Brian Drumm and the Class of Similarly Situated Persons, Kenner Firefighters Association Local 1427 Iaff Versus The City of Kenner

CourtLouisiana Court of Appeal
DecidedMarch 4, 2020
Docket19-CA-342
StatusUnknown

This text of Brian Drumm and the Class of Similarly Situated Persons, Kenner Firefighters Association Local 1427 Iaff Versus The City of Kenner (Brian Drumm and the Class of Similarly Situated Persons, Kenner Firefighters Association Local 1427 Iaff Versus The City of Kenner) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brian Drumm and the Class of Similarly Situated Persons, Kenner Firefighters Association Local 1427 Iaff Versus The City of Kenner, (La. Ct. App. 2020).

Opinion

BRIAN DRUMM AND THE CLASS OF NO. 19-CA-342 SIMILARLY SITUATED PERSONS, KENNER FIREFIGHTERS ASSOCIATION LOCAL 1427 FIFTH CIRCUIT IAFF COURT OF APPEAL VERSUS STATE OF LOUISIANA THE CITY OF KENNER

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 795-061, DIVISION "O" HONORABLE DANYELLE M. TAYLOR, JUDGE PRESIDING

March 04, 2020

ROBERT A. CHAISSON JUDGE

Panel composed of Judges Marc E. Johnson, Robert A. Chaisson, and John J. Molaison, Jr.

AFFIRMED RAC MEJ

DISSENTS WITH REASONS JJM COUNSEL FOR PLAINTIFF/APPELLEE, BRIAN DRUMM AND THE CLASS OF SIMILARLY SITUATED PERSONS, KENNER FIREFIGHTERS ASSOCIATION LOCAL 1427 IAFF Laura C. Rodrigue Blake J. Arcuri

COUNSEL FOR DEFENDANT/APPELLANT, THE CITY OF KENNER Guice A. Giambrone, III Craig R. Watson Elicia D. Ford CHAISSON, J.

In this case arising from an employment dispute between the City of Kenner

(“Kenner”) and its firefighters, Kenner appeals a judgment of the district court

granting a preliminary injunction prohibiting Kenner from forcing firefighters to

work “out of class” on temporary or substitute appointments under threat of

disciplinary or other employment action. For the following reasons, we affirm the

judgment of the district court.

FACTS AND PROCEDURAL HISTORY

On May 9, 2019, Brian Drumm, on his own behalf and on behalf of the class

of all similarly situated employees of the Fire Department of the City of Kenner,

and the Kenner Fire Fighters Association Local 1427 IAFF, an unincorporated

labor organization, filed a petition for preliminary injunction, permanent

injunction, and declaratory relief. In the petition, plaintiffs alleged that Kenner has

ordered Mr. Drumm and other employees of the fire department to temporarily

work “out of class” against their wills and under threat of disciplinary action.1

Plaintiffs alleged further that Kenner is forcing lower ranking employees to

temporarily work “out of class” instead of calling available employees who hold

the higher positions on an overtime basis, or creating new permanent higher

ranking positions, in an effort to reduce payroll costs to Kenner.

The petition details specific instances in April of 2019 where Mr. Drumm,

who is currently an operator, submitted a written request stating that he did not

want to work out of class through his Captain, District Chief, and Assistant Chief

to the interim Kenner Fire Chief. This request was denied by the interim Fire

Chief via email the next day and Mr. Drumm was placed on the schedule to work

out of class. Mr. Drumm filed a Request for Investigation/Hearing with the

1 To work out of class refers to instances where an employee of lower rank assumes the responsibilities of an employee of a higher rank who is absent. The ranks of the Kenner Fire Department include: firefighter, operator, captain, district chief, assistant chief, and chief.

19-CA-342 1 Kenner Municipal Fire and Police Civil Service Board; however, the board was

forced to reschedule its meeting for some time after Mr. Drumm was scheduled to

again work out of class, thus prompting the filing of the petition.

Plaintiffs requested that the district court declare they are entitled to accept

or decline appointments to work out of class on a temporary, substitute, or

emergency basis without threat of discipline or other employment action and that it

is unlawful for Kenner to force them to work out of class on a temporary,

substitute, or emergency basis under threat of disciplinary or other employment

action.

A hearing on the petition was held on May 28, 2019, at which time the

district court heard testimony from Mr. Drumm, another fire department employee

and president of the firefighters’ association, Mr. Michael Giarrusso, and interim

Fire Chief Terrence Morris. The court also received into evidence various exhibits

including emails, letters, work schedules and requests. On June 12, 2019, the trial

court issued a judgment granting the preliminary injunction and ordered that

Kenner “is preliminarily enjoined from forcing Petitioners to accept temporary or

substitute appointments ‘out of class’ under threat of discipline or other

employment action.”

On appeal, Kenner raises three assignments of error:

1) The trial court’s granting of the preliminary injunction is in conflict with the statutory authority governing temporary appointments.

