Sabrina Farace v. City of Pineville

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-515

SABRINA FARACE

VERSUS

CITY OF PINEVILLE

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 260,789
HONORABLE MONIQUE RAULS, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Sylvia R. Cooks, Shannon J. Gremillion, and Phyllis M. Keaty,
Judges.

COOKS, judge, dissents and assigns reasons

AFFIRMED.

C. Theodore Alpaugh, III
Guste, Barnett, Schlesinger, Henderson & Alpaugh, L.L.P.
639 Loyola Avenue, Suite 2500
New Orleans, LA 70113
(504) 529-4141
COUNSEL FOR APPELLANT:
Sabrina Farace

Mark F. Vilar
Aaron L. Green
1450 Dorchester Drive
P.O. Box 12730
Alexandria, LA 71315-2730
(318) 442-9533
COUNSEL FOR APPELLEE:
City of Pineville

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GREMILLION, Judge.

Appellant, Sabrina Farace, an employee of the Pineville Police Department,

appeals the judgment of the trial court affirming the decision of the Pineville

Municipal Fire and Police Civil Service Board (hereafter Board) to uphold her

involuntary discharge that occurred on November 10, 2016. For the following

reasons, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

At the pertinent time in question, Ms. Farace had been employed as a police

officer with the Pineville Police Department for approximately seven years. The

record established Ms. Farace was on authorized sick leave from October 26, 2016

through November 8, 2016 (“Excuse 1”). She was designated to return to her job on

November 9, 2016. Ms. Farace did not return to work that day, but instead saw her

physician, Dr. Charlotte Merrill, at 8:00 a.m. that morning. Ms. Farace maintained

Dr. Merrill continued her sick leave through November 22, 2016 (“Excuse 2”). Dr.

Merrill testified that, after seeing Ms. Farace on November 9, she “decided the best

thing for [Ms. Farace] would be to take an extension and have a two week excuse.”

Dr. Merrill testified that she handed Excuse 2 to Ms. Farace, who then told Dr.

Merrill she was “going right now to hand this in.” There was a dispute as to when

the City received Excuse 2.

Ms. Farace contends that she contacted Ms. Tammie Connella, the secretary

to Pineville Police Chief Don Weatherford, the two met in the side parking lot of the

police station, and she handed Excuse 2 to Ms. Connella. This was disputed by the

City of Pineville, which claims that it did not received Excuse 2 on November 9,

2016. It is not disputed that Ms. Farace previously handed Ms. Connella Excuse 1,

but Ms. Connella testified that she never received Excuse 2 from Ms. Farace.

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Ms. Farace was called by Deputy Chief of Operations James Rachal to the

Pineville Police Department on November 10, 2016. Deputy Chief Rachal informed

Ms. Farace that her failure to report on November 9, 2016 constituted a resignation

in accordance with Rule XII, Section P of the Pineville Municipal Fire and Police

Civil Service Board. Ms. Farace did not voice any objection or allege any basis

existed to extend her sick leave but signed the resignation notice and left the

premises. Later that day, a Personal Action Form was submitted to the City, and the

Board processed her resignation.

According to Ms. Farace, following the November 10 meeting, she then went

immediately to see Dr. Merrill, who wrote a letter to Chief Weatherford explaining

that Ms. Farace had not been released to return to work on November 9, 2016 and

was still on sick leave. Dr. Merrill described Ms. Farace as being “very distraught,”

and Ms. Farace told Dr. Merrill she had been “fired.”

Dr. Merrill testified that her office attempted to fax the letter to Chief

Weatherford that day; however, the time stamp from the chief’s fax machine shows

it was received on November 15, 2016. Dr. Merrill testified she could not explain

why the fax was not received until November 15, 2016, but maintained that she sent

it on November 10, 2016, and received “verification on our end” in the form of a

message on her fax machine.

