LESLIE BURNS LANDRY DAVIS EDITH DOZIER CARRIE FERGUSON JAMEKELEA PINKSTON LINETTE RICHARD YARKESHALA WALDON KIMBERLY WALKER KENNETH BRAD OTT EDWIN RAY PARKER AND THE AMERICAN FEDERATION OF STATE COUNTY AND MUNICIPAL EMPLOYEES COUNCIL 17 v. LOUISIANA STATE UNIVERSITY HEALTH SCIENCES CENTER SHREVEPORT AND THE DEPARTMENT OF STATE CIVIL SERVICE

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Court of Appeal of Louisiana, First Circuit.

LESLIE BURNS, LANDRY DAVIS, EDITH DOZIER, CARRIE FERGUSON, JAMEKELEA PINKSTON, LINETTE RICHARD, YARKESHALA WALDON, KIMBERLY WALKER, KENNETH BRAD OTT, EDWIN RAY PARKER, AND THE AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES, COUNCIL 17 v. LOUISIANA STATE UNIVERSITY HEALTH SCIENCES CENTER-SHREVEPORT AND THE DEPARTMENT OF STATE CIVIL SERVICE

NO. 2016 CA 0979

Decided: February 17, 2017

BEFORE: PETTIGREW AND McDONALD, JJ., AND CALLOWAY,1 J. Pro Tem. J. ARTHUR SMITH, III, J. MURPHY DELAUNE, BATON ROUGE, LA, AND CHRIS J. ROY, SR., ALEXANDRIA, LA ATTORNEYS FOR PLAINTIFFS-APPELLANTS LESLIE BURNS, LANDRY DAVIS, EDITH DOZIER, CARRIE FERGUSON, JAMEKELEA PINKSTON, LINETTE RICHARD, YARKESHALA WALDON, AND KIMBERLY WALKER M. LENOREFEENEY BATON ROUGE, LA ATTORNEY FOR DEFENDANT-APPELLEE LOUISIANA STATE UNIVERSITY HEALTH SCIENCES CENTER-SHREVEPORT ADRIENNE T. BORDELON BATON ROUGE, LA ATTORNEY FOR DEFENDANT-APPELLEE BYRON DECOTEAU, JR., DIRECTOR OF THE DEPARTMENT OF STATE CIVIL SERVICE

This is an appeal from a decision by the Louisiana Civil Service Commission (Commission). Appellants contend the Commission erroneously denied their claims arising from their 2014 layoff. For the following reasons, we affirm the ruling of the Civil Service Commission denying appellants' appeal.

BACKGROUND

Appellants are eight former employees of Louisiana State University Health Sciences Center-Shreveport (LSUHSC-S), who held positions at Huey P. Long Medical Center (HPLMC) in Pineville, Louisiana.2 Appellants were among a group of 123 total employees who were laid off due to the closure of HPLMC on June 30, 2014.

On October 1, 2013, the LSU Board of Supervisors and the State of Louisiana Department of Health and Hospitals, entered into a Cooperative Endeavor Agreement (CEA) with two private contractors. Under the CEA, the private contractors planned to take over certain medical services formerly provided by state classified employees working at HPLMC.

On May 27, 2014, LSUHSC-S noticed Shannon Templet, the Director of the Commission, that employees at HPLMC were to be laid off due to a lack of funding for the next fiscal year (2014-15). Templet was not informed of the existence of the CEA at this time. The LSUHSC-S's written notice provided to Templet was in accordance with the provisions of Civil Service Rule (CSR) 17.14, and set forth that there was a reduction in federal funding of over $850 million dollars in the Medicaid budget for the current state fiscal year. This shortfall was being addressed by eliminating funding for state hospitals operated by LSU. The specific services that were to be impacted by this elimination of funding included in-patient care and emergency department services at HPLMC. The notice further informed Templet “[t]here are no contracts currently in effect or anticipated that may be causative or related to the layoff.”

