Opinion
No. 2009 CA 0411.
September 11, 2009.
APPEALED FROM THE CIVIL SERVICE COMMISSION STATE OF LOUISIANA DOCKET NUMBER 16421 HONORABLE JAMES A. SMITH, CHAIRMAN; BURL CAIN, VICE-CHAIRMAN; CHATHAM H. REED; DAVID DUPLANTIER; G. LEE GRIFFIN; ROSA B. JACKSON; AND JOHN McLURE.
Floyd J. Falcon, Jr., Baton Rouge, LA, Counsel for Appellant, Kathryn Liuzza.
Ollie C. Smith, III, April Snellgrove, Jackie M. Marve, Baton Rouge, LA, Counsel for Appellee, Louisiana Department of Environmental Quality.
Robert R. Boland, Jr., Baton Rouge, LA, Counsel for Anne Soileau, Director, Department of State Civil Service.
BEFORE: WHIPPLE, HUGHES AND WELCH, JJ.
This is an appeal from a decision of the Louisiana Civil Service Commission (the Commission), dismissing the May 30, 2008 petition of appeal of Kathryn Liuzza, wherein Liuzza challenged the denial of a 2005 merit increase and the appointing authority's actions in detailing her to another position. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
On May 30, 2008, Liuzza, an employee of the Louisiana Department of Environmental Quality (DEQ) serving with permanent status, filed a petition of appeal with the Commission, contending that in 2005, she was unrated by default, but that she was not notified of this rating as required by the Civil Service Rules. Liuzza further averred that, on or about July 15, 2005, her immediate supervisor, the assistant secretary of DEQ, approved her merit increase for 2005. Nonetheless, Liuzza averred, her 2005 merit increase was not processed by the Human Resources Department and she was not notified that her 2005 merit increase was not approved, nor was she given a statement of reasons for the denial.
Liuzza further challenged the actions of DEQ in detailing her to a position other than her classified position of Environmental Scientist Manager, for periods of time which were allegedly greater than those allowed by the Civil Service Rules. Thus, Liuzza sought to be granted her 2005 merit increase, to have her detail terminated and be returned to her regular duties, and to be awarded reasonable attorney's fees.
DEQ responded by filing a motion for summary disposition, contending: that the Commission lacked subject matter jurisdiction over the matters set forth in Liuzza's petition of appeal; that Liuzza had no right of appeal as to the denial of her 2005 merit increase or the alleged lack of notice of her 2005 unrated status; that Liuzza had failed to allege any adverse effect from the alleged rule violations, thus failing to establish a right of appeal; that the appeal of the 2005 unrated status and the denial of the 2005 merit increase was untimely; and that her claim as to the propriety of the detail was factually incorrect and untimely.
Pursuant to Civil Service Rule 13.14, any interested party may file a written request for summary disposition on various grounds, including that the Commission lacks jurisdiction of the subject matter, that the appellant has no legal right to appeal, that the appeal was untimely filed or that the written notice expressing the cause of action is insufficient. Civil Service Rule 13.14(a)(1), (2), (3), (6).
The referee assigned to this matter then issued a notice of possible defects in the appeal, and Liuzza responded to the notice by providing requested documentation and making additional factual allegations. Thereafter, the referee rendered a decision summarily dismissing the appeal. With regard to the 2005 merit increase, the referee concluded that her appeal of the denial of the merit increase was untimely. Additionally, with regard to Liuzza's allegation that DEQ had detailed her improperly to a position for periods of time greater than those allowed by the Civil Service Rules, the referee concluded that Liuzza had pleaded no facts which, if proven, would establish a prima facie case to support the allegation that DEQ had exceeded its discretion or that a rule had been violated. Finally, with regard to any complaints or contentions about her 2005 Performance Planning and Review (PPR) Form, the referee noted that Civil Service Rule 10.14 requires an employee to appeal her PPR evaluation to the Director or the Director's designee and, thus, concluded that the Commission had no jurisdiction over PPR reviews. Accordingly, the referee, in her decision, summarily dismissed Liuzza's appeal.
Liuzza then filed the instant appeal to this court, challenging the Commission's decision. (R. 37). On appeal, Liuzza lists eight assignments of error challenging the Commission's decision to dismiss her appeal.
The record before us does not contain an application by Liuzza requesting that the Commission review the referee's decision. Accordingly, pursuant to Civil Service Rules 13.14(e), 13.20(d), 13.36, and 13.37(a), the decision of the referee became the final decision of the Commission.
STANDARD OF REVIEW
On appeal, factual determinations of the Commission or a referee 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, decisions of the Commission or the referee should not be reversed unless they are arbitrary, capricious, or an abuse of discretion. 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.
