Sherman Augustine VS Department of Public Safety & Corrections, Louisiana State Penitentiary
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2008 CA 2024 SHERMAN AUGUSTINE VERSUS DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS LOUISIANA STATE PENITENTIARY vJ 110 e 5 @ rJ hi On Appeal from a Decision of the State Civil Service Commission Docket No 16365 Honorable James A Smith Chairman Burl Cain Vice Chairman Chatham H Reed G David L Duplantier Lee Griffin Rosa B Jackson and John McLure Members Sherman Plaintiff Appellant Augustine Cotton port LA In Terri Cannon Attorney for Defendant Appellee Department of Public Safety Baton Rouge LA Proper Person and Corrections State BEFORE PARRO Louisiana Penitentiary McCLENDON AND WELCH JJ Judgment rendered AUG 6 2009 PARRO J This is Commission on an appeal from Commission the lack of a final decision of the Louisiana State Civil Service summarily dismissed Sherman Augustine s appeal based that subject matter jurisdiction For the following reasons we affirm Backaround Sherman Penitentiary LSP as a Augustine completed days of vacation time the sergeant with permanent status master an by On Augustine Augustine employed was After use of State January 29 2008 employee leave request form seeking approval for use of 14 examining Augustine s absences in 2007 his supervisor recommended that his leave request be denied approved the Louisiana Nonetheless the assistant warden only 5 days of leave time noting that Augustine had 4 unscheduled absences and had taken unscheduled annual leave 30 123 hours of unscheduled sick leave and 12 33 hours of From the agency s decision appeal with the Commission contending that he was Augustine filed denied 9 a petition for days of accrued yearly vacation On January 11 2007 the LSP had issued Directive Number 03 013 to address employee leave usage which in pertinent part provides A GENERAL Any absence from duty can be considered when evaluating other requests for leave B LEAVE HISTORY Each Unit Manager Department Head will maintain a leave register and absentee calendar on each employee in his her unit department This leave register will be reviewed by supervisors when considering requests for vacation leave C VACATION Annual ANNUAL AND OR Kif LEAVE provided primarily for vacations handling personal business or attending to family illness K Ieave may also be used for this purpose Employees must apply for annual and or K Ieave in advance requesting the use of such leave on a leave slip which is available through the employee s supervisor Leave is 2 Security employees must secure leave approval from the Shift Supervisor Non security employees must secure leave approval from their immediate Unit Wardens Shift Supervisors and Department supervisor will equitably allocate annual and K Ieave to ensure that Heads critical institutional operations continue uninterrupted 1 D employee may be granted annual leave for a vacation each calendar year will be based on his her length of continuous service a review of the use of all types of leave in the previous twelve month period and the need of the institution to maintain adequate staffing The amount of time an SICK MATERNITY LEAVE EMPLOYEE 1 unable to report for duty due to illness Employees who must follow the a are following procedures Security employees are required to contact a Shift Supervisor at least two hours prior to the start of the employee s work schedule If required by a physician to be absent on the first day of illness for more than one workday the employee must again call to notify a Shift Supervisor at least two hours prior to the start of the second scheduled work period and each workday thereafter until the employee returns to duty The employee must the length of time the physician has determined that indicate he she must be absent from work N UNSCHEDULED ABSENCE NON DISCIPLINARY REMOVALS employee is absent from work without prior approval the The supervisor leave shall be considered an unscheduled absence for reviewing the leave request is to mark clearly on the responsible Unscheduled on top of the form Application for Leave SF 6 regardless of whether the leave is approved or denied A copy of the Application for Leave marked Unscheduled shall be given to the employee 1 When an 3 The first three consecutive counted as three days of an unscheduled absence will be separate unscheduled absences unless the Warden designee determines otherwise In make such a determination the Warden or designee should consider such mitigating factors as obvious legitimate accidental injury or catastrophic illness or 4 An unscheduled abs leave 5 When than nce history will be recorded register and absentee calendar the employee s in accordance with Section A employee has accumulated five unscheduled absences in less 26 week period the employee shall be counseled by his her an a on 3 