EDGAR MERIDA v. ORLEANS LEVEE DISTRICT (2025)

In this appeal, Edgar Merida seeks review of the State Civil Service Commission's acceptance of the decision of Civil Service Commission Referee, Brent C. Frederick, denying Mr. Merida's appeal from termination by the Southeast Louisiana Flood Protection Authority-East-Orleans Levee District (FPA-Orleans).² For the following reasons, we reverse.

BACKGROUND

Edgar Merida became a full-time employee of the Southeast Louisiana Flood Protection Authority East-East Jefferson Levee District (FPA-East Jefferson) on August 26, 2019, after serving as a reserve sergeant with the same agency since 2012. Mr. Merida was hired as a “Police Officer 2-A,” and on paper, set to serve a maximum probationary period of twenty-four months, or until August 25, 2021, in accordance with the requirements of the Civil Service Rules. On or about January 17, 2020, Mr. Merida was assigned by then Superintendent of Police, Kerry Najolia, to work with an FBI task force in conjunction with the FPA-Orleans while remaining employed by the FPA-East Jefferson.

In July of 2020, Supt. Najolia informed Mr. Merida that Merida's position with the task force was becoming a classified position. Supt. Najolia explained to Mr. Merida that once the position was officially posted, Human Resources would alert Mr. Merida, and he should apply because he would be accepted at that position. Supt. Najolia further instructed Mr. Merida on the details of his transfer and that following Mr. Merida's hire into the new position under the FPA-Orleans, he would resign from the FPA-East Jefferson, which would then be able to fill Mr. Merida's position with a new patrolman. Supt. Najolia informed Mr. Merida that this was the procedure he was advised to use by Human Resources and the Civil Service Commission, and had been used with two other employees, Patrick Conaghan and Gerald Holmes, making similar transfers. In further discussion with Mr. Merida, Supt. Najolia informed Mr. Merida that he would serve a probationary period of approximately one year prior to becoming a permanent classified Police Investigator.

On August 6, 2020, the position of “Police Investigator” was advertised. The advertisement listed the job type as a promotion, and noted it was a posting for classified permanent employees only, with the additional requirement of federal task force and investigative experience. That same day, Mr. Merida gained permanent employee status as a Police Officer 2-A with FPA-East Jefferson, making him fully eligible for this promotion.

Mr. Merida followed Supt. Najolia's instructions and applied for the Police Investigator position on August 7, 2020. After being accepted into the position, an employee separation form was prepared on behalf of Mr. Merida on September 6, 2020. The reason for action was marked “Transfer to Other State Agency.”

Mr. Merida was officially hired by the FPA-Orleans on September 7, 2020. This move amounted to no loss in pay or benefits, nor did it require Mr. Merida to recertify or train, and for all intents and purposes was a transfer with a promotion in pay, except that his “Hire Form” once again reflected a probationary status which was not set to expire until September 6, 2022. During Mr. Merida's probationary period, he earned an “exceptional” review by his supervisors, who further noted that he was well-liked by his fellow employees, had excellent communication skills, was a great facilitator with outside agencies, maintained high ethical standards, took responsibility for his work, and was always willing to help a fellow agent or officer in need.³

In May 2021, Kelli Chandler, Regional Director of the Southeast Louisiana Flood Protection Authority-East (Flood Protection Authority) was designated as the agency's appointing authority. Regional Director Chandler began reaching out to the task force employees, Mr. Merida, Mr. Conaghan, and Mr. Holmes, regarding possible elimination of the program and returning these employees to their respective levee district police positions.

Upon approaching Mr. Merida's anniversary as Police Investigator, paperwork was allegedly completed to certify Mr. Merida as a permanent employee with the FPA-Orleans and was sent to Human Resources. A few weeks later, Supt. Najolia was forced to resign from his position on September 20, 2021.

On March 9, 2022, Regional Director Chandler terminated Mr. Merida's employment with the FPA-Orleans without cause or notice based on his alleged probationary status.

