NOT DESIGNATED FOR PUBLICATION
DANIEL L. DYSART, Judge.
Kathryn Norton seeks review of the decision of the Civil Service Commission (Commission) granting the motion for summary disposition by the appointing authority, the New Orleans Police Department (NOPD). She argues that the granting of the motion for summary disposition prevented her from having her termination reviewed by the Commission. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY:
The NOPD accepted Ms. Norton as a police recruit on November 23, 2008. On April 15, 2009, Ms. Norton was injured and was unable to complete the training course. Thereafter, the NOPD hired Ms. Norton as a police aide on May 6, 2009. She was demoted to Police Technician I on March 6, 2010, and was terminated due to budget constraints effective July 16, 2010.
Ms. Norton filed an appeal with the Commission, seeking to contest her termination. The NOPD filed a motion for summary disposition arguing that Ms. Norton was a probationary employee who was not entitled to an appeal with the Commission. The NOPD attached personnel information establishing the probationary status. Ms. Norton filed a memorandum in objection arguing that she was a civilian employee of the NOPD for more than one year prior to her termination on July 16, 2010. Ms. Norton submitted no documentation or affidavits with her memorandum.
The Commission granted the summary disposition finding that Ms. Norton was a probationary employee not entitled to appeal her termination to the Commission. From that judgment, Ms. Norton filed the instant appeal.
STANDARD OF REVIEW:
Except in cases of alleged discrimination, the burden of proof on appeal, as to the facts, shall be on the Appointing Authority under Civil Service Rule II, §4.4 and §4.8. In a civil service case, the appellate court's review of the findings of fact is governed by the manifest error or clearly erroneous standard. Terry v. Department of Police, 2008-1436, p.2 (La. App. 10/7/09), 23 So.3d 974, 975, citing Goins v. Department of Police, 570 So.2d 93 (La. App. 4 Cir. 10/30/90).
The Terry court further noted:
"Where the [Civil Service] Commission's decisions involve jurisdiction, procedure, and interpretation of laws and regulations, judicial review is not limited to the arbitrary, capricious, or abuse of discretion standard." Walton v. FrenchMarket Corporation, 94-2457, p. 3 (La.App. 4 Cir. 4/26/95), 654 So.2d 885, 887.
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A mixed question of fact and law should be accorded great deference by the reviewing court under the manifest error standard of review. Brasseaux v. Town of Mamou, 99-1584, pp. 7-8 (La. 1/19/00), 752 So.2d 815, 820-21.
"Except when there is an allegation of discrimination under Civil Service Rule II, § 4.6, there is no provision for appeal by a probationary employee." Walton, 94-2457, p. 3, 654 So.2d at 887.
Terry, 08-1436, p.2-3, 23 So.3d at 975-976.
In the present case, Ms. Norton does not allege any form of discrimination in her challenge to her termination. Therefore, unless Ms. Norton is determined to be a permanent employee, she has no right to appeal her dismissal. "The question whether an employee has the right to appeal is analogous to the question whether a plaintiff has a cause of action." Terry, 08-1436, p.3, 23 So.3d at 976.
DISCUSSION:
Ms. Norton contends that she obtained permanent status and is entitled to appeal her termination. She argues that her term of employment as a police aid should be combined with her term of employment as a Police Technician I. By combining those two terms of employment, she argues that she was employed more than one year. Thus, the Commission erred in granting the NOPD's motion for summary disposition because as a permanent employee she is entitled to appeal her termination.
In support of the motion for summary disposition, the NOPD submitted Ms. Norton's personnel information showing that Ms. Norton's probationary period was March 7, 2010, through March 6, 2011.
Only a permanent or regular employee has the right to appeal disciplinary action, including termination. A "regular" employee is distinguished from a "probational" employee based on whether the working test period is completed. Terry, 08-1436, p.4, 23 So.3d at 976. The civil service rules define a "regular employee" as "an employee who has been appointed to a position in the classified service in accordance with the Law and these Rules and who has completed the working test period." Civil Service Rule I, §1 (61). The rules define a "working test period employee" as "an employee who has been appointed to a position from an employment list, but who has not completed the working test period." The terms "probation period" and "probational employee" shall be considered identical with "working test period" and "working test employee." Civil Service Rule I, §1 (77).
