Civil Service rules must be construed according to the rules of interpretation applicable to legislation. King v. LSU Health Sciences Center, 2003-1138 (La. App. 1st Cir. 4/2/04), 878 So. 2d 544, 547. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. LSA-C.C. art. 9; Shortess v. Department of Public Safety and Corrections, 971 So. 2d at 1055.
Although a state employee who voluntarily resigns his position ordinarily has no right of appeal, Pugh v. Department of Culture, Recreation and Tourism, Sabine River Authority, 597 So. 2d 38, 42 (La. App. 1st Cir. 1992), in the instant case, the Commission found that Detillier did not resign from his position as Levee Foreman B. Nonetheless, a right to appeal to the Commission has been recognized in favor of state employees who have voluntarily "resigned" under circumstances suggesting resignation was forced or chosen to avoid disciplinary action. Cf. Stern v. New Orleans City Planning Commission, 2003-0817 (La. App. 4th Cir. 9/17/03), 859 So. 2d 696, 700; Pugh v. Department of Culture, Recreation and Tourism, Sabine River Authority, 597 So. 2d at 41-42; Peterson v. Department of Streets, 369 So. 2d 235, 237 (La. App. 4th Cir.), writ denied, 371 So. 2d 1344 (La. 1979); Duczer v. State Banking Department, 277 So. 2d 453, 454 (La. App. 1st Cir. 1973). Moreover, it is well recognized that a classified state employee enjoys a property right, pursuant to LSA-Const. Art. X § 8(A), in continued employment that cannot be deprived without due process of law. AFSCME, Council #17 v. State ex rel Department of Health & Hospitals, 2001-0422 (La. 6/29/01), 789 So. 2d 1263, 1269; McGehee v. City/Parish of East Baton Rouge, 2000-1058 (La. App. 1st Cir. 9/12/01), 809 So. 2d 258, 261 (citing Murray v. Department of Revenue and Taxation, 504 So. 2d 561, 564 (La. App. 1st Cir. 1986), writs denied, 504 So. 2d 880, 882, 883 (La. 1987)); Ruddock v. Jefferson Parish Fire Civil Service Board, 96-831 (La. App. 5th Cir. 1/28/97), 688 So. 2d 112, 114.
Civil Service Rule 13.10 provides that only the following persons have a right of appeal to the Commission:
(a) a state classified employee with permanent status who has been removed or subjected to one of the disciplinary actions listed in Rule 12.2(b).
(b) a state classified employee who has been discriminated against in any employment action or decision because of his political or religious beliefs, sex or race.
(c) a state classified employee who has been adversely affected by a violation of any provision in the Civil Service Article or of any Civil Service Rule other than a rule in Chapter 10.
In its assignments of error on appeal, the Levee District contends that the Commission erred in failing to find that Detillier's words and actions on the morning of Friday, August 31, 2012, constituted a valid oral resignation and in failing to recognize that during an emergency, only the Executive Director, as the Appointing Authority of the agency, could grant leave to Detillier.
Detillier, however, contends that he never resigned or intended to resign and that the record contains no evidence or testimony that Migliore ever documented or considered Detillier's statement to be an oral resignation. Instead, Detillier contends, Migliore did not interpret Detillier's statement as a resignation, but as a request for emergency leave to attend to his wife and home, which he approved.
Civil Service Rule 12.11(a) provides that an employee's oral or written resignation becomes effective on the date and time specified by the employee and that an oral resignation must be documented by the person receiving it.
It is undisputed that Detillier did not submit a written resignation.
In its opinion, the Commission noted that in accordance with Civil Service Rule 13.36(f)(5), it had reviewed the record and listened to the pertinent portions of the sound recording of the proceedings conducted before the referee. After doing so, the Commission reversed the decision of the referee, concluding that Detillier's statement did not constitute an oral resignation within the meaning of Civil Service Rule 12.11, where the person to whom Detillier allegedly resigned, i.e., supervisor Migliore, did not believe that Detillier was resigning, and thus, did not document in writing the alleged oral resignation. In rendering its opinion, the Commission noted:
Civil Service Rule 12.11(a) requires that an oral resignation must be documented by the person receiving it. Mr. Migliore's testimony indicates that he did not believe that appellant resigned on August 31, 2012. Furthermore, Mr. Migliore's statement to Mr. Abadie does not indicate that appellant resigned. Therefore, the referee's conclusion that appellant voluntarily resigned is incorrect.
