Lillie Mae Middleton v. City of Natchitoches

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

06-1531

LILLIE MAE MIDDLETON

VERSUS

CITY OF NATCHITOCHES

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APPEAL FROM THE
TENTH JUDICIAL DISTRICT COURT
PARISH OF NATCHITOCHES, DOCKET NO. 77,892, DIV. A
HONORABLE ERIC R. HARRINGTON, DISTRICT JUDGE

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JAMES T. GENOVESE
JUDGE

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Court composed of Jimmie C. Peters, Billy Howard Ezell, and James T. Genovese,
Judges.

AFFIRMED.

William P. Crews, Jr.
William P. Crews, Jr., L.L.C.
Post Office Box 226
Natchitoches, Louisiana 71458-0226
(318) 356-8001
COUNSEL FOR DEFENDANT/APPELLANT:
City of Natchitoches

C. R. Whitehead, Jr.
Whitehead Law Offices
Post Office Box 697
Natchitoches, Louisiana 71458-0697
(318) 352-6481
COUNSEL FOR PLAINTIFF/APPELLEE:
Lillie Mae Middleton

GENOVESE, Judge.

The City of Natchitoches appeals a judgment of the Tenth Judicial District

Court upholding a decision by the Natchitoches Municipal Fire and Police Civil

Service Board (Board) which granted Lillie Mae Middleton’s motion for summary

judgment. The Board’s decision, in effect, reversed the City of Natchitoches’s

demotion of Lillie Mae Middleton from the position of Records Clerk Supervisor for

the Natchitoches Police Department to the position of Records Clerk. For the

following reasons, we affirm the judgment of the district court.

DISCUSSION OF THE RECORD

According to the record, Lillie Mae Middleton (Middleton) began her

employment with the Natchitoches Police Department (Department) on November 5,

1979. In September of 1980, she became a classified civil servant as the

Department’s sole Records Clerk. In September of 2001, the Department created the

position of Records Clerk Supervisor, and Middleton was promoted to that position

based on her seniority. She was also given an increase in pay commensurate with her

promotion. Middleton was tenured under Louisiana’s Classified Civil Service Law1

as a Records Clerk; however, from its inception, the position of Records Clerk

Supervisor was not an approved position under Louisiana’s Classified Civil Service

Law. In late 2003, Middleton took and passed the civil service test and, on January

4, 2004, the position of Records Clerk Supervisor for the Department officially

became a classified civil service position. It is at this point that the City of

Natchitoches (City) and Middleton differ.

The record reveals that Middleton was summoned to the office of Keith Wayne

1
Louisiana Revised Statutes 33:2471, et seq.

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Thompson (Chief Thompson), the Interim Chief for the Natchitoches Police

Department, on the morning of October 27, 2004. When she joined Chief Thompson

in his office, there were three other individuals also present: Chris Stanfield

(Stanfield), Assistant Chief for the Natchitoches Police Department; Lieutenant

Micky Dove; and Edd Lee, the Human Resource Officer for the City. Chief

Thompson advised Middleton that the meeting was being recorded and told her, “We

need to talk to you about the operations of the Records Division and uh, your

performance as supervisor of Records . . . .” Stanfield read aloud a letter he sent to

Chief Thompson on September 27, 2004, which alleged inadequacies in Middleton’s

job performance since becoming Records Clerk Supervisor. Among his complaints

were: Middleton showed favoritism towards certain subordinates; Middleton was

intimidating and demeaning; and Middleton exhibited poor grammar and

communication skills. Stanfield’s letter declared, in pertinent part:

Therefore, it is my recommendation that she NOT be confirmed in the
position of Records Clerk Supervisor, and placed in the position of
inputting incident reports in the computer system. This will take her out
of the position of having to deal with co-workers, and the public, and
will hopefully help the morale of the entire records division, in that she
will be in a separate building and they will no longer have to deal with
the favoritism and demeaning way that they have been treated over the
past three years.

