Stephan Jones v. City of Pineville

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-1227

STEPHAN JONES

VERSUS

CITY OF PINEVILLE

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 220,225
HONORABLE MARY LAUVE DOGGETT, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, Oswald A. Decuir, and Billy Howard Ezell,
Judges.

REVERSED AND RENDERED.

Daniel Elmo Broussard, Jr.
Broussard, Halcomb & Vizzier
P. O. Box 1311
Alexandria, LA 71309
(318) 487-4589
Counsel for Plaintiff/Appellant:
Stephan Jones

Mark Felipe Vilar
Vilar & Elliott
P. O. Box 12730
Alexandria, LA 71315-2730
(318) 442-9533
Counsel for Defendant/Appellee:
City of Pineville

SAUNDERS, Judge.

This is a civil service case where a firefighter was terminated for

insubordination by a municipality. The insubordinate act was that the firefighter

failed to give a valid urine sample at the designated facility for a drug screen after

having been ordered by his superior to do so. The drug screen was required by the

city’s standard operating procedure, as the firefighter was involved in a minor vehicle

accident while on duty.

The firefighter appealed his termination to the civil service board. The board

upheld his termination. The firefighter then appealed the board’s decision to the

appropriate district court. The district court affirmed the board’s decision. The

firefighter has now appealed to this court, alleging several assignments of error.

We reverse the district court’s affirmation of the board’s decision. We find that

the firefighter’s termination was not in good faith and was unreasonable, as the

municipality failed to prove that it performed its affirmative duty to give the

firefighter written notice of his termination and the reasons for that termination as

required by La.R.S. 33:2500(D). We order that the firefighter be reinstated to his

former position and that the firefighter be paid back pay from the time of his illegal

termination.

FACTS AND PROCEDURAL HISTORY:

On July 23, 2003, Stephan Jones (Jones) was employed by the Pineville Fire

Department. On that date he was on duty and driving a fire truck owned by the City

of Pineville (Pineville). Jones had been employed by Pineville for approximately

three years holding the rank of Firefighter First Class with no prior disciplinary action

taken against him. While driving the fire truck back to the fire station, Jones was

involved in a minor accident with a United Stated Postal Service truck, wherein he,

while attempting to pass the postal truck, struck the truck’s side mirror. Jones was

driving without a valid driver’s license in his possession when the accident occurred.

Before leaving the accident scene, pursuant to Pineville’s substance abuse

policy, Jones was ordered by Chief Doug Nugent to report to the Rapides Regional

Medical Center’s Industrial Medicine Clinic to provide a urine sample for a drug

screen. Captain Eddie Laborde was instructed to transport Jones to the facility.

Upon leaving the accident scene, Jones requested that Captain Laborde bring

him to the fire station so that he could retrieve his driver’s license. While at the

station, Jones collected items from the saddlebag of his motorcycle, had a glass of

water, and used the restroom. Captain Laborde then took Jones to the facility to

provide the urine sample.

At the facility, Jones was given a urine cup and was instructed to go into the

restroom by the attending nurse, Dianne McClellan. When Jones returned with the

sample, Nurse McClellan tested it to determine whether the sample was within the

temperature range necessary to be susceptible to a valid drug screen. According to

McClellan, the temperature strip indicated that the sample’s temperature was too high

to be tested, and she informed Jones that he would need to submit another sample.

At this point, Jones apparently became irate with Nurse McClellan and refused to

submit another sample. Jones then left the facility to await Captain Laborde’s return.

Meanwhile, Nurse McClellan called Diane Ray, Pineville’s Human Resource

Director, and informed Ray of Jones’ failure to submit a valid urine sample.

Chief Nugent instructed Captain Laborde to return to the facility and retrieve

Jones. When Captain Laborde arrived, Jones got into the vehicle and informed

Captain Laborde that the urine sample was determined to be invalid. Captain

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Laborde then told Jones that failure to submit a valid sample could cost him his job.

Captain Laborde then returned Jones to the facility to see if Jones could submit a

second sample.

Once inside, Captain Laborde called Chief Gary Morrow. Chief Morrow told

Captain Laborde to transport Jones back to administration. After Captain Laborde

and Jones returned to the fire department, a meeting took place between Chief

Nugent, Chief Morrow, and Captain Laborde while Jones waited outside. Chief

Morrow then informed Jones that he had the option of resigning or being placed on

suspension without pay. Jones refused to resign and was sent home on immediate

suspension.

