YOLANDA MOTON * NO. 2022-CA-0747
VERSUS * COURT OF APPEAL SEWERAGE & WATER * BOARD OF NEW ORLEANS FOURTH CIRCUIT * STATE OF LOUISIANA *******
APPEAL FROM CITY CIVIL SERVICE COMMISSION ORLEANS NO. 9222 C\W 9223, 9224 ****** Judge Roland L. Belsome ****** (Court composed of Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge Tiffany Gautier Chase)
Yolanda Moton 340 Travis Drive Avondale, LA 70094
COUNSEL FOR PLAINTIFF/APPELLANT
Benjamin Landau-Beispiel MaryJo L. Roberts THE KULLMAN FIRM 1100 Poydras Street, Suite 1600 New Orleans, LA 70163
COUNSEL FOR DEFENDANT/APPELLEE
AFFIRMED MAY 10, 2023 RLB This appeal arises from a Civil Service Commission (“CSC”) decision. Ms.
JCL Yolanda Moton (“Moton”) appeals the CSC’s January 24, 2022 decision, which
TGC denied her appeals regarding her demotion by the Sewerage & Water Board of
New Orleans (“S&WB”).1 For the reasons that follow, this Court affirms the
CSC’s decision.
FACTUAL AND PROCEDURAL BACKGROUND
Moton was initially hired by S&WB in 2018 as a paralegal in the legal
department, and gained permanent employee status in that position later that same
year. On October 28, 2019, Moton was promoted to a Management Development
Specialist II in S&WB’s Support Services Department (“Support Services”).
Moton’s position in Support Services was probationary, and subject to a working
test period of one year, ending on October 27, 2020. Mr. Terrance Wills (“Wills”)
was Interim Director of Support Services and was Moton’s direct supervisor.
On October 10, 2020, S&WB demoted Moton back to her position as a
paralegal in the legal department.2 The parties dispute the factual circumstances
that led to Moton’s demotion, and the cause.
1 The CSC also denied Moton’s motion for rehearing on January 18, 2022.
1 Disputed Facts
At the CSC hearing, Wills testified to a series of incidents Moton was
involved in which led to him recommending her demotion. Wills recounted an
incident in December 2019, in which he personally overheard Moton compare
S&WB’s Central Yard facility to Angola Penitentiary. Wills explained that Central
Yard employs formerly incarcerated individuals and is predominately African
American. Wills stated that he found the comment offensive and demeaning to
Central Yard employees, even if it was intended as a joke. Wills met with John
Wilson (Director of Support Services at the time) regarding the comment, and
testified that he and Wilson later met with Moton to address the issue, advising her
to be more mindful of her demeanor in the office. Wills testified that they informed
Moton that this meeting was a counseling session, but that it was not S&WB
practice to enter it into Moton’s personnel file.
Wills said that Moton was pleasant and cooperative following this meeting,
but that in 2020, after the Covid-19 pandemic began, “things, kind of, got a little
dicey.” Wills testified to having received several complaints from other employees
regarding Moton’s aggressive nature and inappropriate comments, which led to
another informal meeting with Moton held on August 10, 2020.
Wills next described a meeting with Moton which occurred on September
22, 2020.3 Wills explained that this meeting was initially scheduled in response to
2 See Civil Service Rule VII, Section 1.5 (allowing employees with permanent status in another
position to return to that position when they are removed from a promotional position during their probationary test period). 3 At the hearing, Wills inaccurately refers to some of these events, such as the September 22,
2020 meeting, as occurring in August. However, he later testified that the meeting occurred in September, as reflected in the memorandum he authored recommending her demotion. Moton also acknowledges that the meeting occurred in September, both in her request for a CSC appeal and in her testimony at the hearing.