Chief Thompson advised Middleton that the complaints contained in

Stanfield’s letter prompted him to conduct an investigation and, after speaking with

individuals in the Natchitoches Parish District Attorney’s office, the Judge’s office,

and with the mayor of Natchitoches, Wayne McCullen (Mayor McCullen), Stanfield’s

allegations were reportedly corroborated. Middleton was allowed the opportunity to

respond, after which Chief Thompson advised her that he had also investigated

alleged discrepancies with citations, reports, and the cash box. Middleton was again

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given an opportunity to respond and was then asked by Chief Thompson to step out

of his office and wait. After what Middleton described as “a moment,” she was called

back into Chief Thompson’s office and told that she was not being confirmed in the

position of Records Clerk Supervisor. Chief Thompson first read aloud, then hand-

delivered, a letter to Middleton signed by both him and Mayor McCullen. The letter,

dated October 25, 2004, two days prior to this meeting, stated, in pertinent part: “You

[will] not be confirmed in the position of Records Clerk Supervisor. You will be

placed in your prior position with the appropriate adjustment in pay according to

Civil Service.” The letter also advised Middleton of her right to appeal.

On October 29, 2004, Middleton appealed the City’s action against her to the

Natchitoches Municipal Fire and Police Civil Service Board. In her appeal,

Middleton asserted that she was a civil servant who was terminated from her position

as Records Clerk Supervisor and demoted to her former position of Records Clerk in

violation of the right to due process guaranteed to her as a civil servant pursuant to

La.Const. art. 1, § 2 and La.Const. art. 10, § 8.2

The City disputed Middleton’s appeal, asserting that on October 27, 2004, she

was a working test employee while occupying the position of Records Clerk

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Louisiana Constitution Article 1, § 2 provides “[n]o person shall be deprived of life, liberty,
or property, except by due process of law.”

Louisiana Constitution Article 10, § 8 provides, in pertinent part:

(A) Disciplinary Actions. 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. The burden of proof on appeal, as to the facts, shall
be on the appointing authority.

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Supervisor since January 4, 2004. See La.R.S. 33:2495.3 The City argued that

Middleton was not tenured under Louisiana’s Classified Civil Service Law in the

position of Records Clerk Supervisor; therefore, the procedural due process

requirements were inapplicable.

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Louisiana Revised Statutes 33:2495 provides, in pertinent part:

A. Every person appointed to a position in the classified service following the
certification of his name from a promotional or a competitive employment list,
except those appointed on a temporary basis, shall be tested by a working test while
occupying the position before he may be confirmed as a regular and permanent
employee in the position.

B. (1)(a) Except as provided in Paragraphs (2) and (3) of this Subsection, the
period of the working test shall commence immediately upon appointment and shall
continue for a period of not less than six months nor more than one year. Any
employee, except an entry level fireman and an entry level radio, fire alarm, or signal
system operator, who has served less than six months of his working test for any
given position may be removed therefrom only with the prior approval of the board,
and only upon one of the following grounds:

(i) He is unable or unwilling to perform satisfactorily the
duties of the position to which he has been appointed.

(ii) His habits and dependability do not merit his continuance
therein.

(b) Any such employee may appear before the board and present his
case before he is removed.

....

C. Upon any employee completing his working test, the appointing authority
shall so advise the board and furnish a signed statement to the respective employee
of its confirmation and acceptance of the employee as a regular and permanent
employee in the respective position or of its refusal to confirm the employee and the
reasons therefor. If, at the expiration of an employee’s working test period, the
appointing authority fails to confirm or reject the employee, such failure to act shall
constitute a confirmation. Any employee who is rejected after serving a working test
of six months but not more than one year may appeal to the board only upon the
grounds that he was not given a fair opportunity to prove his ability in the position.

D. The appointing authority may remove, and shall remove upon the order of
the board, any employee during his working test period who the board finds, after
giving him notice and an opportunity to be heard, was appointed as a result of an
error, misrepresentation, or fraud.

E. In any event where an employee is permitted under this Section to appeal
to the board, the decision of the board shall be subject to the judicial review provided
by this Part and the appointing authority and employee shall be governed accordingly.

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Prior to a hearing on the merits of her appeal before the Board, Middleton filed

motions for “summary dismissal” to have the City’s disciplinary action against her

dismissed due to the City’s failure to afford her due process under the principles

enunciated in Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct.