Mr. Merida timely appealed his termination to the Civil Service Commission in proper person on March 28, 2022. Within his appeal, Mr. Merida alleged that he accepted the position of Police Investigator with the understanding from Supt. Najolia that he would serve a one-year probation period as opposed to a twenty-four-month probation period as alleged by Regional Director Chandler in the separation letter. Mr. Merida further made allegations of age, racial, and religious discrimination, noting that two other FPA-Orleans employees who were hired/transferred under circumstances similar to him were given the opportunity to return to their previous positions after being separated from their Police Investigator positions. Mr. Merida noted that one was black and the other white, while Mr. Merida identified himself as a Hispanic male with Jewish ancestry. Mr. Merida prayed for reinstatement, back wages, emoluments, and expungement of his record of termination as a probationary employee.

On May 23, 2022, Referee Frederick sent a Notice to the FPA-Orleans requesting documentation detailing the work histories of Mr. Merida, Mr. Holmes, and Mr. Conaghan.

Mr. Merida retained counsel, and around June 25, 2022, filed his first supplemental and amending appeal, setting forth claims of “political discrimination” alleging that he was terminated because he was “aligned” with Supt. Najolia.

Referee Frederick issued a Notice to Mr. Merida requesting he show cause why an age discrimination case could be brought before the Commission.⁴ Referee Frederick further requested Mr. Merida to detail his race and religious discrimination allegations, after the Referee's preliminary findings of no discrimination, and asked Mr. Merida to amend his appeal, if he could, in order to assert allegations that could maintain an appeal in accordance with the Civil Service Rules.

Following responses and oppositions filed by the parties, Referee Frederick issued a ruling on October 5, 2022, finding that Mr. Merida failed to properly allege discrimination based on age, race, religious beliefs, or political affiliation, and therefore, no evidence would be received at the hearing of the appeal regarding these matters. Referee Frederick did find two of Mr. Merida's arguments persuasive and made those the basis of his appeal hearing. The first concerned whether Regional Director Chandler had the authority to separate Mr. Merida from his employment with the FPA-Orleans; the second dealt with whether Mr. Merida was a probationary or permanent employee on March 9, 2022, when he was separated from employment.

The two-day hearing of Mr. Merida's appeal began on January 26, 2023. Prior to receiving testimony from witnesses, Referee Frederick read the following eight stipulations into the record, to which the parties had previously agreed:

1) The parties stipulate to the authenticity and admissibility of Exhibits 1-16.

2) That Edgar Merida was hired as a Police Officer 2-A by the FPA-East Jefferson on August 26, 2019.

3) That Edgar Merida was assigned to the FBI task force on January 17, 2020.

4) That Edgar Merida was given permanent status on August 6, 2020, as Police Officer 2-A.

5) That Edgar Merida applied for the position of Police Investigator on August 7, 2020.

6) That Edgar Merida remained on the FBI task force on August 7, 2020.

7) That Edgar Merida was separated from employment on March 9, 2022.

8) That Edgar Merida was not provided the due process rights of a permanent employee when separated.

Following this recitation, Referee Frederick invited Mr. Merida's counsel to state any objections into the record. Counsel referenced his written objections previously filed into the record and re-urged them, particularly his objection to the Referee's ruling dismissing Mr. Merida's discrimination claims, including those found in the original complaint. Mr. Merida's counsel further objected to certain discovery rulings previously made.

Referee Frederick then proceeded to swear in the witnesses and testimony began. The first witness called was Kenyetta Sewell, Human Resources Director, who offered testimony for the purposes of establishing that Regional Director Chandler was the appointing authority of the FPA-Orleans at the time she terminated Mr. Merida's employment and that Mr. Merida was a probationary employee at the time the termination occurred. Briefly, Ms. Sewell identified the Board of Commissioners of the Flood Protection Authority as the statutorily named appointing authority for all of its employees. Ms. Sewell explained that the bylaws of the Board of Commissioners specifically delegated the Board's appointing authority to the President of the Board, but also provided for Board oversight, as any action taken by the President, including in his capacity as appointing authority, could be overturned by a two-thirds Board vote. Referencing the exhibits before her, Ms. Sewell testified that in May of 2021, the President of the Board executed a delegation of appointing authority via authentic act to Kelli Chandler in her capacity as Regional Director.⁵ Therefore, at the time of Mr. Merida's termination, Regional Director Chandler was the appointing authority over all employees employed by the Flood Protection Authority .

