Burriss v. Department of Children & Family Services

167 So. 3d 1053, 2014 La.App. 1 Cir. 1075, 2015 La. App. LEXIS 826, 2015 WL 1874790
CourtLouisiana Court of Appeal
DecidedApril 24, 2015
DocketNo. 2014 CA 1075
StatusPublished
Cited by1 cases

This text of 167 So. 3d 1053 (Burriss v. Department of Children & Family Services) 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
Burriss v. Department of Children & Family Services, 167 So. 3d 1053, 2014 La.App. 1 Cir. 1075, 2015 La. App. LEXIS 826, 2015 WL 1874790 (La. Ct. App. 2015).

Opinion

CRAIN, J.’

Lin this appeal, we must determine whether an employee sufficiently alleged a disciplinary action to invoke the jurisdiction of the State Civil Service Commission. The employee filed an appeal with the [1055]*1055Commission alleging that her employer rescinded a pay raise after it was granted and became effective, based upon an incorrect determination that the employee violated an agency rule. The Commission found those allegations insufficient to set forth a disciplinary action and summarily dismissed the employee’s appeal. We reverse and remand.

FACTS

Vallarie Burriss is a permanent-status employee with the Louisiana Department of Children and Family Services. On September 27, 2013, Burriss learned that she would be receiving a four percent increase in her compensation effective October 1, 2013. That information was communicated by an email from the Secretary of the Department, Suzy Sonnier, to all Department employees, providing, in pertinent part:

I am happy to announce that [the Department] will give four percent increases for performance pay adjustments to all [Department] team members who meet the criteria of the Performance Evaluation System (PES). These performance pay adjustments will be effective October 1st and will be included in your October 18 payroll check.

The referenced “Performance Evaluation System” is a system utilized by state agencies to review and evaluate the performance of classified employees. Burriss was evaluated under the system on August 5, 2013, several weeks prior to the Secretary’s email, and had received an overall evaluation of “[successful,” which, according to the system’s standards, meant her work and behavior “met the performance criteria.” Consequently, pursuant to the Secretary’s email, Burriss was among the employees who would receive an increase in pay on October 1.

|sThe October 1 date came and passed without any further communications concerning the matter. However, on October 15, over two weeks into the new pay period, Burriss received an email from her supervisor advising that “your performance adjustment, effective 10/1/13, is not being granted due to a violation of [Civil Service Rule] 10.3(b).” Rule 10.3 is one of the regulations governing the performance evaluation system, and the rule generally requires that a “Second Level Evaluator,” the position held by Burriss, administer the system according to the rules and policies of the Civil Service. Rule 10.3(b) further provides that a Second Level Evaluator who fails to administer the system in accordance with the applicable rules shall not be eligible for a performance adjustment for that year.

According to her supervisor’s email, Burriss violated Rule 10.3(b) by failing to ensure that a performance evaluation had been performed on another employee, Bessie Hall. Although Burriss acknowledged that a performance evaluation was not performed for Hall, Burriss asserted that the Human Resources department had instructed her that an evaluation was not necessary for Hall, because Hall had worked only nine days during the evaluation period.

About two weeks after the October 15th email, the Director for the Louisiana State Civil Service issued a “GENERAL CIRCULAR” announcing that she was “granting a statewide exception ... for Evaluating Supervisors and Second Level Evaluators who failed to administer the performance evaluation system in accordance with Rule 10.2 and 10.3” for the years 2012-2013 and 2013-2014. The Director explained that the exception was granted due to a number of unforeseen circumstances that resulted from the transition to the new performance evaluation [1056]*1056system. After receiving the circular, the Department maintained its position with respect to Burriss’ pay adjustment, stating in an email, “Per Secretary Suzy Son-nier, pay adjustments will not be given based on the information in the circular. 14As the head of the Agency, Secretary Sonnier may decide to grant or deny the pay adjustments.”

Burris filed an appeal with the Commission seeking receipt of her performance adjustment effective October 1, 2013. Initially she relied primarily upon the circular as establishing an exception for any purported violation of Rule 10.3. After the appeal was assigned to a civil service referee, he issued a notice to Burriss questioning whether she had the legal right to appeal because “it appears that the statewide exception is not mandatory in nature.” The referee further advised that employees only have a right to appeal such issues if they allege that they have been adversely affected by a violation of a Civil Service article or rule, or that they have been discriminated against because of their religious or political beliefs, sex, or race. The referee gave Burriss an opportunity to show cause in writing why the appeal should not be summarily dismissed, or to avoid dismissal by amending her appeal.

Burriss responded with a detailed statement of her claim asserting that (1) there was no basis in law for imposing Rule 10.3(b) on her in light of the exception granted in the circular, and (2) the facts did not support a basis for any sanction against her. Burriss alleged that she had been advised on numerous occasions that an evaluation was not necessary for Hall because of Hall’s extended absence from work. She submitted numerous documents in support of the claim, including the Secretary’s September 27, 2013 email announcing the four percent pay raise effective October 1, 2013.

After considering this supplemental information, the referee issued a decision finding that Burris had failed to allege a right of appeal and summarily dismissed the matter. The referee found that “the denial of a performance adjustment is not a disciplinary action, so legal cause is not necessary to support |sthe denial of a performance adjustment.” The referee further found that Burriss did not allege any type of discrimination or violation of Civil Service rules or articles, because performance adjustments are payable at the agency’s discretion, and the circular did not divest the Department of that discretion.

Burriss sought review of the referee’s decision in an application filed with the Commission, wherein she emphasized that the Department’s decision on October 15, 2013, to deny her the performance adjustment was, in fact, a reduction in pay because the adjustment had been in effect for over two weeks. Burris attached numerous documents to the application, including a copy of her August 5, 2013 evaluation confirming that she met the necessary performance criteria to receive the raise, as announced, on October 1, 2013. The subsequent reduction in pay, according to Burriss, constituted a disciplinary action that gave her a legal right to appeal the decision.

The Commission denied the application, stating, “Denial of a performance adjustment is not a disciplinary action. Therefore, appellant has no right of appeal under Rule 13.10(a).” In support of its finding, the Commission cited Rule 6.14, which provides that an employee “may be granted a performance adjustment, provided that the appointing authority has determined his performance merits such an adjustment.” The Commission’s denial of Burriss’ application made the referee’s [1057]*1057decision the final decision of the Commission. See La. Const, art. X, § 12(A); Civil Service Rule 13.36(g).

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Bluebook (online)
167 So. 3d 1053, 2014 La.App. 1 Cir. 1075, 2015 La. App. LEXIS 826, 2015 WL 1874790, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burriss-v-department-of-children-family-services-lactapp-2015.