Johnson v. Southern University

• Decision Date: 20 December 1988
• Docket Number: 87CA1337,Nos. 87CA1336,s. 87CA1336
• Citation: 551 So.2d 1348
• Parties: Larry L. JOHNSON v. SOUTHERN UNIVERSITY and Department of State Civil Service. (Two Cases) 551 So.2d 1348, 57 Ed. Law Rep. 300
• Court: Court of Appeal of Louisiana — District of US

Page 1348

551 So.2d 1348

Larry L. JOHNSON v. SOUTHERN UNIVERSITY and Department of State Civil Service (Two Cases)

Nos. 87CA1336, 87CA1337.

551 So.2d 1348, 57 Ed. Law Rep. 300

Court of Appeal of Louisiana First Circuit.

Dec. 20, 1988.

On Rehearing Oct. 11, 1989.

Writ Denied Dec. 8, 1989.

Fernin F. Eaton, Baton Rouge, for appellant.

David G. Sanders, Asst. Atty. Gen. Louisiana Dept. of Justice, Baton Rouge, for appellee Southern University.

Robert R. Boland, Jr., Civil Service Legal Counsel, Dept. of State Civil Service, Baton Rouge, for appellee Dept. of State Civil Service.

Before CARTER, LANIER, and LEBLANC, JJ.

CARTER, Judge.

This is an appeal from the State Civil Service Commission. The only issues are attorney's fees and legal interest on an award of back pay. The facts are not in dispute, and we adopt the findings of fact in the decision of the Civil Service Commission Referee. A copy of the decision is attached hereto as Appendix 1.

From a decision of the Board of Review upholding the decision of the Referee, plaintiff appeals and assigns the following errors:

1. The referee failed to award reasonable attorney's fees.

2. The referee failed to award interest on the back pay installments.

3. The Department and its employees unreasonably denied Johnson access to having his appeal heard.

ASSIGNMENT OF ERROR NO. 1

(Attorney's Fees)

In Appeal of Brisset, 436 So.2d 654 (La.App. 1st Cir.1983), writ denied, 441 So.2d 749 (La.1983) and Department of Health and Human Resources v. Toups, on rehearing, 451 So.2d 1126 (La.App. 1st Cir.1984), writs denied, 457 So.2d 12 (La.1984), this court considered the constitutional validity of LSA R.S. 42:1451 and held that this act was an unconstitutional infringement on the exclusive power granted to the Civil Service Commission under LSA Const. art. 10, Sec. 10(A).

The plaintiff advances no argument that would merit a reconsideration of this finding of either of the above cases. The only remaining authority for the award of attorney's fees is found in Civil Service Rule 13.35, which provides that when the Commission or a referee reverses or modifies the action taken by an appellee in a civil service appeal, the appellee may be ordered to pay an amount not to exceed five hundred dollars as attorney's fees.

Rule 13.35 gives the Referee and the Commission the authority to award attorney's fees to an appellant when an appellee's action is modified or reversed. The standard of review applied by the Commission and by the court appears to be whether the appellee acted reasonably. Cartwright v. Department of Revenue and Taxation, 460 So.2d 1066 (La.App. 1st Cir.1984), writ denied, 463 So.2d 1320 (La.1985); Johnson v. Department of Health and Human Resources, 458 So.2d 137 (La.App. 1st Cir.1984).

Although plaintiff did not request attorney's fees in the appeal of January 27, 1986, plaintiff did raise his request for attorney's fees prior to conclusion of the public hearing, as required by Civil Service Rule 13.35(b). ¹

The scope of review of a Civil Service Commission decision extends to both the law and the facts. LSA Const. art. 10, Sec. 12. The standard of review of decisions of the Commission is the same as that in any other civil case. Therefore, the findings of fact of the Commission are afforded great weight and will not be reversed unless manifestly erroneous. Johnson v. Department of Health and Human Resources, supra; Lambert v. Department of Corrections, Louisiana Correctional And Industrial School, 451 So.2d 1340 (La.App. 1st Cir.1984).

At the hearing, the Referee found that the action of the Department in refusing to docket plaintiff's appeal of January 27, 1986, was reasonable. The Commission was only privy to the letter of appeal dated January 27, 1986, and the facts set forth therein. Since the plaintiff had received his separation notice on December 17, 1985, for the Commission to properly docket a timely appeal, an appeal would have had to be postmarked or received by January 16, 1986. This, of course, was not the case as presented to the Commission.

