David Blanchard VS Department of Health & Hospitals

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2013 CA 1483 tDAVID BLANCHARD VERSUS LOUISIANA DEPARTMENT OF HEALTH AND HOSPITALS AY 2 9 ( Judgment Rendered: x APPEALED FROM THE STATE CIVIL SERVICE COMMISSION STATE OF LOUISIANA DOCKET NUMBER 5- 17059 HONORABLE DAVID DUPLANTIER, CHAIRMAN; JOHN MCCLURE, VICE-CHAIRMAN; C. PETE FREMIN, D. SCOTT HUG IES AND SIDNEYTOBIAS; MEMBERS Jill L. Craft Attor ey for Plaintiff/Appellee Baton Rouge, Louisiana Da id Blanchard Fernin F. Eaton Attorneys for Defendant/ Appellant Neil R. Elliott Louisiana Department of Health Hospitals Baton Rouge, Louisiana BEFORE: PETTICREW, McDONALD, AND McCLENDON, JJ. 1 Cr c , J C mc . McDONALD, J. This is an appeal of a decision of the State Civil Service Commission ( CSC) dated May 22, 2013, filed by the Depat-tinent of Health and Hospitals ( DHH). It follows a prior ruling of this court on March 23, 2012, in Blanchard v Department of Health and Hospitals, 2011- 1583, ( La. App. 1 Cir. 3123112), writ denied, 20121247 ( La. 9/ 21/ 12), 98 3o. 3d 345 ( unpublished) ( hereafter Blanchard I). That decision reversed the termination of Mr. Blanchard, ordered him reinstated, and remanded the matter for a detennination of a lesser penalty. On remand, the CSC held a hearing recommendation of a 2013, 7, May on 720- hour and suspension approved and back the wages. hearing officer' s That hearing was limited to issues related to reinstatement of Mr. Blanchard and back wages. For the following reasons, we affirm. Initially, we note that the DHH' s understanding of this court' s decision in Blanchard I seems to be mistaken. DHH submits that the court' s " earlier rulings" are " essentially interlocutory and now postured for a final and definitive ruling" by this court. Decisions of this court t ecome final and definitive when writs to the Louisiana Supreme Court are denied or not sought. La. Code Civ. P. art. 2166. Our decisions are based on the record presented to us and the issues that are appealed. La. Code Civ. P. art. 2164. DHH filed a writ application with the Louisiana Supreme Court on June 6, 2012, to review this court' s decision in Blanchard L On September 21, 2012, the supreme court denied the writs making that decision final; therefore, any errors attributable to that decision are not subject to review. The appeal here is from the CSC decision dated May 22, 2013. Specifically, the CSC found: We conclude that the seven- hundred and twenty hour ( 720) suspension imposed by the referee is commensurate with Mr. Blanchard' s offense. DHH shall return Mr. Blanchard to his Engineering Technician 5 position effective November 18, 2010, and pay him back wages, except for the period of suspension imposed herein, to subject an in favor offset of DHI, for all wages earned andlor unemployment compensation received by Mr. Blanchard, with legal interest on the difference. DHH substituted alleges judgment four on in errors the CSC' s severity; ( 2) Error to decision: ( 1) Error of farced order reinstatement; ( 3) Error to award back wages; and ( 4) Error to limit hearing on remand. Before rendering its decision, ihe CSC ordered an evidenriary hearing to be conducted on May 7, 2013, limited to issues related to Mr. Blanchard' s reinstatement and back wages. At the conclusion of that hearing, the CSC issued the order that is appealed herein. The first judgment on error submitted by DHH and the second severity" alleges "[ is "[ e] rror to e] rror of forced substituted order reinstatement." Both pertain to BlanchaNd I and have nothing to do with the CSC' s decision of May 22, 2013. DHH complains that this court had no authority to substitute its judgment far that of the CSC in terms of the severity of the discipline and that it was error to order Mr. Blanchard reinstated to his former The present appeal is position. limited to the CSC' s decision on May 22, 2013, and not our decision in Blanclaard L As noted, that decision is final and is no longer subject to review. In wages". error number three DHH alleges that it was "[ e] rror to award back The May 7, 2013 hearing was limited to the issues of reinstatement and back pay. DHH requested that the recard be reopened for the introduction of additional testimony, but this request was denied. In its written opinion, the CSC noted: One issue before us in this appeal is a detennination of whether Mr. Blanchard is entitled to back pay upon reinstatement. DHH argues tbat Mr. Blanchard is not entitled to back pay because he did not specifically request an award of back pay in his original appeal; he only requested to be " reinstated." Civil Service Rule 13. 