Christopher Estess v. Bossier City Municipal Fire and Police Civil Service Board

Judgment rendered November 20, 2019.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 53,068-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

CHRISTOPHER A. ESTESS Plaintiff-Appellant

versus

BOSSIER CITY MUNICIPAL Defendant-Appellee
FIRE AND POLICE CIVIL
SERVICE BOARD

*****

Appealed from the
Twenty-Sixth Judicial District Court for the
Parish of Bossier, Louisiana
Trial Court No. 158116

Honorable Edward Charles Jacobs, Judge

*****

BREEDLOVE LAW FIRM, APLC Counsel for Appellant
By: Pamela N. Breedlove

KEAN MILLER, LLP Counsel for Appellee
By: Michael D. Lowe

*****

Before WILLIAMS, MOORE, and STONE, JJ.

STONE, J.

Sergeant Christopher Estess (the “plaintiff”) was laterally transferred

from one position to another within the Bossier City Police Department. He

sought to appeal that transfer to the Bossier Municipal Fire and Police Civil

Service Board (the “board”), which summarily dismissed the appeal without

an evidentiary hearing. The plaintiff appealed that dismissal to the district

court, and sought a writ of mandamus ordering the board to hold an

evidentiary hearing. The City of Bossier intervened in the trial court

proceedings. The trial court affirmed the dismissal of the appeal, and denied

mandamus. For the reasons stated hereinafter, we reverse and remand to the

board with instructions.

FACTS AND PROCEDURAL HISTORY

The plaintiff is an employee of the Bossier City Police Department.

He was transferred from internal affairs to patrol, and sought to appeal that

transfer to the board. The plaintiff’s attorney wrote an appeal letter to the

board, stating:

Sergeant Estess was performing very well in his position,
timely completing all of his investigations, and did not
request this transfer. Chief McWilliams statements to
Sergeant Estess regarding the reasons for the transfer show
that the transfer was not being done in good faith or for
cause. The change in Sergeant Estess’ work schedule,
clothing allowance, and authority and prestige as a result
of the transfer was adverse action equivalent to a demotion
such that it was discipline and corrective action and
appealable under 33:2501.

Pursuant to Louisiana Revised Statute 33:2489 & 33:2501,
Sergeant Estess hereby appeals his transfer as the transfer
was made deliberately to discriminate against him and was
corrective/disciplinary action. Sergeant Estess requests
that the matter be heard at the earliest possible date.

The board scheduled a conference on the matter for December 12,

2018. The plaintiff appeared without counsel and argued that he personally

felt that his transfer constituted discipline, and therefore the board was

required to grant a hearing. He also stated that the police chief’s statements

indicated a discriminatory motive in transferring him. The board held that

the plaintiff’s appeal letter failed to state a factual basis for the appeal and

thereby violated Board Rule V, Section 1, which requires the appeal letter to

contain a “clear and concise statement of…the basis for the appeal.” On that

ground, the board dismissed the appeal without holding an evidentiary

hearing.

The plaintiff appealed the board’s decision to the district court, and

filed a petition for writ of mandamus ordering the board to hold a hearing.

The district court denied mandamus and dismissed the appeal. The plaintiff

then filed the instant appeal, enumerating 12 assignments of error. However,

in substance, he makes only two assignments of error: (1) the district court

erred in affirming the board’s dismissal without evidentiary hearing; and (2)

the district court erred in refusing to grant the writ of mandamus ordering the

board to hold an evidentiary hearing on the plaintiff’s appeal letter. For the

reasons stated hereinafter, we reverse the dismissal of the plaintiff’s appeal,

and remand to the board with instructions to allow the plaintiff a reasonable

opportunity to amend the appeal letter.

DISCUSSION

The Bossier City Fire and Police Civil Service Board operates

pursuant to the Municipal Fire and Police Civil Service Law (La. R.S.

33:2471 through La. R.S. 33:2508). This case requires us to determine

whether Board Rule V is within the scope of rulemaking authority conferred
2

on the board by La. R.S. 33:2478, and if so, whether the Board erred in

applying Board Rule V.

Louisiana has a separate civil service system for state employees (and

employees of cities with populations over 400,000). That system is created

and governed by Article 10 of the Louisiana Constitution. Two prior

decisions, Rocque v. Dept. of Health and Human Res., 505 So. 2d 726 (La.