A “Notice of Impending Layoff” was prepared by administrators at LSUHSC-S. On May 27, 2014, Karen Hemphill, HPLMC's Human Resource Manager, posted copies of this written notice in several places in the hospital, including outside the Human Resources Department, on the Emergency Room bulletin board, at the entrance to the hospital cafeteria and on a notification board near the hospital cafeteria. Lisa Ebarb, the Executive Director of Human Resource Management of LSUHSC-S, testified that she also prepared individual notices, which were mailed to all employees who were to be laid off, including the appellants. The individual notices were sent to the last known address for those employees. Following publication and mailing of these notices, the Commission allowed for an employee comment period with regard to the layoff plan. The comment period was from May 28, 2014 to June 8, 2014. According to Ebarb, no written comments were received from any affected employee.

On June 10, 2014, Templet tentatively approved the layoff plan. By letter dated June 25, 2014, counsel for appellants requested Templet vacate her approval of the layoff plan and refer the layoff plan to the next regularly scheduled meeting of the Commission in accordance with CSR 17.2(c), given the fact that the 19th Judicial District Court determined that Senate Concurrent Resolution 48, on which counsel alleged that approval of the layoff plan was predicated, had been determined to be unconstitutional in the case of Parker v. La. State Senate, 19th Judicial District Court, East Baton Rouge Parish, No. C630969, Division M (June 23, 2014). The June 25 letter further alleged that the layoff plan was implemented in violation of State Civil Service Rules, specifically that the classified employees did not receive prior written notice from the Appointing Authority proposing the layoff. Templet responded that she would not vacate the layoff plan and the plan became effective June 30, 2014.

On July 10, 2014, appellants filed an appeal of this layoff plan with the Commission alleging LSUHSC-S failed to give the required notices to employees of the pending layoffs in accordance with CSR 17.12(a); that Director Templet approved the layoff plan without a hearing, and that the layoff plan was approved without the Director or the Commission's prior approval of the CEA entered into by LSUHSC-S and the private providers; and that the Commission improperly ratified the CEA after its effective date and without notice to the appellants.

The Commission hearing on the appeal of the layoff was originally scheduled for November 5, 2014; however, the parties agreed to continue the hearing pending a decision by this court in the appeal of Parker v. La. State Senate case. On September 21, 2012, this court dismissed the Parker appeal because HPLMC had closed during the pendency of the appeal, thus review of the preliminary injunction was rendered moot. Parker v. La. State Senate, 2015-0048 (La. App. 1 Cir. 9/21/2015), 2015 WL 5547476 *4 (unpublished).

On February 3, 2016, the Commission heard the appellants' appeal of their layoffs. On April 6, 2016, the Commission issued a decision finding that the appellants failed to prove the HPLMC layoff violated the Civil Service Rules or articles, and dismissed the appeal.

Appellants have filed the present appeal with this court.

DISCUSSION

The final decision of the Commission is subject to review on any questions of law or fact. La. Const. Art. 10, Sect. 12; Addison v. L.S.U. Medical Center in Shreveport, 551 So.2d 750, 754 (La. App. 1 Cir. 1989). The standard of appellate review for findings of fact made by the Commission is the same as the review of district court decisions, that is, the Commission's factual findings should not be disturbed unless they are clearly wrong or the referee committed manifest error. However, with respect to the Commission's decisions as to jurisdiction, procedure, and interpretation of laws and regulations, the court performs its traditional plenary functions and applies the error of law standard. James v. LSU Health Sciences Ctr. Med. Ctr. of Louisiana at New Orleans, 2001-1853 (La. App. 1 Cir. 11/8/02), 834 So.2d 470, 472, writ denied, 2003-0214 (La. 4/21/03), 841 So.2d 792.

In their appeal to the Commission, appellants alleged three rule violations:

1. LSUHSC-S failed to give general notice of the impending layoff to HPLMC employees as required by CSR 17.12(a);

2. Department of State Civil Service Director Templet “summarily” approved LSUHSC-S's proposed layoff plan on June 10, 2014, without a hearing and refused on June 26, 2014, to rescind her approval;

3. LSUHSC-S's layoff plan was approved without Director Templet's or the Commission's prior review and approval of the CEA involving HPLMC in violation of Civil Service Rules.