Chief Weatherford testified that on November 9, 2016, he was contacted by

the sergeant running the morning shift to ask why Ms. Farace had not reported for

her shift. Chief Weatherford asked Ms. Connella whether there were any other

excuses to extend Ms. Farace’s leave but was told there were none. According to

Chief Weatherford, the department waited the entire day to see if Ms. Farace would

contact them to explain why she had not appeared for her shift. Chief Weatherford

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acknowledged that no attempt was made by the City to contact Ms. Farace to

determine why she had not appeared for work.

Deputy Chief Rachal testified he called Ms. Farace into his office on

November 10, 2016 and gave her the “resignation” letter with instructions to sign.

He stated Ms. Farace did not, at any point during the time she was in his office,

mention anything about a doctor’s note extending her sick leave. Deputy Chief

Rachal did acknowledge that Ms. Farace asked about her gun that had previously

been taken from her. He testified that Ms. Farace was in his office no more than five

minutes.

Ms. Farace testified she turned in Excuse 2 on November 9, 2016. She stated

she “physically put it into [Tammie Connella’s] hands” when she met her in the side

lot of the police station. Ms. Farace stated when she turned in Excuse 1, she did so

inside the police station. The City presented printouts of Facebook Messenger

messages between Tammie Connella and Ms. Farace about meeting in the side lot

to hand over a doctor’s slip. These messages were exchanged on October 31, 2016,

which was the date the Excuse 1 was stamped as received. Ms. Farace maintained

in her testimony the only time she handed in a doctor’s slip to Tammie Connella in

the side lot was on November 9, 2016.

Ms. Farace testified she was called in to the police department on November

10, 2016. She testified as follows concerning that meeting:

A. [Deputy Chief Rachal] called and told me that he had some
paperwork for me to sign and I came up to the Police Department to
sign paperwork and when I went into his office[,] he had the resignation
letter and stuff. He told me he said, you can read over it and sign. I
read over it quickly and signed and gave it to him and walked out.

Q. Now, you heard him testify that you didn’t mention anything about
the doctor or the return to work slip, why didn’t you say anything about
that?

A. I don’t know why he didn’t.

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Q. You mean, why you didn’t?

A. Why I didn’t?

Q. Yes, why you didn’t say anything to him?

A. At the time, I mean, I didn’t feel as if I had a choice or an argument
in this – the case with him telling me to sign a resignation form that I
did not tell anyone that I was going to resign or had no intentions of
resigning.

Q. Okay. What did you do after that?

A. I went to the doctor’s office to try and figure out what the deal was
with doctor’s excuse.

Q. And the doctor wrote the letter attached to this fax labeled as F-3,
letter dated November 10th, 2016?

A. Yes.

Q. Were you there when she faxed it to the Police Department?

A. Yes.

Q. As far as you knew the – what we’re talking about Exhibit C-5,
which is the November 9th return to work slip, that was – that had been
turned – your testimony is, that had been turned into the Pineville Police
Department?

A. Yes.

Q. Did you have any reason not to turn it in?

A. Absolutely not.

Q. I mean, you needed to maintain – you wanted to maintain your sick
leave?

A. Yes, yes.

Q. And your doctor had maintained your sick leave?

A. Yes.

Q. Okay. And it was never your intent to resign from the Pineville
Police Department?

A. No.

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Ms. Farace acknowledged in her testimony that she contacted Chief

Weatherford on November 14, 2016, to ask him to write a letter of recommendation

on her behalf. She did not, during that meeting, discuss her “resignation” or bring

up any contention that she should still be employed by the Pineville Police

Department.

Two days later, on November 16, 2016, Ms. Farace timely filed an appeal of

the discharge pursuant to La.R.S. 33:2501. On November 30, 2016, the City of

Pineville filed a Motion for Summary Disposition, requesting the appeal be

dismissed. The Board reviewed the appeal and granted the City’s Motion for

Summary Disposition without an evidentiary hearing.

