Gregory Matusoff v. Department of Fire

GREGORY MATUSOFF * NO. 2019-CA-0932

VERSUS *
COURT OF APPEAL
DEPARTMENT OF FIRE *
FOURTH CIRCUIT
*
STATE OF LOUISIANA
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APPEAL FROM
CITY CIVIL SERVICE COMMISSION ORLEANS
NO. 8879
******
JAMES F. MCKAY III
CHIEF JUDGE
******
(Court composed of Chief Judge James F. McKay III, Judge Terri F. Love, Judge
Regina Bartholomew-Woods)

IMITIAZ SIDDIQUI
IAS LAW LLC
900 Camp Street, Suite 435
New Orleans, Louisiana 70130
COUNSEL FOR PLAINTIFF/APPELLANT

SUNNI LEBEOUF
CITY ATTORNEY NEW ORLEANS
DONESIA D. TURNER
SR. DEPUTY CITY ATTORNEY
ELIZABETH S. ROBINS
DEPUTY CITY ATTORNEY
EREKA W. DELARGE
ASSISTANT CCITY ATTORNEY
1300 Perdido Street, Room 5E03
New Orleans, Louisiana 70112
COUNSEL FOR DEFENANT/APPELLEE

REVERSED AND REMANDED

MAY 20, 2020

JFM
TFL
In this Civil Service case, Gregory Matusoff appeals the Civil Service
RBW
Commission’s upholding of his termination by the New Orleans Fire Department

(“NOFD”). For the following reasons, we reverse the judgment of the

Commission and vacate Mr. Matusoff’s termination by the NOFD.

FACTS AND PROCEDURAL HISTORY

Gregory Matusoff was a permanent, classified employee of the NOFD with

twelve and one-half (12 ½) years of experience. Mr. Matusoff had suffered a

number of serious injuries during his employment as a firefighter with the NOFD.

In fact, as a result of his injuries, Mr. Matusoff missed a year of work from August

2016 to August 2017.

Mr. Matusoff’s pain management treatment consisted of approximately a

dozen prescribed medications. His pharmacist recommended and his doctor

approved the use of an over-the-counter cannabiodiol (CBD) to assist in pain

management. Mr. Matusoff used Ananda Professional CBD gel caps, which he

legally purchased from a pharmacy in Mississippi where he resides.

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On November 10, 2018, Mr. Matusoff, along with fellow firefighters,

responded to a fire at a local restaurant. While on the roof, Mr. Matusoff tripped

on an undetected pipe and fell on his hip, injuring his hip, back, and shoulder. The

fall resulted in a serious injury, which led to multiple surgeries and exacerbated the

prior injuries that Mr. Matusoff had sustained in his work as a firefighter.

Consistent with NOFD and Civil Service rules, because an injury was sustained in

the course of his duties, Mr. Matusoff submitted to a substance abuse test. His

urine sample tested positive for marijuana metabolite.

By a mailed letter, dated November 16, 2018, Civil Service Director Lisa

Hudson notified Mr. Matusoff of his positive test and that he had five days to

appeal the result or provide an explanation to the Medical Review Officer

(“MRO”). Mr. Matusoff received the letter on November 21, 2018, the last day of

the five-day period.1 The MRO verified the positive result, without considering

Mr. Matusoff’s explanation, medical history, and biomedical information on

November 19, 2018, two days prior to the expiration of the five-day period.

Mr. Matusoff received a pre-termination letter dated November 28, 2018.

On December 3, 2018, a pre-termination hearing took place. Mr. Matusoff

submitted over one hundred pages of documents, including letters from his

pharmacist and doctor, supporting his explanation that he was taking CBD, which

was recommended by his pharmacist and approved by his doctor, as part of his

pain management regimen. On December 4, 2018, the Deputy Chief of Safety

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The five-day period to provide an explanation is not pursuant to any City, Civil Service, or
NOFD policy.

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called Mr. Matusoff and asked whether he had submitted the information provided

at the pre-termination hearing to the MRO. Mr. Matusoff stated that he had not

provided this information to the MRO. Only after Mr. Matusoff’s termination did

the NOFD provide this information to the MRO.