DENIAL OF 2005 MERIT INCREASE
In assignments of error one through four, six, and eight, Liuzza essentially challenges the dismissal of her appeal of the denial of the 2005 merit increase. She first argues that the Commission erred in concluding that her appeal of the denial of her 2005 merit increase was untimely. In support of her contention, Liuzza argues that, because Civil Service Rule 6.14(d) allows the appointing authority to grant an employee a merit increase at any time within three years from the date an employee gained eligibility for the merit increase, the delay to file an appeal of the denial of amerit increase does not commence until the expiration of that three-year period.
Initially, we note that the referee found as a fact that Liuzza had acknowledged that she received notice of the denial of her 2005 merit increase on June 13, 2006, a finding that Liuzza has not challenged on appeal to this court. The referee held that the date that triggered the appeal delays was the date that Liuzza received notice of the denial of her merit increase. Applying Civil Service Rule 13.12, the referee thus concluded that Liuzza had thirty calendar days from June 13, 2006 to file an appeal. Because Liuzza's appeal was not received until May 30, 2008, the referee concluded that it was untimely.
Civil Service Rule 13.12 provides that no appeal to the Commission shall be effective unless it is postmarked or received by the Director of the State Department of Civil Service within 30 calendar days after the date on which the appellant received written notice of the action complained of when written notice is required or within 30 calendar days after the date when the appellant learned of or was aware that the action complained of had occurred when no written notice is required or, if required, was given tardily or not at all. Additionally subsection (c) of Rule 13.12 provides that no appeal shall lie against any action following the expiration of 365 calendar days from the date on which the action occurred.
While we find no error in the Commission's summary dismissal of Liuzza's appeal of the denial of her 2005 merit increase, we do so, in part, on a different basis than that of the referee. Sections 8 and 12 of Article X of the Louisiana Constitution limit the Commission's jurisdiction to two categories of claims: (1) discrimination claims provided for in Section 8(B); and (2) removal and disciplinary claims provided for in Sections 12(A) and 8(A). Louisiana Department of Agriculture and Forestry v. Sumrall, 98-1587 (La. 3/2/99), 728 So. 2d 1254, 1259-1260; see also Civil Service Rule 13.10 (listing the persons having a right of appeal to the Commission as: (a) a state classified employee with permanent status who has been removed or subjected to certain disciplinary actions; (b) a state classified employee whohas been discriminated against in any employment action because of his political or religious beliefs, sex or race; and (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).
The authority of the appointing authority to grant a merit pay increase is couched in discretionary terms; thus, the right to the merit increase being discretionary, the denial thereof is not a disciplinary action on the part of the appointing authority. Civil Service Rule 6.14; Smith v. LSU Medical Center, 365 So. 2d 599, 600 (La. App. 1st Cir. 1978); Rodgers v. Department of Public Welfare, 250 So. 2d 163, 164 (La. App. 1st Cir. 1971). As such, the denial of a merit increase is not appealable to the Commission. Smith, 365 So. 2d at 600.
Moreover, to the extent that Liuzza's claim involves alleged rule violations surrounding the denial of the 2005 merit increase, we agree with the referee that Liuzza's appeal was untimely. We find no merit to Liuzza's argument that the delay for filing an appeal relating to the denial of a merit increase does not commence until the expiration of the three-year period set forth in Civil Service Rule 6.14(d) during which the appointing authority may grant a merit increase. Liuzza has complained of specific actions of the DEQ, including its denial of the 2005 merit increase and the alleged untimely notice of such denial to her. As noted by the referee, the delays for appealing the complained-of actions of the DEQ commenced to run, at the very latest, on June 13, 2006, the date Liuzza received notice of the denial of the 2005 merit increase. Applying the thirty-day appeal period of Civil Service Rule 13.12, Liuzza's petition for appeal, filed on May 30, 2008, was clearly untimely. Accordingly, we find no error in the Commission'ssummary dismissal of Liuzza's appeal of the denial of the 2005 merit increase.
DETAIL TO SPECIAL DUTY
In assignments of error five, seven, and eight, Liuzza challenges the Commission's dismissal of her appeal of her detail to special duty. She contends through these assignments of error that her detail to special duty is illegal, that she is entitled to appeal the detail at any time since the detail to special duty continues, that she was never given notice that Civil Service had approved the detail, and that the detailed position constitutes a demotion.
Because Liuzza contends that DEQ failed to comply with Civil Service Rules in extending her detail to special duty, she relies upon Civil Service Rule 13.10(c), which provides for an appeal by a state classified employee adversely affected by a violation of a Civil Service Rule, as authority for the appeal to the Commission of her continued detail.
Civil Service Rule 8.16(d), prior to its repeal effective February 16, 2009, governed an appointing authority's ability or right to detail an employee to a position other than a position to which she is regularly assigned. Civil Service Rule 8.16(d)(2) allowed the appointing authority to detail an employee to special duty for a period not to exceed one year. However, the rule further allowed the appointing authority to detail an employee for a period exceeding one year with the approval of the Director. Pursuant to Rule 8.16(d)(2), justification must be submitted with all details requiring the Director's approval, and written justification for such a detail must be kept by the agency. See current Civil Service Rule 23.12 (which similarly authorizes details for periods exceeding one year with the Director's approval, requires justification to be submitted with all detailsrequiring the Director's approval, and requires the agency to keep written justification for all details extending more than one month).