Ms. Farace then appealed that determination to the district court. By

agreement of the parties, a Consent Judgment was filed and signed by the district

court on July 25, 2017 that dismissed the district court appeal and remanded the

matter back to the Board, for a full evidentiary hearing.

The full evidentiary hearing was heard by the Board on January 4, 2018. At

the conclusion of the hearing (from which the above referenced testimony was

taken), the Board voted to deny Ms. Farace’s appeal. The Board made the following

findings of fact:

1. The Board finds that Sabrina Farace’s sick leave expired on
November 8, 2016 and she was obligated to appear and report for
duty on November 9, 2016.

2. The Board finds Sabrina Farace failed to appear and report for duty
on November 9, 2016 and she did not appear on November 9, 2016
with a doctor’s excuse or provide any documentation to the City of
Pineville that could extend her sick leave.

3. The Board finds that Sabrina Farace resigned from her employment
on November 9, 2016 in accordance with Rule XII, Section P of the
Pineville Municipal Fire and Police Civil Service Board when she
did not report for duty on November 9, 2016.

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4. Considering the above, the Board denies Sabrina Farace’s “appeal”,
dated November 16, 2016.

Ms. Farace timely appealed the ruling of the Board to the district court on

January 8, 2018. On April 9, 2018, the district court heard oral argument on the

appeal and accepted briefs from both parties. The district court upheld the decision

of the Board, providing the following oral reasons:

Okay. The briefs have been reviewed. And based on the
argument and testimony, the policy was in place. According to the
testimony, today, Ms. Farace knew the policy. And the Court is of the
opinion that she did not comply with the policy; that she did not turn in
the resignation. I mean excuse me, she did not [turn in] the doctor’s
excuse on the 9th, and the Court will deny the Appeal. And there the
Court finds that there was no manifest error in the ruling of the Civil
Service Board.

Ms. Farace has timely filed this appeal, asserting the district court manifestly

erred in upholding the Board’s decision. She asserts the following assignments of

error:

1. The ruling of the District Court upholding the decision of the Board
was manifestly erroneous as the appointing authority failed to comply
with the Constitutional requirements enunciated by the Supreme Court
in Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct.
1487.

2. The ruling of the District Court upholding the decision of the Board
was not made in good faith and for just cause.

ANALYSIS

In her first assignment of error, Ms. Farace contends her job was terminated

without any notice of the charges or an explanation of the evidence against her and

is in violation of the express mandate of the United States Supreme Court in

Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487 (1985).

In her second assignment of error, she argues the appointing authority did not act in

good faith and for just cause in terminating her employment. Ms. Farace argues she

did not resign, but instead was effectively terminated.

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Both of Ms. Farace’s assignments of error hinge on whether her resignation

was voluntary, as the City contends and the Board found, or involuntary (forced), as

she contends. “Because an employee’s Loudermill rights are designed to protect his

property right in continued employment, the employee relinquishes those rights

when he voluntarily resigns or retires. See Abel v. Auglaize County Highway Dep’t,

276 F.Supp.2d 724, 738 (N.D.Ohio 2003) (finding employee's resignation renders

Loudermill inapplicable).” Russell v. Mosquito Control Bd., 06-346, p. 8 (La.App.

4 Cir. 9/27/06), 941 So.2d 634, 640. However, “[a] public employer obviously

cannot avoid its constitutional obligation to provide due process by the simple

expedient of forcing involuntary ‘resignations.’” Stone v. Univ. of Maryland Med.

Sys. Corp., 855 F.2d 167, 173 (4th Cir. 1988).

In this case, it is clear that Ms. Farace’s resignation was not the result of a

disciplinary action, but was simply the mechanical application of Rule XII, Section

P, of the Pineville Municipal Fire and Police Civil Service Board, which states, “Any

employee who fails to report for duty upon the expiration of any authorized leave

will be considered to have resigned from the departmental service on the calendar

day following leave expiration.”