As it pertains to the classified or civil service, La. R.S. 33:2417 provides in pertinent part:
Every person appointed to a position in the classified service ... shall be tested by a working test while occupying the position. The period of the working test shall commence immediately upon appointment and shall continue for the time, not less than six months nor more than one year, established by the director subject to the rules. At the times during the working test period and in the manner which the director requires, the appointing authority shall report to the director his observation of the employee's work, and his judgment as to the employee's willingness and ability to perform his duties satisfactorily, and as to his habits and dependability. At any time during his working test period, after the first two months thereof, the appointing authority may remove an employee if, in the opinion of the appointing authority, the working test indicates that (1) the employee is unable or unwilling to perform his duties satisfactorily or (2) his habits and dependability do not merit his continuance in the service. Upon the removal, the appointing authority shall forthwith report to the director and to the employee removed his action [sic] and the reason therefor.... The appointing authority may remove an employee within the first two months of his working test period only with the approval of the director. The director may remove an employee during his working test period if he finds, after giving him notice and an opportunity to be heard, that the employee was appointed as a result of fraud or error.
Ten days prior to the expiration of an employee's working test period, the appointing authority shall notify the director in writing whether the services of the employee have been satisfactory and whether he will continue the employee in his position. A copy of the notice shall be given to the employee ten days prior to the expiration of his working test period. Upon approval by the director of a favorable report, the appointment of the employee shall be complete at the expiration of the working test period. Failure by an appointing authority to give the ten days' notice to the director and a copy thereof to the employee shall have the same force and effect as a satisfactory report.
See also Civil Service Rule VII, § 1.1.
La. R.S. 33:2424 provides, in pertinent part:
Any regular employee in the classified service, subject to the provisions of this Part, or the rules made pursuant thereto, who deems that he has been removed, dismissed, retired, reduced in pay, demoted, subjected to a second suspension of sixty days or less without pay, or subjected to any other disciplinary action set out in R.S. 33:2423, without just cause, may, within sixty days of the action demand a hearing to determine the reasonableness of the action....
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The foregoing provisions of this Section shall not apply to temporary appointments as defined in R.S. 33:2419, and employees during their working test period as provided for in R.S. 33:2417.
Only regular employees in the classified service have the right to appeal disciplinary actions to the Commission. Civil Service Rule II, § 4.1. Article X, §8 of the Louisiana Constitution provides, in part:
No person who has gained permanent status in the classified state or city service shall be subjected to disciplinary action except for cause expressed in writing. A classified employee subjected to such disciplinary action shall have the right of appeal to the appropriate commission pursuant to Section 12 of this Part.
Article X, § 8 only refers to employees who have obtained permanent classified status. Thus, an employee who has not gained permanent status is not entitled to review of the Appointing Authority's disciplinary action.
Ms. Norton avers that there was no one-year working test period for the position of police aide. Thus, Ms. Norton concluded that she became a regular employee and obtained permanent status after she was employed as a police aide for six months. Ms. Norton argues that a police aide is not the equivalent of a police officer and in support of her argument cites Banks v. New Orleans Police Dept., 2001-0859, 2001-1302, (La. App. 4 Cir. 9/25/02), 829 So.2d 511, wherein this Court noted that "the one-year working test period for the classification of Police Officer I is the period when the Appointing Authority [NOPD] can observe a police officer's on-the-job performance of his duties or work in the field." Id., p.6, 829 So.2d at 516. Ms. Norton argues that when she was hired as a police aide, her six month working test period should be considered to have begun on May 6, 2009. Ms. Norton provided no documentation to support her conclusion that the working test period for a police aide is six months. Further, in Banks, this Court quoted from an NOPD recruitment announcement which stated, "[p]ositions in the Fire Department and Police Department as well as all positions in the classes of Administrative Analyst Assistant, Librarian I-IV, and Institutional Counselor I & II require a one year working test period." Id., p.4, 829 So.2d at 515. [Emphasis in original.]. We find no distinction in the length of the working test period of a police officer and police aide and Ms. Norton failed to submit proof that the working test period for a police aide is six months. Thus, we find no merit in Ms. Norton's argument that her position of police aide contained only a six month working test period.
Next, Ms. Norton argues that she was employed from a period beginning on May 6, 2009, until her termination on July 16, 2010, a period of 437 days. Thus, as she was employed by the NOPD for more than one year, she concludes that she had completed her working test period, became a regular employee, and obtained permanent classified status.