1987), and Khosravanipour v. Dept. of Transp., 592 So. 2d 5 (La. App. 1

Cir. 1991), involved state civil service employees, but nonetheless are

authoritative regarding the present case.1 Because the present case involves a

municipal civil service employee, it is necessary to first consider the

underlying legislative (constitutional) provisions and administrative rules

involved in Rocque and Khosravanipour. As will be shown below, those

legislative provisions and administrative rules parallel the municipal civil

service statutes and the board rule involved in this case.2

State civil service

Discipline. La. Const. art. 10, §8(A) provides as follows relative to a

state civil service employee’s right to appeal disciplinary action taken

against him or her:

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. The
burden of proof on appeal, as to the facts, shall be on the
appointing authority. (Emphasis added).

1
The Khosravanipour decision cited in the body text is unpublished and contains
no discussion; however, in Khosravanipour v. Dept. of Transp., 93-2041 (La. App. 1 Cir.
10/7/94), 644 So. 2d 823, 824, writ denied, 94-2729 (La. 1/6/95), 648 So. 2d 930, the
First Circuit explained its decision of the aforementioned Khosravanipour case.
2
That parallel exists regarding all relevant points, i.e., rulemaking authority,
administrative remedies for discipline of and discrimination against employees, and
agency rules requiring articulation of a factual basis for an appeal. For side-by-side
comparison, see Appendix.

3

Discrimination. La. Const. art. 10, §8(B) prohibits

discrimination against state civil service employees, as follows:

No classified employee shall be discriminated against
because of his political or religious beliefs, sex, or race. A
classified employee so discriminated against shall have
the right of appeal to the appropriate commission pursuant
to Section 12 of this Part. The burden of proof on appeal,
as to the facts, shall be on the employee. (Emphasis
added).

Rulemaking authority. La. Const. art. 10, §10(A)(1)(a) authorizes the

Civil Service Commission to make administrative rules, as follows:

Each commission is vested with broad and general
rulemaking and subpoena powers for the administration
and regulation of the classified service, including the
power to adopt rules for regulating employment,
promotion, demotion, suspension, reduction in pay,
removal, certification, qualifications, political activities,
employment conditions, compensation and disbursements
to employees, and other personnel matters and
transactions…and generally to accomplish the objectives
and purposes of the merit system of civil service as herein
established.

Agency rule. Pursuant thereto, the Civil Service Commission

promulgated Rule 13.11(d) relative to appeals of employee discipline and

discrimination:

A notice of appeal must…
[c]ontain a clear and concise statement of the actions
complained against and a clear and concise statement of
the basis of the appeal. Where discrimination is alleged to
be a basis for appeal, specific facts supporting the
conclusion of discrimination 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
detail to enable the agency to prepare a defense. A
conclusion of discrimination is not sufficient. (Emphasis
added).

Khosravanipour, supra at n. 2; see also Rocque, supra. Additionally, Civil

Service Rule 13.14 (a)(3) and (6) required summary dismissal for failure to

comply with rule 13.11 (d), and Rule 13.12 prohibited supplementation or

4

amendment of an appeal beyond the initial 30-day period for filing a notice

of appeal. Rocque, supra, at 727.

In Rocque, a civil service employee applied to the Civil Service

Commission for an appeal from her suspension and termination by the

Department of Health and Human Resources (“DHH”). In her letter applying

for an appeal, she stated:

At this time Ms. Rocque seeks an appeal of her ten (10)
day suspension…and her termination. We respectfully
request that a hearing be held on this matter in New
Orleans as soon as possible.

Id. at 727. Ms. Rocque’s appeal was heard before the Civil Service

Commission’s referee, who rendered a summary dismissal because the letter

applying for the appeal “did not contain a clear and concise statement of the

basis for the appeal as required by Civil Service Rule 13.11 (d).” Id.

The Supreme Court reversed and remanded to the Civil Service

Commission, stating:

We find that Rule 13.11(d), in conjunction with the rest of
the rules regulating appeals to the State Civil Service
Commission, is unreasonable and imposes an unduly
onerous responsibility on appellants. As stated in Shelton
v. Southeastern Louisiana University, 431 So. 2d 437, 439
(La. App. 1st Cir.1983),

[T]he function of rule 13.11(d) is two-fold: (1) it
apprises the appellee and the Commission of the
material facts in dispute and therefore establishes the
scope of the evidentiary hearing; (2) it enables the
Commission to gauge the amount of time needed for the
evidentiary hearing by narrowing the issues.
It is clear that Rule 13.11(d) serves a valid function.
However, in conjunction with Rules 13.14(a)(3) and
13.14(a)(6), which require summary dismissal where
the notice of appeal does not comply with Rule
13.11(d), and with Rule 13.12(d), which does not permit
supplementation or amendment of an appeal beyond the
thirty-day period for filing a notice of appeal, Rule
13.11(d) acts as a trap for the unwary appellant who
does not learn of the insufficiency of his appeal under