2 Moton’s action on September 3, 2020, in which she scheduled a meeting with
himself and Robert Turner, Jr. (S&WB’s General Superintendent at the time),
without Wills’ knowledge. Wills said that this action circumvented the chain of
command at S&WB, and that when he informed Turner that he was unaware of the
subject of the meeting he was told that Turner would have the meeting cancelled so
that Wills could meet with Moton first. Wills attempted to contact Moton regarding
the meeting, but she was unresponsive. Wills also testified that around this same
time, Moton failed to complete an assignment due on September 9, 2020.4
Wills explained that, due to a storm, he was unable to meet with Moton
regarding these two issues (the meeting Moton scheduled with Turner, and her
failure to complete an assignment) until September 22, 2020.5 Wills testified that
Moton at first seemed “reluctant” at the meeting, but that when he asked her why
she was not comfortable bringing her issues to him, she “got a little more relaxed”
and admitted that she felt they were “not on the same page.” In particular, Wills
recounted that Moton complained about his failure to schedule a meeting between
himself, Moton, and two other S&WB employees (Alana Jones and Kathy Adams),
regarding a grievance filed against Moton by one of the employees (Adams). Wills
said that he explained to Moton that, per S&WB’s procedure, the grievance had to
proceed through the immediate supervisor, Alana Jones. Wills recalled that once
this was explained to her, Moton seemed satisfied. However, when he asked if she
had any other issues, Wills said that Moton complained about the building’s air
4 Both Wills and Moton testified that Moton was out sick the day the assignment was due.
However, Wills noted that the assignment was given to Moton on August 31, 2020, over a week before. 5 See footnote 3.
3 conditioning control unit (the thermostat) being locked.6 Wills said that Moton
“felt like that was personal”, and said that he reassured her that it was not. Wills
testified that he also discussed the missed assignment with Moton at the meeting,
and that she agreed with and understood what was expected of her in the future.
Wills said that, at the conclusion of the September 22 meeting, he asked
Moton if she still felt she needed to speak with Turner, and that she responded “no,
honestly, I am good . . . I just felt like we were on different pages, but I see that it
was just a misunderstanding.” Wills noted that he “actually walked away from the
meeting feeling very positive about that particular meeting” and about “continuing
the relationship that we had.”7
However, the very next day, another incident with Moton occurred which
Wills described as “the last straw.” According to Wills, he received a phone call
from Moton on the afternoon of September 23, 2020, complaining again about the
building’s air conditioning. “[S]he was just irate. Immediately on the phone, she’s
yelling, making accusations, saying things, such as, you are allowing your staff to
dictate and control who gets air.” Wills said that Moton told him that another
employee, Alana Jones, was unwell as a result of the heat and about to pass out.
Wills testified that after repeatedly advising Moton to calm down and stop yelling,
he promised to have a building maintenance employee check on the thermostat and
6 Wills explained that the building’s air conditioning unit was “not a house unit where you can
just continue to adjust the thermostat . . . it was recommended that we have [it set to] a certain temperature . . . A post-it note was put on side of the thermostat stating this, stating that it must stay at this [temperature,] with my name on it. It was being ignored.” 7 Wills testified repeatedly that, prior to these events, he felt that he had a good relationship with
Moton, a relationship which was formed before she was even made a part of the Support Services Department. In fact, Wills testified that when Moton first became interested in working in Support Services, it was he who she approached about the position, and that he interviewed her and later recommended her for the job (Wills’ signature also appears on the paperwork for Moton’s requisition by Support Services).
4 authorized Moton to call an ambulance for Jones if needed, but that Moton told
him that was unnecessary. Wills testified that after the phone call with Moton, he
called Jones to check on her and that she denied she was about to pass out. Wills
said he offered both Moton and Jones the ability to leave and work from home if
the heat was unbearable, but that Jones told him she could deal with the heat. Wills
recounted that he travelled to the office himself to check on the situation, and
found the thermostat set to 70 degrees and the air conditioning functioning, but
ordered the unit to be inspected by a vendor for leaks or any other problems. Wills
also testified that, prior to his departure, Moton apologized to him and explained
she was just frustrated.
