Opinion
2023 CA 0049
06-20-2023
JUDIT GEERTS v. OFFICE OF JUVENILE JUSTICE
J. Arthur Smith, III Robert Moseley Schmidt Baton Rouge, Louisiana Counsel for Plaintiff/Appellant Judit Geerts Nikki Essix- Manuel Baton Rouge, Louisiana Counsel for Defendant/ Appellee Office of Juvenile Justice
On Appeal from the State of Louisiana Civil Service Commission Docket No. S-18826 Chairman, David Duplantier Referee, Brenden Craig
J. Arthur Smith, III
Robert Moseley Schmidt
Baton Rouge, Louisiana
Counsel for Plaintiff/Appellant Judit Geerts
Nikki Essix- Manuel
Baton Rouge, Louisiana
Counsel for Defendant/ Appellee Office of Juvenile Justice
BEFORE: McCLENDON, HOLDRIDGE, AND GREENE, JJ.
McCLENDON, J.
In this matter, the plaintiff seeks review of a decision of the Civil Service Commission that dismissed her appeal. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
On June 29, 2020, the defendant, Office of Juvenile Justice (OJJ), employed the plaintiff, Judit Geerts, as a Probation and Parole Officer 1/Juvenile. By letter dated and hand delivered on June 23, 2022, OJJ separated Ms. Geerts from her position effective that same date.
On July 20, 2022, Ms. Geerts appealed her termination to the State Civil Service Commission (the Commission), alleging that she was misclassified as a probationary employee and that she was entitled to the protections provided to state employees serving with permanent status. On July 27,2022, the Commission referee issued a notice to Ms. Geerts, through her attorney, stating that it was unclear whether Ms. Geerts was a probationary or permanent employee when she was terminated from her position. Therefore, the referee requested that Ms. Geerts produce documentary evidence within fifteen days in support of her claim that as of June 23, 2022, she was a permanent employee.
On August 10, 2022, in response to the referee's letter, Ms. Geerts submitted a memorandum with three attachments. The attachments included a copy of OJJ's Youth Services Policy, Ms. Geerts' affidavit, and performance evaluations for Ms. Geerts. Also, on August 10, 2022, Ms. Geerts submitted a supplement to her memorandum, attaching an administrative decision she stated was factually similar. On September 1, 2022, after considering the appeal and response, the referee issued a Notice to Agency of Possible Defects in Appeal, ordering that OJJ provide within fifteen days any and all writings, correspondence, or documentation regarding Ms. Geerts' status as a probationary or permanent employee during her employment, as well as any extensions of her probationary period. On September 14, 2022, OJJ responded by letter, attaching several exhibits, including Ms. Geerts' Conditional Offer of Employment; a computer printout regarding Ms. Geerts' probationary status; computer printouts indicating recommendations for and extensions of probationary status; and emails between Ms. Geerts and her supervisors concerning her probationary status.
Thereafter, on October 12, 2022, the referee issued his decision, concluding that Ms. Geerts was a probationary employee and that "OJJ treated Ms. Geerts as a probationary employee, never believing her to have reached permanent status." The referee found that no recommendation was ever made to elevate Ms. Geerts to permanent status and finding that, in fact, OJJ extended her probation at least three times. Further, the referee specifically found that there was never an implied or tacit understanding between the parties that Ms. Geerts had ever reached permanent status; that Ms. Geerts had signed her conditional offer of employment, in which she agreed that her probationary period could be up to twenty-four months; and that Ms. Geerts believed herself to be a probationary employee as shown in her emails to her supervisors. Accordingly, the referee summarily dismissed the appeal.
On October 27, 2022, Ms. Geerts filed an Application for Review of Referee's Decision to the Commission, seeking reconsideration of the dismissal of her appeal. On December 7, 2022, the Commission issued a final decision, denying Ms. Geerts' application for review. Ms. Geerts' appeal to this court followed.
Article X, Section 12(A) of the Louisiana Constitution provides, in pertinent part, that"[t]he final decision of the commission shall be subject to review on any question of law or fact upon appeal to the court of appeal wherein the commission is located, upon application filed with the commission within thirty calendar days after its decision becomes final."
