Joshua J. Foster v. the City of Leesville

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-1106
JOSHUA J. FOSTER, ET AL.
VERSUS
THE CITY OF LEESVILLE
2K Ee OK OR HK
APPEAL FROM THE

THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 87,307B
HONORABLE C. ANTHONY EAVES, DISTRICT JUDGE

eR A CR

VAN H. KYZAR
JUDGE

5 9 Oe 2 oo oe

Court composed of Mare T. Amy, Van H. Kyzar, and Candyce G. Perret, Judges.

REVERSED; VACATED; AND REMANDED.

Michael D. Hebert

Stuart R. Breaux

Becker & Hebert, LLC

201 Rue Beauregard

Lafayette, LA 70508

(337) 233-1987

COUNSEL FOR DEFENDANT/APPELLANT:
City of Leesville

Aaron L. Green

Vilar & Green, LLC

P. O. Box 12730

Alexandria, LA 71315-2730

(318) 442-9533

COUNSEL FOR PLAINTIFFS/APPELLEES:
Joshua J. Foster
Leonard R. Edwards
Horace C. Condon
Amanda G. Lawrence
Stacy B. Dixon
Ronald K. Bush
Michael D. Allen
William Tibbits
Dennis Doherty
Eric J. Baker
Brandon Strickland

KYZAR, Judge.

The City of Leesville appeals from trial court judgments denying its
peremptory exception of lack of a needed party and granting summary judgment in
favor of current and former firefighters for the City of Leesville Fire Department.
For the following reasons, we reverse, vacate, and remand for further proceedings.

DISCUSSION OF THE RECORD

The plaintiffs, Joshua J. Foster, Leonard R. Edwards, Horace C. Condon,
Amanda G. Lawrence, Stacy B. Dixon, Ronald K. Bush, Michael D. Allen,
William Tibbits, Dennis Doherty, Eric J. Baker, and Brandon Strickland, are all
current or former firefighters with the City of Leesville Fire Department. On
November 21, 2012, they filed suit against the City of Leesville (the City) seeking
an accounting and/or payment for annual vacation time they alleged was owed to
them under the City’s employment leave policy.

The plaintiffs alleged that despite the City unilaterally adopting a policy
assigning them to work a twenty-four hour, fifteen minute tour of duty, with a
sixteen hour, fifteen minute shift, it routinely debited sixteen hours and twenty-five
minutes per shift for any vacation, sick leave, or compensatory time taken by them.
Thus, they claimed that they were entitled to an accounting from the City and
payment for the ten minutes per shift for all time taken off for vacation, sick leave,
or compensatory time for which they had not been paid, together with legal interest
on all such amounts from the time due until paid.

The plaintiffs further alleged that the City unilaterally changed its vacation
pay policy on October 21, 2011, to accrue vacation time weekly, rather than
annually. Thus, it alleged that the City deleted from its books the accrued vacation

time earned by the plaintiffs between January | and September 30, 2011. The

plaintiffs claimed that this deletion constituted a prohibited violation of La.R-S.
33:1996, which provided, in part:

Firemen in municipalities, parishes and fire protection districts
to which this Subpart applies, after having served one year, shall be
entitled to an annual vacation of eighteen days with full pay. This
vacation period shall be increased one day for each year of service
over ten years, up to a maximum vacation period of thirty days, all of
which shall be with full pay. The vacation privileges herein provided
for shall not be forfeited by any member of the department for any
cause.

After answering the plaintiffs’ petition, the City filed a motion for partial
summary judgment, arguing that La.R.S. 33:1996 was not applicable to the City
because its population was less than 13,000. The City based its argument on
La.R.S. 33:1961, which states, “This Subpart applies to any paid fire department
operated by a municipality which has a population of thirteen thousand or more
and also to firemen paid by any parish or fire protection district.” It also cited
numerous Attorney General Opinions, which held that La.R.S. 33:1996 was
inapplicable to municipalities with populations of fewer than 13,000 residents. In
response, the plaintiffs filed a cross motion for summary judgment, arguing that
La.R.S. 33:1996 applied to the City as a matter of law. Following a hearing, the
trial court took the matter under advisement. Thereafter, it rendered written
reasons on January 9, 2014, in which it held as follows:

In addressing the Plaintiffs Crossmotion [sic] for Summary

Judgment, we must first look at the interpretation of statute 33:1996.