5

the rule until the time for remedying any deficiencies
has already elapsed. While we are without authority to
enact rules for the Commission, we suggest that the
function of Rule 13.11(d) could be served in a way less
burdensome to appellants by, for example, permitting
supplementation or amendment of appeals beyond the
current thirty-day period, and by amending Rule
13.11(d) so as to specify exactly what constitutes “a
clear and concise statement of the basis of the appeal.”
However, as stated, it is not for this court to enact
remedial rules for the Civil Service Commission.
Accordingly, we merely conclude that the present
scheme of appeal to the State Civil Service Commission
is unreasonable and unduly burdensome on appellants.
(Emphasis added).

Id. at 728.

In Khosravanipour, supra, the First Circuit addressed a set of facts

similar to those presented in the instant case. Khosravanipour v. Dept. of

Transp., 93-2041 (La. App. 1 Cir. 10/7/94), 644 So. 2d 823, 824, writ

denied, 94-2729 (La. 1/6/95), 648 So. 2d 930. The civil service employee

filed several separate petitions for appeal with the Louisiana Civil Service

Commission alleging various acts of discrimination against him by his

superiors at the DOTD. The referee summarily dismissed these appeals on

the ground that they failed to satisfy Civil Service Commission Rule

13.11(d). Id.

In particular, the referee found that (1) the petitions “did not allege

specific details to support the conclusion of discrimination,” and (2) “even

the allegations containing specific names and dates would not constitute

prohibited discrimination if proven as alleged.” On that basis, the referee

dismissed the appeals. The First Circuit held that the civil service employee

was entitled to an opportunity to amend the petitions to cure the violation of

Civil Service Commission Rule 13.11(d), and accordingly reversed and

remanded with instructions. Id. at 824.
6

Municipal civil service

At this point, we turn to the relevant legislation in the instant case.

Discrimination. La. R.S. 33:2489, in relevant part, states as follows

relative to an employee’s appeal of his transfer on the basis of

discrimination:

Any employee may be transferred from any position in the
classified service to any other position of the same class
within the classified service, at the pleasure of the
appointing authority without notice to and confirmation by
the board.
Any regular employee so transferred shall have the right
of appeal to his board upon the grounds… [that] the
transfer was made deliberately to discriminate against
him. (Emphasis added).

Discipline. La. R.S. 33:2501(A) provides for an employee’s right to a

“hearing and investigation” regarding discipline against the employee:

Any regular employee in the classified service who feels
that he has been discharged or subjected to any corrective
or disciplinary action without just cause, may, within
fifteen days after the action, demand, in writing, a hearing
and investigation by the board to determine the
reasonableness of the action. The board shall grant the
employee a hearing and investigation within thirty days
after receipt of the written request. (Emphasis added).

Discipline is partially defined for purposes of La. R.S. 33: 2501(A).3

Rulemaking authority. The municipal civil service statutes authorize

municipal civil service boards to promulgate administrative rules as follows:

3
La. R.S. 33:2500(B) provides:
[D]isciplinary action may extend to suspension without pay for a
period not exceeding the aggregate of ninety days in any period of
twelve consecutive months, reduction in pay to the rate prevailing
for the next lower class, reduction or demotion to a position of any
lower class and to the rate of pay prevailing therefor, or such other
less drastic action that may be appropriate under the circumstances.
(Emphasis added).
La. R.S.33:2473(8) defines “demotion” as follows:
“Demotion” means a change of an employee in the classified service
from a position of one class to a position of a lower class which
generally affords less responsibility and pay.

7

Each board may adopt and execute rules, regulations, and
orders necessary or desirable effectively to carry out the
provisions of this Part, and shall do so when expressly
required by this Part. No rule, regulation, or order shall be
contrary to, or in violation of, any provision, purpose, or
intent of this Part or contrary to any other provision of
law.

La. R.S. 33:2478. This provision must be read in pari materia with the

provisions of La. R.S. 33:2501(B)(3), which pertain to appeal proceedings

before the board:

The board shall have complete charge of any such hearing
and investigation, and may conduct it in any manner it
deems advisable, without prejudice to any person or party
thereto.