On December 5, 2018, the NOFD sent Mr. Matusoff a letter terminating his

employment. As the sole basis for termination, the letter cited the violation of

paragraph X.B.5 of PM 89, which identifies an MRO-certified positive test result

for the on-duty consumption of an illegal substance as a terminable offense. On

December 19, 2018, Mr. Matusoff timely appealed his termination to the Civil

Service Commission. On March 21, 2019, a hearing was held before a hearing

examiner. The parties submitted post-hearing briefs on April 26, 2019, as ordered

by the hearing examiner. On July 31, 2019, based on the Commissioners’ review

of the hearing transcript, exhibits and the referee’s report, the Commission

rendered a judgment denying Mr. Matusoff’s appeal. It is from this judgment that

he now appeals.

DISCUSSION

On appeal, Mr. Mattusoff raises two assignments of error. His first

assignment of error is that the NOFD had the burden of proving the occurrence of

the complained of activity, which he alleges the NOFD failed to meet. As such,

the CSC abused its discretion in finding that the NOFD met its burden in proving

the “occurrence of the complained of activity.” His second assignment of error is

that the NOFD had the burden of proving that the discipline was commensurate

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with the infraction, which he alleges the NOFD failed to meet. As such, the CSC

erred in finding that the NOFD met its burden in proving that the discipline was

“commensurate with the infraction.”

It is well settled that in an appeal before the Commission pursuant to Article

X, § 8(A) of the Louisiana Constitution, the appointing authority has the burden of

proving, by a preponderance of the evidence: (1) the occurrence of the complained

of activity; and (2) that the conduct complained of impaired the efficiency of the

public service in which the appointing authority is engaged. Gast v. Dep’t of

Police, 2013-0781, pp. 3-4 (La.App 4 Cir. 3/13/14), 137 So.3d 731, 733. If the

Commission finds that an appointing authority has met its initial burden and had

sufficient cause to discipline, it must then determine if that discipline “was

commensurate with the infraction.” Abbott v. New Orleans Police Dep’t, 2014-

0993, p. 7 (La.App. 4 Cir. 2/11/15), 165 So.3d 191, 197.

“In Civil Service disciplinary cases, an appellate court is presented with a

multifaceted review function.” Bannister v. Dep’t of Streets, 95-0404 (La.

1/16/96), 666 So.2d 641, 647 (citing Walter v. Dep’t of Police of the City of New

Orleans, 454 So.2d 106 (La. 1984)). “The decision of the Civil Service

Commission is subject to review on any question of law or fact upon appeal to this

Court.” Cure v. Dep’t of Police, 2007-0166 (La.App. 4 Cir. 8/1/07), 964 So.2d

1093, 1094. “This Court must review the Commission’s findings of fact pursuant

to the clearly wrong or manifest error standard.” Wilson v. Dep’t of Prop. Mgmt.,

2016-1124 (La.App. 4 Cir. 5/10/17), 220 So.3d 144, 147. “The Commission’s

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conclusion of whether the disciplinary action is based on legal cause and the

punishment is commensurate with the infraction should be reviewed determining

whether the finding is arbitrary, capricious or an abuse of discretion.” Id. at 148.

“Arbitrary or capricious means the lack of a rational basis for the action taken.”

Shields v. City of Shreveport, 579 So.2d 961, 964 (La. 1991).

In the instant case, the NOFD had the burden of proving the complained of

activity. The complained of activity stated in the termination letter from the

NOFD to Mr. Matusoff was the consumption of an illegal substance while

working. This “complained of activity” was the violation of a particular provision

of the City of New Orleans’ Policy Memorandum No. 89 (Revised), which was last

updated September 10, 1999. The specific provision, subsection X.B.5 states:

B. A first offense discharge shall be invoked if an employee commits one
(1) of the following violations:

5, As a result of a first offense confirmed (MRO certified) positive
result as established by City Civil Service Rules for the use of
alcoholic beverages or an of the illegal and/or unlawfully obtained
(used) drugs prohibited by (sic) while working.

The termination letter went on to state:

Since you failed to respond to the MRO, your positive drug test result was
confirmed. We are not in a position to overturn this decision based on the
information you have provided, and we have no choice but to terminate your
employment in accordance with CAO Policy #89 (Revised). This policy
calls for “A first offense discharge” when an employee tests positive for any
of the drugs prohibited by the policy while working.

In the instant case, the NOFD and the Commission apparently accept Mr.

Matusoff’s explanation that the CBD product was the cause of his positive test for

a prohibited substance. There are a number of problems with the NOFD’s case

against Mr. Matusoff. Chief amongst them is that the sole reason given for his

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termination in the termination letter and the reason the Commission’s denied his

appeal are not the same.