The starting point for interpretation of any statute is the language of

the statute itself. Touchard v. Williams, 617 So.2d 885 (La.1993).

When read literally, the statute appears to be clear with little or no

ambiguity. It also does not appear evident that the application of

statute 33:1996 would lead to absurd consequences. Therefore, the
statute shall be applied as written, with no further interpretation made

in search of the legislative intent; and this court finds there is no

genuine issue of material fact regarding the application of statute

33:1996 to the Defendant, THE CITY OF LEESVILLE. Louisiana

Civil Code art. 9; Daigrepont v. Louisiana State Racing Comm'n, 95-
0539 (La. App. 4 Cir. 10/26/95), 663 So.2d 840.

This court, after considering the foregoing motions, evidence
presented, arguments of counsel, applicable law, and for reasons
stated above, DENIES Motion for Summary Judgment filed by
Defendant, THE CITY OF LEESVILLE.

Furthermore, this court GRANTS, Crossmotion [sic] for Summary
Judgment filed by Plaintiff, JOSHUA J. FOSTER, ET AL.

A written judgment formalizing the trial court’s written reasons was signed on
February 18, 2014.

Thereafter, the plaintiffs moved for the trial court to order the City to
provide them with “an accounting that corrects each employee’s vacation time to
comply with applicable law and the Court’s February 18, 2014 Judgment.”
Following an April 7, 2016 hearing, the trial court granted the plaintiffs’ motion
and ordered the City to provide a draft accounting to counsel for the plaintiffs on or
before April 26, 2016.

Once the City submitted the requested draft accounting, the plaintiffs filed a
motion for summary judgment, arguing that although it contained accurate factual
information, the City’s accounting was “incorrect, insofar as it’s [sic] methodology
fails to comply with the applicable law[.]” The plaintiffs claimed that “the City
continued to incorrectly calculate and place a ceiling on the vacation time owed to
its employees in violation of Louisiana Revised Statutes 33:1996. The City has no
basis for such a limitation.” Thus, the plaintiffs sought summary judgment “(1)
confirming the proper amount of vacation time each Plaintiff should have, (2)
determining that the City’s ceiling on ‘carry over’ vacation time is not proper; and
(3) issuing a Monetary Judgment against the City for the amounts set forth” in its
exhibit.

In response, the City filed a cross-motion for partial summary judgment and
an opposition to the plaintiffs’ motion for summary judgment, arguing that there

was no genuine issue of material fact “as to Plaintiffs’ lack of entitlement to

3

vacation day carryover rights and the absence in this case of any purported
vacation day forfeitures[.]” In opposition to the City’s motion for partial summary
judgment, the plaintiffs argued that the City’s vacation policy, effective June 2013,
expressly excluded firemen; thus, “there is no City policy that places a ‘ceiling’ or
‘cap’ on the amount of vacation time firemen are allowed to accrue.” Additionally,
the plaintiffs argued that the exclusive authority for establishing vacation leave
policies for the City’s firemen was vested in the Leesville Municipal Fire and
Police Civil Service Board (the Board) and that no such rule existed. Thus, they
argued that they were entitled to summary judgment on this issue for the following
reasons:

(1) there is no Civil Service Board rule that establishes a “ceiling” or

“cap” on the vacation leave firemen may accrue . . .; (2) the City also

has no policy that establishes such a “ceiling” or “cap” . . .; and finally

(3) even if the City had such a policy, it would not be valid, because

the City lacks the power to establish a vacation leave policy — such

power is vested with the Civil Service Board.

As a result of the plaintiffs’ argument regarding the Board, the City filed a
peremptory exception of nonjoinder of a party needed for just adjudication, stating
that joinder of the Board was necessary for complete adjudication of this matter.
The plaintiffs opposed this exception, contending that the City’s exception was
merely an attempt to delay the outcome of this matter. Following a March 9, 2017
hearing, the trial court denied the City’s exception.