In response, the NOPD argues that Ms. Norton was not entitled to cumulate her time from two different positions to achieve completion of the working test period. In support of the argument, the NOPD cites this Court's decision in Terry, supra. Officer Terry worked for the City of New Orleans, Department of Public Works, as a parking control officer from April 29, 2007 through June 16, 2007. Terry, 08-1436, p.1, 23 So.3d at 975. During that time, Officer Terry was accepted as a police recruit at the police academy. Officer Terry completed the training and was promoted to Police Officer I status on April 2, 2008. On July 24, 2008, Officer Terry was terminated from the NOPD for improperly displaying her firearm while off-duty. Id. Officer Terry argued that her service as a parking control officer should be credited toward her working test period for the purpose of determining whether she achieved regular employee status. 08-1436, p.8, 23 So.3d 978. The Court noted that she had not completed her working test period for the parking control officer position. Id., 23 So.3d at 979. Further, the Court noted that the civil service job descriptions for the two jobs were distinct. The Court found that Officer Terry had not completed the working test period required of a Police Officer I to gain permanent regular employee status. The Court affirmed the ruling of the Commission granting the motion for summary disposition and dismissing Officer Terry's appeal. Id.
In her reply brief, Ms. Norton argues that unlike Officer Terry, she was employed by the NOPD without interruption for a period of 437 days. Ms. Norton's argument is flawed. Ms. Norton's employment as a police aide was interrupted by her demotion, prior to her completion of the working test period for a police aide. The NOPD then appointed Ms. Norton to a different position in the classified service, that of Police Technician I. Pursuant to La. R.S. 33:2417, Ms. Norton was then required to complete a working test while occupying the position of Police Technician I. The period of the working test commenced upon appointment to the position of Police Technician I, which was March 6, 2010.
The NOPD cites other cases in support of their argument against cumulation of service periods. In Pizzitolo v. Kenner Mun. Fire & Police, 445 So.2d 1306, 1307 (La. App. 5 Cir. 1984), Officer Pizzitolo completed his working test period and was employed by the Kenner Police Department for a few years. Officer Pizzitolo resigned for personal reasons. A few months later on April 9, 1980, the Kenner Police Department rehired Officer Pizzitolo. On October 30, 1980, the Kenner Police Department dismissed Officer Pizzitolo. Officer Pizzitolo argued that the working test period applied to only newly hired employees. Id. The court disagreed with Officer Pizzitolo's argument and held that the "working test" period, within the strict reading of this statute, applies to all classified employees, whether new hires, re-hires or transferred employees. Id., 445 So.2d at 1307-1308 (emphasis added.).
Similarly, in Dyer v. City of Oakdale, 542 So.2d 1138, 1139 (La. App. 3 Cir. 1989), an employee resigned after completing his working test period and was later rehired. Before completing the working test period after being re-hired, Mr. Dyer was fired. The court also found that the working test period applied to all classified employees, including re-hires, as well as new or transferred employees. Id., 542 So.2d at 1141.
Ms. Norton argues that those cases are distinguishable because she did not resign and return, but rather was employed by the NOPD for 437 days without interruption. However, Ms. Norton ignores the interruption resulting from her demotion from police aide to Police Technician I, prior to her completion of the working test period for police aide.
The NOPD notes that Ms. Norton failed to produce any documents such as a "certification after probation" to establish regular employee status. In her reply brief, Ms. Norton argues that the failure of the appointing authority cannot be attributed to her and pursuant to La. R.S. 33:2417, the NOPD's failure to issue such a notice must be construed as a "satisfactory report." Ms. Norton ignores pertinent language of La. R.S. 33:2417, which provides:
Ten days prior to the expiration of an employee's working test period, the appointing authority shall notify the director in writing whether the services of the employee have been satisfactory and whether he will continue the employee in his position. A copy of the notice shall be given to the employee ten days prior to the expiration of his working test period. Upon approval by the director of a favorable report, the appointment of the employee shall be complete at the expiration of the working test period. Failure by an appointing authority to give the ten days' notice to the director and a copy thereof to the employee shall have the same force and effect as a satisfactory report. [Emphasis added.].
The NOPD demoted Ms. Norton from police aide to Police Technician I on March 6, 2010. As the NOPD hired Ms. Norton on May 5, 2009, Ms. Norton needed to complete two more months of the working test period, and thus did not come within ten days of the expiration of the working test period. By statute, the NOPD was not required to notify the director of whether or not Ms. Norton's services had been satisfactory and whether she would be continued in her position. Indeed, Ms. Norton's services as a police aide were determined to be unsatisfactory and the NOPD determined that she would not continue in the position of police aide.
The record in this case demonstrates that Ms. Norton never completed the working test period required to gain permanent regular employee status in the civil service. Therefore, Ms. Norton is not entitled to appeal her termination to the Commission.
CONCLUSION:
Accordingly, the ruling of the Commission granting the motion for summary disposition is affirmed.
AFFIRMED
