Opinion
2013 CA 0290
03-19-2014
MARK WICKRAMASEKERA v. LAKE BORGNE BASIN LEVEE DISTRICT
James E. Shields, Sr. Gretna, Louiaiana Attorney for Plaintiff/Appellant Mark Wickramasekera Henry P. Julien, Jr. New Orleans, Louisiana Attorney for Defendant/Appellee Lake Borgne Basin Levee District Adrienne Thomas Bordelon Baton Rouge, Louisiana Attorney for Defendant/Appellee Department of State Civil Service
NOT DESIGNATED FOR PUBLICATION
APPEALED FROM THE STATE CIVIL SERVICE COMMISSION
STATE OF LOUISIANA
DOCKET NUMBER S-17387
HONORABLE DAVID DUPLANTIER, CHAIRMAN,
JOHN MCLURE, VICE-CHAIRMAN,
G. LEE GRIFFIN, KENNETH POLITE,
D. SCOTT HUGHES, C. PETE FREMIN,
AND SIDNEY TOBIAS; MEMBERS
SHANNON S. TEMPLET, DIRECTOR
James E. Shields, Sr.
Gretna, Louiaiana
Attorney for Plaintiff/Appellant
Mark Wickramasekera
Henry P. Julien, Jr.
New Orleans, Louisiana
Attorney for Defendant/Appellee
Lake Borgne Basin Levee District
Adrienne Thomas Bordelon
Baton Rouge, Louisiana
Attorney for Defendant/Appellee
Department of State Civil Service
BEFORE: PETTIGREW, McDONALD, AND McCLENDON, JJ.
McDONALD, J.
This appeal challenges a decision of the State Civil Service Commission. For the following reasons, we affirm.
Mark Wickramasekera was hired by the Lake Borgne Basin Levee District as a Levee Foreman C on September 13, 2010 and terminated on March 8, 2012. The Levee Foreman C position required supervision of multiple employees and included the use of a company vehicle for business purposes. Wickramasekera did not achieve permanent status and was serving as a probationary employee at the time of his termination. The only issue properly before this court is whether, as a probationary employee, Wickramasekera (appellant) has the right to appeal a decision by the Civil Service Commission summarily dismissing his appeal of a decision made by a Civil Service Commission Referee (Referee).
Appellant applied for unemployment compensation benefits following his termination. At a hearing regarding his entitlement to benefits, the administrative law judge (ALJ) rejected the explanation given by the Levee Board that the discharge was due to the appellant violating policy by use of the company vehicle for personal reasons. Instead, it was determined that Wickramasekera's termination was not for job-related reasons. Consequently, he was able to receive unemployment benefits.
Following the letter of termination dated March 8, 2012, Wickramasekera filed an appeal to the Civil Service Commission. Wickramasekera now maintains that the decision in his unemployment claim should be res judicata on the reasons appellant was terminated. However, decisions made by the ALJ as to whether Wickramasekera may receive unemployment compensation benefits is not entitled to deference by other tribunals, e.g. the Referee of the Civil Service Commission or this court.
The Referee sent appellant a Notice to Employee of Possible Defects in Appeal on June 22, 2012, and gave him fifteen calendar days to amend his appeal and/or to show cause in writing why it should not be summarily dismissed.
Probationary employees do not have a property right to their jobs, thus Wickramasekera's appeal rights are more limited than classified employees with permanent status. Truax v. Dept. of Public Safety & Corrections, 93-1574 (La, App. 1 Cir. 6/27/94), 640 So.2d 1389; King v. Dept. of Health and Human Resources, Office of Management and Finance, 506 So.2d 832 (La. App. 1 Cir. 1987). As a probationary employee, he only has a right of appeal to the Civil Service Commission if he alleges that he has been adversely affected by a violation of Civil Service Rules or that he has been discriminated against because of his religious or political beliefs, sex, or race. See Flanagan v. Dept. of Environmental Quality, 99-1332 (La. App. 1 Cir. 12/28/99), 747 So.2d 763.
Wickramasekera answered the Referee's Notice contending that he was retaliated against and terminated because he was a whistleblower. He offered extensive facts regarding incidents with a favored employee. The Referree found that in spite of being given an opportunity to do so, Wickramasekera had failed to allege sufficient specific facts to support a conclusion that he was discriminated against based on his political beliefs or any other basis for discrimination that creates a cause of action to be heard by the Civil Service Commission. Neither had he alleged a violation of Civil Service Rules. Therefore, he had no right to appeal to the Civil Service Commission.
Appellant raises four assignments of error. He urges that the Referee and the Commission acted under a misconception as to why he was terminated; that the Referee and the Commission erred in finding that there were no facts asserted to support his conclusions that the termination was discriminatory; that the cases relied upon by the Referee and the Commission do not support their conclusion that a probationary employee is not entitled to appeal a discriminatory or retaliatory termination; and that the Levee District made fraudulent assertions to the Louisiana Workforce Commission. Appellant also asks this court to remand the matter to the Civil Service Commission to hear his motion to reconsider and/or supplement the record with a transcript of the Workforce Commission hearing. The record we reviewed did not have a transcript of the Workforce Commission hearing. Unfortunately for Mr. Wickramasekera, probationary employees have very few rights to question the reason for their discharge. We cannot say that having the transcript of the Workforce Commission hearing, even if it gave a different reason for the discharge from the reason originally given to Mr. Wickramasekera, would be determinative of our decision in this matter.
A remand for new evidence must be based upon examination of the merits of the case and is warranted only when the record is such that the new evidence is likely to affect the outcome of the case. White v. West Carroll Hosp., Inc., 613 So. 2d 150 (La. 1992). A case ordinarily will not be remanded to allow a party to produce evidence that was available in the first instance. As the Workforce Commission hearing took place and the decision thereon was rendered prior to the Referee's decision, arguably, the transcript was available for presentation to the Civil Service Commission prior to their hearing. Furthermore, as noted, the Workforce Commission decision is not binding on the Commission. Ultimately, the decision was based on which of the parties' assertions the Commission chose to accept, and the Workforce Commission decision is not controlling. The motion to remand is denied.
This court is addressing the issue of whether the action taken by the Civil Service Commission is correct. We are not addressing the merits of Mr. Wickramasekera's complaints against the Lake Borgne Basin Levee District. His allegations of error by the Civil Service Commission have no merit. Mr. Wickramasekera does not submit any evidence supporting his contention that the Referee and the Commission were operating under a misconception as to the reason for his firing. Without this, we have no way of knowing what their belief was regarding the reason for his firing, or that it was a "misconception." The Commission did not find that there were "no facts" submitted to support his conclusions that the termination was discriminatory. The Referee found that, even after being given an opportunity to amend his petition, he failed to allege "sufficient specific facts to support a conclusion" that he was discriminated against based on his political beliefs or any other basis for discrimination that creates a cause of action to be heard by the Civil Service Commission. It is true that the cases relied upon by the Referee and the Commission did not involve a "probationary" employee. This fact further supports the Commission's conclusion that appellant, as a probationary employee has no right to appeal, except in limited circumstances, none of which are applicable here. The cases did involve actions taken against permanent employees. As noted, probationary employees have fewer rights than permanent employees. The actions taken against a permanent employee with greater rights than a probationary employee is instructive.
Accordingly, based on a thorough review of the record, and the applicable law and evidence, we affirm the decision of the Civil Service Commission. Costs are assessed to Mark Wickramasekera.
AFFIRMED.