Skylo Johnson v. City of Shreveport and It's Appointing Authority and The Shreveport Municipal Fire and Police Civil Service Board

Judgment rendered August 14, 2019.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 52,801-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

SKYLO JOHNSON Plaintiff-Appellee

versus

CITY OF SHREVEPORT AND Defendants
ITS APPOINTING AUTHORITY
AND THE SHREVEPORT
MUNICIPAL FIRE AND POLICE
CIVIL SERVICE BOARD

*****
Appealed from the
First Judicial District Court for the
Parish of Caddo, Louisiana
Trial Court No. 599,488-A

Honorable Ramon Lafitte, Judge

*****

PETTIETTE, ARMAND, DUNKELMAN, Counsel for Defendants-
WOODLEY, BYRD & CROMWELL, L.L.P. Appellants, City of
By: Joseph S. Woodley Shreveport and Its
Marshall L. Perkins Appointing Authority

RONALD MICIOTTO Counsel for Plaintiff-
Appellee, Skylo Johnson

BILLY R. CASEY Counsel for the
Shreveport Municipal
Fire and Police Civil
Service Board

*****

Before PITMAN, COX, and STONE, JJ.

PITMAN, J.

The City of Shreveport and its Appointing Authority (collectively,

“the City”) appeal the ruling of the trial court which reviewed the Shreveport

Municipal Fire and Police Civil Service Board’s (“the Board”) termination

of Plaintiff Skylo Johnson from his position as a firefighter with the

Shreveport Fire Department (“the SFD”). The trial court overturned the

Board’s decision and ordered Plaintiff’s reinstatement, amending the penalty

previously imposed from termination to ninety (90) days without pay and

benefits. The City appeals the decision of the trial court. For the following

reasons, we reverse.

FACTS

Plaintiff joined the SFD in October 2008. In January 2015, he

committed an act of violence against Shirley Hall in front of a fire station.

This act was witnessed by fellow firefighters. After the incident with Hall,

he received a letter of reprimand from the SFD and was required to undergo

anger management counseling. He claimed that he completed this

counseling after a very short time.

Despite completion of this counseling, Plaintiff attacked Tamika

Lattin, his former girlfriend and mother of his children, at their home on

November 1, 2015, causing her to have a black eye. She did not go to the

police that day; however, when he attacked her again on November 3, 2015,

and choked her, fearing for her life, she went to the Shreveport Police to

report the incidents. The police observed that her left eye was completely

swollen shut, and the surrounding area was black and blue. The police

obtained a warrant for Plaintiff’s arrest, and he was charged with domestic

abuse battery and strangulation. Plaintiff never stood trial. Lattin recanted

her statements and stated that her injuries were “accidental” and that the

incident was “a disagreement and a minor altercation.” She also stated that

if Plaintiff lost his job and went to jail, it would cause a hardship on her

family. The Caddo Parish district attorney allowed Plaintiff to enter into a

pretrial diversion agreement whereby he would go to anger management and

domestic abuse counseling. After he attended, the charges against him were

dismissed.

On December 3, 2015, the SFD Administration sent Plaintiff a letter

of termination, which stated that on November 5, 2015, he had been

informed of the commencement of an investigation surrounding possible

violations of SFD Rules and Regulations; SFD Core Values; local and state

civil service laws; and/or local, state and federal laws. The letter states:

On December 2, 2015, you admitted to going through
Tamika’s phone without her permission and becoming angry at
what you saw. Further, you admitted striking her in the face
and causing deformity to her face. Your actions in this incident
and your previous incidents concerning domestic abuse both
during employment and prior to employment do not reflect the
core values of the Shreveport Fire Department. Those actions
and behavior exhibited are not the expectations that the citizens
of Shreveport expect from their public servants.

The letter specified that the violations included SFD Rules and

Regulations Article 1. Authority, Scope and Application, No. 3; Article XVI,

General Rules, No. 2-Professional Knowledge and Skills; and La.

R.S. 33:2500; the last of which provides that the appointing authority may

remove any employee from the service for the commission or omission of

any act to the prejudice of the departmental service or contrary to the public

interest or policy; or conduct of a discourteous or wantonly offensive nature

toward the public; or any dishonest, disgraceful or immoral conduct.
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Shreveport Police Department records, obtained in conjunction with

the SFD Internal Affairs investigation in the matter, show that in 2006,

Plaintiff was also charged with domestic abuse battery of Lattin. In July

2009, after he joined the SFD, he was charged with battery again after he

and Lattin exchanged punches, indicating that Plaintiff had a history of

domestic abuse even though he had avoided convictions for these offenses.