On July 24, 2003, Chief Morrow sent a letter to Jones informing him that an

internal affairs investigation was being conducted and that Jones needed to report to

Lieutenant Dan Rachal of the Pineville Police Department. Jones gave a recorded

statement before Lieutenant Rachal and Acting Chief Barry Tull. On July 31, 2003,

Chief Morrow delivered a letter to Jones entitled “Predisciplinary Hearing - Notice

of Charges.” This letter notified Jones that a pre-disciplinary hearing would take

place on August 4, 2003.

Following the August 4, 2003, pre-disciplinary hearing, Jones was terminated.

Jones appealed his termination to the Pineville Civil Service Board (the Board). A

hearing was held in front of the Board on October 15, 2003, and was continued on

February 9, 2003, March 17, 2005, and April 13, 2005. The Board rendered its

decision on April 13, 2005, to unanimously uphold Jones’ termination. Jones then

properly appealed the Board’s decision to the Ninth Judicial District Court raising

several issues that he alleged made his termination improper. One of the issues Jones

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raised to the district court was that he had never received proper written notification

of his termination or the reasons for that termination from the appropriate appointing

authority, the mayor of Pineville, Mayor Clarence Fields. This was the first time that

Jones raised this issue. The district court affirmed the Board’s decision to uphold

Pineville’s termination of Jones, finding that the termination was in good faith and

was reasonable. Jones then timely perfected this appeal, alleging the following

assignments of error:

ASSIGNMENTS OF ERROR:

1. Jones’ termination was not proper, as no written notification of such or reasons
for that termination was given to him by the appointing authority, the Mayor
of Pineville, in compliance with La.R.S. 33:2500(D).

2. The Board violated Jones’ constitutional rights to procedural due process and
to a fair notice and meaningful opportunity to be heard, in specific, by limiting
the presentation of evidence on behalf of Jones at the partially conducted
hearing and failing to address any issues to Jones’s deficient notice.

3. At the first hearing, the only witness (who was allowed to testify again over
objection) acknowledged the failure of the city to follow rules on drug testing,
thereby calling for the granting of Jones’ motion to have that issue dismissed
from appeal (which motion was denied and is appealed herein), and yet the
Board decided to still consider those issues although the City failed to comply
with drug testing policies, which rises to the level of state constitutional issues
regarding unlawful searches and seizures, thereby divesting the Civil Service
Board of jurisdiction of such issues and violating the equal protection laws of
Jones and likewise the Standard Operation Procedure regarding Jones’ action
to a nurse at the time of the test is constitutionally protected speech and further
the SOP is unconstitutionally vague and over broad, and thus the Board has no
jurisdiction to determine that matter.

4. Relatedly, the issues related to drug testing involve the lack of proper
involvement of a MRO as required by law and other violations regarding the
collection and charting of events related to this case, including the
incompetency and impeachment of the nurse collection site person who was on
duty at Rapides General Hospital.

5. At the hearing, the Board attempted to limit the cross-examination of witnesses
called by the City of Pineville in a most egregious, clear and unfair manner and
constituting gross departure from proper conduction of hearings even where
formal rules of evidence need not be followed.

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6. The untimely investigation and improper pre-disciplinary hearing falls outside
of statutory law and has prejudiced Jones over the significant amount of time
between the initial hearing and conduction of the hearing now.

7. The Board improperly considered objected to evidence and also impermissibly
expanded the punishment to include items never noticed by Loudermill
requirements.

8. The Board did not consider that the only positive testimony on the issue of
failure to follow a direct order resulting in clear testimony of same did not
occur.

9. The Board’s punishment was too severe and the City failed to prove that any
action of Jones impaired the efficient operation of the City based on other’s
similar situations for which no punishment was meted out and considering the
unconstitutionality and protected behavior with which Jones acted in
disagreeing with Nurse McClellan.

ASSIGNMENT OF ERROR NUMBER ONE:

Jones contends in his first of many assignments of error that the district court

erred in affirming the Board’s decision, as the Board did not consider that Pineville

failed to comply with La.R.S. 33:2500(D) when it terminated his employment. We

find that Jones’ contention has merit.

