James Dogans VS Department of Revenue
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STATE OF LOUISIANA COUIZ T OF APPEAL FIRST CIRC;L IT D I N(. 2033 CA 1195 J JAMES DOGANS VERSUS DEPARTMENT OF REVENUE Judgment Rendered: FEB 1 8 2 On Appeal from the Decision of The Louisiana State Civil Service Commission Hon. David Duplantier, Chairman Shannon S. Templet, Director State of Louisiana Docket No. 17664 Ronald L. Wilson Attorney for Plaintiff/Appellant, New Orleans, Louisiana James Dogans Mark E. Falcon Attorneys for Defendant/ Appellee, Daniel L. Avant Department of Revenue Baton Rouge, Louisiana Adrienne Bordelon Attorney far Defendant/Appellee Baton Rouge, Louisiana Shannon S. Templet, Director, Department of State Civii Service BEFORE: WHIPPLE, C. J., WELCH, AND CRAIN, JJ. CRAIN, J. James Dogans, a former eanpioyee of the Department of Revenue, State of Louisiana (Department), ap peals a decision Qf tk e State Civil Service Commission that dismissed his appeal of the Department' s termination of his employment. We affirm. FACTS AND PROCEDURAL HISTORY In January of 2013, Dogans was employed as an auditor for the Department; however, due to illness he had been continually absent from his employment since Februaxy 29, 2012, a period of almost one year. On January 3, 2013, Dogans received a written notification from Josaph Vaughn, an assistant secretary for the Department, stating that Vaughn was recommending that Dogans be dismissed from his employment for non-disciplinary reasons pursuant to Civil Service Rule 12. 6( a) 1, which provides: 12. 6 Non- disciplinary Removals An employee may be non-disciplinarily removed under the following circumstances: a) 1. When, on the date the notice required by Rule 12. 7 is mailed, hand delivered, or orally given, the employee is unable to perform the essential functions of his job due to illness or medical disability and has fewer than eight hours of sick leave. An employee removed under this provision shall be paid for all remaining sick leave. According to the notification, Dogans' available sick leave was exhausted on December 27, 2 12, and he had e austed his Family Medical Leave entitlement. The notification further advised that the position of employment held by Dogans is critical to this agency' s ability to collect revenue, and the duties of the position must 1 be performed without further delay." Dogans was instructed to respond to Rule12. 6( b) further provides that when an employee is removed under this rule, the adverse consequences of Rules 6. 5{ c), 22. 4( d), 23. 16( a) 4, 23. 13( b), ll.18( b), and 17. 23( e) 4 " shall not apply ,> 2 Dee Everett, the Human Resources l irector, if he disagreed with any of the facts stated in the notification. In a written response to Fverett dated 1, Januazy 2013, Dogans stated that he had an appointment with his doctor on February 11, 2013, to discuss the results of his therapy and to undergo same tests. If the results of his therapy were favorable, Dogans stated that he s,vould 46reqa st pertnission to return to duty," adding that if the test results " are also favorable, I can return to duty around March 4, 2013." On January 25, 2013, Vaughn forwarded a second notification to Dogans confirming that he had been non- disciplinarily removed from classified service pursuant to Rule 12. 6( a) 1, effective February 4, 2013. Vaughn explained: By pre- deprivation notice dated January 3, 2013, you were notified of the recommendation Therein reference was of removal. made to your continual absence frorn duty dating back to February 29, 2012; exhaustion of your sick leave entitlement as of the date of issuance of the pre- deprivation notice; your e austion of leave under the Family and Medical Leave Act; and the recommendation of removal in accardance with Civil Service Rule 12. 