Cope v. Department of Children & Family Services

167 So. 3d 1059, 2014 La.App. 1 Cir. 1076, 2015 La. App. LEXIS 827, 2015 WL 1874795
CourtLouisiana Court of Appeal
DecidedApril 24, 2015
DocketNo. 2014 CA 1076
StatusPublished
Cited by1 cases

This text of 167 So. 3d 1059 (Cope 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.

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Cope v. Department of Children & Family Services, 167 So. 3d 1059, 2014 La.App. 1 Cir. 1076, 2015 La. App. LEXIS 827, 2015 WL 1874795 (La. Ct. App. 2015).

Opinion

CRAIN, J.

!¡>In 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 The employee filed an appeal with the Commission alleging that her employer rescinded a pay raise after it was granted and became effective, based upon an incorrect determination that the employee violated an agency rule.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

Rhonda Cope is a permanent-status employee with the Louisiana Department of Children and Family Services. On September 27, 2013, Cope 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. Cope 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, Cope 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, Cope received an email from a supervisor- advising that “your performance adjustment, effective 10/1/13, is not being granted due to a violation of [Civil Service Rule] 10.2(b).” Rule 10.2 is one of the regulations governing the performance evaluation system, and the rule generally requires that an “Evaluating Supervisor,” the position held by Cope, is responsible for administering the performance evaluation system for her designated employees in accordance with the rules and policies of the Civil Service. Rule 10.2(b) further provides that an Evaluating Supervisor 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 the email, Cope violated Rule 10.2(b) by failing to perform an evaluation on another employee, Bessie Hall. Although Cope acknowledged that a performance evaluation was not performed for Hall, Cope 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 her supervisor’s October 15th email, the Director for the Louisiana State Civil Service issued a [1062]*1062“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 system. After receiving the circular, the Department maintained its position with respect to Cope’s pay adjustment, stating in an email, “Per Secretary Suzy Sonnier, pay adjustments will not be given based on the information in the | ¿circular. As the head of the Agency, Secretary Son-nier may decide to grant or deny the pay adjustments.”

Cope 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 10.2. After the appeal was assigned to a civil service referee, he issued a notice to Cope 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 Cope an opportunity to show cause in writing why the appeal should not be summarily dismissed, or to avoid dismissal by amending her appeal.

Cope responded, with a detailed statement of her claim asserting that (1) there was no basis in law for imposing Rule 10.2(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. Cope 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 Cope 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 |Rthe denial of a performance adjustment.” The referee further found that Cope 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.

Cope 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. Cope 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 Cope, constituted a disciplinary action that gave her a legal right to appeal the decision.

The Commission denied the application, stating, “Denial of a performance adjust[1063]*1063ment 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 Cope’s application made the referee’s decision the final decision of the Commission. See La. Const, art. X, § 12(A); Civil Service Rule 13.36(g).

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167 So. 3d 1059, 2014 La.App. 1 Cir. 1076, 2015 La. App. LEXIS 827, 2015 WL 1874795, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cope-v-department-of-children-family-services-lactapp-2015.