1487, 84 L.Ed.2d 494 (1985), and for the City’s failure to provide her written notice

as required by La.R.S. 33:2500(D) which states, “[i]n every case of corrective or

disciplinary action taken against a regular employee of the classified service, the

appointing authority shall furnish the employee and the board a statement in writing

of the action and the complete reasons therefor.” In her motions for summary

dismissal, Middleton asserted that the lack of notice prevented her from having a

reasonable opportunity to prepare for and to respond to the City’s allegations.

At the hearing on Middleton’s motions, the Board heard testimony from

Middleton regarding the lack of prior notice that a disciplinary hearing or pre-

termination hearing was scheduled for October 27, 2004. Testimony was also elicited

from Chief Thompson. Board Member Doris Robinson asked, “When did Ms.

Middleton first learn that she was going to have a meeting on October the 27th?”

Chief Thompson replied, “The day of the 27th.” Following the Board’s hearing4 on

Middleton’s motions for summary judgment, the Board offered Written Findings of

Pertinent Facts as follows:

Officer Lillie Mae Middleton began working in the City of
Natchitoches Police Records Department beginning in September 1980
as the sole employee in that department. Ultimately, additional
personnel were hired in that department and she was appointed as
Records Clerk Supervisor with a commensurate increase in pay and
duties in September 2001.

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The Board actually held two hearings resulting in the same decision. The second hearing
was held for the purpose of rectifying the board’s error of going into executive session, when the
hearing should have been an open hearing in accordance with La.R.S. 33:2501(B)(1).

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It was later determined that there was no classified position under
civil service in the City of Natchitoches Police Department of Records
Clerk Supervisor, however, Officer Middleton continued with the same
pay, title and duties. Subsequent to September 2001 and prior to
October 27, 2004, the position of Records Clerk Supervisor was
classified under civil service and Officer Middleton continued with her
duties and responsibilities.

On October 27, 2004, Records Clerk Supervisor Lillie Mae
Middleton was requested to attend a meeting with Assistant Chief Chris
Stanfield, Chief Keith Thompson and others and was demoted from
Departmental Records Clerk Supervisor to Departmental Records Clerk.

Officer Middleton was requested by Asst. Chief Stanfield to
follow him to a meeting with Chief Thompson, himself, Lieutenant
Micky Dove and Edd Lee, City of Natchitoches Personnel Director.
During that meeting, concerns with Officer Middleton’s job
performance and supervisory skills were discussed. After an
undetermined amount of time, Chief Thompson, Assistant Chief
Stanfield, Lieutenant Micky Dove and Edd Lee excused Officer
Middleton and had a private discussion concerning Officer Middleton
for an undetermined amount of time described as “moments” or
“minutes[.]” Officer Middleton was requested to return to the meeting
and was handed a letter dated October 25, 2004 signed by Mayor Wayne
McCullen and Chief Thompson demoting Officer Middleton from
Records Department Supervisor to Records Department Clerk with an
appropriate decrease in her pay.

On October 29, 2004, Officer Middleton mailed a request for an
appeal to the action taken against her.

A hearing date was scheduled but after agreement by all parties
it was continued a couple of times until February 25, 2005 when a
hearing was had by the Natchitoches Fire and Police Civil Service Board
(“Board”). Between the filing of the appeal by Officer Middleton and
the hearing date, Officer Middleton obtained legal representation and
her attorney filed various motions and briefs. Two of the motions filed
were a Motion for Summary Dismissal of Disciplinary Action for lack
of a proper predetermination hearing and Motion for Summary
Dismissal of Disciplinary Action for Lack of Due Process for failure to
give adequate notice and a reasonable opportunity to respond.

Following the hearing and presentation of witnesses and evidence
relating to a Motion for Summary Dismissal of the disciplinary action
against Officer Lillie Mae Middleton from her demotion from
Departmental Records Supervisor of the Natchitoches City Police to
Records Clerk, the Natchitoches Municipal Fire and Police Civil Service
Board made a motion to enter into executive session to discuss legal

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opinions from their attorney, Charlie Dirks, with Avant & Falcon
regarding whether the requirements of notice and a reasonable
opportunity to respond were provided to Officer Lillie Mae Middleton
for a predetermination hearing and/or was she provided due process.
Following a motion by Chris Payne which was seconded by Eric Rachal,
the motion to enter into executive session carried unanimously.
Following a motion by Doris Robinson which was seconded by Chris
Payne, the motion to come out of executive session carried unanimously.
Following a motion by John Brittain which was seconded by Chris
Payne, the motion to reinstate Lillie Mae Middleton as Police
Department Records Clerk Supervisor retroactive to October 27, 2004
to February 25, 2005 and in the same capacity she was in October 26,
2005 [sic] carried unanimously.