Pineville first argues that Jones’ failure to raise this issue before the Board is

a waiver of this assignment of error. We do not agree.

Our supreme court, in Shields v. City of Shreveport, 579 So.2d 961 (La.1991),

addressed an issue raised for the first time in memorandum to the district court

dealing with the federal Rehabilitation Act. Our supreme court acknowledged that

the issue in Shields was outside the proper scope of review, as La.R.S. 33:2501(E)(3)

limits the scope of review of an appeal from a civil service board’s decision as to

whether the decision was in good faith and reasonable. Nonetheless, prior to

addressing the issue, our supreme court stated the following:

The issue raised by plaintiffs’ contention that the Rehabilitation
Act operates to prevent their termination would ordinarily not be

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considered by us because, as explained above, it was never properly
before any reviewing court and plaintiffs failed to allege and prove a
threshold requirement of the statute. However, the issue has been briefed
and argued by counsel and, in the interest of judicial economy, we deem
it important to address the question.

Id., at 965.

As in the Shields case, the issue before us was not raised by Jones until his

memorandum to the district court. However, unlike Shields, this issue is squarely

within our scope of review, as this issue deals with whether Pineville, through Mayor

Fields, successfully carried its burden to prove to the Board that Jones’ dismissal was

in good faith and was reasonable. Further, identically to Shields, this issue has been

briefed and argued by counsel at the district court and appellate court levels, and

addressing it would be in the interest of judicial economy. Finally, like our supreme

court in Shields, we feel that this issue is one of importance. Jones is a civil service

employee, and, as such, has certain statutory rights granted to him via La.R.S.

33:2500 that he contends were not honored. Accordingly, we will address this

assignment of error.

Louisiana Revised Statutes 33:2500, in pertinent part, states:

C. Although it is incumbent upon the appointing authority to initiate
corrective or disciplinary action, the board may, and shall upon the
written request of any qualified elector of the state which sets out the
reasons therefor, make an investigation of the conduct and performance
of any employee in the classified service and, thereupon may render
such judgment and order action to be taken by the appointing authority.
Such action shall be forthwith taken by the appointing authority.

D. In 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.

Louisiana Revised Statutes 33:2501, in pertinent part, states:

A. Any regular employee in the classified service who feels that he has

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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.

....

C. (1) After the investigation . . . 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. (1) Any employee under classified service and any appointing
authority may appeal from any decision of the board, or from any action
taken by the board under the provisions of the Part that is prejudicial to
the employee or appointing authority. This appeal shall lie direct to the
court of original and unlimited jurisdiction in civil suits of the parish
wherein the board is domiciled.

....

(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.

This court, in Tweedel v. Fire Protection District No. 1 Civil Service Board,

546 So.2d 654, 655 (La.App. 3 Cir. 1989), stated:

“In good faith” has been interpreted to mean the opposite of arbitrary or
capricious action or action that stems from prejudice or political
expediency on the part of the appointing authority. “Cause” means legal

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cause and the evidence must show that the dismissal was necessary for
the discipline and efficiency of the service or that it was needed to avoid
some detriment to that department or to the city.

Additionally, this court, in Smith v. Mun. Fire & Police Civil Serv. Bd. of

Eunice, 94-625, p. 3 (La.App. 3 Cir. 11/2/94), 649 So.2d 566, 568 (citations omitted),

stated the following:

The appropriate standard of appellate review in appeals from civil
service disciplinary actions is to determine whether the conclusion
reached by the Board was arbitrary, capricious, or characterized by an
abuse of discretion. The decision of the Board will not be disturbed if
made in good faith and for legal cause. 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 public service. 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.

In the case before us, the record indicates that the district court erred in

affirming the decision of the Board. Neither party disputes that Jones, as a firefighter

in Pineville’s Fire Department, was a civil service employee. Further, neither party

contests that the Mayor of Pineville, in this case Mayor Clarence Fields, was the

appointing authority referenced in La.R.S. 33:2500(D). Finally, it is clear that the

record contains no evidence of a written statement from Mayor Fields to Jones

notifying him of his termination or the complete reasons for that termination.

In brief, Pineville requests this court to remand the case back to the Board if

we address this assignment raised by Jones so that both parties would be able to

submit evidence on the issue. We deny this request.

