Angelo Bracey v. City of Alexandria

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

11-621

ANGELO BRACEY VERSUS CITY OF ALEXANDRIA

********** APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 239,468 HONORABLE HARRY F. RANDOW, DISTRICT JUDGE

**********

JOHN D. SAUNDERS

JUDGE

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and John D. Saunders, Judges.

MOTION TO DISMISS APPEAL DENIED.

Daniel E. Broussard, Jr. Broussard, Halcomb & Vizzier Post Office Box 1311 Alexandria, LA 71309 (318) 487-4589 COUNSEL FOR PLAINTIFF/APPELLEE: Angelo Bracey Brian D. Cespiva The Cespiva Law Firm 711 Washington Street Alexandria, LA 71301 (318) 448-0905 COUNSEL FOR DEFENDANT/APPELLEE: The Alexandria Municipal Fire and Police Civil Service Board

Steven M. Oxenhandler Gold, Weems, Bruser, Sues & Rundell 2001 McArthur Drive Alexandria, LA 71301 (318) 445-6471 COUNSEL FOR DEFENDANT/APPELLANT: City of Alexandria SAUNDERS, Judge.

A joint motion to dismiss appeal was filed by the plaintiff-appellee,

Angelo Bracey, and the defendant-appellee, The Alexandria Municipal Fire

and Police Civil Service Board (civil service board), who claim that the issue

on appeal is now moot. However, the defendant-appellant, City of Alexandria

(city), has filed a memorandum in opposition to this motion and contends that

the issue of the plaintiff’s employment status is not final and thus, this appeal

is not moot. For the following reasons, we deny the motion to dismiss appeal.

The plaintiff was initially terminated from the Alexandria Fire

Department in April 2010, and he filed an appeal with the civil service board.

The civil service board granted the plaintiff’s motion to dismiss the city’s

disciplinary action by finding that the city had not timely completed its

investigation of the plaintiff’s alleged sick leave violations. On March 7, 2011,

the trial court affirmed the decision of the civil service board. The plaintiff

was reinstated to his employment with the city and returned to sick leave

status.

On appeal before this court, the city is seeking review of the trial court’s

affirmation of the civil service board’s dismissal of the city’s disciplinary

action against plaintiff that resulted in the plaintiff being reinstated to his

employment. This appeal was lodged on May 18, 2011.

In the meantime, however, on December 1, 2011, the plaintiff was again

terminated by the city for exhausting his sick leave. The plaintiff filed an

appeal with the civil service board, but the board denied his appeal on March

25, 2011. The plaintiff has since filed an appeal with the trial court that is still

pending as of the date of this opinion.

1 In their joint motion to dismiss, the plaintiff and the civil service board

contend that the issue in the city’s present appeal, the dismissal of the city’s

disciplinary action against plaintiff and his reinstatement, is moot because the

plaintiff has been terminated a second time and is no longer an employee of the

city. They point out that the civil service board has denied the plaintiff’s

appeal of his second termination, but also acknowledge that the plaintiff has

filed an appeal of that decision to the trial court. Despite the pending appeal

before the trial court, the plaintiff and the civil service board argue that any

opinion by this court would be advisory since a decision in the city’s appeal

can give no practical relief because plaintiff is no longer employed by the city.

In opposition to the joint motion to dismiss appeal, the city avers that

because the plaintiff’s second termination has not reached a stage of finality,

this appeal is not moot. We agree. If the trial court reverses the plaintiff’s

second termination on appeal, then the plaintiff may be reinstated to

employment with the city. If we dismiss the city’s appeal at this time, then the

city may be left without a remedy to seek review of the dismissal of the city’s

first disciplinary action against plaintiff. Therefore, at this time, we deny the

joint motion to dismiss this appeal.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION. Rules 2-16.2 and 2-16.3, Uniform Rules, Courts of Appeal.