Bannister v. Dept. of Streets

666 So. 2d 641, 1996 La. LEXIS 179, 1996 WL 14045
CourtSupreme Court of Louisiana
DecidedJanuary 16, 1996
Docket95-C-0404
StatusPublished
Cited by213 cases

This text of 666 So. 2d 641 (Bannister v. Dept. of Streets) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bannister v. Dept. of Streets, 666 So. 2d 641, 1996 La. LEXIS 179, 1996 WL 14045 (La. 1996).

Opinion

666 So.2d 641 (1996)

Anne BANNISTER
v.
DEPARTMENT OF STREETS.

No. 95-C-0404.

Supreme Court of Louisiana.

January 16, 1996.
Rehearing Denied February 16, 1996.

*643 Kimberly A. Theriot, Avis Marie Russell, for Applicant.

Gilbert R. Buras, Jr., Robein, Urann & Lurye; for Respondent.

LEMMIE O. HIGHTOWER, Justice Pro Tempore.[*]

We granted certiorari in this case, after the court of appeal reversed a decision by the Civil Service Commission ("the Commission") upholding the termination of a classified employee in the New Orleans Department of Streets ("the Department"). The first presented issue is whether, as concluded by the court of appeal, Civil Service Rule II, § 4.16 mandatorily requires the Commission to decide appeals within ninety days. If not, then a second question concerns whether the Commission wrongly sustained Bannister's dismissal. Upon reviewing both aspects, we reverse the court of appeal judgment and reinstate the decision of the Commission.

FACTS AND PROCEDURAL HISTORY

In February 1988, Anne Bannister, a permanently classified civil service employee with the Department, received an advancement to the level of Administrative Analyst III. Over the next four years, except for her first assignment, she worked within various divisions at several positions encompassing tasks more appropriate for an entry-level *644 analyst. Following her transfer to the Department's auto pound in February 1992, she immediately began complaining to her superiors that she had been demoted, even though she continued to be paid the $26,000 per year salary commensurate with her Administrative Analyst III position. Eventually, in October 1992, she filed a formal complaint with the Commission, resulting in a determination that respondent had been working outside of her classification. Accordingly, a letter dated November 6, 1992 directed the Department to assign the employee to duties more suitable for her designated level and pay, within ten days.

Meanwhile, two days prior to the Commission's order, the auto pound manager decided to assign Bannister to the second shift (3:00 p.m. to 11:00 p.m.)[1] to alleviate a critical personnel shortage caused by the illness of Cindy Dorsey, the usual night shift Auto Facilities Supervisor. This reassignment, as stated in an inter-office memorandum, would be temporary with a duration "dictated by the return of Ms. Dorsey or changing circumstances." Bannister learned of her new post[2] on November 8, the same day she received a copy of the above-noted letter from the Commission. Even so, she did not report to her new duty assignment between November 8 and November 29, asserting illness as the cause of her absence and, in that process, utilizing sick leave.[3] Also, on November 19, apparently still believing herself to be assigned "out of class," she filed another grievance with the city civil service department.

On November 30, 1992, Bannister returned to the auto pound but reported at her usual time, 8:00 a.m. In a meeting with both the manager and the deputy parking administrator, she maintained that she could not work the night shift due to child care problems. These two superiors, however, directed her to punch out and return at 3:00 p.m. Immediately thereafter she saw an assistant director of the Department, who reaffirmed the instructions previously given. Bannister nevertheless remained at work until 1:15 p.m., and then left a note stating that she would not be able to return for the evening shift.

After that date, November 30, 1992, Bannister never again reported for work. During the next two weeks, she intermittently telephoned the Department to advise that she would not be working on the day of her call. On most of these occasions, according to the facility's sick log, she gave absolutely no reason for her absence. In fact, in her last call to the Department on December 14, she simply indicated she could not return for the rest of that week. Meanwhile, on December 3, she formally appealed to the Commission concerning her new assignment.

Eventually, the Department director sent a certified letter to Bannister's residence on Thursday, January 7, 1993, ordering that she report for the night shift by the following Monday or face possible termination.[4] Still, she did not return. Finally, after the employee had remained absent for more than two months, the Department instituted a termination proceeding on February 2, 1993. The administrative board, finding that respondent abandoned her job in violation of applicable civil service rules, discharged her from employment. On February 10, 1993, she received an official notification to that effect.

*645 One month later, Bannister appealed her termination to the Commission. After consolidating that issue with the night shift complaint mentioned earlier, a hearing examiner tried the matter on June 28, 1993, and thirty days later issued his recommendation to uphold the dismissal. The Commission affirmed the termination on January 19, 1994, while also denying the respondent's motion for judgment in her favor on grounds that the adjudicative body had not decided the appeal within the ninety-day period provided by Civil Service Rule II, § 4.16. The Commission concluded that, despite coincidences suggesting "a prima facie violation" of civil service anti-retaliation rules, such circumstances did not justify Bannister's extended abandonment of a work assignment entailing nothing "manifestly illegal or immoral."

Respondent then sought a reexamination of the matter in the Fourth Circuit Court of Appeal. There, a three-judge panel, with one member dissenting, interpreted the time frame enunciated in Civil Service Rule II, § 4.16 to be mandatory. Bannister v. Department of Streets, 94-0604 (La.App. 4th Cir. 11/30/94), 647 So.2d 382. That conclusion, in the majority's view, required a reversal of the Commission's belated ruling and the reinstatement of Bannister to her former position with all back pay and benefits restored. Also, in dictum, the court of appeal pronounced that Bannister had been constructively discharged, thus justifying her refusal to return to work. We granted certiorari to review that decision. Bannister v. Department of Streets, 94-0404 (La. 04/28/95), 653 So.2d 581.

DISCUSSION

Timeliness of the Commission's Decision

The action of the Commission, in rendering its decision on January 19, 1994, plainly transpired eighty-seven days beyond the ninety-day period mentioned in Civil Service Rule II, § 4.16.[5] That inobservance of the Commission's own rule, according to the court of appeal, mandated that the administrative decree be reversed and that Bannister be reinstated. We disagree.

The civil service provisions in the state constitution and the rules of the Commission are designed to protect public career employees from political discrimination by eliminating the "spoils" system. La. Const. art. X, § 1, et seq.; Sanders v. Department of Health & Human Resources, 388 So.2d 768 (La.1980); Louisiana Civil Service League v. Forbes, 258 La. 390, 246 So.2d 800 (1971). Essentially, civil service laws and rules establish a system under which "non-policy forming" public employees are selected on the basis of merit and can be discharged only for insubordination, incompetency, or improper conduct, and not for religious or political reasons. New Orleans Firefighters Ass'n v.

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Bluebook (online)
666 So. 2d 641, 1996 La. LEXIS 179, 1996 WL 14045, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bannister-v-dept-of-streets-la-1996.