Agency rule. Pursuant to the authority granted by La. R.S. 33:2478,

the board promulgated Board Rule V, which provides as follows regarding

applications for appeals and hearings:

Section 1: Any person authorized to appeal to the board
under the provisions of Civil Service Law may apply for
such an appeal by written notice giving a clear and
concise statement of the action complained against, the
basis of the appeal, and the relief sought. Application for
appeals to the board under the provisions of R.S. 33:2501
of Civil Service Law shall be made only by regular
employees in the classified service and shall be limited to
matters involving discharge, corrective or disciplinary
action and the application shall so state. All other requests
for hearing shall set forth the section of Civil Service Law
under which the application is brought and shall contain a
statement of jurisdiction of the Board. (Emphasis added).

Section 2: No appeal shall be effective unless the above
stated notice is filed within fifteen (15) days following the
action complained against, or where written notice is given
of an action to be thereafter effective, within the 15 days
following the date on which such notice is given.

In this case, the board refused to grant the plaintiff an evidentiary

hearing because it found that his appeal letter did not allege facts, which if

proven, would entitle him to relief, because: (1) the plaintiff’s transfer, based

8

on the facts alleged, did not constitute discipline or corrective action, and (2)

the plaintiff’s mere conclusory statement that the police chief’s motive for

the transfer was to discriminate against him did not constitute prima facie

allegations under La. R.S. 33:2489.

Regarding the legislative grant of authority to require employees to

state the basis for the appeal in the appeal letter, there is no textual basis for

distinguishing La. Const. art. 10, § 10(A)(1)(a), applicable to state civil

service, from La. R.S. 33:2478, applicable to municipal civil service.4 The

Louisiana Supreme Court, in Rocque, supra, suggested that promulgation of

Civil Service Commission Rule 13.11(d) constitutes a valid exercise of

authority under that constitutional provision. Id. at 728. The First Circuit, in

Khosravanipour, supra, approved of Rule 13:11(d), and remanded with

instructions that the employee be given leave to amend to cure the violation

of that rule. Therefore, Rocque, supra, and Khosravanipour, supra, support

our conclusion that municipal boards have the authority to require

employees to state the factual basis for the appeal, under penalty of

4
La. Const. art. 10, §10(A)(1)(a) authorizes the Civil Service Commission to
make administrative rules, as follows:
Each commission is vested with broad and general rulemaking and
subpoena powers for the administration and regulation of the
classified service, including the power to adopt rules for regulating
employment, promotion, demotion, suspension, reduction in pay,
removal, certification, qualifications, political activities,
employment conditions, compensation and disbursements to
employees, and other personnel matters and transactions…and
generally to accomplish the objectives and purposes of the merit
system of civil service as herein established.
La. R.S. 33:2478 authorizes municipal civil service boards to promulgate administrative
rules as follows:
Each board may adopt and execute rules, regulations, and orders
necessary or desirable effectively to carry out the provisions of this
Part, and shall do so when expressly required by this Part. No rule,
regulation, or order shall be contrary to, or in violation of, any
provision, purpose, or intent of this Part or contrary to any other
provision of law.

9

dismissal, despite related legislation providing that the employee “shall”

have the right to an appeal (or that the board “shall” grant a hearing and

investigation).

Furthermore, no policy reason exists to allow the Civil Service

Commission to require employees to “state the basis for the appeal” while

prohibiting municipal boards from doing the same. Both have a legitimate

interest in not holding vain and useless evidentiary hearings, just as the

judiciary has an interest in avoiding frivolous litigation. Such is a waste of

valuable public resources. If an employee has a factual basis for an appeal,

he or she need only state it in a (timely and properly filed) appeal letter to

obtain an evidentiary hearing; if the employee cannot state a factual basis,

despite the assistance of counsel, it is reasonable to conclude that is because

none exists. Board Rule V, Section 1, is within the Board’s rulemaking

authority pursuant to La. R.S. 33:2489 and La. R.S. 33: 2501(B)(3).

We further hold that the board committed no error in applying Board

Rule V, Section 1 – requiring a “clear and concise statement of… the

[factual] basis of the appeal” – to the facts of this case (i.e., the plaintiff’s

appeal letter). Indeed, the plaintiff did allege specific facts regarding his

transfer, but if proven, they would not establish that he was thereby

disciplined. None of the specific facts that the plaintiff alleges are included

in the statutory list of particulars that constitute “discipline.” Furthermore,

La. R.S. 33:2489 provides that “[a]ny employee may be transferred from any

position in the classified service to any position of the same class… at the

pleasure of the appointing authority without notice to and confirmation by

the board,” unless one of the three grounds enumerated therein for opposing

the transfer exists. If an employee could use La. R.S. 33:2501(A) to thwart
10

an otherwise valid transfer under La. R.S. 33:2489, the latter statute’s grant

of authority to the employer would effectively be frustrated.