Ms. Sewell explained that Flood Protection Authority police officers normally serve a probationary period of six months to a year, despite the Civil Service Rules providing a twenty-four-month period. She added that near the end of the employee's first year, Human Resources contacts the appointing authority to see whether or not the employee should obtain permanent status.

When specifically discussing Mr. Merida's employment history with the Flood Protection Authority, Ms. Sewell stated that he became a permanent employee of the FPA-East Jefferson on August 6, 2020. The position that Mr. Merida moved into, Police Investigator, was a newly created position, and was advertised as a promotional position for classified permanent employees with certain additional criteria. Regarding the paperwork that was completed in conjunction with Mr. Merida's official move from the FPA-East Jefferson to the FPA-Orleans, Ms. Sewell stated that the employee notification form shows that one department was losing an employee through voluntary transfer, department to department, while the next line shows another department was gaining an employee due to resignation and probationary appointment. Ms. Sewell attempted to explain the discrepancy in terminology in. the documents, testifying that despite mention of transfer in the forms, Mr. Merida did in fact resign from his position with the FPA-East Jefferson in order to be hired into the FPA-Orleans, which came with a probationary period.

The hearing was continued to July 14, 2023, when Regional Director Chandler testified that although she was not the appointing authority when Mr. Merida was hired as a Police Investigator, she later became the appointing authority, gaining the right to hire and terminate Flood Protection Authority employees, including police officers, like Mr. Merida. In making employment determinations, Regional Director Chandler testified that she considered various factors, including input from supervisors or performance evaluations, depending on the employee. Although Regional Director Chandler could only name one other police employee who had a longer probationary period than one year, she testified that a longer probationary period was not uncommon for levee district police. In Mr. Merida's case, due to the nature of his work, a longer probationary period was necessary because there was not enough contact between Mr. Merida and the FPA-Orleans to know how he was performing. She further stated that Mr. Merida was never told that he remained on probation after his one-year anniversary because there is no civil service rule that requires such notification.

When discussing how she came to the decision to terminate Mr. Merida, Regional Director Chandler began by testifying that in the fall of 2021, conversations with the police captains took place about morale and the impact of the FBI task force programs on FPA-East Jefferson and Orleans police officers. These conversations included reabsorption of the employees working within those task forces, should the task forces be eliminated. She testified that her first interaction with Mr. Merida was when she spoke to him about ending the task force and he became very angry and confrontational. Regional Director Chandler further testified that at a later held Board of Commissioners meeting, Mr. Merida was once again vocal about maintaining the FBI task forces. Mr. Merida's fervent disagreement with the elimination of the FBI task forces would ultimately be the biggest factor for Regional Director Chandler's decision to terminate him. She testified that taking these incidents into consideration, she did not believe that Mr. Merida would be a good fit as a patrolman for the agency; even though his coworker, Mr. Conaghan, who also disagreed with the decision, was given the opportunity to return to the FPA-Orleans’ police force. Regional Director Chandler also testified that Mr. Merida's supervisor, Mike Brenckle, recommended she terminate Mr. Merida's employment because he was a “bull in a china shop and a loose cannon,” despite Mr. Brenckle previously signing off on Mr. Merida's “exceptional” evaluation.

Terrance “Terry” Durnin, former Captain/District Commander of the FPA-East Jefferson police, was also called to testify. He stated that he had known Mr. Merida for many years, since he was a reservist with the FPA-East Jefferson. Mr. Durnin testified that once Mr. Merida was transferred to work on the FBI task force the two had very little interaction with each other. However, he stated that he agreed with Mr. Merida's positive performance evaluation while he was a Police Officer 2-A and was part of the commission that promoted him to the Police Investigator position.