38( c) provides: lf the Commission after any hearing orders a dismissed or suspended employee reinstated, it may reinstate such employee under The rule is actually Civil Service Rule 1328( c). 3 such conditions as it deems proper and subject to Rule 13. 18 may order full pay for loss [ sic] time." This rule indicates that the CSC has the discretion to order back pay to the suspended employee. Louisiana Revised Statutes 49: 113 is applicable to employees who have,been reinstated by the appellate court. It states: Employees in the state or city civil service, who have been illegally discharged from their employment, as found by the appellate courts, shall be entitled to be paid by the employing agency a11 salaries and wages withheld during the period of illegal separation, against which amount shall be credited and set- ff all wages and salaries earned by the employee in private employment in the period of separation. [ Emphasis added.] This statute requires that the employing agency pay an illegally discharged employee " all salaries . . . withheld during the period of illegal separation." The statute makes it mandatory to pay back wages. However, a condition precedent to the payment is a finding that the employee was illegally discharged. DHH argues that there has been no finding that Mr. Blanchard was illegally terminated. Normally, an illegal discharge is based on a violation of the employee' s due process rights. See Perry v. City of New Orleans, 2011- 0901 ( La. App. 4 Cir. 2/ 1/ 12), 104 So. 3d 453, 457. This is because an employee who has been iliegally terminated, has not been terminated at all, and is still employed. He or she retains the status of a civil service employee until being lawfully removed or suspended. See Maur^ello v. Department of Health and Hutnan Resources, Offce of Managenaent arad Finaiace, 546 So2d 545, 548 ( La. App. 1 Cir. 1989). It may be argued that our decision in Blanchard 1 reversing Mr. Blanchard' s termination is, effectively, Service a Rule finding that he was 13. 28( c) illegally terminated. However, we feel Civil is the more applicable statutory authority for Mr. Blanchard' s situation. 4 Civil Service Rule 13, 28( c) provides, " If the Commission after any hearing orders a dismissed or suspended employee reinstated, it may reinstate such employee under such conditions as it deems proper and subject to Rule 13. 18 may order full pay for lost time:' ( Emphasis Upon remand from this court, the added). CSC held a hearing and suspended Mr. Blanchard for 720 hours. Regardless of the reason for holding the hearing, a hearing was, in fact, held. After the hearing in which Mr. Blanchard was ordered reinstated, the CSC ordered that he receive his back pay. Whether to order back pay to Mr. Blanchard was within the discretion of the CSC, and we find nothing arbitrary in this decision. Assignment hearing of error number on remand." four posits that it was "[ e] rror to limit [the] The CSC, on remand, was only called upon to decide an appropriate penalty for Mr. Blanchard' s behavior. Both parties, Mr. Blanchard and the appointing agency, DHH, were given an opportunity to submit recommendations to the refecee on this issue. The C5C referee limited the scope of the hearing to what was necessary to render an appropriate decision. This was the same CSC referee who had rendered the original decision to terminate Mr. Blanchard. The referee stated: On December 12, 2012, DHH filed a motion requesting that I reopen the record for the introduction of additional evidence. On December 14, 2012, I denied this motion, as I had denied Mr. Blanchard' s earlier motion for an evidentiary hearing, because I had conducted a full hearing on the merits on April 15, 2011, and additional evidence was unnecessary to determine a commensurate penalty. The parties are not autharized to decide which issues they want reviewed. We find no error in the referee' s decision to limit the issues befare him on remand. The decision of the referee was confirmed by the CSC, who thereafter issued the decision that we are reviewing. s Having found no error in the CSC' s opinion of May 22, 2013, the decision is affirmed. The costs of this appeal in the amount of five hundred iwenry-three dollars ($ 523. 00) are assessed against the Department of Health and Hospitals. AFFIRMED.

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