Plaintiff’s official “rap sheet,” however, shows only two arrests, both of

which occurred in 2015.

After a predisciplinary conference, Chief Scott Wolverton of the SFD

terminated Plaintiff’s employment effective December 15, 2015.

Plaintiff appealed his termination to the Board and argued that the

SFD did not have good cause to terminate him. The Board held a hearing on

March 8, 2017. Multiple witnesses testified, including Det. Shaunda

Holmes, Chief Wolverton and Daniel Turner, a firefighter who witnessed the

Hall altercation in front of Fire Station 7. For the defense, Plaintiff called

Hall, his parents, his current girlfriend and two former coworkers to testify

on his behalf. Lattin did not testify.

Det. Holmes, who is employed by the Shreveport Police Department

in the domestic violence unit, testified that on November 3, 2015, she went

to 4225 Lakeshore Drive in Shreveport to investigate a reported domestic

battery. When she arrived, she met Lattin and learned that Plaintiff was

involved in the incident. She testified that she was already familiar with

Plaintiff and Lattin since they “have a history of domestic abuse battery . . .

and property damage.”

Det. Holmes further testified that Lattin told her that Plaintiff had

attacked her on two separate days. On November 1, 2015, he pulled her off
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the couch and began hitting her about the body because he was upset about

something he had seen on her cell phone. She did not call the police that

day. On November 3, 2015, he grabbed her by the throat, choked her and

battered her about the body. He also threw her clothes out of the house. She

tried to leave, but he grabbed her by the hair to stop her; however, she was

able to leave and went to the police to file a report. Photographs were taken

of Lattin at the police station, which showed her with a very prominent black

eye.

Joshua McCollum, an internal affairs investigator for the SFD,

testified that he investigated Plaintiff regarding the incident at issue in this

case. He stated that although he tried to get Lattin to take part in the

investigation, she never gave him a statement. He received and reviewed the

Shreveport Police Department’s narrative and supplements and also spoke to

Det. Holmes. He testified that Plaintiff’s version of the November 1, 2015

incident was that he found evidence on Lattin’s phone that she was having a

relationship with another man, and he began to move out. Lattin attacked

him from behind, and “he blindly swung his arm around” and hit her,

striking her in the face. Plaintiff also told him that he had to hold her down

to stop her attacks. On November 3, 2015, Plaintiff claims Lattin began

throwing his clothes to the floor, and he lost his temper and threw her

clothes outside the apartment. Lattin left the apartment, and he went to a

friend’s house to stay. Plaintiff further told him that it was not until the next

day that he heard the police were looking for him and that he believed the

attacks and filing of the police report were due to her anger at him for

leaving her. McCollum testified that the incident resulted in violations of

the SFD rules and regulations.
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McCollum was questioned about specific violations of rules and

regulations and testified that Plaintiff’s actions violated Article 1 in that his

conduct brought discredit upon the department and its members and was

disrespectful and not law-abiding. He stated that Plaintiff’s conduct was

prohibited by the civil service statutes, particularly La. R.S. 33:2500, in that

it was prejudicial to the SFD and contrary to public interest or policy. It was

also of a wantonly offensive nature to the public and was dishonest,

disgraceful or immoral conduct and a violation of state law.

Chief Wolverton testified that he initiates investigations of firefighters

and holds predisciplinary conferences for employees who have possibly

violated the rules and regulations of the SFD. He stated that he was the final

authority in determining the level of discipline imposed. He further stated

that he conducted a predetermination conference in regard to Plaintiff’s

matter with evidence from the internal affairs investigation and police report,

including pictures and information regarding Plaintiff’s prior domestic abuse

history. He testified that Plaintiff did not accept any responsibility for his

actions. He noted that Plaintiff had violated rules and regulations of the

SFD and that he had attended anger management training, both as part of the

diversion program related to the incident for which he was terminated and as

a result of a disciplinary action by the SFD because of an incident which

occurred in February 2015. That incident, which was witnessed by other

firefighters, took place in front of Fire Station 7 and involved a female other

than Lattin. Plaintiff was subsequently arrested for disturbing the peace. He

also noted that Plaintiff worked with female firefighters.

Chief Wolverton further testified that Plaintiff’s violations resulted in

his termination and included committing an act resulting in his arrest, not
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being a law-abiding citizen and bringing discredit to the SFD based on those

actions. He stated that he found that Plaintiff had violated Article 16 of the

general rules, i.e. that he was not conducting himself in the manner of a

prudent, law-abiding and self-respecting citizen and that he had brought

discredit on the SFD or its members.

