Nunez v. Jefferson Parish Department of Parks & Recreation

79 So. 3d 337, 10 La.App. 5 Cir. 787, 2011 La. App. LEXIS 374, 2011 WL 1135340
CourtLouisiana Court of Appeal
DecidedMarch 29, 2011
DocketNo. 10-CA-787
StatusPublished

This text of 79 So. 3d 337 (Nunez v. Jefferson Parish Department of Parks & Recreation) 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
Nunez v. Jefferson Parish Department of Parks & Recreation, 79 So. 3d 337, 10 La.App. 5 Cir. 787, 2011 La. App. LEXIS 374, 2011 WL 1135340 (La. Ct. App. 2011).

Opinions

WALTER J. ROTHSCHILD, Judge.

12John M. Nunez, Jr. seeks review a ruling of the Jefferson Parish Personnel Board which granted the Appointing Authority’s Motion to Dismiss his appeal of an action reassigning him to another position. For the reasons stated herein, we affirm.

On September 30, 2009, John Nunez, who is employed as a playground supervisor by the Jefferson Parish Department of Parks and Recreation, filed a Petition for Appeal following his September 2, 2009 reassignment to another playground within the department. By this appeal, Mr. Nunez alleged that he was entitled to whistle-blower protection for cooperating with a criminal investigation. He sought reas[339]*339signment back to his original position at Girard Playground.

On December 23, 2009, the Appointing Authority, Jefferson Parish Department of Parks and Recreation, filed a Motion to Dismiss on the basis that Mr. Nunez failed to plead his case with specificity according to the personnel rules. This matter was heard on January 12, 2010, and the hearing [^officer for the Personnel Board determined that the specificity requirements contained in the personnel rules did not apply to Mr. Nunez’s claim. The Motion to Dismiss was thus denied on February 18, 2010, and the matter was reset for trial on the merits.

On May 10, 2010, the Appointing Authority filed a second Motion to Dismiss, on the basis that Mr. Nunez failed to mitigate his damages by refusing an unconditional offer to transfer him to one of two playgrounds on the East Bank of Jefferson Parish. The merits of the appeal were heard before the hearing officer for the Personnel Board on May 25, 2010. During this hearing, counsel for Mr. Nunez asserted a motion to recuse the hearing officer and the motion was denied. Counsel for Nunez requested a stay to allow him to seek review of the ruling, but the hearing officer denied the request for a stay.

The trial proceeded as scheduled and Mr. Nunez was called as a witness by the Appointing Authority. He testified that he was employed by the Jefferson Parish Recreation Department for 13 years. He had been assigned for many years to Gir-ard Playground, which was in close proximity to his house, and his arrival time each day was set at 6 p.m. He stated that in September of 2009, he was transferred to Rose Thorne Playground in Lafitte which was almost 30 miles from his house and he was required to arrive at 5 p.m. He testified that this assignment resulted in an extreme hardship to him.

Mr. Nunez admitted that he received correspondence in May 2010 from C.J. Gibson, the director of the department, indicating that Mr. Nunez could be reassigned to Lakeshore Playground or Pontiff Playground, which were each approximately 7 miles from his house. Mr. Nunez also admitted |4that all employees except one had been transferred from Girard Playground at the same time as Mr. Nunez.

The Appointing Authority submitted into evidence the letter from Mr. Gibson offering Mr. Nunez a transfer to a playground closer to his home. The hearing officer then took the matter under advisement and allowed the parties to submit memos. The hearing officer then stated that the parties were in settlement negotiations and that he would continue the hearing to be reset at a later date. At this time, the Appointing Authority indicated that the positions at Lakeshore and Pontiff Playgrounds were still open and would be available to Mr. Nunez for two weeks.

Following the hearing, Mr. Nunez filed into the record several subpoena requests, and the Appointing Authority filed a Motion to Quash the requests. Further, C.J. Gibson, the Director of Jefferson Parish Parks and Recreation, sent correspondence dated June 3, 2010 to Mr. Nunez reiterating the unconditional offer of a transfer in position. The record also contains a letter dated June 7, 2010 from counsel for Mr. Nunez to counsel for the Appointing Authority indicating that Mr. Nunez was willing to accept the offer of a position at Lakeshore Playground, but that he would not agree to dismiss his case “until it can be resolved as to the remaining issues.”

Thereafter, the parties filed supplemental memoranda in support of and in opposition to the Appointing Authority’s Motion [340]*340to Dismiss. On July 6, 2010, the hearing officer rendered judgment dismissing the matter as being moot. The judgment also stated that all rights in any other forum that Mr. Nunez may by law assert would be preserved. Mr. Nunez now appeals from this judgment on the basis of several assignments of error.

¡¡¡Applicable Law

A civil service employee is afforded protection in disciplinary actions, taken without cause, pursuant to La. Const. Art. 10 Sec. 8(A). Adams v. Jefferson Parish Dept. of Community Action Programs, 02-1090 (La.App. 5 Cir. 4/29/2003), 845 So.2d 1147; Lewis v. Jefferson Parish Dept. of Public Works, 99-16 (La.App. 5 Cir. 5/19/99), 761 So.2d 558, writ denied, 99-2906 (La.1/14/00), 753 So.2d 215.

In Jefferson Parish, an aggrieved public employee may apply to the Personnel Board for a review of discharge or disciplinary action, at which time the appointing authority bears the burden of proving legal cause. Adams, supra. The Personnel Board has a duty to decide, independently from the facts presented, whether the appointing authority has good and lawful cause for taking the action. La. R.S. 33:2561; St. Pe’ v. Jefferson Parish Dept. of Public Works-Drainage Pump Stations, 06-779 (La.App. 5 Cir. 3/13/07), 956 So.2d 623, 625. The rules of the Personnel Board indicate that decisions of the Board shall be subject to review by this Court on any question of law or fact. Rule 8.1.

On appeal, this Court should apply the clearly wrong or manifest error rule. Adams, supra. An appellate court review of an administrative decision is limited to a determination of whether the decision was made in good faith for legal cause; unless the record contains insufficient evidence to support the administrative decision or shows that the decision was clearly wrong, the decision must be affirmed. Adams, supra.

The Motion to Dismiss

Mr. Nunez first contends that the Personnel Board failed to give proper notice of the January 12, 2010 hearing on the Motion to Dismiss. 1 nFurther, appellant contends that the hearing officer improperly signed the Motion to Dismiss transmitted by facsimile setting the hearing for May 25, 2010. Appellant also contends that the hearing officer improperly denied Mr. Nunez’ subpoenas requested in connection with the hearing. Finally, Mr. Nunez contends that the hearing officer erred in granting the Motion to Dismiss.

Appellant contends that he failed to receive proper notice of the January 12, 2010 hearing on the Appointing Authority’s first Motion to Dismiss. However, the record in this case indicates that on December 29, 2009, the hearing officer scheduled the matter for hearing and faxed notice of the hearing to counsel for Mr. Nunez. Counsel for Mr. Nunez stated he did not receive the notice until January 8, 2010, but stated he was not requesting a continuance. The record indicates the hearing officer offered to continue the matter. Further, the record indicates the hearing officer ruled in favor of Mr. Nunez on this motion, and we therefore find no merit in appellant’s argument concerning a lack of notice of this hearing.

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Bluebook (online)
79 So. 3d 337, 10 La.App. 5 Cir. 787, 2011 La. App. LEXIS 374, 2011 WL 1135340, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nunez-v-jefferson-parish-department-of-parks-recreation-lactapp-2011.