The matter then proceeded to a hearing on the motion for summary
judgment and the cross-motion for partial summary judgment on April 13, 2017.
At the start of the hearing, the parties introduced into evidence a stipulation, which
contained the regular hourly rates of the plaintiffs on specified dates; the three

latest versions of the City’s vacation policies, effective December 2011 to May

2012, May 2012 to June 2013, and effective June 2013 through the present; and the

Board’s rules, which have been in effect at all times pertinent to this litigation.
The stipulation further stated that “[t]here is no contract or collective bargaining
agreement between: (1) the [City], its Fire Department, and/or any other
representative of the City and (2) the firemen employed by the [City], including the
named plaintiffs in this suit, any Union, and/or other representative of said
firemen.” Finally, the stipulation stated that the only other evidence to be
considered by the trial court, in addition to the stipulation, were the proposed
accountings of both the City and the plaintiffs. At the close of argument, the trial
court ruled that it was granting summary judgment in favor of the plaintiffs and
denying the City’s cross-motion for summary judgment. The trial court further
held that it was adopting the accounting provided by the plaintiffs and, based on
that accounting, was rendering a monetary judgment in favor of those plaintiffs no
longer employed by the City. A written judgment formalizing these rulings was
rendered by the trial court on May 19, 2017.

Thereafter, the City perfected appeals from both judgments rendered against

it by the trial court. On appeal, it raises two assignments of error:

1. The [trial court] erred in failing to require that the Leesville
Municipal Fire and Police Civil Service Board be added as a
party.

2. The trial court erred in including an unlimited “carryover” of

unused vacation days in the cumulative amount of vacation
owed to Leesville firefighters under La.R.S. 33:1996.

OPINION
Louisiana Code of Civil Procedure Article 641, with regard to joinder of
parties needed for just adjudication, provides:
A person shall be joined as a party in the action when either:

(1) In his absence complete relief cannot be accorded among
those already parties.

(2) He claims an interest relating to the subject matter of the
action and is so situated that the adjudication of the action in his
absence may either:

(a) As a practical matter, impair or impede his
ability to protect that interest.

(b) Leave any of the persons already parties
subject to a substantial risk of incurring multiple or
inconsistent obligations.
However, “[i]f a person described in Article 641 cannot be made a party, the court
shall determine whether the action should proceed among the parties before it, or
should be dismissed.” La.Code Civ.P. art. 642. The factors to be considered

pursuant to La.Code Civ.P. art. 642 are, as follows:

(1) To what extent a judgment rendered in the person’s absence
might be prejudicial to him or those already present.

(2) The extent to which the prejudice can be lessened or
avoided by protective provisions in the judgment, by the shaping of

relief, or by other measures.

(3) Whether a judgment rendered in the person’s absence will
be adequate.

(4) Whether the plaintiff will have an adequate remedy if the
action is dismissed for nonjoinder.

On appeal from the grant or denial of a peremptory exception based on the
non-joinder of a party needed for just adjudication, the appellate court “review[s]
the findings of the trial court in accordance with the ‘abuse of discretion’ standard
of review.” Rayford v. Nat'l R.R. Passenger Corp., 05-1273, p. 7 (La.App. 4 Cir.
4/13/07), 962 So.2d 5, 9, writ denied, 07-1021 (La. 8/31/07), 962 So.2d 439.

As stated previously, La.R.S. 33:1996 provides the annual vacation that
firemen are statutorily entitled to:

Firemen in municipalities, parishes and fire protection districts

to which this Subpart applies, after having served one year, shall be

entitled to an annual vacation of eighteen days with full pay. This

vacation period shall be increased one day for each year of service
over ten years, up to a maximum vacation period of thirty days, all of

6

which shall be with full pay. The vacation privileges herein provided
for shall not be forfeited by any member of the department for any
cause. Firemen employed on January 6, 1969 shall! have their present
longevity considered as a factor in the computation of their vacation
benefits as provided herein.

The provisions of this section shall in no way be construed to
affect in any manner any presently existing system of computing
vacation periods under which greater vacation benefits are granted
than those provided for herein and the same shall continue in full
force and effect.