Chapter 8 of the Civil Service Rules was repealed in its entirety effective February 16, 2009. The pertinent provisions that were contained therein are now contained in Chapter 23.
Civil Service Rule 1.13.1 defines "detail to special duty" as "the temporary assignment of an employee to perform the duties and responsibilities of a position other than the one to which he is regularly assigned, without prejudice to his rights in and to his regular position."
In her petition for appeal, Liuzza contended that, although classified as an environmental scientist manager, she had been detailed since 2000, a period of time greater than the time allowed by the Civil Service Rules, and that she should be returned to her regular classification and assigned duties commensurate with that classification. In its motion for summary disposition, DEQ contended that: Liuzza's claim in her petition that she had been detailed in violation of Civil Service Rules was factually incorrect; that by letter dated January 7, 2008, DEQ requested and the Director approved a one-year extension of Liuzza's detail to special duty and an additional twelve-month detail for what was deemed by Civil Service to be a legitimate business reason; that Liuzza continued to receive the same salary on detail that she would have received in her permanent position and, thus, had failed to allege any adverse effect from any alleged rule violations; and that Liuzza had failed to plead any specific facts regarding her detail to special duty that, if proven, would establish a violation of any rule.
Thereafter, in her opposition to the motion for summary disposition and in her response to the referee's notice to Liuzza of possible defects in her appeal, Liuzza further alleged: that she had never been made privy to any documentation submitted by DEQ to justify her detail; that the detail in question was to a demoted position; and that, while she did not have factual allegations relative to religion, race, sex or political influence, she "suspect[ed] political influence [was] at the heart" of her detail to special duty.
The referee found that while Liuzza had been detailed to several positions and her detail had been extended, these extensions wereaccomplished with the Director's approval. Additionally, the referee found that Liuzza had pleaded no facts that, if proven, would establish a prima facie case to support the finding that DEQ had exceeded its discretion or that a rule had been violated. We agree.
While Liuzza argues that the Civil Service Rules do not contemplate "perpetual details to special duty" and while she states that she challenges whether DEQ established the existence of legitimate business reasons for the details, Liuzza failed to allege any specific facts to support her claim of a rule violation with regard to her details. To the contrary, the record contains evidence of the Secretary's approval of Liuzza's detail from September 5, 2007 through January 9, 2008, and her detail from January 10, 2008 through January 9, 2009, negating any arguments that Liuzza's assignment to these details lacked the requisite approval by the Director. See Fisher v. Department of Social Services, Office of Community Services, 600 So. 2d 1368, 1373 n. 3 (La. App. 1st Cir. 1992).
Moreover, a conclusory allegation that Liuzza "suspects" that DEQ's actions in detailing her to special duty may have been based on "political influence" does not meet the fact-pleading requirements of Civil Service Rule 13.11(d). See generally Shelton v. Southeastern Louisiana University, 431 So. 2d 437, 438-439 (La. App. 1st Cir. 1983); cf. King v. LSU Health Sciences Center, 2003-1138 (La. App. 1st Cir. 4/2/04), 878 So. 2d 544, 547-548 (wherein the appellant alleged specific facts and submitted documentation, in response to the referee's notice of possible defects in the appeal, to support her allegation that her detail to special duty constituted a disciplinary action). Accordingly, we find no error in the Commission'ssummary dismissal of Luizza's appeal of the DEQ's actions in detailing her to special duty.
Civil Service Rule 13.11(d) provides in part that where a rule violation is alleged as the basis for appeal, specific facts supporting the conclusion that a violation has occurred must be alleged in sufficient detail to enable the agency to prepare a defense.
Additionally, to the extent that Liuzza challenges, in her eighth assignment of error, the dismissal of any complaints in her appeal regarding her 2005 PPR form, we find no error in the referee's determination that the Commission had no jurisdiction over PPR reviews. Civil Service Rule 10.14 sets forth the procedure for a permanent employee wishing to appeal his or her PPR file and requires the employee to appeal to the Director of the Department of Civil Service or the Director's appointee. Moreover, Civil Service Rule 13.10(c) specifically excludes appeals to the Civil Service Commission wherein the employee claims to have been adversely affected by a violation of a rule in Chapter 10, the chapter governing Performance Planning and Review.
CONCLUSION
For the above and foregoing reasons, the October 10, 2008 decision of the Civil Service Commission, summarily dismissing the petition of appeal filed by Kathryn Liuzza, is affirmed. Costs of this appeal are assessed against Kathryn Liuzza.