NOTE: The City of Natchitoches was allowed to proffer
testimony that the Board deemed inadmissible/irrelevant to the hearing
on the Motions for Summary Dismissal outside of the presence of the
Natchitoches Municipal Fire and Police Civil Service Board and
requested a suspensive appeal from the Board’s ruling. The
Natchitoches Municipal Fire and Police Civil Service Board indicated
that the City of Natchitoches could proffer the evidence after the hearing
outside the presence of the Board and that whatever the law would allow
is how the City of Natchitoches could proceed regarding an appeal.

On March 15, 2005, the City of Natchitoches faxed a written
notice of appeal in the form of a letter to the Board Chairman’s office
from their attorney, William Crews.

The Board concluded that Middleton was not afforded due process because she did

not receive sufficient notice of a pre-termination (Loudermill) hearing prior to

October 27, 2004. The Board ordered Middleton reinstated to the position of Records

Clerk Supervisor.

The City appealed the Board’s ruling to the Tenth Judicial District Court,

seeking to have the decision reversed. The City reiterated its argument that

Middleton was a working test employee and, thus, it asserted that the scope of

Middleton’s appeal to the Board should have been limited to whether or not she was

given a fair opportunity to prove her ability in the supervisory position. See La.R.S.

33:2495(C). The City argued that the Board’s decision, based on the lack of

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procedural due process, was erroneous because, as a working test employee,

Middleton was not entitled to the same constitutional guarantees of advanced written

notice as a civil servant.

On February 23, 2006, after reviewing the arguments of counsel, the district

court issued Written Reasons for Judgment finding in favor of Middleton. A

judgment was signed by the district court upholding the Board’s decision on March

2, 2006. It is from this judgment that the City appeals. Middleton answered the

City’s appeal to assert that she is entitled to damages for a frivolous appeal pursuant

to La.Code Civ.P. art. 2164.

ISSUES

The City appeals the judgment of the district court, asserting the following

assignments of error:

1. The trial court erred in, by implication, concluding that the
actions taken by the City of Natchitoches regarding employee,
Lillie Mae Middleton, were not in good faith and for just cause.

2. The trial court erred in holding, by implication, that the actions
taken by the City of Natchitoches were “disciplinary in nature”
and therefore a Loudermill hearing was required.

3. The trial court was manifestly erroneous in affirming the granting
of employee’s motion for summary judgment by the Civil Service
Board when issues of material fact were inherent.

STANDARD OF REVIEW

Appellate courts review grants of summary judgment de novo,
using the same criteria that govern the trial court’s consideration of
whether summary judgment is appropriate, i.e., whether there is a
genuine issue of material fact and whether the mover is entitled to
judgment as a matter of law. Ocean Energy, Inc. v. Plaquemines Parish
Gov’t, 04-0066 (La. 7/6/04), 880 So.2d 1. The movant bears the burden
of proof. La. C.C.P. art. 966(C)(2). If the movant meets this initial
burden, the burden then shifts to plaintiff to present factual support
adequate to establish that he will be able to satisfy the evidentiary
burden at trial. Richard v. Hall, 03-1488 (La. 4/23/04), 874 So.2d 131,

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137. Thereafter, if plaintiff fails to meet this burden, there is no genuine
issue of material fact and defendant is entitled to summary judgment as
a matter of law. Id. This court has recognized that a “genuine issue” is
a “triable issue,” an issue in which reasonable persons could disagree.
Jones v. Estate of Santiago, 03-1424 (La. 4/14/04), 870 So.2d 1002,
1006 (citing Smith v. Our Lady of the Lake Hosp., 93-2512 (La. 7/5/94),
639 So.2d 730, 751). Further, this court has defined a “material fact” to
be one in which “its existence or nonexistence may be essential to
plaintiff’s cause of action under the applicable theory of recovery.” Id.