This statute was previously addressed by the supreme court in New Orleans
Firefighters Local 632 v. City of New Orleans, 00-1921, 00-2041 (La. 5/25/01),
788 So.2d 1166 (Firefighters I), in a matter in which the firefighters contested,
among other issues, a rule which capped their accumulated annual leave at forty-
five or ninety days, depending on their date of hire. The firefighters argued that
this cap violated La.R.S. 33:1996, which, in addition to specifying the number of
vacation days they were entitled to annually, mandated that “[t]he vacation
privileges herein provided for shall not be forfeited by any member of the
department for any cause.” La.R.S. 33:1996. Thus, they argued that they were
entitled to “accumulate an unlimited number of days of annual leave which may
not be forfeited.” Firefighters I, 788 So.2d at 1170. However, the City of New
Orleans argued that La.R.S. 33:1996 was silent on the issue of accumulated
vacation days.

In addressing the issue before it, the supreme court stated:

Commission Rule VIII, § 1.2 does not violate the terms or the
intent of the statute. The statutory guarantee is that firemen be
allowed to earn and to use a minimum number of vacation days each
year. The Rule, while allowing earned vacation days to be carried
forward to a succeeding year, simply places a reasonable limitation on
the period of time within which earned vacation days must be used.

The Rule thus denies a fireman the right to earn vacation days in one

year at one salary and then to demand payment for those vacation

days fifteen years later at a higher salary, but the Rule does not require

forfeiture of earned vacation days which the fireman has been given a
reasonable opportunity to use. A ceiling on the number of vacation

7

days a fireman may carry forward is not, in itself, a forfeiture of
earned vacation days, unless the fireman was denied the opportunity
to use those earned vacation days.

Moreover, the Rule does not violate this court’s 1982 decision
in New Orleans Firefighters [Association v. Civil Service Commission
of the City of New Orleans, 422 So.2d 402 (La.1982)], which held that
enforcement of the statute providing for supplemental salary for
firemen in combination with their minimum wages did not conflict
with the Civil Service Commission’s constitutional rulemaking
authority. Nor does the Rule create a labor condition for firemen that
is “injurious to the safety and welfare of the public as well as
detriment to the health, efficiency and morale of the firefighters,”
which was a significant concern of the 1982 decision. /d at 412.
Indeed, the stockpiling of vacation days not only is a right on which
the terms of the statute are silent, but also runs counter to the rest,
renewal and recreation purpose of vacation days as an employment
practice.

We conclude that La.Rev.Stat. 33:1996 does not either grant or

deny firemen the right to carry forward earned vacation days to future

years. The statute simply is silent on the issue and therefore is not in

conflict, on its face, with Commission Rule VIII, § 1.2.

Nevertheless, the City arguably cannot require work conditions

or undermanned schedules for firemen that prevent them from using

their accrued leave each year, as such conduct by the City could

constitute an impermissible forfeiture of vacation privileges.

Id. at 1170-71 (footnote omitted).
Thus, as held by the supreme court, La.R.S. 33:1996 is silent on the issue of
accrued vacation leave; it neither grants nor denies firemen the right to accrue their
vacation leave from year to year.

During the hearing on the exception, counsel for the plaintiffs stated that the
issue before the trial court was “the issue of quantum or the amount of hours these
firemen are entitled to under 1996 [sic] and the appropriate relief that should come
from that.” He further stated that this issue did not involve the Board and cited in
support of his argument New Orleans Firefighters Association Local 632 v. Civil

Service Commission of City of New Orleans, 485 So.2d 1017 (La.App. 4 Cir.), writ

denied, 489 So.2d 921 (La.1986) (Firefighters If). In that opinion, the fourth

circuit affirmed the trial court’s ruling that the Civil Service Commission was not
an indispensable party to the firefighters’ suit against the City. In doing so, the

court held:

[W]e do not believe the Commission was an indispensable party to the
Firefighters Association’s motion. That motion and the prior
contempt rule were filed to secure a court order requiring the City of
New Orleans to make payments of overtime salary due the
firefighters. The motion did not seek action by the Civil Service
Commission; the Commission had already acted and revised the
uniform pay plan in conformity with the 1982 Supreme Court decree.
All the Firefighters Association sought from the District Court in 1985
was, in effect, execution of the portion of the 1983 judgment which
ordered the computation and payment of the back overtime pay,
functions of the City Finance Department, not of the Civil Service
Commission. We, therefore, reject the City’s assertion that the
participation of the Commission was required at the hearing.