6( a) 1. Responsive to this notice, by letter dated January 10, 2013, you informed Ms. Dee Everett, Human Resources Director, of a scheduled appointment with your physician on February 1 I, 2013, and vour expectation of being released to return to dury on or about March 4, 2013. To this date, you have not provided any documentation from your physician evidencing your release to return to work to perfoz-m your customary job duties. Dogans appealed the termination of his emplo ment to the State Civil Service Commission. In his appeal, Dogans did not deny that on the date of the pre- deprivation notice, he was unable to perform the essential functions of his job due to illness, and that he had e iausted his sick leave. Ia stead, he asserted that he informed the Human Resources scheduled on February 11, 2013, irector that he had a doctor' s appointment and, if cleared, he would return to wark. He further stated that his immediate supervisor, Barry Kelly, had authorized him to 2 The January 3, 2013 notification will be referred to hereinafter as the " pre-deprivation notice." 3 use annual leave in lieu of sick le cve n e ario zs occasions during the m onth of January. Dogans further aileged that he had f red Lo retunn to work but was not permitted to return without a irelease. fram his doctvr. Do ans anaintained that by rejecting his offer to return to work, an Yerrxainating Y im prior to ezchaustion of the leave authorized bv . r. Kelly; xhe agency, thrc ugh Mr. Vaughn, acted arbitrarily and capriciously." The Commission assigned the appeal to a referee who issued a notice to Dogans informing him that his appeal did not contest-any of the elements of Rule 12. 6( a) 1. Dogans was ordered to show cause why his appeal should not be summarily dismissed and/ or to amend his appeal to cure the defect. Dogans amended his appeal but again did not contest that en the date of the pre- deprivation notice, he was unable to perform the essential functions of his job due to illness, and that he had e austed his sick leave. Dogans did supplement his appeal with copies of emails from his supervisor and an assistant that confirmed the granting of Dogans' requests in January far annual leave. He also alleged that " he was able, and did in fact return, to work on January 22, 2Q13, and worked that day, and the following day, January 23, 2013, without any problems." According to the amended appeal, Dogans " ceased working only because he was ordered to do so" by his supervisor, and he was " not able to provide a medical release due to the fact that his ne medical appointment was not scheduled until February 11, 2013." He further asserted that Rule 12. 6( ajl is discretionary, and the Department' s decision to invoke it was arbitrary and capricious because he had returned to work and could perform the tasks. Dogans concluded by averring that the Department should have permitted him ample time to provide the medical release that the Department] thought he needed. . . ." 4 The referee issued a decisiQn that subnm;irzl} dismissed the appeal, finding that Dogans' contentzons veere irrelevant to ihe lidity of his removal and explaining: Allowing an employee to use annual leave for absences due to illness, injury or medical treatme nt is at the appointing authority' s discretion under the Civil Service Rules, h1r. I)ogaz c has n t properly contested the elements of a [ Rule] 12,6( a) 1 rezns val by alleging a delay in obtaining a release from has doctc r, as ie has not alleged that he was able to perfonr. the essential fiunctions of his job o:a January 3, 2013. On January 3, 2013, ( the date [ the Department] delivered the pre- deprivation letter to Mr. Dogans), he ivas unable to perform the essential functions of his job due to illness or medical disabiliry, and he had fewer than eight hours of sick leave. Despite being given an opportunity to do so, Mr. Dogans has not alleged sufficient specific facts supporting a conclusion that [Rule] 12. 6( a) 1 was violated by [ the Department] in effecting his Therefore, he has failed to allege a right of appeal to the Commission. removal. Dogans did not seek further review of the referee' s decision with the Commission and filed an appeal to this court. The referee' s decision constitutes a final decision of the Commission and is subject to appeal to this court pursuant to Article X, § 12( A) of the Louisiana Constitution. On appeal, Dogans contends that 1) the Commission erred in concluding that he offered no facts challenging his removal pursuant to Ruie 12. 