Mr. Durnin testified that once Regional Director Chandler decided that the FBI task forces were going to be eliminated, she had a meeting with the three task force officers: Mr. Merida, Mr. Conaghan, and Mr. Holmes, letting them know about the decision and that they would be given the opportunity to go back to the FPA-Orleans police and work as patrolmen. Mr. Durnin stated that the “meeting got a little hot,” and tense as the three employees at the meeting learned of the possibility of their demotions. Specifically in regards to Mr. Merida's actions, Mr. Durnin testified that he raised his voice, and exchanged a few “choice words” with two other captains.

Former Supt. Najolia testified that Mr. Merida's appointment to the FBI task force came soon after he was hired by the FPA-East Jefferson. Supt. Najolia explained that he was contacted by FBI supervisor Special Agent Steven Rayes, who had previously worked with Mr. Merida and asked if Supt. Najolia would be willing to transfer Mr. Merida to the FBI task force. Supt. Najolia was a proponent of working with the FBI, finding that the partnership increased the resources available to the Flood Protection Authority by giving task force officers access to both federal agents as well as different databanks that local law enforcement did not have. Supt. Najolia further explained that for officers “loaned out” to the task force, the Flood Protection Authority was obligated to pay the officers’ salaries, however, the FBI would pay for all overtime and specialized equipment, i.e. vehicles, cellular telephones, computers, etc. Moreover, the Flood Protection Authority would receive a share of any monies seized by any assigned task force officers. Supt. Najolia testified that both the President of the Flood Protection Authority, Joe Hassinger, and Derek Boese, who was the Chief Administrative Officer and appointing authority at the time, were very supportive of the Flood Protection Authority's partnership with the FBI and the utilization of its employees in the task forces.

Supt. Najolia testified that he believed Mr. Merida's move, as well as Mr. Conaghan's previous move to the task force, were strictly transfers into promotions, based on the way they were handled. Supt. Najolia stated that his belief was supported by Mr. Merida's “Separation Form” which was marked, “Transfer to Other State Agency.” Supt. Najolia further explained that Mr. Merida's “resignation” was on paper only so that the proper funds could be allocated between the FPA-East Jefferson and FPA-Orleans’ police departments, but that Mr. Merida did not lose any benefits, insurance, or time as a consequence of the move. Once Mr. Merida was transferred over to the new position, he was to serve a probationary period of one year because that was what the Civil Service Commission required. Supt. Najolia testified that because Mr. Merida was only transferred, and there was never a break in his employment within the Flood Protection Authority, he believed the requirement for a new probationary period was incorrect or unnecessary under the Civil Service rules, but since that was what his Human Resources Department instructed him to do, that was what was done.

Supt. Najolia testified that Flood Protection Authority police officers always had a one-year probationary period under his command, and he would tell all his new employees they were on probation up to a year, at which point, a determination would be made about obtaining peimanent status. He testified that during his tenure as superintendent, only two officers had probationary periods longer than one year, and that was due to poor performance reviews. Supt. Najolia testified that he never had any conversations with Mr. Merida regarding extending his probationary period past one year.

Supt. Najolia testified that he believed that prior to his resignation from the Flood Protection Authority, forms were filled out to make Mr. Merida a permanent employee – Police Investigator, and sent to Human Resources. Supt. Najolia assumed the papers were processed and that Mr. Merida became a permanent employee, because he was never made aware that Mr. Merida was not a permanent employee. Supt. Najolia followed up by stating that usually Human Resources would notify the appointing authority and himself if an employment action date was missed, and he never received such a notification from Human Resources about Mr. Merida prior to his own resignation on September 20, 2021.