Plaintiffs' assignments of error all relate to these same issues, thus we need not address each assignment of error individually.

The first argument was that LSUHSC-S failed to give general notice of the impending layoff to the HPLMC employees as required by CSR 17.12(a).

Civil Service Rule 17.12(a) applies to layoffs of permanent employees and sets forth:

(a) As soon as it is determined that a layoff will be necessary, the appointing authority shall make a reasonable attempt to notify all employees who may be affected that a layoff plan may be submitted to the Director. This shall be considered the general notice of impending layoff and shall be separate from the individual notification process required in Rule 17.12(c).

In the hearing before the Commission, Lisa Ebarb testified she prepared a written notice of the layoff, obtained the Department of Civil Service's approval of it, and sent it to William Marona, HPLMC's Assistant Hospital Administrator, along with instructions regarding its dissemination. Karen Hemphill, HPLMC's Human Resource Manager, testified that on May 27, 2014, the written general notice was posted in several places in the hospital, including outside her office, on the door to the cafeteria, on the bulletin board of the emergency room, and on the bulletin board across from the cafeteria.

A copy of the notice that was posted is included in the record. The notice is to Employees of HPLMC and states:

In accordance with the requirements of State of Louisiana Civil Service Rule 17.12(a), notice is hereby given of an impending layoff to be effective June 30, 2014 at Huey P. Long Medical Center. Positions occupied by employees affected by this proposal are domiciled in the parish of Rapides. The layoff is being proposed because financial challenges and a planned closure of the hospital. Legislative Action (SCR48), has authorized LSU to discontinue patient care operations at Huey P. Long Medical Center. Once the layoff plan has been approved by the Director of Civil Service, it will be made available. Any questions concerning this matter should be directed to the Human Resource Department at 318.473.6295.

Appellants produced no evidence at the hearing before the Commission that these efforts to provide general notice did not constitute “a reasonable attempt to notify all employees who may be affected” by the layoff plan, as was required by CSR 17.12(a). Under these circumstances, appellants' contention that LSUHSC-S violated CSR 17.12(a) are without merit.

The second issue appellants presented to the Commission was whether Templet was required to hold a hearing prior to her approval of the layoff plan, or was at least required to rescind her approval following the June 25, 2014 letter from appellants' counsel.

At the Commission hearing, Templet testified that Senate Concurrent Resolution (at issue in the Parker case) had no bearing on her decision to approve the layoff plan, rather her approval was solely due to the lack of funds that would be available the next fiscal year.

Templet approved LSUHSC-S's proposed layoff plan on June 10, 2014. As the Commission decision points out, there is no Civil Service Rule requiring the Director to hold a hearing. In the instant case, Templet indicated no comments were received in the two-week comment period following posting of the general notice and the mailing of individual notices of the layoff plan. Templet explicitly testified that the layoffs were the result of lack of funding. Templet even went so far as to testify that had she known about the CEA at the time of the layoff proposal, she would have still approved the layoff proposal because lack of funding was the reason for the layoffs. Under such circumstances, we do not find the Commission erred in ruling there was no rule violation for failure to hold a hearing.

The third issue appellants raised at the Commission hearing was that LSUHSC-S's layoff plan was approved without prior review and approval of the CEA, by either Templet or the Commission, in violation of Civil Service Rules.

Civil Service Rule 3.1(o) addresses the duties of the Director of Civil Service:

To review and approve or disapprove proposed state contracts for personal services, prior to their effective date, between the State and any instrumentality thereof, or between the state and any person in order to insure that such contract is being let for reasons of efficiency and economy and not as a pretext for discriminatory practices against classified employees.

