98-1168 La.App. 4 Cir. 12/23/98, Patterson v. New Orleans Fire Dept.

• Decision Date: 23 December 1998
• Citation: 98-1168 La.App. 4 Cir. 12/23/98, Patterson v. New Orleans Fire Dept., 727 So.2d 551 (La. App. 1998)
• Parties: 98-1168 La.App. 4 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 551

727 So.2d 551

98-1168 La.App. 4 Cir. 12/23/98

Herbert PATTERSON v.NEW ORLEANS FIRE DEPARTMENT.

No. 98-CA-1168.

Court of Appeal of Louisiana Fourth Circuit.

Dec. 23, 1998.

Patrick R. Bossetta, Assistant City Attorney, Franz L. Zibilich, Chief Deputy City Attorney, Avis Marie Russell, City Attorney, New Orleans, for Plaintiff/Appellant.

G. Phillip Shuler, III, Julie D. Livaudais, Richard B. Ramirez, Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, for Defendant/Appellee.

Before KLEES, BYRNES and PLOTKIN, JJ.

[98-1168 La.App. 4 Cir. 1] BYRNES, Judge.

Chief Herbert Patterson is the Coordinating Deputy Chief/Senior Deputy Chief of the New Orleans Fire Department and has been employed by the City of New Orleans for nearly thirty years.

On November 18, 1994, Chief Patterson entered the office of the Firefighter's Credit Union.In addition to the white teller, there was perhaps another white male and four African-American females present.Chief Patterson testified that this was more people than he would normally encounter in the small office prompting him to remark as he entered something to the effect that they must be "giving away free" food.Subsequent to the event three of the African-American females wrote letters of complaint stating that they had been offended by Chief Patterson's remarks.They said that Chief Patterson had said that "they must be giving away food stamps" which they felt disparaged them both as females who had been on welfare at some time in the past, and as African-Americans.

Pursuant to these complaints, it appears that Chief Patterson was charged with violating New Orleans Fire Department Rules, Sections 13:18and14.01.An internal hearing was held as a result of which it was recommended that Chief Patterson be given a letter of reprimand and that he apologize to the complaining witnesses in writing based on a finding that Chief Patterson violated Sections [98-1168 La.App. 4 Cir. 2] and 14.02.¹In spite of this recommendation, Superintendent McDaniels suspended Chief Patterson for 30 days (from February 20, 1995 through March 21, 1995) at a cost to Chief Patterson of approximately $5100.00 in lost pay and benefits.

Chief Patterson appealed his suspension to the Civil Service Commission.A hearing before Harry Tervalon, Jr., hearing examiner, was held on September 22, 1995.Hearing Officer Tervalon issued his findings on September 27, 1995.He concluded that the City failed to prove its allegations of racial remarks.He also found that the main complaining witness had violated departmental procedures in bringing her complaint and urged that action be taken against that witness.It appears that no such action was ever taken.The Civil Service Commission failed to act on these finding until April 6, 1998, at which time they rejected the findings of the hearing examiner and instead chose to sustain the 30-day suspension.

At the time of the Civil Service Commission hearing Chief Patterson could not state with certainty that he had not said "food stamps" instead of "free food."However, he was able to state with certainty that whatever he said he said as an [98-1168 La.App. 4 Cir. 3] at humor (however misguided that attempt might appear in hindsight) and with no intent to disparage anyone on account of race or gender.Prior to this incident Chief Patterson's record of many years of service with the Fire Department is without blemish.The record does not support a finding that anything Chief Patterson said was said with the intention to disparage or offend.Chief Patterson's background belies such a view.He was born in Charity Hospital.His mother was a single parent during much of his childhood, and he often had to wait with her in welfare lines.The record reflects that Chief Patterson's relationship with members of the African-American community went far beyond what could be characterized as professionally correct and formally proper.It was personal.For example, Anna Batiste, an African American, testified that Chief Patterson and her husband served together for many years as elders of the same church.Chief Patterson delivered a funeral oration at her husband's funeral, and Ms. Batiste's daughter stood in Chief Patterson's daughter's wedding and signed the wedding certificate.The worst that the witnesses against Chief Patterson could say was that the remark was insensitive and unprofessional, or a bad joke.None characterized it as being motivated by any racial or gender animus.

Civil Service Rule II, § 4.16 provides:

Appeals to the Commission shall be decided promptly, but in any event within ninety (90) calendar days after ... receipt by the Commission of the Hearing officer's report and official transcript of the testimony of said hearing.

In Bannister v. Department of Streets, 95-0404 (La.1/16/96);666 So.2d 641, the Supreme court held that the above language was directory, rather than mandatory....