2) The trial court incorrectly granted the preliminary injunction, despite plaintiffs’ failure to show irreparable harm.

3) The trial court’s preliminary injunction is overly broad because the plaintiffs have not been properly certified as a class.

19-CA-342 2 DISCUSSION

A trial court has broad discretion in the granting or denial of a preliminary

injunction, and its judgment will not be disturbed on review absent a clear abuse of

that discretion. Yokum v. Pat O’Brien’s Bar, Inc., 12-0217 (La. App. 4 Cir.

8/15/12), 99 So.3d 74, 80. That broad standard, of course, is based upon a

conclusion that the trial court committed no error of law and was not manifestly

erroneous or clearly wrong in making a factual finding that was necessary for the

proper exercise of its discretion. Id.

An injunction shall be issued in cases where irreparable injury, loss, or

damage may otherwise result to the applicant, or in other cases specifically

provided by law. La. C.C.P. art. 3601(A). A petitioner is entitled to injunctive

relief without the requisite showing of irreparable injury when the conduct sought

to be restrained is unconstitutional or unlawful, i.e., when the conduct sought to be

enjoined constitutes a direct violation of a prohibitory law and/or a violation of a

constitutional right. Zeringue v. St. James Par. Sch. Bd., 13-444 (La. App. 5 Cir.

11/19/13), 130 So.3d 356, 359, (citing Jurisich v. Jenkins, 99-0076 (La. 10/19/99),

749 So.2d 597, 599). Accordingly, if Kenner’s actions in forcing Mr. Drumm and

other employees to work “out of class” against their wills and under threat of

disciplinary action is unlawful, then the petitioners need not show that they

suffered irreparable harm.

We note that Kenner, by its own admission, cites no case law or other legal

authority in support of its interpretation of the statute governing temporary

appointments, La. R.S. 33:2496. In support of its position that the interim Fire

Chief’s actions are lawful, Kenner argues that the plain language of the statute

governing temporary appointments clearly gives the appointing authority, in this

case the Fire Chief, the mandatory authority to fill vacancies in the classified

service through temporary appointments, and that the absence of any language in

19-CA-342 3 the statute concerning consent or acceptance means that the legislature did not

intend for the appointee to have a “right to refuse” the temporary appointment.

Statutory interpretation begins with the language of the statute itself. Yount

v. Handshoe, 14-919 (La. App. 5 Cir. 5/28/15), 171 So.3d 381, 386. La. R.S.

33:2496 states, in pertinent part2:

Temporary appointments may be made to positions in classified service without the appointees acquiring any permanent status therein, as follows: …

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Hill v. Dept. of Health and Human Resources
457 So. 2d 781 (Louisiana Court of Appeal, 1984)
Newman v. Department of Fire
425 So. 2d 753 (Supreme Court of Louisiana, 1983)
Borel v. Young
989 So. 2d 42 (Supreme Court of Louisiana, 2008)
GONZALES HOME HEALTH CARE, LLC v. Felder
994 So. 2d 687 (Louisiana Court of Appeal, 2008)
Claverie v. LSU Medical Center
553 So. 2d 482 (Louisiana Court of Appeal, 1989)
Jurisich v. Jenkins
749 So. 2d 597 (Supreme Court of Louisiana, 1999)
Guillot v. Arbor Group, LLC
781 So. 2d 864 (Louisiana Court of Appeal, 2001)
Dept. of Public Safety v. Piazza
588 So. 2d 1218 (Louisiana Court of Appeal, 1991)
Dauser v. DEPT. OF PUBLIC UTILITIES (WATER)
428 So. 2d 1176 (Louisiana Court of Appeal, 1983)
Lafayette Profession Firefighters v. Lcpcg
971 So. 2d 487 (Louisiana Court of Appeal, 2007)
Zeringue v. St. James Parish School Board
130 So. 3d 356 (Louisiana Court of Appeal, 2013)
Caldwell v. Janssen Pharmaceutica, Inc.
144 So. 3d 898 (Supreme Court of Louisiana, 2014)
Church Mutual Insurance Co. v. Dardar
145 So. 3d 271 (Supreme Court of Louisiana, 2014)
Yount v. Handshoe
171 So. 3d 381 (Louisiana Court of Appeal, 2015)
Yokum v. Pat O'Brien's Bar, Inc.
99 So. 3d 74 (Louisiana Court of Appeal, 2012)
Babin v. Houma Municipal Fire & Police Civil Service Board
327 So. 2d 682 (Louisiana Court of Appeal, 1976)
King v. Department of Transportation & Development
607 So. 2d 789 (Louisiana Court of Appeal, 1992)

Cite This Page — Counsel Stack

Bluebook (online)
Brian Drumm and the Class of Similarly Situated Persons, Kenner Firefighters Association Local 1427 Iaff Versus The City of Kenner, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brian-drumm-and-the-class-of-similarly-situated-persons-kenner-lactapp-2020.