Michael Voltolina Versus City of Kenner; And Kenner Municipal Fire & Police Civil Service Board

• Court: Louisiana Court of Appeal
• Decided: December 2, 2020
• Docket: 20-CA-151
• Status: Unknown

Opinion

MICHAEL VOLTOLINA NO. 20-CA-151

VERSUS FIFTH CIRCUIT

CITY OF KENNER; AND KENNER COURT OF APPEAL MUNICIPAL FIRE & POLICE CIVIL SERVICE BOARD STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 797-245, DIVISION "H" HONORABLE GLENN B. ANSARDI, JUDGE PRESIDING

December 02, 2020

HANS J. LILJEBERG JUDGE

Panel composed of Judges Stephen J. Windhorst, Hans J. Liljeberg, and John J. Molaison, Jr.

AFFIRMED; REMANDED HJL SJW JJM COUNSEL FOR PLAINTIFF/APPELLEE, MICHAEL VOLTOLINA Laura C. Rodrigue Blake J. Arcuri

COUNSEL FOR DEFENDANT/APPELLANT, CITY OF KENNER Edward S. Rapier Jennifer T. Hungerman LILJEBERG, J.

Defendant, the City of Kenner, appeals the district court’s judgment that

reversed the Kenner Municipal Fire and Police Civil Service Board’s decision to

dismiss plaintiff’s civil service appeal for lack of subject matter jurisdiction. For

the following reasons, we affirm the district court’s judgment and remand to the

Board for further proceedings.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Michael Voltolina, was employed by defendant, the City of Kenner

(“the City”), for 32 years as a firefighter. On August 28, 2017, Mr. Voltolina went

on sick leave pursuant to La. R.S. 33:1995, which provides that a fireman “shall be

entitled to full pay during sickness or incapacity not brought about by his own

negligence or inculpable discretion for a period of not less than fifty-two weeks.”

Shortly before Mr. Voltolina’s fifty-two weeks of sick leave was exhausted,

he provided the Kenner Fire Department (“the Department”) with a Return to

Work form signed by his doctor on August 20, 2018, indicating he could return to

work on August 25, 2018, but was restricted to sedentary work until October 25,

2018. The Department sent Mr. Voltolina to Dr. Joseph Tamimie for evaluation on

August 21, 2018. Dr. Tamimie agreed that Mr. Voltolina was able to return to

work at light duty/sedentary status, with some restrictions.

Mr. Voltolina planned to return to work on August 25, 2018 in a light duty

capacity, but on August 24, 2018, Fire Chief Ryan Bergeron provided Mr.

Voltolina with a letter from the City’s mayor, E. Ben Zahn, III, dated August 23,

2018, indicating that Mr. Voltolina’s request to return to work at light duty status

was denied. Mr. Voltolina asserts that he tried to return to work on August 25,

2018, but he was sent home by Chief Bergeron. That same day, he was contacted

by the Louisiana Fireman’s Retirement System (“FRS”) informing him that he was

retiring and that he had to fill out some paperwork. According to Mr. Voltolina, he

20-CA-151 1 had not indicated to anyone that he wished to retire and this was the first time he

had heard anything about retiring.

Mr. Voltolina returned to his doctor on August 27, 2018 and presented him

with a copy of the City’s job description for his job as an Assistant Fire Chief,

which includes light or sedentary duties and does not indicate that physical

activities such as lifting, pulling, or pushing are required. Based on this job

description, Mr. Voltolina’s doctor cleared him to return to full duty as an

Assistant Fire Chief. After receiving the report indicating that Mr. Voltolina’s

doctor released him to full duty, the City sent Mr. Voltolina back to Dr. Tamimie,

who declined to release him to full duty. According to Mr. Voltolina, he presented

Dr. Tamimie with the City’s job description for an Assistant Fire Chief reflecting

that his duties did not include physical activities, but Dr. Tamimie indicated that it

was his understanding that an Assistant Fire Chief was required to do physical

activities such as breaching doors, pulling hoses, and fighting fires. Mr. Voltolina

contends that Dr. Tamimie said he would contact Chief Bergeron for an accurate

job description for an Assistant Fire Chief, but he did not do so.

On August 24, 2018, Mr. Voltolina’s counsel sent a letter via email to the

City indicating that Mr. Voltolina had a disability and requesting an

accommodation pursuant to the Americans with Disabilities Act. The City

responded on August 28, 2018, through its Assistant City Attorney, stating,

“[b]ased on your doctor’s report there is no ADA issue.”

According to Mr. Voltolina, on August 29, 2018, he received a pre-

completed retirement form dated August 24, 2018, indicating, “effective: August

28, 2018 at 11:59 p.m., Employee is retiring from the City of Kenner.” Mr.