Wills explained that he considered Moton’s behavior and tone in the
September 23, 2020 phone call to be inappropriate, and insubordinate. Wills
testified that it was at this point that he decided Moton should not remain
employed at Support Services. After consulting with S&WB’s Employee Relations
Department about the required procedure for demoting an employee on
probationary status in a promotional position, he prepared a memorandum
recommending Moton not be given a permanent position in Support Services. That
memorandum, dated October 1, 2020, documented the various incidents involving
Moton throughout her time at Support Services, albeit in less detail than as
described in Wills’ testimony. The memorandum concluded that “[t]his type of
behavior is not conducive to the forward progress we are attempting to make at
Support Services. At this time, it appears that Support Services is not a good fit for
Ms. Moton.” Moton’s demotion was approved by Employee Relations, and she
was notified of her demotion on October 9, 2020.
5 As previously noted, Moton has a very different view of the factual
circumstances that led to her demotion. Moton flatly denies that she was ever
counseled about or had a meeting regarding her demeanor. Moton does
acknowledge the September 22, 2020 meeting with Wills, but testified that she
could not remember the gist or context of that conversation. Moton also
acknowledged the incident of September 23, 2020, when she called Wills
regarding the building’s air conditioning. Moton spoke at length about the office
building’s air conditioning unit and who had access to it; however, she denied
apologizing to Wills regarding her demeanor during the call.
Moton alleges that she was demoted because she was a whistleblower within
S&WB. Moton testified that sometime prior to September 2, 2020, she had
requested an internal audit of one of S&WB’s vendors, Southern Tire, which she
believed may have been overcharging S&WB. Moton also said that, since filing
her CSC appeal, she has been contacted by the Office of the Inspector General
regarding this audit. Moton was unable to definitively say that Wills became aware
of this audit request prior to her demotion; rather, Moton testified that Wills
“probably” became aware of the audit request on September 3, 2020, pointing to
the fact that Wills documented that date regarding her failure to follow the chain of
command (her attempt to schedule a meeting with Turner).
Moton also testified that she was eventually able to meet with Turner on
October 1, 2020. Moton alleged in her appeal, and testified, that she contacted
Turner regarding Wills’ failure to follow S&WB’s take-home vehicle policy,
potential payroll fraud, and dishonesty regarding certain contracts and vendors.8
8 This testimony, however, was not consistent with prior testimony in which Moton stated that
she could not recall specifically what she told Turner about Wills.
6 However, Moton’s testimony regarding the October 1, 2020 meeting was in
conflict with Turner’s, who testified that Moton’s primary issue at the meeting was
access to the building’s air conditioning control.9 Importantly, Turner testified that
he did not discuss the meeting or Moton’s complaints with Wills until October 16,
2020, over two weeks from when Wills drafted the memorandum recommending
her demotion.10
Procedural Background
Following her October 10, 2020 demotion, Moton timely filed three appeals
with the CSC, bearing docket numbers 9222, 9223, and 9224. Docket number 9222
is Moton’s general disciplinary appeal regarding her demotion; docket number
9223 alleged discrimination based on race, sex, and age; docket number 9224
alleged discrimination based on whistleblower activities. Prior to submission to the
CSC, Moton voluntarily dismissed her appeal alleging discrimination based on
race, sex, and age, bearing docket number 9223. Therefore, it is not before this
Court.
The CSC held a two-day hearing regarding Moton’s remaining two appeals,
bearing docket number 9222 (a general disciplinary appeal) and docket number
9224 (alleging whistleblower discrimination). On January 24, 2022, the CSC
issued a decision denying both appeals, finding that Moton had no right to a
9 Turner testified that “a number of other issues” were brought up in that meeting, including the
fact that Wills and his staff were working from home (as authorized by Turner), and issues with on-call pay. However, Turner testified that these additional issues were “mostly general things with not a whole lot of detail”, and does not even mention Moton bringing up issues regarding the take-home vehicle policy (which pre-dated Wills and was already being addressed), payroll fraud, or dishonesty regarding certain contracts and vendors. 10 This fact was corroborated by evidence (an electronic calendar entry), admitted at the CSC
hearing, showing that Turner had a meeting with Wills on that date.
7 general disciplinary appeal and had failed to carry her burden of proof as to
whistleblower discrimination. This timely appeal followed.