Champagne v. Ward, 03-3211, pp. 4-5 (La. 1/19/05), 893 So.2d 773, 776-77.

DISCUSSION

The parties clearly dispute Middleton’s status. The City argues that Middleton

was merely a working test employee and that both the Board and the district court

erred in treating her as a civil servant. Middleton disputes the City’s contention that

she was a simply a working test employee arguing “once . . . appointed to the non-

civil service position of [Records Clerk Supervisor], [she] worked in that position for

a number of months (28) before the position was created[;] therefore[,] she should be

disciplined as a permanent employee in the service which would place the burden of

proof for her demotion on the City.”

The district court agreed with the Board’s finding that Middleton was not a

working test employee. In its Written Reasons for Judgment, the district court, citing

as authority in a footnote Board v. Housing Authority of New Orleans, 590 So.2d

1258 (La.App. 1 Cir. 1991), declared, in pertinent part:

This court need not reach a determination of whether she
[Middleton] was a working test employee or had acquired permanent
status. Since due process is not a technical concept with a fixed content
unrelated to time, place and circumstances, precisely what process is due
in a given case is dependent upon the peculiar facts involved.

Ms. Middleton served in the unclassified position of Record Clerk
Supervisor from September 2001 until October 2003, and then served
in the classified position for almost another year. She served in the
classified position without a competitive process. As such, she attained

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sufficient property rights in the position to entitle her to advance notice
of the allegations and termination hearing, so as to have an opportunity
to prepare and respond.

Because these due process requirements were not complied with,
the court finds that her appeal to the Board was appropriate, and the
Boards’ [sic] ruling was correct.

In its brief to this court, the City contends that both the Civil Service Board and

the district court erred when it overruled the City’s actions and reinstated Middleton

to the position of Records Clerk Supervisor. The City reiterates “[its] failure . . . to

certify Ms. Middleton for the position of ‘supervisory’ [sic] was neither a ‘dismissal’

nor a ‘disciplinary action’ and, therefore, Loudermill is inapplicable.” The City also

continues to argue “[o]nce the position was duly certified, Ms. Middleton then

performed, under the Civil Service rules, a work test period. Thereafter, the City did

not certify Ms. Middleton for that position and returned her to the position of

‘Records Clerk’.”

After reviewing the record, we find the trial court was correct in its analysis.

The City failed to prove that Middleton was a working test employee or that there was

any such working test period to which she was assigned. All factors in the record

considered, the City accepted Middleton as a civil servant. Middleton had attained

sufficient property rights in the position of Records Clerk Supervisor to entitle her to

advance notice of the allegations and a pre-termination (Loudermill) hearing. The

City created this position and, after Middleton successfully passed the required test,

it promoted her based on her seniority and without a competitive process. Middleton

accepted and served in the position for twenty-eight months before the City took

disciplinary action and demoted her and then attempted to declare its actions legal

pursuant to the working test statute.

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Therefore, the only remaining question is whether the City satisfied the

procedural due process requirements. A civil servant has a constitutionally

guaranteed property right and cannot be deprived of this right without due process of

law. Plaisance v. City of Lafayette, 94-1178 (La.App. 3 Cir. 3/1/95), 651 So.2d 414,

writ denied, 95-841 (La. 5/5/95), 654 So.2d 334. See also U.S. Const. amend. XIV;

La.Const. art. 1, § 2.

In Plaisance, this court discussed the procedural due process requirements

guaranteed to civil servants:

Due process requires “some kind of a hearing” prior to the
termination of an employee with a constitutionally protected property
interest in his employment. Board of Regents v. Roth, 408 U.S. 564, 92
S.Ct. 2701, 33 L.Ed.2d 548 (1972). However, the pretermination
hearing does not have to be elaborate; nor does it have to definitively
resolve the propriety of the discharge. Rather it should be a preliminary
determination of whether there are reasonable grounds to believe that
the charges against the employee are true and thereby act as a initial
check against mistaken decisions. Loudermill, supra, citing Bell v.
Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971).