supervisor and a letter of warning issued to the employee and filed in his her performance appraisal file 8 The Deputy Warden s Assistant Wardens Unit Managers Department Heads are responsible for ensuring that these provisions are strictly adhered to and Furthermore December 27 on 2007 the assistant warden for Angola Louisiana sent the following memo to all Camp C of the LSP at Camp C supervisors concerning 2008 vacations requests must be turned in to my office for review at least two months prior to the employees requested vacation dates Shift majors cannot be off during a holiday shift Carefully review those employees in the above leave usage category with five unscheduled absences since they get no approved time off and any vacation All vacation 1 2 3 or 4 k time scheduled will be denied on these A letter must be turned into my office employees majors will turn all vacation requests with 2007 2008 attendance rosters to their Lt Col for review and approval before being sent to my Shift office 5 Remind everyone and watch that no one puts in for vacation December 15 2008 through January 5 2009 Under his employment contract Augustine vacation per calendar year time constituted was allegedly K days from entitled to 14 He claimed that the denial of the other 9 disciplinary action and resulted or in a breach of his days of days of vacation employment contract Augustine urged that the application of the 2008 vacation guidelines to deny his requested vacation time was an abuse of enumerated State Civil Service Rules discretion to not the 2008 unlawfulness After a violation of several Augustine urged that the specified conditions is given to the employee Augustine sought to receive all 14 of his requested vacation days for also demanded or pertaining to leave time accrued sick leave under use employer He authority and resulted in rescission of the 2008 guidelines on the grounds of unreasonableness reviewing Augustine s petition the referee appointed by the Commission notified him that his petition lacked sufficient allegations to establish his right to appeal 4 He was given 15 calendar days to amend his motion for recusation of the Commission defects in his Augustine responded by filing referee who had issued the notice of s appeal contending that she had committed him of his constitutional of petition right to a a federal crime in He also filed public hearing a possible depriving response to the notice a possible defects in his appeal In ruling on to set forth any affirmative allegations of fact to establish Accordingly his motion for recusal the referee found that to recuse Augustine s motion was denied a valid and disciplinary action under State Civil Service Rule 12 2 b the referee concluded that Commission See LSA Const art X nor a Augustine did not have 9 8 A of the referee Augustine appealed a became the final decision days was neither a right to appeal to the Augustine filed denied was petition the discipline in disguise From that decision application for review with the Commission which request decision recognized ground As to the merits of his referee then determined that the denial of annual leave vacation Therefore Augustine failed Therefore from of the Commission an the which 1 Discussion The question of whether question of whether a employee has the right to appeal is analogous to the an plaintiff has a cause action as cause of action must be overruled classified has the La to any ground or portion of a as demand to appeal Bass App 1st Cir 6 28 96 Services 603 So 2d 795 v on a cause of exception raising the objection of no which cause appeals a petition states of action are Similarly if the allowed the La App 1st Cir 1180 Ramirez writ denied v Department of Social 608 So 2d 195 The correctness of conclusions of law is not conceded for the purposes of 1 employee Department of Public Safety and Corrections 95 2499 676 So 2d 1178 798 an When to that distinct employee has alleged grounds right of action a La ruling 1992 on an appeal Augustine also challenged the denial of his motion to recuse The recusal of a referee is governed by the grounds for recusal of a judge of the courts of the State of Louisiana State Civil Service Rule 32 13 In the absence of the assertion of a valid ground for recusation as set forth in LSA C C P art On 151 we Williams find no error or abuse of discretion in the referee s 601 So 2d 1374 1375 La 1992 5 denial of Augustine s motion See State v exception raising the objection of 588 So 2d 1154 1159 La no cause App 1st Cir 1991 v writ denied LSA Const art X cases Kyle Civil Service Commission 595 So 2d 654 9 12 A Further religious beliefs Louisiana sex Commission further alleging discrimination because of their political or authorizes regulation of pay the classified service adopted State Civil Service Rule 12 2 b Disciplinary reductions in pay what constitutes its rule 