Hector Maes Versus Jefferson Parish Department of Emergency Management Personnel Board

HECTOR MAES NO. 21-CA-191

VERSUS FIFTH CIRCUIT

JEFFERSON PARISH DEPARTMENT OF COURT OF APPEAL
EMERGENCY MANAGEMENT PERSONNEL
BOARD STATE OF LOUISIANA

ON APPEAL FROM THE JEFFERSON PARISH PERSONNEL BOARD
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 21-4,
RUFUS C. HARRIS, III, CHAIRMAN, MICHAEL L. FANTACI, AND
DANIEL R. MARTINY, BOARD MEMBERS PRESIDING

November 24, 2021

FREDERICKA HOMBERG WICKER
JUDGE

Panel composed of Judges Susan M. Chehardy,
Fredericka Homberg Wicker, and Robert A. Chaisson

JUDGMENT VACATED; MATTER REMANDED
FHW
SMC
RAC

COUNSEL FOR PLAINTIFF/APPELLANT,
HECTOR MAES
Jessica M. Vasquez

COUNSEL FOR DEFENDANT/APPELLEE,
JEFFERSON PARISH DEPARTMENT OF EMERGENCY MANAGEMENT
Crystal M. Heine

WICKER, J.

Appellant, Hector Maes, seeks review of the March 11, 2021 Jefferson

Parish Personnel Board judgment summarily dismissing his petition for appeal of

his employment termination without an evidentiary hearing. For the following

reasons, we find Maes, a probationary or working test period employee, failed to

sufficiently allege in his petition that his termination was the result of

discrimination in accordance with Jefferson Parish Personnel Board Rule II,

Section 4.3. However, we find that Maes should be afforded the opportunity to

amend his petition to properly state his cause of action for discrimination.

Accordingly, we vacate the Board’s judgment and we remand this matter to allow

Maes to amend his petition for appeal.

The record reflects that, on January 19, 2021, the Director of Jefferson

Parish Department of Emergency Management (JPDEM) sent a certified letter to

Maes, terminating his employment. In the termination letter, JPDEM set forth that

Maes was hired on February 15, 2020 as an Emergency Management Coordinator

II. The letter further set forth that on January 15, 2021, while Maes remained in

his probationary or working test period1, JPDEM conducted an employment

performance evaluation and determined that Maes was performing at an overall

rating of “Below Expectations.” The letter referenced that Maes’ performance

evaluation reflected that Maes produced inaccurate accountability reports and

missed 13 work days during his probationary period, failing to notify his

supervisor of absences or tardiness in advance. The letter informed Maes of his

opportunity to appeal his termination to the Jefferson Parish Personnel Board.

On February 18, 2021, Maes filed a “Petition for Appeal to Personnel

Board,” appealing his dismissal or termination of employment. In his petition,

1
The termination letter indicates that, on July 28, 2020, Maes’ probationary or working test period was
extended.

21-CA-191 1

Maes alleged that JPDEM’s January 15, 2021 performance evaluation was

“misleading to manufacture just reason for termination.” Maes checked the box to

indicate that petitioner alleged discrimination as a reason for his termination and

attached a typed letter setting forth his allegations concerning discrimination. In

his attachment, Maes alleged that on July 23, 2020, his supervisor, “Director

Valiente,” arrived to his home to do a wellness check. Maes alleged that, at that

time, he confided in his supervisor that he suffered “issues” from PTSD related to

his military service.

Maes alleged that he later learned from a named co-worker that Director

Valiente called a meeting with other employees within two hours after Director

Valiente left Maes’ home, and divulged Maes’ PTSD condition to other

employees. Maes alleged he was humiliated when he learned that his supervisor

had divulged this information to his coworkers and noticed his coworkers treating

him differently thereafter. Maes alleged that after he informed Director Valiente of

his PTSD diagnosis, Director Valiente “was proactive in searching for reasons to

devalue my performance.”2 Maes further alleged that, after he disclosed his PTSD

diagnosis, Director Valiente consistently attempted to convince Maes to resign

from his position. Maes concluded the allegations in his petition for appeal by

stating that he had never been offered any accommodations for his “medical

disability” but that he had generally “been discriminated against because two other

coworkers have medical conditions, and they were provided with

accommodations.”

On March 11, 2021, the Personnel Board summarily dismissed Maes’

petition for appeal, finding that as a probationary employee, Maes did not have a

2
Maes provided an example of another named individual, who worked with Maes at a Covid-19 testing
center, who informed Maes that Director Valiente questioned him about Maes’ performance at the center
and stated that the “form of questioning came out of nowhere and [that] Mr. Valiente was probing [him]
for a negative response.”