6( a) 1, and ( 2) assuming arguendo that the requirements for a non- disciplinary removal under Rule 12. 6( a) 1 were present, the Department acted arbitrary arld capricious in effecting his removal prior to the expiration of his e ended leave. LAW AND ANALYSIS Decisions of the Commission are subject to the same standard of review as a decision of a district court. King v. LSU Health Sciences Center, 03- 1138 ( La. App. 1 Cir. 4/ 2/ 04), 878 So. 2d 544, 546. Factual detertninations should not be reversed or modified unless clearly wrong or manifestly erroneous. Kirg, 878 So. 2d at 546; Gorbaty v. Department ofState Czvil .Service, 99- 1389 ( La. App. 1 Cir. 6/ 23i00), 762 So. 2d ll59, 1162, writ denied OQ- 2534 ( La. 11%13I00), 774 So. 2d s 147. However, the issue before the co ark in t he present appeal is a procedural one involving a determination of the sufficiancy of an allegation rather than a factual finding. The deferential sta dard of review afforded to factual findings is therefore inapplicable tc ur review of the Caanmissi a' s decisioaa fQr le a errar. King, 878 So. 2d at 546; l fareantel v. I1ep trnent Qt Transp r`t atian anc Development, 590 So. 2d 1253, 1256 ( La. l pp. 1 Cir. 9' 1). The Commissiods jurisdiction to hear appeals is limited to two categories of claims: discriminarion claims under Article X, §8( B) of the Louisiana Consritution, and removal or disciplinary claims under Article X, §12( A). Louisiana Department ofAgriculture and Forestry v. Sumrall, 98- 1587 ( La. 3/ 2/ 99), 728 So. 2d 1254, 1260. Ch.apter 13 of the Civil Service Rules governs appeals to the Commission, and Rule 13. 14( d) authorizes a referee to summarily dismiss an appeal if Lhe appellant has no legal right to app al.3 Wliether an employee has the right to appeal a decision to the Comnnission is analogous to the question of whether a plaintiff has stated a cause of action, King, 878 So, 2d at 546; Ramirez v. DepaNtment of Social Se^ vices, 603 So. 2d 795, 798 ( La. denied, 608 So. 2d 195 ( La. 1992). App. 1 Cir.), writ When a petition states a cause of action as to any ground or portion of the demand, an exception raising the objection of no cause of action must be ovenruled. Szmilarly, if the classified employee has alleged grounds upon which appeals are allowed, he has the right to appeal. The correctness o1F conclusions of law is not conceded for the purposes of a ruling on an exception raising the objection of no cause of action. King, 878 So. 2d at 546- 547; Ramirez, 603 So. 2d at 798. Dogans' appeal was summarily dismissed because the referee found that Dogans did not contest th eIements of his removal pursuant to Rule 12. 6( a) 1, 3 Rules adopted by the Civil Service Commission have the force and effect of laws. La. Const. Art. X, § 10( A)(4); Bradford v. Department ofHospitals, 255 La, 888, 897, 233 So. 2d 553, 556 1970). 6 namely that on the date of tI-e pre-depri ati n notzce, he was " unable to perform the essential functions of 1 is j b 1ue EQ illness or medica disability and [ had] fewer than eight hours of sick le ve." Our suprebne court has held that a rule providing for the permissible termination of an employee whq is unable to perform his duties by reason of illness; and who has e hausted his aick leave, expresses a legal cause for dismzssal. B- adf.r v. L7 pa- tment f Iospitals, 255 La. 888, 897, r 233 So. 2d 553, 556 { 1970). In discussing the purpose of the rule, the Bra: ford court recognized: The Rules make allowance for sick leave with pay for employees in the ciassified service . . . . But there is no law or rule that entitle[ s] one who has become incapacitated by illness or accident to continue indefinitely in the service; and, after the allowance of sick leave prescribed by the Rules has been elchausted, it is a matter of administrative discretion as to how much 9onger the employee sha11 be allowed to retain his position in the class fied service. Bradford, 255 La. at 896, 233 So. 2d at 556 ( 1970) ( quoting excerpt of Commission' s findings set forth in Villemarette v. Department of Public Safety, Division ofState Police, 129 So. 2d 835, 838 ( La. App. 1 Cir. 1961)). In support of his right to an appeal, Dogans first argues that Rule 12. 