Christopher Fernandez Versus Jefferson Parish Department of Public Works-Sewerage ( 2023 )

CHRISTOPHER FERNANDEZ NO. 22-CA-319
VERSUS FIFTH CIRCUIT
JEFFERSON PARISH DEPARTMENT OF COURT OF APPEAL
PUBLIC WORKS-SEWERAGE
STATE OF LOUISIANA
ON APPEAL FROM THE JEFFERSON PARISH PERSONNEL BOARD
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 21-5
RUFUS C. HARRIS, III, CHAIRMAN, MICHAEL L. FANTACI, AND
DANIEL R. MARTINY, BOARD MEMBERS PRESIDING
February 27, 2023
MARC E. JOHNSON
JUDGE
Panel composed of Judges Marc E. Johnson,
Robert A. Chaisson, and Hans J. Liljeberg
AFFIRMED
MEJ
RAC
HJL
COUNSEL FOR PLAINTIFF/APPELLANT,
CHRISTOPHER FERNANDEZ
Jessica M. Vasquez
COUNSEL FOR DEFENDANT/APPELLEE,
JEFFERSON PARISH DEPARTMENT OF PUBLIC WORKS-SEWERAGE
Crystal M. Heine
JOHNSON, J.
Appellant, Christopher Fernandez, seeks review of the March 29, 2022
Jefferson Parish Personnel Board (“the Personnel Board”) judgment that found he
was guilty of misconduct and his termination from his permanent classified civil
service employee position as an Engineer III at the Department of Public Works
was warranted, and dismissed his appeal after a two-day hearing. For the
following reasons, we find that the Personnel Board did not err in dismissing the
appeal, and we affirm the March 29, 2022 judgment.
FACTS AND PROCEDURAL HISTORY
Christopher Fernandez was employed as a permanent civil service employee
by the Jefferson Parish Department of Public Works – Sewerage (“the
Department”) for over 23 years, most recently as an Engineer III. On August 3,
2020, a pre-disciplinary meeting was held where Michael Lockwood, Director of
the Department, Brent Todd, Assistant Director and Mr. Fernandez’s immediate
supervisor, and Human Resources Manager, Jonas Perriott, advised Mr. Fernandez
that there were 31 days within the relevant evaluation period where he was absent
without leave (“AWOL”) of work in excess of any leave time he had earned or
accumulated. Mr. Fernandez responded that his AWOL absences, which began in
December 2019, were caused by job-related stress: he felt that the Department was
understaffed and he had too many job responsibilities. The Department’s position
was that Mr. Fernandez’s absences exacerbated the pressures of his workload and
that delegating tasks to his subordinates, or other departments when appropriate,
should lessen his workload. The Department also suggested he consider applying
for leave pursuant to the Family Medical Leave Act (“FMLA leave”). Mr.
Fernandez was informed that he would “be rated as below expectation in
attendance,” he would not receive a merit raise or tenure pay for the upcoming
year, and he would be put on probation for two to six months.
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The Department sent Mr. Fernandez a letter dated September 9, 2020
informing him that the Director found that he was in violation of several Parish and
departmental work rules as outlined in the following policies: 403 – Attendance
Leave and Absence; 502 Maintaining Standards of Effective Service; and 503
Reporting and Performance of Duty. He was advised again that he should seek
FMLA leave and told that the letter was his “final warning” and further
infractions would lead to “stricter disciplinary action.” (Emphasis in original).
Director Lockwood sent Mr. Fernandez another letter dated February 25,
2021, following a second pre-disciplinary meeting held two days earlier. The
determination letter advised that Mr. Fernandez was re-evaluated pursuant to
Jefferson Parish Personnel Rules Rule XII Section 1.6 on January 29, 2021 and
rated “Below Expectations Overall” a second time. (Emphasis in original). The
Director found that he violated the following Department policies during the
probationary period: 501 General Provisions (Employee Values, Conduct
Unbecoming an Employee, Courtesy); 503 Reporting for Duty; and 508 Workplace
Violence. In addition to being AWOL 27 times since his last evaluation, the
Director determined that Mr. Fernandez engaged in prohibited conduct and
demonstrated poor judgment, was insubordinate and neglected his duties as an
Engineer III by refusing to complete work assignments given to him by Mr. Todd,
and was disrespectful and used “offensive, inappropriate, and unprofessional”
language in communications with Mr. Todd and administrative assistant Cindy
Joyner. Director Lockwood resolved that Mr. Fernandez’s behavior was not that of
a “dutiful supervisor” and had “eroded his credibility.” In conclusion, the letter
advised Mr. Lockwood that his termination was effective March 3, 2021 at 3:30
pm, a copy of his performance re-evaluation was enclosed, and that he had 30 days
from the effective date of the action taken against him to appeal to the Personnel
Board, in writing.