Voltolina asserts that he was not presented with any information regarding any

options he might have. Because he believed his only choices were to be terminated

without benefits or to retire and receive medical benefits, he signed the retirement

20-CA-151 2 form and wrote, “under duress,” next to his signature. That day, he also wrote to

the FRS, stating, “as of this day, I was informed that I was being forced into

retirement. Please accept this as my official letter, under duress, of retirement.”

Mr. Voltolina filed an appeal with the Kenner Municipal Fire and Police

Civil Service Board (“the Board”) dated September 7, 2018, claiming that he was

constructively discharged from his employment when the City refused to allow

him to return to work as an Assistant Fire Chief after he was cleared by his treating

physician. He claimed this was a disciplinary action in violation of his First

Amendment rights in retaliation for his vocal participation in Union activities at a

meeting on August 21, 2018. Mr. Voltolina also claimed that the City’s refusal to

accommodate the work restrictions set forth by Dr. Tamimie violated the

Americans with Disabilities Act, 42 USC Section 12112 (b)(5)(A).

On June 14, 2019, the City filed a Motion to Dismiss for Lack of Subject

Matter Jurisdiction, asserting that Mr. Voltolina was not entitled to appeal the

City’s refusal to allow him to return to work because he voluntarily retired. After

considering the testimony presented and the exhibits submitted, the Board granted

the City’s motion, dismissing Mr. Voltolina’s appeal due to lack of subject matter

jurisdiction.

On July 15, 2019, Mr. Voltolina filed a “Petition for Judicial Review” with

the 24th Judicial District Court seeking to appeal the decision of the Board pursuant

to La. R.S. 33:2501(E).1 After review, the district court rendered a judgment on

February 19, 2020, reversing the Board’s decision to dismiss Mr. Voltolina’s civil

service appeal and remanding the case to the Board for further proceedings. In its

reasons for judgment, the district court found that the Board committed an error of

1 La. R.S. 33:2501(E)(1) provides: Any employee under classified service and any appointing authority may appeal from any decision of the board, or from any action taken by the board under the provisions of the Part that is prejudicial to the employee or appointing authority. This appeal shall lie direct to the court of original and unlimited jurisdiction in civil suits of the parish wherein the board is domiciled.

20-CA-151 3 law by relying solely on the case of Christie v. United States, 518 F.2d 584, 207

Ct. Cl. 333 (1975), instead of relying on the decisions in Perlman v. U.S., 490 F.2d

928, 203 Ct. Cl. 397 (1974); Scharf v. Department of the Air Force, 710 F.2d 1572

(Fed. Cir. 1983); and Covington v. Department of Health and Human Services, 750

F.2d 937 (Fed. Cir. 1984). Because it found the Board had committed an error of

law, the court conducted a de novo review, giving no deference to the Board’s

findings, and found that Mr. Voltolina’s retirement was not voluntary. Thus, the

court found Mr. Voltolina was entitled to appeal the City’s refusal to allow him to

return to work. The City appeals.

LAW AND DISCUSSION

Civil service provisions in the state constitution and the rules of the civil

service commission are designed to protect career employees from public

discrimination by eliminating the “spoils” system. City of Alexandria v. Dixon, 15-

1718 (La. 5/3/16), 196 So.3d 592, 597, citing Bannister v. Department of Streets,

95-0404 (La. 1/16/96), 666 So.2d 641 and La. Const. art. X § 1. In addition to

acting as a quasi-judicial body, a civil service commission is empowered to

generally supervise the civil service system and to establish rules for the system's

administration. City of Alexandria, 196 So.3d at 597. Civil service rules have the

effect of law. Id.

The review of factual findings by a civil service board is governed by the

manifest error or clearly wrong standard. Mathieu v. New Orleans Public Library,

09-2746 (La. 10/19/10), 50 So.3d 1259, 1262. Deference should be given to the

factual conclusions of a civil service board. Id. The findings of fact of a civil

service board are entitled to the same weight as the findings of fact made by a trial

court and are not to be overturned in the absence of manifest error. Moore v.

Ware, 01-3341 (La. 2/25/03), 839 So.2d 940, 946. When the civil service board

has committed a reversible legal error, the reviewing court should make its own de

20-CA-151 4 novo review of the record and render a judgment on the merits, if possible. See City

of Alexandria, supra; Evans v. Lungrin, 97-0541, 97-5077 (La. 2/6/98), 708 So.2d

731, 735. A legal error occurs when the lower court applies incorrect principles of

law and such errors are prejudicial. Id.

On appeal, the City argues that the trial court erred by finding that the Board

made an error of law and reviewing the record of the Board proceedings de novo.