Chief Wolverton was asked about a Shreveport Times reporter who

had questioned him regarding Plaintiff’s actions and earlier arrests. He

responded that he was amazed and wondered how Plaintiff was employed

with the SFD considering the extent of his record. He testified that he made

the decision to terminate Plaintiff based on his pattern of behavior of

abusing women and that the behavior did not reflect what he believed, as

Fire Chief, the citizens expected from a public servant.

On cross-examination, Chief Wolverton was asked if he was aware

that Plaintiff had been found not guilty of the charge of disturbing the peace

for the February 2015 incident. He replied, “Regardless of the outcome of

the criminal investigation . . . the acts still violates (sic) our policies and

standards of behavior as it relates to civil service employees.” He later

reiterated in his testimony that the behavior violated SFD policies and stated,

“I don’t think the citizens expect or deserve that type of behavior from their

public servants.”

Brandon Edwards, a firefighter, testified on Plaintiff’s behalf and

stated that he has known Plaintiff for nine years, since they were classmates

together, and that they are friends. He stated that several years ago, he and

Plaintiff were sharing a house when Lattin came to the residence and

attacked Plaintiff, grabbing him from behind, and that she was the aggressor

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in that particular incident. He also stated that he had never seen Plaintiff

abuse a woman.

Shirley Hall, the woman with whom Plaintiff had an altercation

outside of Fire Station 7, also testified on Plaintiff’s behalf and stated that

she was Plaintiff’s friend and that the altercation never happened or was

misinterpreted. She stated that Plaintiff was only laughing with her over a

text message she received and that he got out of her car with her cell phone,

and she pursued him to retrieve her phone. She testified that he never struck

her or beat her and that she was never interviewed by Chief Wolverton or

SFD internal affairs prior to Plaintiff’s termination. She stated that she was

also charged in the incident, but that neither she, nor Plaintiff, was found

guilty.

Plaintiff introduced other witnesses who testified regarding Lattin’s

character, including Vanity Johnson, Plaintiff’s friend; James Johnson,

Plaintiff’s father; and Kenyatta Robinson, Plaintiff’s girlfriend. Robinson

testified that Plaintiff had never struck her, and she had never seen him

abuse any other women.

Plaintiff testified in his own behalf and stated that he passed all tests,

including psychological tests, when he was hired as a firefighter and that he

completed all anger management classes to which he was directed. He

stated that he and Lattin have ended their relationship and are no longer

living together.

A rebuttal witness, Daniel Turner, who was a rookie fireman at

Station 7 when the incident with Hall occurred, testified that Plaintiff had

finished his shift and had driven to the front of the station. Hall was in her

car, and Plaintiff entered on the passenger’s side. They suddenly both exited
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the vehicle, and Hall was demanding that he return her telephone. At that

time, “the pushing and shoving and the little tussling started.” He further

testified that Plaintiff pinned her up against the vehicle. Although he told

his captain that something needed to be done about the situation outside the

fire house, a call came into the station at that moment and everyone had to

leave to respond to the call. The captain told him that they would have to

deal with Plaintiff on the next shift.

After hearing all the evidence, the Board unanimously determined that

the SFD acted in good faith and for cause in disciplining Plaintiff. By a vote

of six to two, the Board determined that termination was appropriate.

Plaintiff appealed to the trial court and argued that the Board’s

decision was prejudicial to him and that the findings of Chief Wolverton and

the Board were incorrect. The trial court heard the matter and, although it

agreed that the SFD acted in good faith and for cause in disciplining

Plaintiff, it reversed the termination and imposed a penalty of 90 days’

suspension without pay. In so ruling, the trial court noted that the decision

of the Board to impose the discipline of termination “was not commensurate

with the infraction, and therefore the termination was arbitrary and

capricious and manifestly erroneous.” The trial court reasoned and

specifically found that the City failed to prove by a preponderance of the

evidence that Plaintiff’s conduct was actually detrimental to, or actually

impaired, the efficient operation of the SFD, as is required by the law. This

appeal by the City followed.

DISCUSSION

The City argues that the trial court erred in holding that it failed to

prove detriment or impairment to the efficient operation of the SFD by a
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preponderance of the evidence. It states that the standard of review in cases

involving appeals from a decision of the Board is confined to the

determination of whether the decision made by the Board was made in good

faith for cause, citing La. R.S. 33:2501(E)(3).