The September 4, 2012, letter from the East Jefferson Levee District to appellant dismisses the appellant from employment without due process of law. East Jefferson Levee District cannot circumvent the due process requirements of Chapter 12 of the Civil Service Rules by alleging appellant resigned, when the facts and law do not support such a conclusion.
After careful review, we agree. Detillier testified that he did not tell anyone, nor did he intend to indicate to anyone, that he had any intention to quit, retire, or resign from his job. He stated that his home had no water or electricity, that there was no one in the neighborhood to assist his wife, and that she was in "panic mode." He further testified that although he gave Migliore his radio and truck keys, these are items that he is not allowed to take home and that are routinely left at the office. Detillier testified that he was "very shocked" to receive the letter of September 4, 2012, containing a separation notice and stating that he had voluntarily resigned, when he had received verbal permission from his supervisor, Migliore, to leave.
Migliore testified that Detillier had made him aware of the situation at his home, i.e., that he had rising water encroaching on his home, and there was no one nearby to help his wife, as the entire neighborhood had been evacuated except for Detillier's wife. Migliore testified that he knew the circumstances that Detillier faced that Friday morning and that his wife was having trouble at home. Migliore acknowledged that he told Detillier that it was "okay" to go, and he explained that although Detillier didn't sign a leave slip, that "sometime when doing an emergency like that, they let ~ we let them fill it out when they [return]."
As noted by the Commission, at no time did Detillier ever state to Migliore that he "quit" or "resigned." Instead, Detillier asked his supervisor, Migliore, if he could leave to take care of the emergency situation at his home, and Migliore allowed him to leave and told him to go, stating, "Oh, okay, all right, I'll see you later."
Moreover, to the extent that the Levee District contends on appeal that the Commission's decision should be reversed because during an emergency, only the Executive Director, as the Appointing Authority of the agency, could grant leave to Detillier, we note that the separation letter of September 4, 2012, referred only to Detillier's alleged "Voluntary resignation/Job Abandonment," and did not allege or refer to the failure, if any, to properly request and document emergency leave. As noted by the Commission in its opinion, "If [Detillier] voluntarily resigned his position, he relinquished this property interest. However, if [Detillier] did not resign, the appointing authority must comply with Chapter 12 of the Civil Service Rule to impose a disciplinary action against an employee." Accordingly, in the absence of any underlying disciplinary action against Detillier, any challenge to the Commission's opinion on this basis (i.e., the failure to properly request and document the emergency leave) lacks merit.
After a thorough review of the record and testimony herein, we find no error in the Commission's decision to grant the application for review and reverse the decision of the referee. Considering Detillier's testimony that he never intended to or actually resigned; Migliore's testimony, which indicated that he did not believe that Detillier resigned on August 31, 2012; and the absence of any documentation of a resignation, we find a reasonable basis exists in the record to support the Commission's findings. As such, we will not disturb these determinations.
These assignments of error lack merit.
CONCLUSION
For the above and foregoing reasons, the February 5, 2014 opinion of the State Civil Service Commission is hereby affirmed in accordance with Uniform Rules - Courts of Appeal, Rule 2-16.1(B). Costs of this appeal in the amount of $955.00 are assessed to the defendant/appellant, the East Jefferson Levee District.
AFFIRMED.
McCLENDON, J., concurs.
As acknowledged by the majority, Civil Service Rule 12.11(a) requires that an oral resignation must be documented by the person receiving it. The record is devoid of any such documentation from Mr. Migliore. Therefore, I am bound to concur with the result reached by the majority.
I note that the issue of whether Mr. Detillier's actions are grounds for disciplinary action or termination is not before this court.
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