Marcus C. Lewis VS Louisiana State University - Baton Rouge Campus
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2008 CA 2592 MARCUS C LEWIS VERSUS LOUISIANA STATE UNIVERSITY SATON ROUGE CAMPUS DATE OF JUDGMENT JUNE 12 2009 ON APPEAL FROM A DECISION OF THE STATE eIVIL SERVIeE eOMMISSION DOCKET NO S 16384 STATE OF LOUISIANA HONORABLE JAMES A SMITH eHAIRMAN BURL CAIN VIeE eHAIRMAN eHATHAM H REED G LEE GRIFFIN ROSA B JACKSON AND JOHN MCLURE ANNE S SOILEAU DIREeTOR DEPARTMENT OF STATE CIVIL SERVIeE William A Norfolk Counsel for Baton Louisiana State Rouge Louisiana Appellant University Otha e Nelson Sr eounsel for Baton Marcus e Lewis Rouge Louisiana Robert R Boland Jr Appellee Counsel for Anne S Soileau Baton Rouge Louisiana BEFORE Disposition lJf KUHN GUIDRY AND GAIDRY JJ AFFIRMED 1 Gl4ld co tV CM as v I tc J l St I J 5 Kuhn J This termination notice a the issue of whether appeal raises to its employee pursuant the address maintained in its to satisfy due process currently residing at appointing authority an to when the employee the address maintained in the had actual appointing authority knowledge of personnel its the address maintained in the records to comply with due we affirm the State eivil Service eommission employment its order granting back wages earned and employer remove unemployment Plaintiff benefits Marcus appellee plumber pipefitter State e 2008 to this a to and its employee s we personnel s Accordingly plaintiff s to a set off for order that the personnel tile with permanent to work and proposed action and dated March 18 was employed to status By a no terminate his to explain why he should which indicated that he date of employment was LSU employment October 12 2 1998 not be was right terminated LSU sent as based unapproved absences beginning February later than March 14 2008 2008 defendant by letter dated March 6 The letter further stated that Lewis had the present original employer University Department of Facility Services master report written response His incarceration subject not Because the reinstatement of received Lewis 2008 LSU notified Lewis that it intended failure s requirements pay with interest all related documents from the appellant Louisiana his s notice FACTUAL AND PROCEDURAL BACKGROUND I a process deprivation records employee to insufficient pre of using is incarcerated and find the notice mailed was mailing eivil Service Rule 12 8 1 personnel records is sufficient requirements s a to on 27 respond to by providing letter of termination being terminated effective close of business March 27 continued Baton maintained in LSU Lewis filed At a been arrested Parish Prison 8624 appeal an 2 mailed which was hearing on mailing address supervisor James D Brown placed Brown several times on jailed In and was was established that Lewis had booked into the East Baton Rouge on next leave without pay Lewis Brown circulated The at that Lewis had asked day Williams spoke to Lewis and advised him that Lewis had been arrested and behalf to when Lewis would be released and and Human Resources his termination friend Kendra Williams who had resided with Lewis Lewis be the Elmgrove the wrong address matter it and 26 2008 February to this his work office for him to 8376 challenging Pascagoula Drive for the past eight months testified had asked to Lewis indicated that he had been her to call as were with the Commission termination letters 12 2008 on unapproved absences which had 70807 5019 be rehired to sent the May LA Rouge his to personnel records s petition seeking that LSU had due Both notices through March 18th Garden Drive his 2008 an e mail give returning Williams testified that she called Brown updates and to let him know to work supervisors in the Maintenance Department to Department regarding Lewis which read in pertinent pmt follows Marcus Lewis had 02 26 08 for the problems 02 27 08 morning stating that detained for a Lewis a court appearance yesterday morning that he has been having At 7 12am this a Kendra Williams called in was required to do some for Marcus Lewis time and will be sic unknown amount of time Continued 2 The arrest related to 22 2007 incident charges involving of disturbing the peace and Lewis wife 3 simple battery regarding an Octoher During Lewis absence Lewis absences Tara S as Brown prepared leave slips for Lewis which classified unauthorized leave without pay Dupre a Human Resource Analyst with LSU verified that Lewis had been booked into the East Baton February This information 26 2008 On March 25 Human Resources 2008 Lewis was hearing he had incarceration Venna M a new that he work and to not establish that he advised Brown that he physical address that he had was unaware on was sent to the was of his afforded any type Lewis further testified that before his time a having domestic LSU s Human physical address new that LSU had was Lewis testified that he also told employee relations director for Jones Management Department however at that verbally that he had problems and Parish Prison Management Department where he apparently learned exit interview or Rouge to Brown reported back proposed termination The record does of related Facility Services s a to fill form Resources He testified out to change his mailing address Jones testified that mailing address as LSU 8376 That information 70807 payroll purposes personnel speaking not Baton Elmgrove Garden Drive was provided to reflected Lewis records LSU She stated that at the time he with LSD Lewis had she recalled s by Lewis and was February discussion about his address 2008 but Jones was used for Jones also testified that during that conversation explained that there was no could change his mailing address online by utilizing LSU 4 Louisiana separated from employment changed his mailing address with Lewis in Rouge official s an employee Personal Access Web by filling Services PAWS Resources form and submitting it the Human Management Department system or out a to The eommission referee found that Brown and Jones knew that Lewis in jail but mailed the pre disciplinary notice to The referee found that LSU longer residing s an address where Lewis notice did not Service Commission Rule 12 7 and that Lewis had protections of this rule process and ordered LSU Lewis unemployment to personnel remove file all documents by The Commission denied LSU erred in finding 12 7 to the notice 3 appealed asserting that that the employee s mailing subject to to his a position set off for Lewis since his dismissal concerning this disciplinary action from and the decision of the referee became the eommission LSU has with Civil comply The referee reinstated Lewis benefits received was no been afforded the due not effective March 27 2008 ordered back pay with