6( a) 1 only applies if an employee is unable to return to work " on the effective date of removal." Dogans maintains that the allegations in his appeal establish that the effective date of his removal was .Tanuary 22, 2013, and that he was able to return to work that day and the next day. Therefore, according to Dogans, the allegations of his appea establish that all af the grounds for a non- disciplinary removal pursuant to Rule12. 6( a) 1 were not present. This argument relies on a version of Rule 12. 6( a) 1 that is no longer in effect. Prior to amendment in 2007, Rule 12. 6( a) 1 provided, in pertinent part, that an employee may be removed: When, on the effective date of rernoval, the employee is unable to perform the essential functions of his job due to illness or medical disability and he has fewer than eight ( 8) hours of sick leave to his credit and his job musY bz erformed without fi rther interruption.[ 4] Empha is added]. The Commission subsequent y arr.endea Rule 32. 6( all, eff cti=, December 12, e 2007, to provide, in erti nenY pari, tk at an emplcsye may be reia eved: When, on Phe date th natic a eyuirec by RuPe 12. 7 is rrcazl d, 6uznd delivered, ar prally gia er, hs; ea a loyee is anabl to perfornn the essential funcCions of his job u to A1Lness or medical disability and has fewer than eiuoht ha rs of°sick lea r.[ j [ E nphasas added.] As indicated, the relevant point in tiime far determining w° hether the employee was unable to perform the essential functions of his job and had fewer than eight hours of sick leave was changed from " the effective date of removal" to the date the notice required by Rule 12. 7 is mailed, hand delivered, or orally gived' to the b employee. According to the Commission, the amendment was necessary because: Over the years agencies have complained that as soon as the employee receives notice that removal has been proposed, the employee returns to work, works a short period of time, earns more sick leave, runs out of sick leave, and the cycle begins again. The change would stop the revolving door" prablem.[] Applying current Rule 12. 6( a) 1, Dogans' appeal to the Commission did not dispute that as of January 3, 2013, the date of the pre- deprivation notice, he was unable to perform the essential iunctions of his job due to illness or medical disability, and he had fewer than eight hours of sick leave. His alleged attempts to return to work after that date are irrelevant to the application of Rule 12. 6( a) 1. 4 See Shartess v. Department of Public SafEty & Corrections, 06- 2313 ( La. App. 1 Cir. 9/ 14/ 07), 971 So. 2d 1U51, 1054, writ denied, 07- 2293 ( La. l/ 25/ 08), 973 So. 2d 761. 5 See General Clrcular No. 001717, State of Louisiaraa, Department of State Civil Service November 5, 2007); Annotafions to the Cizil Seivice Rules, Louisiana Deparnnent of State Civil Serc: ce ( 2" Ed. 2008); at pg. 96. 6 Rule 12. 7 provides, " When an appointing authoriYy proposes W discipline or rernove a permanent employee, tfie employee must be given oral or written notice of the proposed action, the factual basis for and a descrip:ien of the evidence supportang the proposed action, and a reasonable opporturiity to respo: d." Dogans does not dispute that the January 3, 2013 pre- deprivation nocice satisfies the requiremenis of I ule 12. 7, nd he concedes that he received the notice on January 3, 2013. See Gener l Circulaz No. 001717, ]Explanation 2. 8 Accordingly, find ve no erit tc Yh us e tic n tbat t17e ceferee ezred in summarily dismissing the a ea bec uQe c ar s faiYzd to artt" sti he e emer, s of his removal x under Rule 12. 6( a) See. D nt v. L1 pa; tm- rzt of Co t^ectzons, Hunt Correctional 1. Center, 460 So, 2d 57, 58 ( Lae App. ir. 19 54) 1 ffirming refere' s summary dismissal of appeal wl ere referee found that " no+ vhere ir.the appeal c oes appellant deny or otherwise put at iss e th facts orc wrhich her termin;ation vas based"); Broussard v: Department af Corrections, Louisiana Correctional and Industrial School, 405 So. 2d 1219, 1221 ( La. App. 1 Cir. 1981) ( affirming summary dismissal of appeal where employee admitted to having been absent and that her sick leave was exhausted) Dogans next argues that his right to appeal to the Commission was established by allegations that Vaughn acted in an airbitrary and capricious manner by removing Dogans while he was on approved annual leave. Although Dogans' appeal to the Commission contains a general allegation that the termination of his employment was " arbitrary and capricious," the documents submitted therewith reflect without contradiction that he was reznoved f' om his employment for nonr disciplinary reasons in accordance witb the proviaions of Rule 12. 