Templet testified she was unaware that the CEA regarding HPLMC had been executed when she approved the layoff plan. As the Commission noted in its decision, only the Commission has the authority to review contracts that will result in the involuntary displacement of classified Civil Service Employees, an authority granted to the Commission under CSR 2.9(h). The plain language of CSR 3.1(o) makes no reference to the involuntary displacement of classified employees. Thus, Templet lacked the authority to review the CEA. Moreover, Templet plainly testified that the reason for the layoff was due to a lack of funding. According to Templet, had she known of the existence of the CEA, she still would have approved the layoff plan because the reason for HPLMC's closure was lack of funding.

Appellants also contend the Commission violated CSR 2.9(h) in failing to approve or disapprove the CEA prior to its effective date, and by placing the burden of proof on the employees to demonstrate the contract was being let for reasons of efficiency and economy, not as a pretext for the discriminatory dismissal of classified employees.

Civil Service Rule 2.9(h) provides the Commission is empowered to:

(h) To review and approve or disapprove proposed state contracts of personal services, prior to their effective date, between the State or any instrumentality thereof, and between the [S]tate and any person or entity in order to determine whether such contracts will result in the involuntary displacement of classified employees, and if so, to ensure that the appointing authority has demonstrated that such contract is being let for reasons of efficiency and economy and not as a pretext for the discriminatory dismissal of classified employees.

The plain wording of CSR 2.9(h) contemplates the Commission review contracts prior to their effective dates. However, as the Commission noted in its decision, there is nothing in the wording of this provision that would preclude the Commission from ratifying such a contract after its effective date upon a finding that the applicable standard of review has been met.

The applicable standard of review for such a contract as contemplated by CSR 2.9(h) is whether the contract is being let for reasons of efficiency and economy and not as a pretext for the discriminatory dismissal of classified employees. In the present case, there was no evidence that anything other than a lack of funding was the reason for the layoff. Templet testified that she did not believe the employees were laid off for their political beliefs. The appellants presented no evidence to refute Templet's assertion.

When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written. La. Civ.Code art. 9. The following rules for statutory construction have developed in the jurisprudence: (1) it is presumed that every provision of a law was intended to serve some useful purpose; (2) it is not presumed that the lawmaker intended for any part of the law to be meaningless; (3) the lawmaker is presumed to have enacted the law with full knowledge of all other laws pertaining to the same subject matter; (4) it is the duty of the courts to interpret a provision of law in a manner which harmonizes and reconciles it with other provisions pertaining to the same subject matter; and (5) when a law is susceptible to two or more interpretations, that which affords a reasonable and practical effect to the entire act is preferred to one that renders part of the act nugatory. Ascension School Employees Credit Union v. Provost, Salter, Harper & Alford, L.L.C., 2004-1227 (La. App. 1 Cir. 6/10/05), 916 So.2d 252, 258.

There was no contrary evidence presented by appellants to challenge Templet's assertion that the layoffs were due to a lack of funding. Further, we do not find it an unreasonable interpretation of the Civil Service Rules that would allow for the Commission to ratify such a contract after its effective date as long as no discriminatory pretext for laying off classified employees was found to exist. In the present case, there simply was no evidence offered that would dispute that the reason for the layoffs was due to a lack funding.

In reviewing the Decision of the Civil Service Commission, we cannot say we find any error. Appellants failed to introduce any evidence that their layoffs were for any reason other than a lack of funding available to keep HPLMC functioning. Accordingly, the decision of the Civil Service Commission denying appellants' appeal is hereby affirmed. Costs associated with this appeal are assessed to the plaintiffs-appellants, Leslie Burns, Landry Davis, Edith Dozier, Carrie Ferguson, Jamekelea Pinkston, Linette Richard, Yarkeshala Waldon, and Kimberly Walker.

AFFIRMED.

FOOTNOTES

2.   Linette Richard, Carrie Ferguson, Kimberly Walker, Edith Dozier, and Landry Davis were classified employees under the Louisiana State Civil Service classification, while Leslie Burns, Yarkeshala Waldon, and Jamekelea Pinkston held probationary status with Civil Service.

PETTIGREW, J.

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