The City also argues that the decision of the Board may be overturned

by the district court if it is manifestly erroneous or arbitrary and capricious,

but it is only arbitrary and capricious if there is no rational basis for the

Board’s action. If there is a real and substantial relationship between the

improper conduct and the efficient operation of the public service,

disciplinary action cannot be deemed arbitrary and capricious.

The City further argues that the trial court’s decision to amend the

discipline from termination to 90 days’ suspension without pay and ordering

reinstatement retroactively, was manifestly erroneous in that it entitles

Plaintiff to full back pay for the three years since his suspension would have

ended. It contends that it was an abuse of discretion and not within the trial

court’s prerogative to amend the discipline imposed by the Board since only

the Board has the discretion to make a reinstatement retroactive, citing La.

R.S. 33:2501(C)(1).

Plaintiff argues that the Board’s decision to terminate him was

arbitrary and capricious and the trial court did not err in overruling his

termination. He contends that the record lacked sufficient testimony or

evidence to show that the appointing authority demonstrated by a

preponderance of the evidence that his conduct impaired the efficient and

orderly operation of the SFD. He states that at the heart of this case is an

allegation by the City that he had a documented pattern of physically

abusing women and should have been terminated. He claims that his record
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shows that he had one prior arrest for domestic abuse battery and disturbing

the peace. He also claims that all charges against him were later dismissed

and the alleged victim recanted her story. For these reasons, Plaintiff argues

that the trial court’s ruling that the record lacked evidence that his conduct

was detrimental to, or impaired, the efficient operation of the fire department

was correct, and the trial court properly reduced his penalty to 90 days’

suspension without pay.

The initial complaint against Plaintiff charged him with violations of

the following SFD Rules and Regulations and Louisiana statute:

Article 1. Authority, Scope and Application, No. 3, states as follows:

In matters of general conduct not covered herein, the actions of
members shall be governed by the best standards of ethics and
conduct of similar professionals in our region and the best
instincts of law-abiding, self-respecting citizens, always
regarding and upholding the good name of the service of which
each member is an important part.

Article XVI, General Rules, No. 2: Professional Knowledge and

Skills, Part (E) states:

All members shall conduct themselves in such a manner as
approved by Law-abiding, self-respecting citizens.

Article XVI, General Rules, No. 2: Professional Knowledge and

Skills, Part (F) states:

[All members shall] refrain from committing acts which might
bring discredit upon the Department or its members.

La. R.S. 33:2500(A) provides in pertinent part:

The tenure of persons who have been regularly and
permanently inducted into positions of the classified service
shall be during good behavior. However, the appointing
authority may remove any employee from the service, or take
such disciplinary action as the circumstances warrant in the
manner provided below for any one of the following reasons:

***
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(3) The commission or omission of any act to the prejudice of
the departmental service or contrary to the public interest or
policy.
***
(5) Conduct of a discourteous or wantonly offensive nature
toward the public, any municipal officer or employee; and, any
dishonest, disgraceful, or immoral conduct.

***
(14) The willful violation of any provision of this Part or any
rule, regulation, or order hereunder.

Appeals of the Board’s decision lie directly to the court of original

and unlimited jurisdiction in civil suits of the parish wherein the board is

domiciled and are governed by La. R.S. 33:2501, which states in pertinent

part as follows:

C. (1) After the investigation provided for in Subsection B of
this Section, the board may, if the evidence is conclusive,
affirm the action of the appointing authority. If the board finds
that the action was not taken in good faith for cause under the
provisions of this Part, the board shall order the immediate
reinstatement or reemployment of such person in the office,
place, position, or employment from which he was removed,
suspended, demoted, or discharged, which reinstatement shall,
if the board so provides, be retroactive and entitle him to his
regular pay from the time of removal, suspension, demotion,
discharge, or other disciplinary action. The board may modify
the order of removal, suspension, demotion, discharge, or other
disciplinary action by directing a suspension without pay, for a
given period, a reduction in pay to the rate prevailing for the
next lower class, a reduction or demotion to a position of any
lower class and to the rate of pay prevailing thereof, or such
other lesser punitive action that may be appropriate under the
circumstances.

***
E. (3) This hearing shall be confined to the determination of
whether the decision made by the board was made in good faith
for cause under the provisions of this Part. No appeal to the
court shall be taken except upon these grounds and except as
provided in Subsection D of this Section.