6( a) 1. The pre- termination notice attached to his appeal to the Commission provides that Dogans was unable to perfornn the essential funckions af his emplo ment and had exhausted all f his sick lea e as of that date. Dogans was irastructed to respond to the Hurnan Resources Directox if he disagreed with those facts, and his subsequent response does not deny or otherwise contest ti ose facts. To the canirary, his response confirms that he wouid not be able to return to work until about three 8 In determining whether pogans has a right to appeal to the Commission, we consider the appeal and any documents annexed thereto. See Ying, 78 So. 2d at 546 ( right to appeal Is analogous to whether a plaintiff has stated a cause of action); Paulsell v. State, Department of Transportation and Development, 12- 0396 ( La. App. 1 Cix, 12,'28/ 12), ll2 So. 3d 8S6, 864, writ denied, 13- 0274 ( La. 3/ 15/ 13), 109 So. 3d 38b ( an exception of no cause of action is tr:able solely on the face of the patition.and any attached documents). 9 months later, and then only if he receives favarable results from his therapy and medical tests. The emails from Ke ly ( Dogans' immediate supervisor) and his assistant confirm that Da ans was p rmitted to take ant ual leave durzng certain days in January work, so of 2013, I3ogans had he request d and is exhausted. wa + sick lea e and '. s unai le to re±urn to er ra; ttecl to ua, annual eave in iieu of sick leave. The Department had the discretion to allow Dogans to use annual leave under Rule 11. 7, The discretionary allowance of that annual leaj e did not change or otherwise alter the fact that the requisite conditions for a removal under Rule 12. 6( a) 1 existed as of January 3, 2013. Annual leave cannot be considered in determining whether an has employee sick leave remaining under Rule 12. 6( a) 1. See Pierre v. Department of lUatural Resources, Office of Environmental Affairs, 449 So. 2d 596, 599 ( La. App. 1 Cir. 1984) ( applying fonner Rule 12. 10( a), now set forth at I, Rule 12. 6( a) 1). As explained by the Department, tlpe decision to allow Dogans to use annual leave was important only for pa roll p rposes, as it allowed him to remain on payroll during his cor tinued absence pe ding the outcome of his pre-deprivation process. The Departmznt' s only other a lternative was to place Dogans on Iea- e without pay parsuant to Rule 11. 27. Dqgan was permissibly removed from his employment under Rule 12. 6( a) 1 because on 7anuary 3, 2013, he was unable to perform the essential functions of his joYj due to illriess or medical disability, and he had fewer than eight hours af sick Ileave: That removal was not rendered arbitrary or capricious by the Departme it' s decision to permit his use of annual leave in lieu of sick leave during ihe deprivation pre- process. CONCI{USION By relying on an attempt to return o work and the use of annual leave after his receipt of the pre- deprivation notice; 19 ogan, attem ts to utilize the " revolvin doar" that the Com nission efF cr iveYy c c szd nn 20 7 when it aznended Rule 12. 6( a) 1 to provide that th date af tk e pre- epr= a.tion r tice zs the pertinent date l for determinar g ;-.> functions of his ether t12e erripfloymei it a e x lovee was nabl had less Yhan eight ta p rforrn the essential ouxs o availal le siok leave. Based upo olar finding that I)ogans' appea xo ih Commission did n t set forth facts sufficient to st blish his right so appeal, we affintxi the decision of the referee to summarily dismiss the appeal. All costs of this appeal are assessed to Dogans. AFFIRMED. ii
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