A review of the record establishes that the only issue of fact in dispute was

whether Ms. Farace gave Excuse 2 to Tammie Connella. The City’s contention that

Ms. Farace did not turn in the slip is the basis for its position that this court should

affirm the decision of the Board, as Ms. Farace resigned within the meaning of Rule

XII, Section P when she did not report for her shift on November 9, 2016.

The district court correctly noted that, in reviewing a civil service board’s

finding of fact, it was bound by the manifest error standard. We, too, are bound by

that standard. Moore v. Ware, 01-3314 (La. 2/25/03), 839 So.2d 940. Under the

manifest error standard, we may only reverse if we find that there is no reasonable

9

basis in the record for the Board’s findings. Stobart v. State through Dep’t. of

Transp. & Dev., 617 So.2d 880 (La.1993).

The dispute in this case solely revolves around whether Ms. Farace delivered

Excuse 2 into Ms. Connella’s hands. This represents a “she said, she said” dispute.

Such “credibility determinations of the trier of fact are subject to the strictest

deference under the manifest error—clearly wrong standard.” S.J. v. Lafayette Par.

School Bd., 09-2195, p. 13 (La. 7/6/10), 41 So.3d 1119, 1128. (Emphasis added).

Further, the supreme court has reminded us that “where there are two permissible

views of the evidence, the factfinder’s choice between them cannot be manifestly

erroneous.” Id. at 1127. (Emphasis added). Thus, the Board’s resolution of the

dispute between the City and Ms. Farace over whether she timely submitted a

doctor’s excuse represents a credibility question that we are virtually powerless to

overturn, even if we are convinced that we would have found differently were we

serving on the Board.

However, we also note that additional facts preponderate in the City’s favor.

Ms. Farace and Ms. Connella agree on one point: only one excuse was delivered

into Ms. Connella’s hands in the parking lot. Ms. Farace testified that only Excuse

2 was delivered to Ms. Connella in the parking lot. Ms. Connella testified that

Excuse 1 was delivered to her in the parking lot. Only Ms. Connella’s testimony

was corroborated by other evidence, the Facebook Messenger messages, which

clearly indicate that the date of this parking lot delivery was October 31, 2016, which

could only have been the date of delivery of Excuse 1.

Civil service rules, such as Rule XII, Section P, carry the effect of law. La.

Const. art. 10, §10(A)(4). Thus, by operation of law, Ms. Farace resigned from her

post in failing to present herself for duty on November 9, 2016. Ms. Farace argues

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that her resignation consisted of the signing of the letter she was presented by Deputy

Chief Rachal. Rule XII, Section P, clarifies this point. The resignation occurred

when she failed to appear for her shift. In circumstances under which an employee

resigns her post, the Loudermill requirement of a pre-termination hearing does not

apply. Due process in this situation only requires that Ms. Farace be afforded the

right to appeal. See Peterson v. Dep’t of Streets, 369 So.2d 235 (La.App. 4 Cir.),

writ denied, 371 So.2d 1344 (La.1979).

DECREE

For the above reasons, we affirm the judgment of the district court that upheld

the decision of the Pineville Municipal Fire and Police Civil Service Board. All

costs of this appeal are assessed against appellant, Sabrina Farace.

AFFIRMED.

11

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-515

SABRINA FARACE

VERSUS

CITY OF PINEVILLE

COOKS, J., dissents.

I respectfully dissent from the majority’s decision to affirm the judgment of

the trial court. As the majority correctly notes, both of Ms. Farace’s assignments of

error hinge on whether her resignation was voluntary or forced. However, I find the

evidence strongly preponderates against a finding that Ms. Farace voluntarily

resigned from her job as a police officer.

While Ms. Farace’s actions in signing the “resignation” letter without first

attempting to explain why she did not report for her shift the previous day may not

have been the wisest course of action, all other facts in the record point to the

conclusion that Ms. Farace had no intention of resigning from her position. It is

uncontroverted she went to Dr. Merrill’s office “first thing” in the morning on

November 9, 2016 and received a doctor’s slip which purported to extend her sick

leave through November 22, 2016. It is also clear from the record, the City made no

attempt to contact Ms. Farace to ascertain why she had not reported for her shift.