Id. at 1019.

However, after review, we find that Firefighters II actually supports the
City’s position rather than the plaintiffs. This is based on the Board’s Annual
Leave policy, which governs the leave of firemen, as provided in Subsection “J.”
of Section “1.” of Rule XII, of which we take judicial notice. La.Code Evid. art.
202(B). Subsection “J.” provides, with regard to annual leave for Fire and Police:

Each full-time employee of the classified service shall accrue vacation

leave at the rate of ten (10) working days each year for the first five

(5) years of service; fifteen (15) working days each year from five (5)

to ten (10) years of service; twenty (20) working days each year from

ten (10) to fifteen (15) years of service; twenty-five (25) days each

year from (15) to twenty (20) years of service; and thirty (30) working

days each year from twenty (20) years of service and thereafter.

This clearly conflicts with the statutorily mandated annual leave provided by
La.R.S. 33:1996, which entitles firemen, “after having served one year[,]” to “an
annual vacation of eighteen days with full pay. This vacation period shall be
increased one day for each year of service over ten years, up to a maximum

vacation period of thirty days, all of which shall be with full pay.” This fact was

noted by counsel for plaintiffs in his argument to the trial court and even by the

9

trial court itself which, in ruling from the bench, stated, “The unfortunate situation
is the Board is - - from our discussion in the side chamber, is they may not have
some rules that are compliance [sic] with the law and there’s a worry on the part of
the City that unless the Board changes things that it may - - there may be other
problems that may arise.”

We note that Subsection “J.” of Section “1.” of Rule XII of the Board has no
provision which would otherwise permit or prohibit the carryover of unused
vacation leave from year to year by the plaintiffs. During argument in opposition
to the exception, plaintiffs’ counsel urged that while the City’s employment
policies provided for limited carryover as to certain City employees, the plain
wording of Rule XII did not prohibit carryover and that the plaintiffs were
governed by the Board’s rules. Despite the omission of any carryover provision in
Rule XII, the plaintiffs argued that carryover was allowed because the rule was
silent on the issue. However, silence as to the right to carryover unused vacation
leave from year to year does not, in and of itself, grant the right to carryover
unused leave time. Firefighters I, 788 So.2d 1166. As to the plaintiffs, the Board,
while restricted from providing less vacation time than established by La.R.S.
33:1996, is free to grant more and can provide for carryover of such unused time
from year to year. /d. Thus, it is glaringly apparent that the Board is indeed a
needed party herein concerning the intent and interpretation of its own rules, which
clearly apply to the plaintiffs and their claims for an accounting of their unused
vacation leave time.

Considering the necessity of its involvement, we find that joinder of the
Board is necessary so that complete relief can be accorded to the plaintiffs in this
matter and that the trial court abused its discretion by denying the City’s

peremptory exception of non-joinder. Accordingly, the judgment of the trial court

10

denying the City’s peremptory exception of non-joinder of a party needed for just
adjudication is reversed; the trial court’s May 19, 2017 judgment granting
summary judgment in favor of the plaintiffs and denying the City’s cross-motion
for partial summary judgment is vacated; and the matter is remanded for further
proceedings in accordance with this opinion.
DISPOSITION

For the foregoing reasons, the judgment of the trial court denying the City of
Leesville’s peremptory exception of non-joinder of a party needed for just
adjudication is reversed; the trial court’s May 19, 2017 judgment granting
summary judgment in favor of the plaintiffs and denying the City of Leesville’s
cross-motion for partial summary judgment is vacated; and the matter is remanded
for further proceedings in accordance with this opinion. The costs of this appeal
are assessed to the plaintiffs, Joshua J. Foster, Leonard R. Edwards, Horace C.
Condon, Amanda G. Lawrence, Stacy B. Dixon, Ronald K. Bush, Michael D.
Allen, William Tibbits, Dennis Doherty, Eric J. Baker, and Brandon Strickland.

REVERSED; VACATED; AND REMANDED.