ROLAND L. BELSOME, Judge.
Plaintiff-Appellant, Dr. Lucille Nobile Perry, appeals the denial of her appeal by the Civil Service Commission. For the reasons that follow, we reverse and remand.
Appellant 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.
On 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."
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 provided 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.
Appellate courts review factual findings in a civil service case under the manifest error or clearly erroneous standard. Russell v. Mosquito Control Bd., 2006-0346, p. 7 (La.App. 4 Cir. 9/27/06),
Appellant asserts five assignments of error for our review. First, Appellant argues that the Civil Service Commission erred in failing to find that the 2003 transfer from classified to unclassified service was an illegal taking of a property right; second, that the Commission erred in failing to find that Appellant never lost her classified status; third, that the Commission erred in failing to return Appellant to her classified position with full back pay, attorneys' fees, and all emoluments; fourth, that the Commission erred in failing to follow the June 21, 2010 order; and fifth, that the Commission erred in failing to follow Rule VIII, Section 6.1.
In essence, Appellant submits that she was arbitrarily removed from classified service to unclassified service without her knowledge and without cause or due process, as she was effectively terminated from her classified position. Appellant testified at the hearing that she was never notified nor signed any document advising her that her position was being changed from classified to unclassified service, and that her job duties did not change. The record is void of any documentation that Appellant was ever notified of the change from classified to unclassified service.
The City argues that Appellant understood that her position had been funded by a grant, the funding for which expired. The City also submits that the evidence, particularly Appellant's handwritten statement made in her final Department of Health evaluation,
The Louisiana Supreme Court has recognized that pursuant to Cleveland
It follows that "[s]ince the rights discussed in Loudermill, supra, are procedural due process rights, [classified employees] are afforded protection in a wide variety of situations and not just in the case of disciplinary actions." New Orleans Ass'n of Firefighters Local 632 v. Civil Serv. Comm'n of City of New Orleans, 495 So.2d 958, 962 (La.Ct.App.1986) writ denied sub nom., New Orleans Ass'n of Firefighters Local No. 632 v. Civil Serv. Comm'n of City of New Orleans, 499 So.2d 84 (La.1987). Likewise, "the predicate for requiring a governmental entity to comply with the rudiments of procedural due process is a determination that some constitutional interest is at stake." Id. (citing Stana v. School District of the City of Pittsburgh, 775 F.2d 122 (3rd Cir.1985)). In this case, Appellant's "constitutional interest at stake is [her] property right of classified civil service status." See New Orleans Ass'n of Firefighters Local 632, 495 So.2d at 962 (citing Loudermill, supra; Bell, supra).
Considering the foregoing, we find that Appellant was wrongfully deprived of her classified civil service status without due process. As a permanent classified employee, Appellant could be removed from classified status only for cause expressed in writing. See La. Const. art. X, § 8(A); Bannister v. Dep't of Streets, 95-0404 (La.1/16/96), 666 So.2d 641, 647. "The purpose of requiring cause expressed in writing is to apprise the employee in detail of the grounds upon which the dismissal is based and to limit any subsequent proceedings to the stated grounds." Allen v. Dep't of Police, 2009-0589, pp. 3-4, (La. App. 4 Cir. 11/12/09), 25 So.3d 966, 969, writ denied, 2009-2714 (La.2/26/10), 28 So.3d 273 (quoting Lemoine v. Dep't of Police, 348 So.2d 1281, 1283 (La.App. 4th Cir.1977)). Appellant was terminated from her classified position without due process; thus, her termination from classified service was illegal.
Although Appellant may have known of her change in status prior to 2008, as the City argues, no evidence in the record exists to support such an assertion. Furthermore, Appellant's alleged notice of her unclassified status in the 2008 letter was irrelevant, because the removal of her from her classified service in 2003 without due process was effectively an illegal discharge. This Court has recognized that the Civil Service Commission "may reinstate[] with full back pay and benefits" an employee who has been "wrongfully deprived of [her] position." New Orleans Ass'n of Firefighters Local 632, 495 So.2d at 963; see also Blappert v. Dep't of Police, 94-1284, p. 6 (La.App. 4 Cir. 12/15/94), 647 So.2d 1339, 1343 ("It is well established that a wrongfully discharged civil service employee is entitled to reinstatement with
Accordingly, Appellant 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:
La. R.S. 49:113 (emphasis added); see also Perkins v. Sewerage & Water Bd., 95-1031 (La.App. 4 Cir. 2/29/96), 669 So.2d 726, 728-29.
Appellant also argues that the Commission erred in failing to grant attorneys' fees. However, Appellant does not direct this Court to any particular statute or rule which would allow attorneys' fees to be awarded under these facts.
For the foregoing reasons, the Civil Service Commission's decision is reversed, and the Civil Service Commission is ordered to reinstate Appellant to her classified position, with full back pay and all emoluments, and with an effective date of February 12, 2010. The matter is hereby remanded for proceedings to determine the amount due Appellant for back pay after taking into consideration any wages and salaries earned by Appellant in private employment in the period of separation after Appellant's termination date of February 12, 2010.
ROLAND L. BELSOME, Judge.
We grant rehearing to clarify an issue raised in the City of New Orleans' application.
REHEARING GRANTED.
BONIN, J., dissents from grant of rehearing.