8.2 Key Questions in Civil Service Cases

What is the employee’s status? Classified or unclassified? Permanent, temporary, probationary, or other? Don’t assume that either the employer’s or your client’s characterization is correct. Reference to personnel or civil service department records may be needed to resolve the issue. Depending on the system’s rules, even a probationary employee may have a right to appeal in situations of discrimination or retaliation.

How severe is the employee’s loss? Job loss, either through termination or “non-disciplinary” removal, is a severe economic blow, as are long-term suspensions. If you don’t take a case because the loss isn’t severe enough to justify use of limited resources, clients can be advised on how to exercise their rights pro se or be referred elsewhere.

Was the discipline imposed by the appropriate person? If the person who took the action lacked authority, the action is null. If a disciplinary letter is not signed by the agency’s head official, the issue should be raised before hearing, and the employer, the Appointing Authority (“AA”) must present sufficient documentary evidence of appropriate authority (direct or delegated).

Has the AA illegally punished twice for the same conduct? Determine prior disciplinary history and the sequence of events leading to the current charge; check central and departmental personnel files if possible. Suspension pending investigation, followed by termination based upon the same charge, is valid. Punishment twice for the same offense is not valid (even if a civil service rule purports to allow it).1  If discipline is voided due to procedural defects, the same conduct may still be used to support subsequent discipline. In the meantime, the employee must be reinstated and reimbursed for lost wages and emoluments. Raise the issue before hearing if possible.

Are the charges impermissibly stale? The AA is not estopped from discipline on a current act of misconduct just because it has failed to discipline for similar infractions in the past, nor is it required to put an employee on notice that a practice of toleration will be changed. However, the AA should be estopped from using stale charges when the delay is not imputable to the client.2  The AA may also use old misconduct to justify the severity of punishment on a current offense.

Has your client timely and appropriately appealed? Check applicable law for the system to ensure timeliness and that all possible claims are included. For instance, most systems require that allegations of discrimination be specifically pleaded in detail. Make a timely amendment if needed.

Were there constitutional, statutory, or rule violations? Raise any procedural violations before hearing, if possible. If the AA failed to follow applicable procedures, the action should be voided.3  You can recover needed income for your client, even though the AA may start the disciplinary process over.

Can the AA meet its burden of proof? A permanent classified civil service employee may only be disciplined for cause expressed in writing.4  The AA bears the burden of proving, by a preponderance of evidence, that the conduct complained of “impairs the efficiency of the public service and bears a real and substantial relation to efficient operation of the public service in which the employee is engaged.”5  There is no presumption of correctness attached to an AA’s action. Furthermore, not every rule violation is sufficient to support disciplinary action. Research case law to find factual situations similar to your client’s. Three common issues are spotlighted below.

• Drug or alcohol use. Don’t assume the validity of a test request, which may have violated applicable system rules or been constitutionally flawed.6  Refusal to take a test may be justified.7  There may also be another defense or an argument for mitigation.8  Look for flaws in the testing procedure as well. Finally, if a test result is the only basis for discipline, the AA must prove “with great care” the chain of custody and that proper procedures were followed.9  Question your client closely and review documents carefully to see if errors in obtaining or handling a sample may have taken place. The AA may fail to meet its burden of proof.10
• Criminal conduct. Conduct that violates a criminal statute may constitute cause for dismissal or other discipline.11  The burden of proof is less than in criminal proceedings; although the facts must be clearly established, they need not be established beyond a reasonable doubt.
• Non-disciplinary removals. This can be a subterfuge by an AA seeking to avoid the closer scrutiny given to disciplinary removals. Look carefully at relevant rules. Non-civil service laws may also give your client additional rights.12

Is the punishment appropriate or should it be modified? A civil service commission or board must not only determine whether the AA had legal cause for the action, but also whether the punishment imposed is commensurate with the offense.13  Discipline should be modified if it was arbitrary, capricious, or characterized by an abuse of discretion. Factors to be considered include the nature of the offense, the employee’s work record (e.g., annual performance evaluations), and any prior discipline. Because of its extreme nature, termination is often reduced to a lesser punishment on appeal. For that reason, an appeal should almost always request a reduction in discipline as alternative relief, and you should be sure that relevant evidentiary support gets into the record. Search court decisions and civil service opinions for cases involving conduct similar to your client’s and bring them to the adjudicator’s attention.

Can a non-permanent employee prove a discriminatory or retaliatory reason for the discipline? Your client has the burden of proof in this situation, and it is not often easy to meet. In the case of employees who are temporary, provisional, or probationary, the AA must give the real reason for dismissal or other discipline and that action must be nondiscriminatory and not made in retaliation for exercising a legal right.14  Not all types of discrimination can be raised in the civil service context. The Louisiana Constitution lists the exclusive categories of discrimination listed that may be raised in civil service appeals.15  Employees may pursue other claims in an appropriate judicial forum.16  If you are only taking a civil service appeal but other claims may exist, confirm the limited scope of your representation in writing.

