Fisher v. Department of Social Services

600 So. 2d 1368, 1992 WL 117204
CourtLouisiana Court of Appeal
DecidedMay 22, 1992
Docket91 CA 0617
StatusPublished
Cited by3 cases

This text of 600 So. 2d 1368 (Fisher v. Department of Social 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
Fisher v. Department of Social Services, 600 So. 2d 1368, 1992 WL 117204 (La. Ct. App. 1992).

Opinion

600 So.2d 1368 (1992)

Regina C. FISHER
v.
DEPARTMENT OF SOCIAL SERVICES, OFFICE OF COMMUNITY SERVICES.

No. 91 CA 0617.

Court of Appeal of Louisiana, First Circuit.

May 22, 1992.

*1369 J. Wayne Gillette, Paul A. Bonin, New Orleans, for appellant.

Gerard N. Torry, Staff Atty., Dept. of Social Services, Bureau of Legal Services, Baton Rouge, for appellee.

Robert R. Boland, Jr., Civil Service General Counsel, Dept. of State Civil Service, Baton Rouge, for Herbert L. Sumrall, Director Dept. of State Civil Service.

Before COVINGTON, C.J., and LeBLANC and WHIPPLE, JJ.

LeBLANC, Judge.

This is an appeal from a decision of the Civil Service Commission denying appellant, Regina Fisher's, appeal.

Ms. Fisher is a classified employee of the Louisiana Department of Social Services, serving with permanent status. On January 19, 1990, she filed a letter with the Commission appealing "the denial of her appointment" to the position of Social Service Supervisor I for the Quality Assurance Program in the New Orleans office of the Department of Social Services. Subsequently, she filed a supplemental letter of appeal on February 13, 1990. In these letters, Ms. Fisher alleges essentially that she is more experienced and better qualified for the position than the person who received the appointment. She also alleges that this person is younger than she, and that there has been a consistent attempt by upper management to induce Ms. Fisher to retire because of her age.

On August 10, 1990, the Department of Social Services (Department) filed a motion for summary disposition of Ms. Fisher's appeal on the following grounds: 1) that the denial of a promotion is not appealable; and 2) that Ms. Fisher had not alleged discrimination with the specificity required under the Civil Service Rules. Ms. Fisher filed an answer in opposition to this motion.

A hearing in this matter was held before a referee on August 21, 1990. In ruling on the Department's request for summary disposition, the referee stated that Ms. Fisher's appeal was basically comprised of two claims: 1) that the promotion to the position *1370 in question was made in violation of Civil Service Rules; and 2) that she was not promoted to the position of Social Service Supervisor I as the result of discrimination. With respect to the first claim, the referee denied the request for summary disposition. However, he agreed with the Department's contention that Ms. Fisher had failed to state a discrimination claim with the specificity required by Civil Service Rule 13.11(d). Rather than dismissing her discrimination claim at that time, however, the referee gave Ms. Fisher an opportunity to amend her pleadings to meet this requirement. Thereafter, the hearing proceeded on Ms. Fisher's claim that the promotion was not made in accordance with the civil service rules.

Subsequent to the hearing, the referee issued a NOTICE OF DEFECTIVE APPEAL to Ms. Fisher, giving her until September 25, 1990, to file a written amendment to her appeal to sufficiently state a discrimination claim. On September 24, 1990, Ms. Fisher filed a supplemental notice of appeal.

Thereafter, the referee issued his opinion, which was filed on October 24, 1990, finding that Ms. Fisher's "allegations of discrimination even as amended are mere conclusion (sic) of discrimination and are insufficient to form the basis of an appeal." The referee further concluded that no violation of civil service rules was shown in the manner in which the Social Service Supervisor I position was filled. Accordingly, Ms. Fisher's appeal was denied.

On November 7, 1990, Ms. Fisher filed an application with the Commission for review of the referee's decision. By order filed on December 28, 1990, the Commission denied Ms. Fisher's application, whereupon the referee's decision became the final decision of the Commission. Ms. Fisher has now appealed from this decision.

On appeal Ms. Fisher raises the following issues:

1. Whether her letters of appeal stated a discrimination claim with the specificity required by Civil Service Rule 13.11(d), so that it was error to summarily dispose of her claim without a hearing?
2. Whether the Commission may deny an application for review of a referee's decision without reading and examining the transcript of the proceedings held before the referee?
3. Whether the conclusion that no rule violation was established is erroneous?

MOTION TO STRIKE

Before considering the issues raised by appellant, we must dispose of one preliminary matter. Subsequent to the filing of her original appellate brief, appellant filed a motion to supplement her brief with a copy of a decision of the Equal Employment Opportunity Commission (EEOC), which purportedly concluded that Ms. Fisher had been the subject of age discrimination. After Ms. Fisher's motion was granted, the Department filed a motion to strike the supplemental attachment to appellant's brief on the grounds that the motion did not contain a copy of a certificate of service on opposing counsel as required by Uniform Rules-Courts of Appeal, Rule 2-7.2 and that the purported decision was immaterial. This Court issued an order referring the Department's motion to the merits.

We hold that the Department's motion to strike is well-founded. The decision which Ms. Fisher attached to her brief is not part of the record of the proceedings below. An appellate court may not consider evidence that is not part of the record. Levy v. Our Lady of the Lake R. Med. Ctr., 546 So.2d 592 (La.App. 1st Cir.), writ denied, 550 So.2d 653 (1989). Accordingly, the EEOC decision will not be considered herein, and we grant the Department's motion to strike this supplemental attachment to Ms. Fisher's brief. See, Economy Auto Salvage v. Allstate Ins. Co., 499 So.2d 963 (La.App. 3rd Cir.), writ denied, 501 So.2d 199 (1986).

ISSUE ONE

Ms. Fisher contends the Commission erred in dismissing her discrimination *1371 claim on the basis that it was not pled with the specificity required by Civil Service Rule 13.11(d). We agree with Ms. Fisher's contention that the Commission erred.

Rule 13.11(d) provides as follows:
A notice of appeal must
. . . . .
(d) Contain a clear and concise statement of the actions complained against and a clear and concise statement of the basis of the appeal. Where discrimination is alleged to be a basis for appeal, specific facts supporting the conclusion of discrimination must be alleged in detail. The specific facts required will vary depending on the nature of the appeal; however, the facts must be alleged in sufficient detail to enable the agency to prepare a defense. A conclusion of discrimination is not sufficient. The types of facts which must be included are:
1. the date, time and place the discriminatory action took place;
2. the name of the person or agency alleged to have taken the discriminatory action;
3. a description of how appellant's action, conduct or performance was the same as that of other persons who were treated differently;
4. the names of other persons treated differently and the dates the different treatment occurred;
5.

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600 So. 2d 1368, 1992 WL 117204, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fisher-v-department-of-social-services-lactapp-1992.