21-CA-191 2

guaranteed appeal right. The Board found that Maes did not sufficiently plead

termination based on discrimination in his petition as required by Jefferson Parish

Personnel Rules, Rule II, Section 4. This appeal follows.

The Jefferson Parish home rule charter established the Jefferson Parish

Personnel Board and provides that it shall be “policy-making and quasi-judicial in

nature.” Jefferson Parish Charter, Art. 4, Section 4.03(C). In Jefferson Parish,

aggrieved regular public employees may apply to the Personnel Board for a review

of discharge or other disciplinary action to test the reasonableness of that action, at

which time the appointing authority bears the burden of proving legal cause.

Jefferson Parish Personnel Rules, Rule II, Section 4; Robinson v. Jefferson Par.

Dep’t of Pub. Works-Drainage, 13-474 (La. App. 5 Cir. 12/19/13), 131 So.3d 433,

438; Bruno v. Jefferson Par. Libr. Dep’t, 04-504 (La. App. 5 Cir. 11/30/04), 890

So.2d 604, 607; see also Walker v. Dep’t of Pub. Works Sewerage, 549 So.2d 426,

428 (La. Ct. App. 1989).

The Jefferson Parish Personnel Rules of Procedure, Rule II, Section 4.4

states that a probationary or working period employee “shall have a right of appeal

to the Board; provided, that he specifically alleges that the action appealed from

resulted from discrimination due to race, color, national origin, sex, religion, age,

disability, politics, or other specified cause unrelated to merit-employment

considerations.” Rule II, Section 4.3 provides that an employee’s appeal alleging

discrimination must be set forth in detail, and that the petitioner bears the burden of

pleading discrimination with specificity. The Rule, however, further provides that

the “specific facts required will vary depending on the nature of the appeal.”

Jefferson Parish Personnel Rules, Rule II, Section 4.3 provides:

Where discrimination or retaliation, including a violation of the
Charter or a Personnel Rule, is alleged to be a basis for appeal, specific
facts supporting the conclusion of discrimination or retaliation must be
alleged in detail. The specific facts required will vary depending on the
nature of the appeal; however, the facts must be alleged in sufficient

21-CA-191 3

detail to enable the agency to prepare a defense. A conclusion of
discrimination or retaliation is not sufficient. The types of facts which
must be included are: (a) the date, time and place the discriminatory or
retaliatory action took place; (b) the name of the person or agency
alleged to have taken the discriminatory or retaliatory action; (c) a
description of how appellant's action, conduct or performance was the
same as that of other persons who were treated differently; (d) the
names of other persons treated differently and the dates the different
treatment occurred; (e) a description of events, including the dates and
circumstances thereof, which led appellant to believe that the adverse
decision was based on his religious or political beliefs, sex, race, or any
other non-merit factor.

Upon review of Maes’ Petition for Appeal and the applicable Jefferson

Parish Personnel Rules, we find that Maes’ petition fails to sufficiently plead

allegations of discrimination to comply with the specificity required by the

Jefferson Parish Personnel Rules. Specifically, Maes failed to state “the names of

other persons treated differently and the dates the different treatment occurred” as

well as a specific “description of how appellant’s action, conduct or performance

was the same as that of other persons who were treated differently” to allow

JPDEM to adequately prepare a defense to Maes’ discrimination claim.

Nevertheless, given the language in Rule 4.3 that the “specific facts required

[to be pled] will vary,” we find that the Personnel Board erred in summarily

dismissing Maes’ petition without affording him the opportunity to amend his

petition to properly plead his discrimination claim.3 Accordingly, we vacate the

appealed judgment and remand this matter to allow Maes the opportunity to amend

his petition to properly plead a discrimination claim in an amended petition for

appeal.

JUDGMENT VACATED;
MATTER REMANDED

3
We find the Board’s summarily dismissing a petition for appeal is akin to a finding on an exception of
no cause of action. Upon our review of this matter, we find the Board erred in summarily dismissing
Maes’ petition without affording him the opportunity to amend his petition to properly state a cause of
action. See La. C.C.P. art. 934.

21-CA-191 4

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

NANCY F. VEGA
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN S. BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
NOVEMBER 24, 2021 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL
PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

21-CA-191
E-NOTIFIED
JEFF PARISH PERSONNEL BOARD (CLERK)
JESSICA M. VASQUEZ (APPELLANT) CRYSTAL M. HEINE (APPELLEE)

MAILED
JEFFERSON PARISH PERSONNEL BOARD
(DISTRICT JUDGE)
200 DERBIGNY STREET
SUITE 3100
GRETNA, LA 70053