It argues that the Perlman, Scharf, and Covington cases are not controlling in this

jurisdiction, so the Board was not bound to follow them. Further, it argues that the

Christie case is applicable in this matter, but even if it was not, there is no

indication in the record that the Board relied solely on the Christie case. The City

also cites this Court’s decision in Palmisano v. Department of Fleet Management,

Parish of Jefferson, 97-745 (La. App. 5 Cir. 12/10/97), 704 So.2d 862, 864, writ

denied, 98-31 (La. 3/20/98), 715 So.2d 1208, in which this Court stated that a

discharged employee is entitled to have an evidentiary hearing to determine

whether the discharge was voluntary. It asserts that because Mr. Voltolina was

provided with the required hearing and the Board determined that his retirement

was indeed voluntary, Mr. Voltolina is not entitled to an appeal.

Mr. Voltolina responds that the district court properly concluded that the

Board made an error of law when it relied on the Christie case in making its

determination to grant the City’s Motion to Dismiss for Lack of Subject Matter

Jurisdiction. He claims that the district court correctly found that the Perlman,

Scharf, and Covington cases were applicable in this case. Mr. Voltolina contends

that under these cases, it is clear that his retirement was not voluntary and that he is

entitled to appeal the City’s refusal to allow him to return to work.

In Christie v. United States, 518 F.2d 584, 207 Ct. Cl. 333 (1975), an

employee attempted to avoid termination for cause by tendering her resignation.

The United States Court of Claims found her resignation to be voluntary, noting

20-CA-151 5 that the Court had repeatedly upheld the voluntariness of resignations where they

were submitted to avoid threatened termination or cause. The Court stated,

“[m]erely because plaintiff was faced with an inherently unpleasant situation in

that her choice was arguably limited to two unpleasant alternatives does not

obviate the voluntariness of the resignation.” 518 F.2d at 587.

In Perlman v. U.S., 490 F.2d 928, 203 Ct. Cl. 397 (1974), an employee

agreed to retire after he was informed that he was being terminated because his

position was abolished and he did not have the right to displace anyone. The

United States Court of Claims considered the circumstances surrounding the

employee’s decision to retire and found the retirement was not voluntary. The

Court stated that in determining whether the employee’s retirement was voluntary,

“we must look to whether the factors operating on his decision-making processes

made a voluntary decision impossible.” 490 F.2d at 931.

In Scharf v. Department of the Air Force, 710 F.2d 1572 (Fed. Cir. 1983),

the Court found an employee’s retirement was involuntary where his agency

provided misleading information which materially affected his decision regarding

retirement. The Court cited Perlman, stating that in order to determine if a

retirement was voluntary, a court must examine “the surrounding circumstances to

test the ability of the employee to exercise free choice.” 710 F.2d at 1574. The

Court also considered whether a reasonable person would have relied on the

government’s misrepresentations in coming to his decision. Id. at 1575.

In Covington v. Department of Health and Human Services, 750 F.2d 937

(Fed. Cir. 1984), the Court found an employee’s retirement to be involuntary in a

reduction in force action where the agency failed to correct misinformation it had

provided. The Court cited Perlman and Scharf for the proposition that a court

must examine the surrounding circumstances in order to determine the

voluntariness of the employee’s decision. It also cited Christie in its opinion and

20-CA-151 6 noted that when an employee’s choice is limited to two unpleasant alternatives, this

does not make the employee’s decision involuntary. However, it clarified that the

decision must ultimately be the employee’s decision, not the government’s

decision. 750 F.2d at 942.

After review, we find that the record does not show that the Board

committed an error of law. First, although the City cited the Christie case, there is

no indication in the record that the Board solely relied on this case or any other

case when determining whether Mr. Voltolina’s decision to retire was voluntary.

Further, while the district court stated that the Perlman, Scharf, and Covington

cases should have been followed in lieu of Christie, we note that these cases, like

Christie, are persuasive authority in this jurisdiction and are not binding on this

Court. Finally, we note that the Covington and Scharf cases both cite the Christie

case in their opinions, and our review does not show that Christie stands for

“incorrect principles of law.” Without a showing that the Board applied incorrect

principles of law, we find that the district court should have applied the manifest

error standard when reviewing the Board’s decision. Accordingly, we will use the

manifest error/clearly wrong standard to review the Board’s finding that Mr.

Voltolina’s retirement was voluntary.

Rule 2.7(b) of the Municipal Fire and Police Service Rules provides that

appeals may be made to the Board by “[a]ny person in the classified service who,

having acquired permanent civil service status, alleges that he has been demoted,

dismissed, discriminated against, or subjected to any corrective or disciplinary

action contrary to any provision of the Amendment or of the Rules of this Board.”