Regarding his claim of discrimination, the plaintiff failed to allege any

specific facts whatsoever. His mere conclusory assertion of discrimination

must be regarded as insufficient.

Accordingly, the board properly held that the plaintiff’s appeal letter

was insufficient to entitle him to an evidentiary hearing. However, pursuant

to Rocque, supra, and Khosravanipour, supra, the plaintiff must be given a

reasonable opportunity to amend his appeal letter to cure this defect.

Refusal to issue mandamus ordering a hearing

The plaintiff sought from the district court a writ of mandamus

ordering the board to hold a hearing on his appeal of the transfer. In light of

our instruction that the plaintiff be granted a reasonable opportunity to

amend his appeal letter to cure the violation of Board Rule V, Section 1, the

issue of mandamus is premature, and is, therefore, pretermitted.

CONCLUSION

The dismissal of this case is REVERSED, and the case is

REMANDED to the board with instruction to allow the plaintiff a

reasonable opportunity to amend his appeal letter by alleging specific facts

supporting his claim of discrimination.

11

APPENDIX
Constitutional Provision; agency rule Rev. Stat. Title 33 Provision; agency rule
Rulemaking La. Const. art. 10, §10(A)(1)(a): Each §2478: Each board may adopt and execute
Authority commission is vested with broad and rules, regulations, and orders necessary or
general rulemaking and subpoena powers desirable effectively to carry out the
for the administration and regulation of the provisions of this Part, and shall do so when
classified service, including the power to expressly required by this Part. No rule,
adopt rules for regulating employment, regulation, or order shall be contrary to, or
promotion, demotion, suspension, in violation of, any provision, purpose, or
reduction in pay, removal, certification, intent of this Part or contrary to any other
qualifications, political activities, provision of law.
employment conditions, compensation and
disbursements to employees, and other
personnel matters and transactions…and
generally to accomplish the objectives and
purposes of the merit system of civil
service as herein established.

Discipline La. Const. art. 10, §8(A): A classified §2501(A): Any regular employee in the
employee subjected to such disciplinary classified service who feels that he has been
action shall have the right of appeal to the discharged or subjected to any corrective or
appropriate commission pursuant to disciplinary action without just cause, may,
Section 12 of this Part. The burden of proof within fifteen days after the action, demand,
on appeal, as to the facts, shall be on the in writing, a hearing and investigation by
appointing authority. (Emphasis added). the board to determine the reasonableness of
the action. The board shall grant the
employee a hearing and investigation within
thirty days after receipt of the written
request (Emphasis added).
Discrimination La. Const. art. 10, §8(B): No classified §2489: Any employee may be transferred
employee shall be discriminated against from any position in the classified service to
because of his political or religious beliefs, any other position of the same class within
sex, or race. A classified employee so the classified service, at the pleasure of the
discriminated against shall have the right appointing authority without notice to and
of appeal to the appropriate commission confirmation by the board.
pursuant to Section 12 of this Part. The Any regular employee so transferred shall
burden of proof on appeal, as to the facts, have the right of appeal to his board upon
shall be on the employee. (Emphasis the grounds… [that] the transfer was made
added). deliberately to discriminate against him.
(Emphasis added).

Agency Rule Civil Service Commission Rule 13.11(d): Board Rule V §1: Any person authorized
A notice of appeal must… to appeal to the board under the provisions
[c]ontain a clear and concise statement of of Civil Service Law may apply for such an
the actions complained against and a clear appeal by written notice giving a clear and
and concise statement of the basis of the concise statement of the action complained
appeal. Where discrimination is alleged to against, the basis of the appeal, and the
be a basis for appeal, specific facts relief sought. Application for appeals to the
supporting the conclusion of discrimination board under the provisions of R.S. 33:2501
must be alleged in detail. The specific facts of Civil Service Law shall be made only by
required will vary depending on the nature regular employees in the classified service
of the appeal; however, the facts must be and shall be limited to m atters involving
alleged in sufficient detail to enable the discharge, corrective or disciplinary action
agency to prepare a defense. A conclusion and the application shall so state…
of discrimination is not sufficient. (Emphasis added).
(Emphasis added).