interest wages earned and was s s applications for review final decision both the Referee and the Commission of the pre deprivation notice required by Rule address of record pursuant to Rule 12 8 1 was insufficient 3 At the time of Lewis termination Civil Service Rule 12 7 provided No permanent employee may be removed or subjected to any disciplinary action other than an emergency suspension until he has been given oral or written notice of the proposed action supporting the proposed and the reasons action and a therefor reasonable Civil Service Rule 12 7 description of the evidence opportunity to respond thereto a currently provides When an appointing authority proposes to discipline permanent employee the employee must be given oral or written notice of the action the factual basis for and a description of the evidence supporting the proposed proposed or remove a action and a reasonable opportunity to respond Civil Service Rule 12 8 1 provides Written notice is considered a given when it is hand delivered to the employee 5 or II ANALYSIS The final decision of the eommission is appeal court on should of absence question of law any disturb the factual not manifest Commissioners 00 0297 1730 writ denied 01 rule basic constitutional Rocque v p 4 and as rights they Department of 505 So 2d 726 long 728 its rules be must personnel La 1987 Thus the records are on Lewis question before this by the I2 A A reviewing District disciplinary action except for Bd of 659 The Commission has broad reasonable and do not violate and enforced the courts recognized to by Office of Secretary the address of record contained within complained he did not Court is whether LSU Louisiana eonstitution article 10 in in the 784 So 2d 657 to timely receive this notice provided the appellant with S 8 provides in part that classified cause a challenge its actions before depriving Lewis of his property interest U S Const amends V XIV La Const status of rehearing constitutionally adequate opportunity gained permanent court eommission Levee Health and Human Resources Although LSU mailed the notice its 9 1st Cir 3 28 01 796 So 2d 686 as review by the Orleans v App La La 9 14 01 powers making Williams error made findings to 10 La eonst art fact or subject state or city service n o art I 9 2 person who has shall be subject to expressed in writing To determine whether Lewis due process this court must balance his interest in rights were violated in this retaining his employment and LSU s case interest Continued b when it is hand delivered to the employee a person of suitable age and discretion who resides with or 6 and expeditious removal of unsatisfactory employees III administrative burdens So 2d 561 883 La 565 La 1987 Murray process is parties of the the circumstances to pendency of the action and to afford them 1562 56 L Ed 2d 30 339 U S 306 314 In Cleveland Rd 1487 1495 essential of 84 L Ed 2d 494 The tenured charges against him opportunity to 657 470 U S v of the to and oral or employer an s LSU presented proof that that it 546 105 S Ct The opportunity to evidence and an deposited the requisite notice strict adherence not II written notice of the is a requirements Commission I Central Hanover 532 technically complied with eivil Service Rule essential 436 U S 1950 the mail and had where present present his side of the story Although one to Supreme eourt held notice is entitled explanation Craft v 94 L Ed 865 are process apprise interested opportunity Mullane the United States public employee an citing Loudermill v 1985 requirements of due respond 1978 70 S Ct 652 Educ an Water Division objections Memphis Light Gas Trust Co 504 elementary and fundamental requirement of due reasonably calculated under all 98 s et 1554 Revenue and Taxation 882 and 1986 notice their of avoidance writs denied 504 So 2d 880 1 st Cir App An Department of v the correctly of due to technical rules does process reasoned that have compliance been not met 12 8 1 c this in case establish that the The referee with Rule 12 8 1 in this case and did comport with due process requirements Continued c on the 7th calendar most day after it resource mailed with correct postage to the employee s writing or electronically to the agency s human was recent address furnished in office 7 As observed 1 st App by this court writ denied Cir in Casse 551 Sumrall 547 So 2d 1381 v 2d So 1322 La 1989 1385 La citations omitted emphasis added Exactly what process is due is involved Due process is not unrelated to pecul iar facts technical concept with a fixed content a upon the dependent place and circumstances It is a flexible standard which requires such procedural safeguards as a particular situation The primary purpose of the required notice is to apprise demands the affected individual of and permit adequate preparation for the requisite hearing An time appointing authority 1 st Cir 1985 App 1314 La actual knowledge that LSU knew that Lewis mail a an 47 to 4 was s v l972 wherein the the property not at the case him at the show LSU had which it mailed the notice to Such action would parish prison LSU since on to home address which the notice was At trial Lewis testified that he receive collect calls so not to have they had been necessitating a notice of forfeiture his presence was not proceedings mailed reasonably calculated proceedings because the government entity knew that address an 1313 actually incarcerated in parish prison yet it failed Court found that owner s to 468 So 2d 1310 facts of this the address not at furnishing notice Hanrahan 409 U S 38 40 93 s et 30 32 34 L Ed 2d address where the notice 4 was undisputed Pickens whereabouts and the circumstances See Robinson him of the to The v faith when unreasonable administrative burden notified of Lewis there Lewis notice addressed imposed good Department of Corrections See employee in must act he had no was was mailed unable way of sent and because that he could he to contact Brown contacting him 8 Brown was at the to owner was not that directly because other than by having apprise get very to the time LSLJ cannot Williams call We further note that LSU incarcerated steps or make any Based calculated to opportunity on extraordinary effort these apprise to facts we Lewis of his to was not required to take any additional ascertain Lewis whereabouts conclude proposed LSU s notice was termination and did present his objections and thus it was not not constitutionally reasonably afford him an deficient III CONCLUSION For these the amount of reasons 480 00 we are affirm the Commission assessed s decision Appeal costs in against defendant appellant Louisiana University Department of Facility Services AFFIRMED 9 State
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