LAW AND ANALYSIS
Standard of Review
Decisions of the CSC are subject to this Court’s review to determine
whether they are arbitrary, capricious, or an abuse of discretion. Byrd v. Dep’t of
Police, 2012-1040, p. 9 (La. App. 4 Cir. 2/6/13), 109 So.3d 973, 980. Factual
findings of the CSC will not be set aside unless they constitute manifest error or
are clearly erroneous. Id. at p. 10, 109 So.3d at 980. Questions of law and
procedure are reviewed de novo. Id. Regarding mixed questions of law and fact,
this Court affords CSC decisions great deference. Orazio v. Dep’t of Police, 2019-
0230, p. 7 (La. App. 4 Cir. 6/19/19), 275 So.3d 340, 345.
CSC Appeal Docket Number 9222
In her first assignment of error, Moton contends that the CSC erred by not
finding that S&WB failed to provide sufficient notice of the grounds for her
demotion. The letter sent to Moton notifying her of the demotion, dated October 9,
2020, stated that based on her working test period, “Support Services has
concluded that you are not suitable for this position.” The letter also cited a Civil
Service Rule providing that an employee may be removed from their position at
the discretion of the employer if “the working test period indicates that (1) the
employee is unable or unwilling to perform his/her duties satisfactorily or (2)
his/her habits and dependability do not merit his/her continuance in the service.”
Rules of the Civil Service Commission for the City of New Orleans, Rule VII,
8 Section 1.1. Thus, S&WB properly notified Moton of the grounds for her
demotion.
Conversely, Moton argues that S&WB’s admitted failure to
contemporaneously document the incidents leading to Wills recommending her
demotion violates certain S&WB policies, and/or that S&WB’s notice was
insufficient because it failed to include Wills’ memorandum recommending her
demotion. However, because we find Moton has no right to a general disciplinary
appeal, we need not reach the merits of this assignment of error.
As previously discussed, Moton’s position in Support Services was
probationary, subject to a one-year working test period ending on October 27,
2020.11 The Civil Service Rules provide that “[r]egular employees in the classified
service shall have the right to appeal disciplinary actions to the [CSC].” Rules of
the Civil Service Commission for the City of New Orleans, Rule II, Section 4.1.
Because Moton was demoted prior to the end of her working test period, she was
not yet a “regular employee” 12 in her position in Support Services, and had no
right to a general disciplinary appeal of her demotion. Balancier v. Sewerage &
Water Bd. of New Orleans, 2022-0255, p. 4 (La. App. 4 Cir. 10/19/22), 351 So.3d
439, 443 (probationary employees have no right of appeal) (citing Harness v. New
Orleans Recreation Dev. Comm’n, 2017-0107, p. 3 (La. App. 4 Cir. 6/14/17), 222
So.3d 820, 822); see also Bordelon v. Dep’t of Police, 389 So.2d 905, 906 (La.
App. 4th Cir. 1980) (holding that civil service employee who had gained
11 See Rules of the Civil Service Commission for the City of New Orleans, Rule VII, Section 1.1
(“[e]very person appointed to a position in the classified service . . . shall be tested by a working test while occupying the position.”) 12 “Regular employees” is defined in the Civil Service Rules as “an employee who has been
appointed to a position in the classified service . . . and who has completed the working test period.” Rules of the Civil Service Commission for the City of New Orleans, Rule I, Section 1.64; also La. R.S. 33:2393(27) (same).
9 permanent status in one position but who was probationary in a promotional
position had no right to appeal demotion from the probationary promotional
position).
We find that Moton had no right to appeal her demotion from her
probationary promotional position in Support Services. Accordingly, the CSC’s
dismissal of that appeal, bearing docket number 9222, is hereby affirmed.
CSC Appeal Docket Number 9224
While probationary employees in the civil service ordinarily have no right to
appeal, the Constitution demands an exception for those employees alleging they
were subject to discipline as a result of discriminatory animus. La. Const. art. X, §
8(B). This holds true whether the employee in question is claiming discrimination
based on race, sex, or age, or whether the employee claims to have been subjected
to discipline due to whistleblowing activity. Moore v. New Orleans Police Dep’t,
2001-0174, p. 7 (La. App. 4 Cir. 3/7/02), 813 So.2d 507, 511; Rules of the Civil
Service Commission for the City of New Orleans, Rule II, Section 10.1.