STANDARD OF REVIEW
Generally, decisions of Civil Service Commission referees are subject to the same standard of review as decisions of the Commission itself. The factual conclusions of the referee and Commission are subject to the manifest error standard of review, meaning that the factual determinations will be reversed only if the appellate court finds that a reasonable basis does not exist for the Commission's finding and the record establishes the finding is clearly wrong. Muse v. Louisiana Department of Public Safety and Corrections, Office of Probation and Parole, 2022-0458 (La.App. 1 Cir. 11/4/22), 355 So.3d 620, 624. Additionally, decisions or actions of the Commission or a referee should not be reversed unless they are arbitrary, capricious, or an abuse of discretion. James v. LSU Health Sciences Center Medical Center of Louisiana at New Orleans , 2001-1853 (La.App. 1 Cir. 11/8/02), 834 So.2d 470, 472, writ denied. 2003-0214 (La. 4/21/03), 841 So.2d 792. However, with respect to the Commission's decisions as to jurisdiction, procedure, and interpretation of laws and regulations, the judicial review function is not so limited. Rather, the court performs its traditional plenary functions and applies the error of law standard. James , 834 So.2d at 472-73.
DISCUSSION
It is well settled that Civil Service rules have the effect of law. LSA-Const. art. X, § 10(A)(4); Adikema v. Department of Public Safety and Corrections-Office of Youth Development , 2006-1854 (La.App. 1 Cir. 9/14/07), 971 So.2d 1071, 1074. It is also well settled that Civil Service rules must be construed according to the rules of interpretation applicable to legislation. Shortess v. Department of Public Safety & Corrections Elayn Hunt Correctional Center, 2006-2313 (La.App. 1 Cir. 9/14/07), 971 So.2d 1051, 1055, writ denied, 2007-2293 (La. 1/25/08), 973 So.2d 761. 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.
Pertinent to this matter is Civil Service Rule 9.1(a), which provides that probationary periods of no less than six months or more than twenty-four months shall be served by employees following appointments to permanent positions. The probationary period shall be an essential part of the examination process and shall be used for the most effective adjustment of a new employee and for the elimination of any probationary employee whose performance does not meet the required standard of work. Civil Service Rule 9.1(a). A probationary employee may be separated by the appointing authority at any time. Civil Service Rule 9.1(e). Further, Civil Service Rule 9.2(a) provides that permanent appointment of a probationary employee shall begin upon certification by the appointing authority that the employee has met the required standard of work during the probationary period. Also important herein is Civil Service Rule 12.1, which provides that an appointing authority may discipline, remove, or separate an employee under his or her jurisdiction. Additionally, Civil Service Rule 12.2 provides:
(a) An appointing authority may separate a non-permanent employee at any time.
(b) An appointing authority may discipline or remove a permanent employee for cause.
In her appeal to the referee and to this court, Ms. Geerts asserted that she was a permanent employee and that there was an implicit understanding that she became a permanent employee after a certain amount of time. Ms. Geerts referred to her affidavit in which she attested that at the time of her hiring, she was informed that her probationary period would end after one year of employment or until she completed POST certification, for a maximum of two years. Ms. Geerts argued that she reached one year of employment on June 29, 2021, that she completed her POST certification on August 20,2021, and that at no time prior to August 20, 2021, was she ever given any indication that her probation would be extended. Ms. Geerts pointed to OJJ's Youth Services Policy, which provides that it is the Deputy Secretary's policy that probationary periods for employees of Youth Services shall be for a period of one year and that there shall be no exceptions made during the one-year probation requirements unless approved by the Deputy Secretary/designee. Ms. Geerts contended that because there is no evidence that any exceptions to the one-year probationary requirement were approved by the Secretary or designee and that because any attempts to extend her probationary period were made after the one-year probationary period, she had a reasonable expectation that she had achieved permanent status.