Rule 2.3 provides that, “[d]isciplinary actions are demotion, suspension, and

dismissal.” In accordance with Rule 2.7(b), Mr. Voltolina specifically alleges he

has been subjected to dismissal or disciplinary action by the City.

20-CA-151 7 The question of whether an employee has the right to appeal is analogous to

the question of whether a plaintiff has a cause of action. Banks v. New Orleans

Police Department, 01-0859 (La. App. 4 Cir. 9/25/02), 829 So.2d 511, 514, writ

denied, 02-2620 (La. 12/13/02), 831 So.2d 990. An employee has no right to

appeal when the employee voluntary resigns. Palmisano, 704 So.2d at

864. However, an employee does have the right to an appeal when he is either

forced to resign or involuntarily retires. The reason an appeal is permitted when an

employee is forced to resign or retire is to preclude characterization of disciplinary

action as a “resignation” to subvert an employee’s right to an appeal. Russell v

Mosquito Control Board, 06-0346 (La. App. 4 Cir. 9/27/06), 941 So.2d 634, 640,

citing Peterson v. Department of Streets, 369 So.2d 235, 237 (La. App. 4 Cir.

1979).

In determining whether Mr. Voltolina’s retirement was voluntary, we have

considered the persuasive cases cited by the parties and the district court, along

with the jurisprudence from our state, including Robinson v. Board of Supervisors

for University of Louisiana, 16-2145 (La. 6/29/17), 225 So.3d 424. In Robinson,

the Louisiana Supreme Court considered whether an employee was constructively

discharged in a case involving age discrimination. It noted that a constructive

discharge occurs when an employee quits his job under circumstances that are

treated as an involuntary termination. It further stated that making a determination

of a constructive discharge requires that a “reasonable employee” test be

employed. 225 So.3d at 432. The “reasonable employee” test is an objective test

of whether a reasonable person in the employee’s shoes would have felt compelled

to resign. Id.

Considering the circumstances of the present case and applying a reasonable

employee test, we find that the Board committed manifest error in finding that Mr.

Voltolina’s retirement was voluntary. The record shows that representatives of the

20-CA-151 8 City signed a Personnel Action Form on August 24, 2018, indicating that Mr.

Voltolina was retiring effective August 28, 2018. According to Mr. Voltolina, he

made no request to retire and was unaware of the City’s plan to “retire him” until

he received a call from FRS on August 25, 2018, indicating that he was retiring

and needed to fill out paperwork. Mr. Voltolina stated that he received a pre-

completed retirement form on August 29, 2019 indicating that he was retiring as of

August 28, 2018 at 11:59 p.m. Mr. Voltolina signed the form agreeing to retire

which would allow him to continue receiving his medical benefits, but he wrote

“under duress,” next to his signature. That same day, he wrote to the FRS, stating,

“as of this day, I was informed that I was being forced into retirement. Please

accept this as my official letter, under duress, of retirement.”

Based on our review, it is clear that a reasonable employee in Mr.

Voltolina’s shoes would have felt compelled to retire, and his retirement was not

voluntary. We find the Board was manifestly erroneous in finding that Mr.

Voltolina voluntarily retired. Thus, because Mr. Voltolina did not voluntarily

retire, we find that Mr. Voltolina is entitled to an appeal of the City’s refusal to

allow him to return to work as an Assistant Fire Chief. Accordingly, we affirm the

judgment of the district court insofar as it reversed the Board’s dismissal of Mr.

Voltolina’s appeal and remanded to the Board for further proceedings. Although

we agree that Mr. Voltolina’s appeal must be reinstated, we offer no opinion as to

the merits of Mr. Voltolina’s appeal.

DECREE

For the foregoing reasons, we affirm the district court’s judgment reversing

the Board’s dismissal of Mr. Voltolina’s appeal, and we remand this matter to the

AFFIRMED; REMANDED

20-CA-151 9 SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

MARY E. LEGNON FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON SUSAN BUCHHOLZ STEPHEN J. WINDHORST FIRST DEPUTY CLERK HANS J. LILJEBERG JOHN J. MOLAISON, JR. FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX www.fifthcircuit.org

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY DECEMBER 2, 2020 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

20-CA-151 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) HONORABLE GLENN B. ANSARDI (DISTRICT JUDGE) BLAKE J. ARCURI (APPELLEE) LAURA C. RODRIGUE (APPELLEE) C. A. FLEMING, III (APPELLANT) EDWARD S. RAPIER (APPELLANT) JOYCE S. SALLAH (APPELLANT)

MAILED ERIC A. MUND (APPELLANT) JENNIFER T. HUNGERMAN (APPELLANT) ATTORNEYS AT LAW CITY OF KENNER CITY ATTORNEY'S OFFICE 1801 WILLIAMS BOULEVARD BUILDING C, SUITE 300 KENNER, LA 70062