Pineville argues that this request is reasonable given that denial of the request

would require it to predict and anticipate all arguments that might be raised by

disciplined employees or to be ambushed on appeal via issues that were never raised

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with the Board. This argument is misguided.

It is Pineville, through its Mayor, that has the burden to prove to the Board that

it has complied with its affirmative statutory mandate in La.R.S. 33:2500(D). While

Pineville may or may not have actually provided Jones with a written statement

notifying him of his termination and reasons for such, the time for submission of such

evidence has passed. The clear language of La.R.S. 33:2500(D) was readily available

to Pineville, and to allow it to get a second chance to comply with the statute would

be an injustice to Jones.

Louisiana’s revised statutes provide an extensive, detailed procedure to be

followed in the discipline of civil service employees. Louisiana Revised Statutes

33:2500(C) is clear that, “it is incumbent upon the appointing authority to initiate

corrective or disciplinary action.” This action, as indicated in La.R.S. 33:2500(D),

is initialized by furnishing notice to the board and the employee a statement in writing

of contemplated action and reasons therefor. The language in this section is clearly

mandatory, i.e., “the appointing authority shall furnish the employee . . . a statement

in writing of the action and the complete reasons therefor.” La.R.S. 33:2500(D)

(emphasis added.)

Louisiana Revised Statutes 33:2501(A) provides that within fifteen days of

receipt of the aforesaid written statement the employee may request a hearing before

the board. Clearly, the written notice of La.R.S. 33:2500(D) is a prerequisite to the

La.R.S. 33:2501(A) request.

Thereafter, La.R.S. 33:2501(C)(1) limits the hearing before the board to

determine whether the action was taken in good faith for a reasonable cause. The

“action taken” must have been referred to in the written statement necessitated by

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La.R.S. 33:2500(D). Louisiana Revised Statutes 33:2501(C)(1) further provides that

the board may or may not “affirm the action of the appointing authority.” Again, the

action to be investigated and either upheld or reversed by the board is that described

in the La.R.S. 33:2500(D) mandatory written statement.

The written statement of La.R.S. 33:2500(D) is both fundamental and

sacrosanct. The written statement contains the actual disciplinary action taken by the

appointing authority (in this case the employee’s termination), gives notice to the

employee of the action and his right to initiate further proceedings, and gives the

board and employee the reasons for the action so that both can prepare for further

proceedings. These reasons, and these alone, may then be considered by the board

in its subsequent investigation. The employee is required to respond to the

allegations, and only those allegations, included in the written statement. A review

of the statutory provisions makes it clear that the entire process emanates from the

parameters set in the La.R.S. 33:2500(D) written statement in much the same manner

as a civil lawsuit is begun by a petition. Until this written statement is given, the

employee has not been disciplined (terminated), the board has no authority to

investigate, and there is nothing for the district court to review.

Accordingly, we find that the district court was clearly wrong in affirming the

decision of the Board. The Board’s record contains no evidence that Pineville,

through Mayor Fields, complied with its affirmative duty as delineated in La.R.S.

2500(D). As such, Pineville, through Mayor Fields, was in legal bad faith when

Jones did not receive a written statement of his termination and reasons therefor, and

the Board’s affirmation of Jones’ termination without the required written statement

was unreasonable, as their decision had no basis. Accordingly, pursuant to La.R.S.

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33:2501(C)(1), we order the immediate reinstatement of Jones to his former position

and award him back pay from the time of his termination to present. We find this

determination just, as the record clearly establishes that Jones was never properly

terminated.

ASSIGNMENTS OF ERROR NUMBERS TWO THROUGH NINE:

We found that the district court erred by affirming the Board’s decision to

uphold Jones’ termination by Pineville in Assignment of Error Number One. This

finding pretermits the remainder of Jones’ appeal.

DECREE:

We found credence in Jones’ first assignment of error, that Pineville, through

Mayor Fields, failed to perform its affirmative statutory duty under La.R.S.

33:2500(D) to provide Jones with written notice of his termination and reasons for

that termination. Accordingly, we order that Jones be immediately reinstated with an

award of his regular pay retroactive to the time of his legally deficient termination.

All costs of this appeal are assessed to Pineville.

REVERSED AND RENDERED.

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