Mr. Conaghan, Mr. Merida's former coworker, testified that similar to Mr. Merida, he was first employed by the FPA-East Jefferson between April 11, 2018 to May 2018, and then worked for the FBI task force through the FPA-Orleans from May 2018 until March 2022. In describing his transition from one department to the other, Mr. Conaghan stated he completed a “paper transfer” where he went in to Human Resources, signed a paper to resign from the FPA-East Jefferson and right away signed a paper to get hired by the FPA-Orleans, and was assigned to the FBI task force. Mr. Conaghan testified that he was told this was all just a paper formality. When the Flood Protection Authority decided to eliminate the FBI task force positions, both he and Mr. Merida were told that because the Police Investigator positions would no longer exist, they both would have the opportunity to return to their previous Police Officer 2 positions. However, when it came time to sign their papers to go back to a Police Officer 2 position, Mr. Conaghan learned that Mr. Merida was terminated because he was a probationary employee.

Mr. Merida testified about his employment with the Flood Protection Authority. Pertinent to this appeal, Mr. Merida testified that he was told he was a permanent employee when he applied for the Police Investigator position. When questioned by Referee Frederick, Mr. Merida explained that in order for him to have been promoted to the Police Investigator position, he had to be a permanent civil service employee. Mr. Merida further explained that he was told by then Supt. Najolia that once you are a permanent employee, you “own” that position. Mr. Merida testified that he relied on what he was told by Supt. Najolia as he had never worked in civil service before.

Regarding the Board of Commissioners meeting that he attended, Mr. Merida testified that he was told by the Commissioner of the Flood Protection Authority, Roy Arrigo, that if Mr. Merida and Mr. Conaghan wanted to keep their positions in the FBI task force, they had to appear at the Board meeting on February 17, 2022. At that meeting, Mr. Merida testified that he and Mr. Conaghan only provided statistical data on the task force's work. After this meeting, Regional Director Chandler would not speak to him.

Following testimony, Referee Frederick set the deadline for post-hearing briefs to address the two issues argued at the hearing. On February 7, 2024, Referee Frederick issued his decision finding that Mr. Merida was terminated by the appropriate appointing authority for the FPA-Orleans, Regional Director Chandler, while Mr. Merida was still a probationary employee.

Mr. Merida filed an application with the State Civil Service Commission for review of the Referee's decision in accordance with Civil Service Rule 13.36. The application for review was denied, after which, Mr. Merida filed the instant appeal.

ASSIGNMENTS OF ERROR 6

1. The Referee and State Civil Service Commission committed reversible error when they decided Edgar Merida was a probationary employee and not entitled to constitutionally recognized property rights as a permanent classified Police Officer 2-A or Police Investigator.

2. The Referee and State Civil Service Commission erred in making the factual determination that most Flood Protection Authority police employees are made permanent civil service employees after serving greater than one year probationary periods.

3. The Referee and State Civil Service Commission committed reversible error when they dismissed Edgar Merida's claim for discrimination based on his political or religious beliefs, sex, or race as a civil service probationary officer, in violation of Louisiana Constitution art. X § 8(A).

4. The Referee and State Civil Service Commission committed reversible error when they determined Edgar Merida was not entitled to certain discovery under La. Civil Service Rule 13.33, after being denied a pre-termination hearing.

LEGAL ANALYSIS

Decisions of Civil Service Commission Referees are subject to the same standard of review as decisions of the Commission itself, which are subject to the same standard of review as a decision of a district court. Ragona v. Louisiana Workforce Commission, 2019-0020 (La. App. 1st Cir. 9/27/19), 287 So.3d 772, 776; Usun v. LSU Health Sciences Center Medical Center of Louisiana at New Orleans, 2002-0295, 2002-0296 (La. App. 1st Cir. 2/14/03), 845 So.2d 491, 494. Accordingly, factual determinations of the Commission or Referee should not be reversed or modified unless clearly wrong or manifestly erroneous. Ragona, 287 So.3d at 776; Usun, 845 So.2d at 494. However, as to the Civil Service Commission or Referee's interpretation of laws and regulations, this court performs its traditional plenary functions and applies the error of law standard. Adikema v. Louisiana Dep't of Pub. Safety & Corr.-Office of Youth Development, 2006-1854 (La. App. 1st Cir. 9/14/07), 971 So.2d 1071, 1074.