As previously noted, Moton argued before the CSC and argues to this Court
that she was demoted due to whistleblower discrimination. Specifically, Moton
argues that Wills recommended her demotion because (1) she requested an internal
audit of one of S&WB’s vendors (Southern Tire); and/or (2) due to her October 1,
2020 meeting with Turner, in which she raised certain issues regarding Wills. Civil
Service Rule II, Section 10.1, provides in pertinent part that:
No employee shall be subjected to discipline or discriminatory treatment by an appointing authority because he or she gives information, testimony or evidence in a prudent manner to appropriate authorities concerning conduct prohibited by law or regulation which
10 he or she reasonably believes to have been engaged in by any person(s).
In that portion of the decision denying Moton’s whistleblower appeal, the CSC
found that Moton failed to carry her burden of proving the factual basis for the
alleged discrimination. This Court agrees.
Regarding Moton’s request for an internal audit of Southern Tire, Moton
was unable to offer any proof that Wills was even aware of the audit request prior
to recommending her demotion. In fact, Moton herself was unable to testify
definitively as to when, or even if, Wills learned of her request; instead, Moton
testified that Wills “probably” became aware of the audit request the day after she
made it, pointing to an entry in Wills’ memorandum dated that day, which
described Moton’s attempt to schedule a meeting with Turner without Wills’
knowledge. However, mere speculation as to Wills’ knowledge of the audit request
is insufficient to carry Moton’s burden.
Regarding her October 1, 2020 meeting with Turner, Moton was similarly
unable to show that Wills was aware that it occurred prior to recommending her
demotion. Moton relies primarily on the fact that Wills’ memorandum
recommending her demotion was sent on the same day as her meeting with Turner,
October 1, 2020. However, Wills testified that he began drafting that memorandum
over a week prior, immediately following the “last straw” phone call he had with
Moton relating to the building’s air conditioning. Additionally, Turner himself
testified that he did not inform Wills of the October 1 meeting until October 16,
2020, weeks after Wills recommended Moton’s demotion. Even setting aside
Turner’s testimony, “[t]iming of the dismissal alone is insufficient to carry the
employee’s burden of proof. Employee fault may be a sufficient independent basis
11 for termination coincident with the employee’s [protected activity].” Hansford v.
St. Francis Med. Ctr., Inc., 43,984, p. 5 (La. App. 2 Cir. 1/14/09), 999 So.2d 1238,
1242 (citation omitted).
Finally, in Moton’s second assignment of error, she argues that “the [CSC]
erred in overruling the Hearing Examiner Report which was overwhelmingly
favorable to Appellant, Yolanda Moton.” However, this assignment of error also
lacks merit, as the CSC “is not bound to accept the hearing examiner’s factual
determinations and recommendation.” Jenkins v. New Orleans Police Dep’t, 2022-
0031, p. 2 (La. App. 4 Cir. 6/22/22), 343 So.3d 238, 240 n.4 (quoting Saacks v.
City of New Orleans, 95-2074, p. 20 (La. App. 4 Cir. 11/27/96), 687 So.2d 432,
444). Additionally, the Hearing Examiner’s recommendation in this case relied on
the erroneous finding that Wills’ memorandum recommending Moton’s demotion
was prepared over five weeks after the “last straw” phone call, when in fact it was
begun immediately following that incident (which occurred on September 23,
2020) and completed the following week (on October 1, 2020).13 Thus, this Court
finds no manifest error in the CSC’s finding that Moton failed to carry her burden
of proof as to whistleblower discrimination.
CONCLUSION
For the foregoing reasons, the CSC’s decision denying Moton’s appeals was
neither arbitrary, capricious, nor an abuse of discretion. Accordingly, it is hereby
affirmed.
AFFIRMED
13 See footnote 3. Wills inaccurately testified that the “last straw” phone call with Moton
occurred on August 23, 2020, though he later testified that it occurred on September 23, consistent with the memorandum he prepared recommending her demotion. Moton also acknowledged in her testimony that the phone call took place in September.