9 8 making a can only include La which contains an authority the exclusive list of Rule 12 2 b appointing authority reassignments suspensions without granted by LSA Const art X 9 10 App 1st Cir 4 2 04 a regular tour of of such leave shall be based 2 The determination of on duty the King v LSU Health Sciences 878 So 2d 544 547 by each full time and each part time State Civil Service Rule 11 5 a The earning equivalent of years of full time state service and shall be creditable at the end of each calendar month period 10 of the adopt rules for the to Pursuant to this involuntary demotions and dismissals Annual and sick leave shall be earned employee who has Section disciplinary action is within the authority of the Commission through powers Center 03 1138 actions an to the Article X the Commission disciplinary actions that may be imposed by provided the constitution in LSA Const art X or race Constitution administration and cases 1992 Commission specifically gives classified employees the right of appeal disciplinary actions and in La gives the Commission exclusive jurisdiction in all The Louisiana Constitution removal and disciplinary of action State Civil Service Rule 11 5 b or at the end of each Nonetheless annual leave must be regular pay applied for by the employee and may be used only when approved by the appointing authority 2 Subsequently Chapter 12 2 b was 12 of the State Civil Service Rules moved to Rule 3 12 a 6 was or amended and the substance of Rule his designated representative the authority has LSP 3 State Civil Service adopted LSP Directive No approval of employee leave usage to request approval for the which is available Rule use 11 7 The a 03 013 to further address the According to the directive employees of annual and through the employee K Ieave in advance or supervisor s 4 as refusal to approve tantamount to Augustine s request for forfeiture of leave time a payment of sick leave when State Civil Service Rule 12 6 3 The request for use leave of slip only 5 days employee shall be carried an employee is Therefore a days of leave The by Augustine was LSP in State Civil Service Rule 11 10 non disciplinarily removed under refusal to s not payment of is addressed in State Civil Service Rule 11 10 1 a governed by of sick leave is an additional 9 of leave time did not constitute use by asserted as result of the accrual of unused leave time 2008 an specifically addressed annual leave upon separation is and the use State Civil Service Rule 11 6 forward to succeeding calendar years s on a required opposed to the 14 days that had been requested Accrued unused annual and sick leave earned LSP are Augustine s failure in 2007 to comply with that mandate resulted in the approval by the LSP of his of leave time for 2008 appointing a a fully approve Augustine s disciplinary action State Civil Service Rule 11 13 which As as found by provides a Sick leave may be utilized by an employee who has sufficient leave to his credit for necessary absence from duty because of 1 Illness or 2 Medical injury dental which or prevents optical him from consultation b Sick leave shall not be charged for c Each records of all one employees tenth hour e appointing authority shall The The minimum 6 minutes nor more appointing authority shall or non one his usual duties treatment work days select charge than performing a method to charge the sick leave to sick leave records shall be not less than half hour use the same method for charging to leave records for both annual and sick leave Nonetheless when sick leave is taken by an employee State Civil Service Rule 1114 requires the filing of certificate with his appointing authority stating the cause of his absence and the amount of time taken a appointing authority may require a statement from a registered physician or some proof that the employee was ill and unable to report to work State Civil Service Rule 11 The 4 Furthermore any absence from 03 013 A Directive No duty can be considered when 7 evaluating requests other acceptable 14 for leave LSP the referee 5 Accordingly we find no error in the Commission s determination allegations of Augustine s petition did not state any of the grounds for Therefore Commission The costs of this appeal we are an that the appeal to the affirm the decision of the State Civil Service Commission assessed to Sherman Augustine AFFIRMED 5 Since LSA Const disciplinary portion of the cases no error art X it is referee authorizes appeals to the court of whether this court has subject decision the basis of a rule violation 8 with appeal matter questionable addressing LSP s alleged violation of civil s finding that Augustine failed to establish a right s in the referee 12 A respect to removal and jurisdiction to consider that service rules of appeal However we find to the Commission on
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