Employment Status

Mr. Merida challenges the Referee's decision on the merits of the issue that he was not a permanent employee at the time of his termination. Pertinent to this assignment of error is Civil Service Rule 9.1(a)(1), which provides in part that probationary periods of no less than six months or more than twenty-four months shall be served by employees following appointments to permanent positions. The probationary period shall be an essential part of the examination process and shall be used for the most effective adjustment of a new employee and for the elimination of any probationary employee whose performance does not meet the required standard of work. Civil Service Rule 9.1(a). A probationary employee may be separated by the appointing authority at any time. Civil Service Rule 9.1(e). Further, Civil Service Rule 9.2(a) provides that permanent appointment of a probationary employee shall begin upon certification by the appointing authority that the employee has met the required standard of work during the probationary period. Also important herein is Civil Service Rule 12.1, which provides that an appointing authority may discipline, remove, or separate an employee under his or her jurisdiction. Additionally, Civil Service Rule 12.2 provides:

(a) An appointing authority may separate a non-permanent employee at any time.

(b) An appointing authority may discipline or remove a permanent employee for cause.

In his appeal to the Referee and this court, Mr. Merida asserted that he was a permanent Police Officer 2-A employee when he was hired into the position of Police Investigator, and that he gained permanent status as a Police Investigator after serving his one-year probationary period. Referee Frederick found that Mr. Merida was a probationary employee at the time of his termination due in large part to Mr. Merida never formally being certified a permanent Police Investigator in accordance with Civil Service Rule 9.2(a), finding instead that Mr. Merida had been promoted to the Police Investigator position on a probationary term which could last up to twenty-four months. The Referee further found that no evidence had been introduced at the hearing that the FPA-Orleans took any action to make Mr. Merida a permanent employee, nor that anyone treated Mr. Merida like he was a permanent employee.

The FPA-Orleans, relying on Pope v. New Orleans City Park, 95-1634 (La. App. 1st Cir. 4/4/96), 672 So.2d 388, 390, argues that Mr. Merida's employment status is simply determined by whether or not the appointing authority took any action in certifying Mr. Merida as a permanent employee since a probationary employee no longer acquires permanent status automatically upon completion of his probationary period. However, this court has recognized that words or conduct of an employer in light of the surrounding circumstances can amount to an implied or tacit understanding that an employee has achieved permanent status. See Morehouse v. Southern University, Baton Rouge Campus, 2006-1184 (La. App. 1st Cir. 5/4/07), 961 So.2d 473, 480, writ denied, 2007-1147 (La. 9/21/07), 964 So.2d 333.

In Morehouse, 961 So.2d at 480, this court found that the employer acted in a manner that conferred on the employee, Mr. Morehouse, the right and processes afforded to permanent status employees. The actions of the defendants in Morehouse included some error that occurred in the human resources department's usual processes to keep Mr. Morehouse from obtaining permanent status upon his department chief's recommendation. Id. Also, Mr. Morehouse was treated like a permanent employee upon termination, as he was given due process rights not afforded to probationary employees. Morehouse, 961 So.2d at 480.

After a thorough review of the record, we find the Referee erred in its application of law to the facts elicited during the hearing, and find that Mr. Merida's employer did treat him as a permanent employee, such that certain property rights were conferred upon him prior to his termination.

As the Referee correctly found, Mr. Merida was assigned to work on the FBI task force on January 17, 2020, working exclusively on task force duties in conjunction with the FPA-Orleans, even though he was a FPA-East Jefferson police officer. In order for FPA-East Jefferson to be able to hire a police officer who actually worked in that department, the Flood Protection Authority decided to create a new classified position – the position that Mr. Merida occupied on the task force since January 17, 2020, and have Mr. Merida transfer to the FPA-Orleans. Prior to his transfer, Mr. Merida was certified a permanent Police Officer 2-A with the FPA-East Jefferson on August 6, 2020. Incidentally, we note that Mr. Merida's certification occurred within the Flood Protection Authority's standard one-year probationary period, of which new police employees were advised when they began work at the Flood Protection Authority, according to former Supt. Najolia and Ms. Sewell, the Human Resources Director.

