Perry v. Dep't of Law

243 So. 3d 118
Louisiana Court of Appeal·Decided April 4, 2018·No. NO. 2017–CA–0787·Published·Cited by 1 cases

Opinion

JAMES F. MCKAY III, CHIEF JUDGE

Plaintiff, Dr. Lucille Perry ("Dr. Perry"), appeals the May 30, 2017 ruling of the Civil Service Commission for the City of New Orleans ("CSC"), which determined that Dr. Perry was not owed any back pay upon her reinstatement to employment due to an offset from her interim earnings. Finding no error in the CSC's ruling, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

The facts of this case are taken from the appeal Perry v. City of New Orleans , 2011-0901, pp. 1-4 (La. App. 4 Cir. 2/1/12), 104 So.3d 453, 454-55. (" Perry I ").

Appellant [Dr. Perry] began working for the City of New Orleans, Department of Health, as a classified employee with permanent status beginning April 17, 1988, with the class code C5317 and the title of "Senior Environmental Technician." Subsequently, Appellant's class code was changed to C5311, titled "Environmental Tech 1" and then to an "Environmental Specialist III." According to Appellant's testimony, her job duties included handling "crisis cases" with the housing and health inspectors, typically involving elderly abuse, abandoned children, and other social issues. (footnote omitted).
*119On March 30, 1998, Appellant was transferred from the Department of Health to Municipal Court, with the new classified position of "Medical and Social Services Coordinator," class code C0295. Appellant's workplace also changed from City Hall to Municipal Court, and her new Appointing Authority was George P. Wells, the Municipal Clerk of Court. Appellant worked in victim services in connection with domestic violence cases and held the title "Victim Services Coordinator."
On January 6, 2003, Appellant's supervision shifted from Municipal Court to the Department of Law. According to Appellant's testimony at the hearing, the determination was reached that it was a conflict of interest for the Victim Services Coordinator to be within Municipal Court because it could reflect a potential bias of the court; therefore, the position was transferred to the Department of Law. Appellant asserts that her job duties remained the same. According to the Civil Service Commission's decision, the need for the administrative transfer was precipitated by a change in funding, as the salary for Appellant's position was funded by a grant which was transferred from the budget of the Municipal Court to the Department of Law.
Also on this date, January 6, 2003, a transfer document was executed, wherein Appellant's civil service status was changed from classified to unclassified, with the new job title of "Asst. Attorney I." According to the testimony of the human resources director/legal budget and finance manager, Vanessa Caliste Swafford, "Attorney I" was a newly created position under class code U0020AA ("U" representing "unclassified"). Appellant denies ever seeing this transfer document and submits that her actual job duties never changed. There is no provision for an employee signature anywhere on the transfer document. (footnotes omitted).
On April 1, 2007, Appellant's position was changed within the Department of Law to the position of "Urban Policy Specialist," class code U0167.
In the fall of 2008, Appellant was disciplined for an incident that occurred in Municipal Court on July 31, 2008, between Appellant and a Municipal Court Judge. As a result of this incident, Appellant was suspended for one week without pay, and received a disciplinary letter dated September 10, 2008, from City Attorney Penya Moses-Fields. The disciplinary letter included the language: "Lastly, as a reminder, members of the unclassified staff serve at the pleasure of the Administration...." Appellant signed the letter in the receipt/acknowledgement section, which was dated September 10, 2008. Appellant did not appeal her discipline.
Appellant continued to work in the Department of Law. On January 27, 2010, Appellant received a letter of termination from City Attorney Penya Moses-Fields, her Appointing Authority, advising of the lack of funding for her position and her termination date of February 12, 2010. Appellant asserts that this was the first time she learned that her position was unclassified.
Appellant appealed her termination, and the Appointing Authority filed a Motion for Summary Disposition. On June 21, 2010, the Civil Service Commission issued an order stating that the matter would be referred to the Hearing Examiner "for the purpose of engaging in fact-finding regarding Appellant's appointment to and official status in the classified service during the term of her employment with the City of New Orleans and the facts and propriety of the changes made thereto." The order further *120provided that upon issuance of the Hearing Examiner's report, the matter would be re-submitted to the Civil Service Commission.
On August 19, 2010, the Hearing Examiner conducted a fact-finding hearing. On January 17, 2011 the Hearing Examiner issued a report recommending that Appellant's appeal should be denied. In the report, the Hearing Examiner determined that Appellant never questioned her status as an unclassified employee until after she received notice of her termination, and that evidence was presented of Appellant's actual knowledge of her unclassified status via the September 10, 2008 disciplinary letter, which was signed by the Appellant and was not appealed. The Hearing Examiner noted that Appellant testified that she did not notice the mention of her unclassified status in the disciplinary letter and insisted that she was unaware of her unclassified status until she received notice of her termination. The Hearing Examiner concluded that because all positions within the Law Department are unclassified, Appellant knew or should have known that her position was unclassified prior to her termination.
On May 4, 2011, the Civil Service Commission denied Appellant's appeal with written reasons substantially similar to those detailed by the Hearing Examiner. This appeal followed.

In Perry I , this Court reversed the CSC, finding that Dr. Perry was wrongfully deprived of her classified civil service status without due process. Id. at p. 7, 104 So.3d at 457. Citing La. R.S. 49:1131 , we further stated that Dr. Perry "shall be entitled to reinstatement effective February 12, 2010, with all emoluments, and is also entitled to full back pay with a set-off for any wages earned in private employment ." (emphasis added). Id. at p. 8, 104 So.3d at 458.

The matter was remanded to the CSC to determine the amount of back pay owed Dr. Perry after considering any wages and salaries earned in private employment during the period of separation.2 Id. at p. 10, 104 So.3d at 458.

Free access — add to your briefcase to read the full text and ask questions with AI

Perry v. Dep't of Law, 243 So. 3d 118 (La. Ct. App. 2018).

243 So. 3d 118 (Perry v. Dep't of Law) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related