When the City contacted Ms. Farace on the morning of November 10, 2016

to ask her to come in and report to Deputy Chief Rachal’s office, there was no

mention made to Ms. Farace that she was being called in to “resign” her position.

Upon arrival, there was no discussion whatsoever; she was simply presented with

the letter and told to sign same. She was not told she had any option other than to

sign the document. Moreover, as soon as she left Deputy Chief Rachal’s office on

November 10, 2016 after signing the letter, she immediately went to Dr. Merrill’s

office. Dr. Merrill testified Ms. Farace was “very distraught” and told her she had

“lost her job, you know, that she was fired.” Dr. Merrill then immediately agreed to

send a letter, on behalf of Ms. Farace, to clear up any “disconnect” with the City as

to her medical condition and ability to work. Ms. Farace also, within a week, filed

an appeal of the discharge pursuant to La.R.S. 33:2501. Clearly, these are not the

actions of someone who believed she had voluntarily resigned from her job. Thus,

I conclude Ms. Farace did not voluntarily resign from her employment with the City.

Because “[a] public employer obviously cannot avoid its constitutional

obligation to provide due process by the simple expedient of forcing involuntary

resignations,” it now must be determined if this discharge was made in good faith

and with just cause, and if Ms. Farace was afforded her constitutionally guaranteed

due process requirements under Louderhill.

Ms. Farace held a permanent position with the Pineville Police Department,

for which she possesses a property right of which she cannot be deprived of without

cause and procedural due process. Louisiana Constitution Article 10, § 8, provides

in part that: “No person who has gained permanent status in classified state or city

service shall be subject to disciplinary action except for cause expressed in writing.”

This court in City of Alexandria v. Alexandria Civil Service Comm’n, 09-484,

p. 7 (La.App. 3 Cir. 11/4/09), 23 So.3d 407, 414, stated:

In Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S.Ct.
1487, 84 L.Ed.2d 494 (1985), the United States Supreme Court held
“The essential requirements of due process . . . are notice and an
opportunity to respond . . . The 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 to the
story.” See Henderson v. Sewerage and Water Bd., 752 So.2d 252,
(La.App. 4 Cir. 12/22/99); Cannon v. City of Hammond, 727 So.2d 570
(La.App. 1 Cir. 12/28/98).

The court in Cannon, 727 So.2d at 572, further elaborated that “due process requires,

at a minimum, some type of a pre-termination hearing before a tenured employee is

discharged. [Department of Public Safety and Corrections, Office of Youth Services

v. Savioe, 569 So.2d 139, 141 (La.App. 1 Cir.1990)].”

In Cannon, the officer in question was a Hammond Police Officer with

permanent status. The officer was accused of insubordination, and suspended the

following day pending an investigation. He was notified in writing that he was the

subject of an administrative investigation for insubordination. Aside from the

written notice Cannon received on February 29, 1996, “no representative of the City

of Hammond contacted Cannon until he was called at home and told to attend an

April 9, 1996 ‘Exit Interview.’ Thereafter, Cannon was notified in writing that he

had been terminated, effective April 14, 1996.” Cannon, 727 So.2d at 571.

The court in Cannon gave the following reasons for finding the officer in that

case had not received his constitutionally guaranteed right to due process:

Th[e] meeting with the City Personnel Director is the only time
Cannon met with City personnel and is the only meeting which could
be characterized as a pre-termination hearing. We find that this meeting
falls short of the Loudermill requirements in that (1) there is testimony
that the decision to terminate had already been made, (2) Cannon was
never given a chance to review the City's evidence against him, and (3)
Cannon was not advised he could have counsel present nor was he
given a chance to prepare in advance for the meeting with the Director
of Personnel.