Loudermill involved the termination of two classified civil service
employees and posed the question of whether their due process rights
had been violated. The United States Supreme Court held that all the
process that is due is provided by a pretermination opportunity to
respond, coupled with post-termination administrative procedures. In
reaching this conclusion, the court noted that the essential requirements
of due process are notice and an opportunity to respond. Specifically,
in the employment situation, a 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.
Loudermill, supra, citing Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct.
1633, 40 L.Ed.2d 15 (1974).

Id. at 416.

“The basic procedural due process requirements are notice and an opportunity

to respond.” Cannon v. City of Hammond, 97-2660, p. 4 (La.App. 1 Cir. 12/28/98),

727 So.2d 570, 572. Applying the above principles to the facts of this case, we find

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that Middleton was not afforded the due process protections which she, as a classified

civil servant, is guaranteed.

The City did not adequately fulfill the procedural due process requirements of

notice and an opportunity to respond before it demoted Middleton. Though the City

asserts that Middleton was aware of Stanfield’s concerns regarding her job

performance prior to October 27, 2004, she was not apprised of the additional issues

raised by Chief Thompson which were not contained in Stanfield’s letter. Thus,

Middleton could not sufficiently respond to all of the complaints alleged against her

by the City prior to her demotion and did not have the opportunity of attending the

pre-termination hearing accompanied by an attorney. The City notified Middleton

of the meeting only moments before it actually occurred. This notice, or lack thereof,

is clearly insufficient. Further, even though Middleton was given an opportunity to

respond in her own defense at said meeting, it is apparent that the City had already

reached its decision prior to October 27, 2004. The letter which Chief Thompson

read aloud and then hand-delivered to Middleton was dated October 25, 2004, and

had already been signed by Mayor McCullen; yet, the mayor was not even present at

the meeting.

Therefore, we affirm the judgment of the district court upholding the Board’s

decision to grant Lillie Mae Middleton’s motion for summary judgment, reversing the

City’s demotion of Lillie Mae Middleton from the position of Records Clerk

Supervisor for the Natchitoches Police Department to the position of Records Clerk.

ANSWER TO APPEAL

In her answer, Middleton seeks damages in the form of attorney fees, arguing

that the City has taken a frivolous appeal. Louisiana Code of Civil Procedure Article

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2164 provides the authority for an appellate court to award damages for a frivolous

appeal.

If the court feels that counsel for the appellant does not seriously
advocate the position taken or that the appeal was filed solely for
dilatory purposes, then damages for frivolous appeal are appropriate.
Gallien v. Winn-Dixie, 96-832 (La.App. 3 Cir. 12/11/96), 685 So.2d 531
(citing Hampton v. Greenfield, 618 So.2d 859 (La.1993)); Doe v. Roman
Catholic Church, 94-1476 (La.App. 3 Cir. 5/3/95), 656 So.2d 5, writ
denied, 95-2076 (La. 11/13/95), 662 So.2d 478. However, if even the
slightest justification is found for the appeal, and even if the appellant
does not prevail on appeal, damages will not be awarded. Hawkins v.
City of Jennings, 97-1291 (La.App. 3 Cir. 3/6/98), 709 So.2d 292.

Moraus v. Frederick, 05-429, pp. 9-10 (La.App. 3 Cir. 11/2/05), 916 So.2d 474,

481-82.

The Louisiana Supreme Court has instructed appellate courts to award damages

under La.Code Civ.P. art. 2164 only when an appeal is taken for purposes of delay

or an appellate counsel is not sincere in the belief of the view he or she advances on

appeal. Hampton, 618 So.2d 859. We find that the City raises viable issues on

appeal and that there is evidence in the record of these proceedings that indicates this

case does not warrant an award of damages for frivolous appeal. Neither the record

nor the briefs indicate that counsel for the City does not seriously advocate the

position taken, or that this appeal was filed as a dilatory tactic. Thus, we deny

Middleton’s request for damages for frivolous appeal.

DECREE

For the foregoing reasons, we affirm the judgment of the district court

upholding the decision of the Natchitoches Municipal Fire and Police Civil Service

Board reinstating Lillie Mae Middleton to the position of Records Clerk Supervisor.

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Further, we deny Middleton’s request for damages for frivolous appeal. We assess

all costs of this appeal to the City of Natchitoches.

AFFIRMED.

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