Factual findings in civil service cases are to be given deference by a

reviewing court. Morris v. City of Minden, 50,406 (La. App. 2 Cir. 3/2/16),

189 So. 3d 487, writ denied, 16-0866 (La. 6/3/16), 192 So. 3d 748. Review
11

by the district court does not include a trial de novo. Richardson v. City of

Shreveport, 52,203 (La. App. 2 Cir. 6/27/18), 251 So. 3d 691, citing McCoy

v. City of Shreveport, 42,662 (La. App. 2 Cir. 12/5/07), 972 So. 2d 1178.

The district court may not substitute its opinion for that of the Board.

Richardson, supra, citing Hawkins v. City of Bossier, 48,959 (La. App.

2 Cir. 4/9/14), 137 So. 3d 128.

The Board’s decision will not be overturned unless it is manifestly

erroneous or arbitrary and capricious. McCoy, supra. La. R.S.

33:2501(E)(3) specifically limits the district court’s reviewing authority to

determining whether the Board’s decision was made in good faith for cause.

Richardson, supra.

Good faith does not occur if the appointing authority acts arbitrarily or

capriciously, or as a result of prejudice or political expediency. Arbitrary or

capricious means there was a lack of a rational basis for the action taken.

Richardson, supra, citing Moore v. Ware, 01-3341 (La. 2/25/03), 839 So. 2d

940. Disciplinary action against a civil service employee will be deemed

arbitrary and capricious unless there is a real and substantial relationship

between the improper conduct and the efficient operation of the public

service. Richardson, supra. The appointing authority must demonstrate, by

a preponderance of the evidence, that the conduct did in fact impair the

efficient and orderly operation of the public service. Richardson, supra,

citing Morris, supra.

The intermediate appellate court’s review of a civil service board’s

findings of fact is limited. Those findings are entitled to the same weight as

findings of fact made by a trial court and are not to be overturned in the

absence of manifest error. Richardson, supra, citing City of Shreveport v.
12

DeBello, 46,891 (La. App. 2 Cir. 1/25/12), 86 So. 3d 17, writ denied,

12-0460 (La. 1/25/13), 105 So. 3d 62.

Although the trial court correctly cited the law pertinent to the review

of decisions by the Board and found that Plaintiff was disciplined in good

faith and for cause, the trial court incorrectly substituted its opinion

concerning the facts of the case when it concluded that the evidence

produced at the Board’s hearing did not show that Plaintiff’s bad conduct

impaired or affected the continued efficiency of the public service being

rendered by the particular department. The City demonstrated, by a

preponderance of the evidence, that the conduct did in fact impair the

efficient and orderly operation of the public service. The evidence showed

Plaintiff was in violation of several of the rules and regulations of the SFD,

that he did not exemplify the best standards of ethics and conduct of similar

professionals in our region and, further, was not a law-abiding, self-

respecting citizen having regard for the good name of the service. The first

action for which he was reprimanded and had to attend anger management

classes occurred in February 2015 in front of a fire station. Plaintiff had just

finished his shift, but his interaction with Hall was noticed by a firefighter

on duty who brought the matter to the attention of the captain. The second

action, which occurred in November 2015 and for which he was arrested and

had to attend anger management classes again, and which formed the basis

for this particular disciplinary action against him, proved that Plaintiff had

an established pattern of abuse of women. As Chief Wolverton stated at the

hearing before the Board, it is irrelevant that Plaintiff was not actually

convicted of domestic abuse, and it is irrelevant that Plaintiff was off-duty

when the altercation with Lattin occurred. When the public employee is not
13

law-abiding, violates written rules proscribing the conduct, and his actions

reflect poorly on the SFD, there is a real and substantial relationship between

the improper conduct and the efficient operation of the public service.

Weighing the facts in this particular matter and the applicable

jurisprudence, we conclude that the trial court erred in reversing the

determination of the Board, which was made in good faith and for cause.

For these reasons, we reverse the finding of the trial court and reinstate the

ruling of the Board, terminating Plaintiff’s employment.

Because we have reversed the trial court’s judgment and reinstated the

ruling of the Board terminating Plaintiff’s employment, the issue of whether

the penalty of 90 days’ suspension and reinstatement of employment with

back pay was appropriate is now moot.

CONCLUSION

For the foregoing reasons, the judgment of the trial court in favor of

Plaintiff Skylo Johnson is hereby reversed, and the judgment of the

Shreveport Municipal Fire and Police Civil Service Board terminating

Plaintiff’s employment with the City of Shreveport and its Appointing

Authority is reinstated. Costs of this appeal are assessed to Plaintiff Skylo

Johnson.

REVERSED.

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