After a thorough review of the record, we find that the learned
trial judge herein erred in concluding the procedures followed herein
satisfied constitutional due process. We find that the Hammond Fire
and Police Civil Service Board’s failure to adopt a pre-termination
procedure (as evidenced by the testimony of the City Personnel
Director and the Chief of Police, Chief Roddy Devall) and the failure
to afford Cannon a meaningful pre-termination hearing in accordance
with the requirements of Loudermill violated the constitutional right to
due process as a public employee in the civil service system. This
constitutional deprivation of some form of pre-termination hearing is
reversible error.

Id. at 573-74 (footnote omitted).

As Ms. Farace notes, the facts in the present case are similar in many ways to

those present in Cannon, 727 So.2d 570. As in Cannon, the decision to terminate

had already been made by the time Ms. Farace was called in to Deputy Chief

Rachal’s office. The City did not call Ms. Farace on November 9, 2016 to inquire

as to why she did not show up for her shift. It was uncontroverted she was not given

any explanation as to why she was presented with the “resignation” form and was

not instructed she could refuse to sign it. Ms. Farace also had no representation with

her when she signed the letter. Both Chief Weatherford and Deputy Chief Rachal

acknowledged Ms. Farace was not given any type of hearing prior to her termination.

Clearly, Ms. Farace was never allowed to present her “side of the story” before she

lost her job.

While I find the City did not afford Ms. Farace her due process rights, I also

find the City’s actions in this matter show the decision made was not “in good faith

for cause” as required under La.R.S. 33:2501(E)(3). The Louisiana Supreme Court

in Moore v. Ware, 01-3341, p. 11-13 (La.2/25/03), 839 So.2d 940, 948-949, noted

that “[g]ood faith does not occur if the appointing authority acted arbitrarily or

capriciously, or as the result of prejudice or political expediency. Martin v. City of

St. Martinville, 321 So.2d 532 (La.App. 3 Cir.1975), writ denied, 325 So.2d 273

(La.1976).”

I find the City’s conscious refusal to reach out to Ms. Farace is indicative of

its failure to exhibit good faith in this case. Absolutely no attempt was made to

contact Ms. Farace on November 9, 2016 to determine if she was reporting for duty

nor as to any reason why she was not reporting for her shift. It must be noted the

City was aware Ms. Farace was coming off of authorized medical leave at this time.

Further, as the testimony established, no contact was made with Ms. Farace about

getting her service weapon returned to her in the days leading up to November 9,

2016. Moreover, when the City contacted Ms. Farace on the morning of November

10, 2016 to ask her to come in and report to Deputy Chief Rachal’s office, there was

no mention made to Ms. Farace that she was being called in to “resign” her position.

Upon arrival, there was no discussion as to any reason she may have had for not

reporting for her shift the prior day. She was simply presented with the letter and

told to sign same.

The record established, and counsel for the City pointed out at trial, in brief

and before this court, that there were “three internal affairs investigations into [Ms.

Farace’s] employment related conduct.” The City opines in brief that the “reality is

[Ms. Farace] was well aware that if she failed to report for duty on November 9,

2016 she would be tendering her resignation” and “[s]he opted to do that instead of

having to address these three ongoing investigations.” However, Ms. Farace’s

actions in visiting her physician on November 9, 2016 and returning again on

November 10, 2016 in a “distraught” state over the fact she had been “fired,” belies

this theory by the City. Her further attempts to fight for the loss of her job indicate

she had no intention of resigning her position.

To this court’s view, it appears the City chose to rely on a mechanical

application of a board rule to “fast track” Ms. Farace’s removal from the police force,

rather than proceed with an internal affairs investigation. This clearly is not the

purpose nor intent of Rule XII, Section P. Thus, we find the City did not act in good

faith for cause under the circumstances of this case.

For the above reasons, I would reverse the decision of the trial court and

reinstate Ms. Farace to her employment status and award all back pay and benefits

due.