There is no evidence in the record that the Commission was aware of Southern's "Corrected Notice" of termination, dated January 24, 1986, which, according to the jurisprudence, extended the time to take the appeal. Plaintiff did not notify the Commission that Southern had sent a "Corrected Notice" of appeal which would have extended the time for taking the appeal, making the appeal timely. The Referee found that the actions of Southern were both confusing and misleading as to the status of plaintiff's removal. For this reason, plaintiff's appeal of January 27, 1986, was considered timely. Both the actions of Southern and the Commission were reasonable under the circumstances. The reasonableness of Southern's actions is a factual determination to be made by the Commission and clearly cannot be disturbed by the reviewing court absent manifest error. Brook v. Louisiana State University, Baton Rouge Campus, 405 So.2d 1216 (La.App. 1st Cir.1981). We do not find the Commission's determination to be manifestly erroneous.

Accordingly, the denial of the award of attorney's fees is affirmed.

ASSIGNMENT OF ERROR NO. 2

(Legal Interest)

Plaintiff did not seek interest on back pay in his appeal dated January 27, 1986, although he did request legal interest in his second appeal dated February 2, 1987, under docket # 6222. Before a determination can be made as to whether plaintiff is entitled under the law to legal interest, we must first determine whether plaintiff timely requested legal interest and that determination will depend upon whether the second appeal was properly dismissed.

Plaintiff contends that the Department was estopped from dismissing plaintiff's second appeal under the doctrine of contra non valentem. Alternatively, plaintiff contends that the second appeal was an amendment to the first appeal. Plaintiff reasons that the time for amendment was interrupted by the Department's refusal to docket the first appeal.

A thorough review of the Department's letter of February 3, 1986, shows that all of the information relayed to plaintiff was relative to his attempt to appeal his separation notice of December 17, 1985. There was nothing in the Department's letter that could reasonably be interpreted as indicating to plaintiff that the Department was aware of or was referring to the January 24, 1986, "Corrected Notice" of separation. Furthermore, there is nothing in the Department's February 3, 1986, letter that would lead plaintiff to believe that he had filed a viable appeal that could be amended under Civil Service Rules.

Therefore, the Department's letter of February 3, 1986, cannot reasonably be contended to have hindered, impeded, or prevented plaintiff from asserting an appeal on the action of which he was notified by the "Corrected Notice" of January 24, 1986.

We, therefore, conclude that the doctrine of contra non valentem is inapplicable. ² Plaintiff's right to appeal the "Corrected Notice" of January 24, 1986, ended thirty days after he received the notice.

Civil Service Rule 13.12(d) allows a plaintiff to amend or supplement an appeal within 30 days after the date on which the appellant receives written notice of the action on which the appeal is based or 30 days after the date the appellant learned of or was aware that the action complained of had occurred when no written notice is required. Plaintiff's second appeal was filed more than 30 days after the action of which he complains. It was in fact filed almost one year later. Therefore, the second appeal was properly dismissed and cannot be considered an amendment to the first appeal.

Plaintiff contends that he mistakenly believed that the Department's letter of February 3, 1986, prohibited his appeal of the "Corrected Notice." We disagree. Plaintiff has exhibited some sophistication in dealing with his termination. His well written pro se appeal includes the information that he has a law degree. An unemployment compensation suit was filed in lieu of furthering his rights to appeal. We find no error in the Referee's action in dismissing the second appeal filed by plaintiff.

An examination of all proceedings herein reveals that no request for legal interest was made in the initial appeal. Since no request was made, no legal interest can be awarded. Having reached this determination, we do not reach the presently unresolved issue as to whether legal interest runs on back pay installments and, if so, from what date the interest would run. See LSA C.C.P. art. 1921 Southern Construction Company v. Housing Authority of City of Opelousas, 250 La. 569, 197 So.2d 628 (1967); Carr v. State Department of Health and Human Resources, 451 So.2d 1282 (La.App. 1st Cir.1984).

ASSIGNMENT OF ERROR NO. 3

We have adequately disposed of this assignment of error in our discussion of Assignment of Error No. 2. We conclude that the actions of the Department were reasonable, and we find this assignment to be without merit.

CONCLUSION

For the above reasons, the decision of the Civil Service Commission is affirmed at plaintiff's costs.

AFFIRMED.

APPENDIX 1

IN RE: Appeal of Larry Johnson (Southern University and

Department of State Civil Service)

and

Appeal of Larry Johnson (Southern University)

State of Louisiana

Civil Service Commission

Docket Nos. 6222, 6308

DECISION

STATEMENT OF THE APPEALS

Appellant was employed by Southern University as a Custodial Worker III and was serving with permanent status.

By letter dated December 13, 1985, over the signature of Thurman A. Butler, System Director of Personnel and EEO Coordinator, appellant was advised that he was being separated from his position effective December 21, 1985, that the action had been recommended by Benjamin Harbor, Director of Buildings and Grounds, and that the action would become final upon approval by Dr. Joffre T. Whisenton, System President, and Dr. Wesley C. McClure, Chancellor. As...