The NOFD charged Mr. Matusoff with violation of X.B.5 of PM 89, which

is the consumption of a prohibited substance while on duty. The NOFD failed to

meet its burden of proving that Mr. Matusoff had either used an illegal/prohibited

substance or consumed it while on duty. This failure was admitted by the

testimony of one of the NOFD’s expert witnesses and was recognized by the

Commission in its decision to deny Mr. Matusoff’s appeal for reasons other than

set forth in the termination letter. Therefore, the NOFD failed to meet its burden of

proving by a preponderance of the evidence that Mr. Matusoff was terminated for

his consumption of an illegal substance while on duty. The Commission was also

arbitrary and capricious and abused its discretion when it upheld Mr. Matusoff’s

termination for reasons not contained in the termination letter.

We also note that civil service employment has been recognized by the

United States Supreme Court as a property right and therefore protected by the Due

Process Clause of the Fourteenth Amendment to the United States Constitution.

See Evangelist v. Dep’t of Police, 2008-1375, p. 5 (La.App. 4 Cir. 9/16/09), 32

So.3d 815, 838. “No person who has gained permanent status in the classified . . .

city service shall be subjected to disciplinary action except for cause expressed in

writing.” La. Const., art. X, § 8(A). “The tenured public employee is entitled to

oral or written notice of the charges against him, an explanation of the employer’s

evidence, and an opportunity to present his side of the story.” Cleveland Bd. of Ed.

v. Loudermill, 470 U.S. 532, 546, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). “[T]his

right to notice and opportunity to be heard must be extended at a meaningful time

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and a meaningful manner.” Moore v. Ware, 2001-3341, p. 11 (La. 2/25/03), 839

So.2d 940, 949.

It is clear that Mr. Matusoff has a vested property right in his continued

employment as a New Orleans firefighter and he is also afforded due process under

the Fourteenth Amendment to the United States Constitution. It is also clear that

Mr. Matusoff’s due process rights were violated by the NOFD and the

Commission. The NOFD sent a termination letter to Mr. Matusoff, advising him

that he had five days to respond with an explanation, but he did not receive this

letter until the fifth day of the five-day time frame. The MRO also confirmed his

positive test before the five-day period had run (the MRO was supposed to take

into account any explanations or extenuating circumstances the subject could

identify). The Commission also denied Mr. Matusoff’s appeal on grounds other

than those stated in his termination letter. These events illustrate that Mr. Matusoff

was not given an opportunity to be heard in a meaningful way either before his

termination or at his hearing before the Commission.

As stated above, the NOFD failed to satisfy its burden with respect to the

occurrence of the complained of activity. Consequently, the Commission abused

its discretion in denying Mr. Matusoff’s administrative appeal.

However, even if the NOFD had met its initial burden, the Commission

erred in finding that the discipline, i.e., termination, was commensurate with the

infraction. Termination from permanent employment is the most extreme form of

disciplinary action that can be taken against a classified employee. Honore v.

Dep’t of Public Works, 2014-0986, p. 16 (La.App. 4 Cir. 10/29/15), 178 So.3d

1120, 1131. This Court has “held that [t]ermination or dismissal is the most severe

form of disciplinary action that can be taken by the Appointing Authority, and

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should be reserved for the most serious violation.” Matthews v. Dep’t of Police,

98-0467 (La.App. 4 Cir. 11/18/98), 723 So.2d 1044, 1049; see also Barquet v.

Dep’t of Welfare, 620 So.2d 501, 507 (La.App. 4 Cir. 1993).

In determining whether discipline is commensurate with the infraction, the

Civil Service Commission considers the nature of the offense as well as the

employee’s work record and previous disciplinary record. Hills v. New Orleans

City Council, 98-1101, pp. 6-7 (La.App. 4 Cir. 12/9/98), 725 So.2d 55, 58. In the

instant case, Mr. Matusoff’s discipline for the use of a CBD product is an issue of

first impression. The product was purchased legally and was not on any list of

prohibited substances that Mr. Matusoff was aware of. The product was also

recommended by a physician and a pharmacist. At the time of the incident, Mr.

Matusoff was a twelve-year veteran of the NOFD with no record of any prior

disciplinary action. As such, termination was not commensurate with the alleged

infraction. Therefore, the Commission abused its discretion.

CONCLUSION

For the above and foregoing reasons, the Commission abused its discretion

in denying Mr. Matusoff’s appeal. We reverse the Commission’s judgment, grant

Mr. Matusoff’s appeal, vacate the discipline imposed by the NOFD and restore Mr.

Matusoff to his status as an active firefighter.

REVERSED AND RENDERED

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