Relying on the instructions of his employer, in order to continue performing the tasks and duties he had been performing since January 17, 2020, Mr. Merida separated from his employment with the FPA-East Jefferson and was immediately hired by the FPA-Orleans. Although Mr. Merida was informed by former Supt. Najolia that this transfer would require a new probationary period, Supt. Najolia advised that as in the FPA-East Jefferson, the period would only last one year, and that this was a mere formality. This court finds troubling that the agency did not thoroughly explain to Mr. Merida the potential consequences of him resigning from a permanent classified position which he already held only to be placed back in a probationary one. The lack of notification appears to stem from the fact that the parties involved viewed this resignation as a paper formality only, without any real consequences, as testified to by both Mr. Conaghan and former Supt. Najolia. Mr. Merida's separation form even stated that he was “Transfer[ring] to Other State Agency” rather than resigning, and therefore, the move resulted in no loss in pay or benefits or required any special recertification.⁷

Mr. Merida, wanting to continue his work with the FBI task force, followed his employer's instructions without question or additional counsel as this was his first foray into civil service work. Mr. Merida was confident with the fact that Supt. Najolia told him that once he achieved permanent status, he “owned” that position, so even though he was on probation in the Police Investigator position, he was a permanent Police Officer 2-A. Furthermore, as the authority within the Flood Protection Authority shifted and the FBI task forces were set to be eliminated, Mr. Merida was included in discussions about returning back to his Police Officer 2-A position as part of the reabsorption of employees. This was done prior to discovering that Mr. Merida's paperwork had never actually been certified as permanent, despite serving an exemplary one-year probationary period, and Supt. Najolia testifying that paperwork to certify Mr. Merida as permanent had been sent to Human Resources.

Based on the forgoing, we find that the Flood Protection Authority's “words or conduct in light of the surrounding circumstances” amounted to an implied or tacit understanding that Mr. Merida had achieved permanent status. See Morehouse, 961 So.2d at 480.

Discrimination

Mr. Merida further assigned as error the denial of his discrimination claims based on race, and religious and political beliefs. For discrimination claims, “[t]he burden of proof on appeal, as to the facts, shall be on the employee.” La. Const. Art. X, § 8(B); Johnson v. Dep't of Health & Hospitals, 2000-0071 (La. App. 1st Cir. 2/16/01), 808 So.2d 436, 438. An employee in a civil service discrimination action must prove his claim by a preponderance of evidence. Muse v. Louisiana Dep't of Pub. Safety & Corr., Office of Prob. & Parole, 2022-0458 (La. App. 1st Cir. 11/4/22), 355 So.3d 620, 625. A preponderance of the evidence means evidence which is of greater weight than that which is offered in opposition. Proof is sufficient to constitute a preponderance when, taken as a whole, it shows the fact of causation sought to be proved as more probable than not. Harrell v. Dep't of Health & Hosps., Off. for Citizens with Developmental Disabilities, Pinecrest Supports & Servs. Ctr., 2010-0281, 2010-0282 (La. App. 1st Cir. 9/10/10), 48 So.3d 297, 301, writ not considered, 2010-2310 (La. 12/10/10), 51 So.3d 715. If the employee establishes a prima facie case of discrimination, a presumption is created that the employer has unlawfully discriminated against the employee, and the burden shifts to the employer to prove that the adverse employment actions were taken for a legitimate nondiscriminatory reason. Muse, 355 So.3d at 625. Thus, Mr. Merida had the burden of establishing a prima facie case of discrimination, that is, evidence that he was treated differently because of his race or religious beliefs, which makes it more probable than not that the actions taken by the Flood Protection Authority were motivated by a non-merit factor, either his race or religious beliefs.