• 1Bruno v. Jeff. Par. Libr. Dep’t, 04-504 (La. App. 5 Cir. 11/30/04), 890 So. 2d 604; Lundy v. Univ. of New Orleans, 98-0054 (La. App. 1 Cir. 2/19/99), 728 So. 2d 927.
• 2See, e.g., Bd. of Trs., State Emp. Grp. Benefits Program v. Moncrieff, 93 CA 1393 (La. App. 1 Cir. 1994); 644 So. 2d 679; Lombas v. Dep’t of Police, 467 So. 2d 1273 (La. App. 4 Cir. 1985).
• 3See, e.g., Perkins v. Sewerage & Water Bd., 95-1031 (La. App. 1 Cir. 2/29/96), 669 So. 2d 726; Shortess v. Dep’t of Pub. Safety & Corr., 2006-2013 (La. App. 1 Cir. 9/14/07), 971 So. 2d 1051 (“non-disciplinary” removal).
• 4La. Const. art. 10, § 8(A).
• 5Mathieu v. New Orleans Pub. Libr., 2009-2746 (La. 10/19/10); 50 So. 3d 1259; Shields v. City of Shreveport, 579 So. 2d 961, 964 (La. 1991); Walters v. Dep’t of Police of the City of New Orleans, 454 So. 2d 106, 113 (La. 1984); Leggett v. Nw. State Coll., 140 So. 2d 5 (La. 1962).
• 6See, e.g., Richard v. Lafayette Fire & Police Civ. Serv. Bd., 2008-1044 (La. 2/6/09), 8 So. 3d 509; Lemoine v. D.O.P.W., 2002-2532 (La. App. 1 Cir. 9/26/03), 857 So. 2d 550.
• 7See, e.g., Safford v. Dep’t of Fire, 627 So. 2d 708 (La. App. 4 Cir. 1993); cf. Razor v. New Orleans Dep’t of Police, 2004-2002 (La. App. 4 Cir. 2/15/06), 926 So. 2d 1; George v. Dep’t of Fire, 93-2421 (La. App. 4 Cir. 5/17/94), 637 So. 2d 1097 (plaintiffs lost constitutional arguments).
• 8See, e.g., Small v. Dep’t of Police, 98-0292 (La. App. 4 Cir. 10/21/98), 720 So. 2d 751 (termination reduced to suspension for officer given wrong pain medication by daughter).
• 9See, e.g., Krupp v. Dep’t of Fire, 2007-1260 (La. App. 4 Cir. 11/19/08), 995 So. 2d 686; Ruddock v. Jeff. Par. Fire Civ. Serv. Bd., 96-831 (La. App. 5 Cir. 1/28/97), 688 So. 2d 112.
• 10See, e.g., Carroll v. New Orleans Police Dep’t, 04-0122 (La. App. 4 Cir. 9/29/04), 885 So. 2d 636; Blappert v. Dep’t of Police, 94-1284 (La. App. 4 Cir. 12/15/94), 647 So. 2d 1339 (failure to rebut employee testimony that sample mislabeled); cf. Murray v. Dep’t of Police, 97-2650 (La. App. 4 Cir. 5/27/98), 713 So. 2d 838.
• 11See, e.g., Roy v. Alexandria Civ. Serv. Comm’n, 2007-1458 (La. App. 3 Cir. 4/2/08), 980 So. 2d 225 (appeals court affirmed Commission ruling that battery off-duty not cause to terminate); AFSCME v. State, 01-0422 (La. 6/29/01), 789 So. 2d 1263 (statute mandating felony conviction as cause for termination from service only constitutional vis-a-vis unclassified state employees); Caldwell v. Caddo Levee Dist., 554 So. 2d 1245 (La. App. 1 Cir. 1989) (unjust to dismiss when exonerated of criminal charges).
• 12See, e.g., Shortess v. Dep’t of Pub. Safety & Corr., 2006-2013 (La. App. 1 Cir. 9/14/07), 971 So. 2d 1051 (non-disciplinary removal under state system subject to the ADA).
• 13Mathieu v. New Orleans Pub. Libr., 2009-2746 (La. 10/19/10), 50 So. 3d 1259; Walters v. Dep’t of Police, 454 So. 2d 106 (La. 1984).
• 14La. Const. art. 10, § 8(B); see, e.g., Ray v. City of Bossier City, 37,708 (La. App. 2 Cir. 10/24/03), 859 So. 2d 264 (summary judgment in favor of employer reversed as to employees allegedly fired for exercising First Amendment right to free expression); Preen v. Dep’t of Welfare, 93-1278 (La. App. 4 Cir. 4/28/94), 636 So. 2d 1127 (successful claim of racial discrimination); Dep’t of Pub. Safety & Corr. v. Thornton, 625 So. 2d 713 (La. App. 1 Cir. 1993) (violation of civil service rule found in termination of probationary employee without obtaining input about work performance from immediate supervisor).
• 15See, e.g., Tennessee v. Dep’t of Police, 2009-1461 (La. App. 4 Cir. 2/24/10), 33 So. 3d 354.
• 16See La. Dep’t of Agric. & Forestry v. Sumrall, 98-1587 (La. 3/2/99), 728 So. 2d 1254 (finding invalid state civil service rules allowing appeals on additional bases of discrimination); McCain v. City of Lafayette, 98-1902 (La. App. 3 Cir. 5/5/99), 741 So. 2d 720 (district court held to have jurisdiction over age-discrimination plaintiff’s state law claims for general damages and loss of reputation).