To the contrary, OJJ responded with a copy of Ms. Geerts' conditional offer of employment, which she signed. The offer clearly showed that Ms. Geerts' appointment status was "Probationary (12 to 24 months)." OJJ asserted that there was no waiver of those terms by the appointing authority. Additionally, OJJ maintained that it never acted or treated Ms. Geerts as anything but a probationary employee, having extended her probationary period three times. OJJ presented evidence that the Department of Public Safety & Corrections Human Resources System listed Ms. Geerts' probationary status as starting on June 29, 2020, and valid until June 29, 2022. OJJ also submitted evidence showing that Ms. Geerts' probationary status was extended on October 18,2021, effective December 28, 2021, until January 18, 2022; extended again on January 13, 2022, effective January 18, 2022, until April 18, 2022; and extended a third time on April 14, 2022, effective April 18, 2022, until June 29, 2022. On June 23, 2022, Ms. Geerts received her letter of separation, prior to the completion of the twenty-four-month probationary period.
On our review of the record, we find a reasonable basis exists for the referee's factual finding that Ms. Geerts was a probationary employee. The Youth Services Policy, cited by Ms. Geerts, defines a permanent appointment as the "appointment of a probationary employee after certification by the appointing authority or designee, signifying that the employee has met the required standard of work during the probationary period." The policy also provides that "[a] permanent appointment of a probationary employee shall begin upon certification by the appointing authority/designee to Civil Service that the employee has met the required standard of work while on probationary status." The record contains no evidence that OJJ took any official employment action to make Ms. Geerts a permanent employee.
Additionally, we find no merit to Ms. Geerts' argument that the language in the Youth Services Policy means that probationary periods shall be for a maximum period of one year, thereafter resulting in an automatic reclassification to permanent status. As previously mentioned, the same policy requires the appointing authority to certify that the employee has met the required standard of work while a probationary employee. The record is devoid of any evidence that such certification occurred. Also, the conditional offer of employment, signed by Ms. Geerts, clearly provided for a probationary period up to twenty-four months, as set forth in Civil Service Rule 9.1(a). Within that twenty-four-month period, Ms. Geerts' probationary status was extended at least three times.
Moreover, we agree with OJJ that it neither believed nor treated Ms. Geerts as a permanent employee, and we find that her argument that there were mutually implicit understandings that she was a permanent employee to be without merit. Although Ms. Geerts relies on the case of Morehouse v. Southern University, Baton Rouge Campus , 2006-1184 (La.App. 1 Cir. 5/4/07), 961 So.2d 473, writ denied. 2007-1147 (La. 9/21/2007), 964 So.2d 333, we find that the facts therein are clearly distinguishable from those in the present case. In Morehouse , this court found that the employer acted in a manner that conferred on the employee the right and processes afforded to permanent status employees. The actions of the defendants in Morehouse included a clerical error that resulted in the failure to forward the recommendation for permanent status to the appointing authority. Also, the plaintiff was treated like a permanent employee upon termination, as plaintiff was given due process rights not afforded probationary employees. Morehouse , 961 So.2d at 480. Therefore, in light of the particular facts and circumstances, this court determined that the employer's words and conduct amounted to an implied or tacit understanding that the plaintiff had achieved permanent status such that a property interest or right attached for procedural due process purposes. Morehouse , 961 So.2d at 480. In this matter, however, Ms. Geerts was neither treated like a permanent employee by OJJ, nor was there any evidence of a clerical or any other error that prevented a recommendation for permanent status from being forwarded to OJJ.
Considering the above, we find no merit to Ms. Geerts' assignments of error. After our thorough review of the record, we conclude that a reasonable factual basis exists to support the referee's findings that Ms. Geerts was a probationary employee at the time of her separation and that Ms. Geert's failed to present sufficient evidence to demonstrate that she was a permanent employee. Accordingly, we find no error or abuse of discretion in the decision of the referee, which was adopted by the Commission.
CONCLUSION
For the foregoing reasons, we affirm the December 7, 2022 decision of the Civil Service Commission. All costs of this appeal are assessed to the plaintiff, Judit Geerts.
AFFIRMED.