A review of the record provided demonstrates that Mr. Merida's initial appeal alleged discrimination based on his disparate treatment. Mr. Merida noted that out of three task force police employees, he was the only one who was terminated and he was also the only one who was Hispanic with Jewish ancestry. In order to confirm or rebut these allegations, Referee Fredrick requested the employment histories for all three employees to determine if they were similarly situated prior to the Flood Protection Authority's action. The employee records show that Mr. Conaghan was the most similarly situated employee compared to Mr. Merida, but the disparate treatment resulted from the fact that Mr. Conaghan was certified as a permanent Police Investigator by the former appointing authority, Mr. Boese, in October 2020, after a twelve-month probationary period. Unfortunately for Mr. Merida, by the end of his twelve-month probationary period there was a new appointing authority looking to eliminate the very program in which he was employed. Thus, it does not appear that Mr. Merida established a prima facie case of discrimination based on race or religious beliefs.

According to La. Civ. Service Rule 1.24.1, “political activity” means an effort to support or oppose the election of a candidate for political office or to support or oppose a particular party in an election. Although we agree with Mr. Merida that there was a change in leadership and priorities in the Flood Protection Authority, including the forced resignation of Supt. Najolia and elimination of the FBI task forces, which Mr. Merida vocally opposed, we also agree with the Referee that this does not amount to the kind of political activity that is afforded protection under the Louisiana Civil Service Rules. Therefore, we affirm the Referee's dismissal of Mr. Merida's discrimination claims.

Exclusion of Evidence

Finally, Mr. Merida assigns as error the Referee's ruling to quash the subpoenas of Wilma Heaton and Steven Rayes. The trier of fact has great discretion in the admission of evidence. The decision to admit or exclude evidence may not be reversed on appeal in the absence of an abuse of its broad discretion. See Medine v. Roniger, 2003-3436 (La. 7/2/04), 879 So.2d 706, 711; Alfred Conhagen, Inc. of Louisiana v. Ruhrpumpen, Inc., 2021-0396, 2021-0397 (La. App. 4th Cir. 4/13/22), 338 So.3d 55, 62. We cannot say that the Referee abused his discretion in excluding the testimony of these two witnesses, as their presumed testimony would not add any additional facts or information, only duplicative testimony and evidence already in the record.

CONCLUSION

For the above and forgoing reasons, we reverse the State Civil Service Commission's acceptance of the decision of Civil Service Commission Referee as far as Referee Frederick found Edgar Merida to be a probationary employee subject to termination without cause at the time of his termination. Accordingly, Mr. Merida's termination is reversed and he is to be reinstated to his permanent position as a Police Officer 2-A retroactive to the date of termination, March 9, 2022, including all back pay and emoluments. Costs of this appeal in the amount of $2,390.00 are assessed to defendant/appellee Southeast Louisiana Flood Protection Authority-East-Orleans Levee District.

REVERSED.

FOOTNOTES

2.   According to La. R.S. 38:330.1(B)(1)(a), the following levee districts shall be included within the Southeast Louisiana Flood Protection Authority-East:(i) East Jefferson Levee District.(ii) Lake Borgne Basin Levee District.(iii)The Orleans Levee District.

3.   This review mirrored the review Mr. Merida received while still classified as a Police Officer 2-A, wherein it was noted that he “shined” while working patrol, routinely having the most handled calls each month and that he was a respected and admired leader who acted as a mentor to the younger members of his watch.

4.   The Referee asserted that the Civil Service Commission did not have jurisdiction to hear age discrimination matters, therefore, it was up to Mr. Merida to demonstrate that such jurisdiction existed.

5.   Previously, the President had delegated this authority to the Chief Administrative Officer of the Flood Protection Authority via authentic act.

7.   According to Civil Service Rule 1.41, a transfer means the change of an employee from a position in one department to a position in another department without a break in service of one or more working days.

CALLOWAY, J.

Penzato, J. concurs