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Mr. Fernandez timely filed a Petition of Appeal to Personnel Board on April
1, 2021 that alleged the Department had discriminated against him based on his
disability – he is diagnosed with Depression. The petition also alleged that Mr.
Fernandez worked “standby” hours without receiving standby pay, there were no
instances of workplace violence as defined by Parish policy, and the comments he
made to Mr. Todd and Ms. Joyner did not rise to “the level of profanity or
offensive.” The Department filed a Motion and Memorandum for Summary
Disposition/Dismissal by Appointing Authority on June 17, 2021. The Department
argued that the Personnel Board lacked jurisdiction over disability and wage
matters, and Mr. Fernandez failed to sufficiently plead facts in support of his
discrimination claim per the Jefferson Parish Personnel Rules. Referee Theodore
W. Nass issued a Rule to Show Cause and set it for hearing on June 28, 2021. Mr.
Fernandez filed a Memorandum in Opposition a few days before the hearing. He
responded that the Personnel Board did have jurisdiction over ADA and
discrimination claims and his claims were sufficiently pled.
At the hearing on June 28, 2021 on the Rule, Referee Nass stated that he
would not “try ADA matters unless some [appellate] court tells [him] he should.”
However, Referee Nass agreed to allow Mr. Fernandez to “try and prove” he was
being overworked, and “that he was terminated because he couldn’t do the extra
work that was required of him.” Further, he found that any other discrimination
actions Mr. Fernandez tried to argue outside those parameters “are not properly
pled.” In a subsequent order issued on July 31, 2022, Referee Nass stated, “the
issues of disability discrimination and unpaid wages can be presented in this matter
limited to: evidence related to Mr. Fernandez’s workload, being overworked, and
the reasonableness of termination in light of that evidence.”
The appeal hearing took place on November 2, 2021 and March 16, 2022.
The Department and Mr. Fernandez called several witnesses, including Director
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Lockwood, Assistant Director Todd, Ms. Joyner, and a few of the dispatchers that
Mr. Fernandez supervised. The Department also entered into evidence email
correspondence between Mr. Fernandez and his family members and emails related
to online shopping to refute Mr. Fernandez’s claims that he did not have adequate
time to complete his work assignments. The Department also introduced email
documentation, including emails Mr. Fernandez sent to Mr. Todd after he was
terminated, offered to show at least five of Mr. Fernandez’s colleagues thought he
posed an imminent threat of workplace violence. Another email chain among Mr.
Todd, Mr. Fernandez, and others was offered as proof of his refusal to complete
assigned tasks that were part of his job responsibilities. Mr. Fernandez offered into
evidence his FMLA paperwork, leave reports, and a Staff Hour Estimation
spreadsheet to support his argument that it was impossible to complete his assigned
tasks in the 1,752 hours available to work at the Department in a year.
On March 28, 2022, Referee Nass issued a judgment in favor of the
Department – the appointing authority in this case. He found that the Department
proved Mr. Fernandez was “guilty of many acts of misconduct and his termination
was warranted.”1 Referee Nass also noted that, because Mr. Fernandez’s annual
1
The referee specifically made the following factual findings regarding Mr. Fernandez’s conduct:
• On January 9, 2021, in an email response to Administrative Assistant Ms. Cindy Joyner regarding past
due Performance Evaluations that you were assigned to complete, you stated “That's BULLSHIT, I gave
you all the paperwork. I have copies that I will give to you again.”
• Additionally, on the morning of February 4, 2021, Assistant Director Mr. Brett Todd sent you an email
reminding you to sign your Performance Re-Evaluation and to return it to Ms. Joyner.
• Mr. Todd also sent you several other emails asking you to perform work assignments.
• You also responded stating that you were not going to sign your Re-Evaluation because you disagree
with it.
• In addition, you sent Mr. Todd an email stating that you were not going to perform the work assignments
that were given to you and that the Sewerage Department pays outside entities to complete those
assignments.
• After several email exchanges, you then responded to Mr. Todd stating “HOW WILL YOU
HANDLE? DO I NEED TO GET A LAWYER TO COMBAT YOU';RE SHANAIGGANS[sic]?”
• Additionally, on February 5, 2021, Mr. Todd received an email from you stating you’re and idiot
• btodd.” [sic].
• On February 13, 2021, you sent an email to Mr. Todd stating “Can I retire now?”
• On February 18, 2021, you responded to Mr. Todd stating “What do you actually do, Brett, for JP
• sewerage DEPT? yOU DRIVE AROUND JN YOUR TRUCK EVERYDAY. do you do actual
• engineering work at all? dO YOU DO HYDRAULIC ANALYYSIS? You do nothing of
importance.”
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evaluation may have been tainted by absences that could be justified as FMLA
leave, he did not consider the issue of his absences in his decision. The Personnel
Director signed and certified the order as a true copy the next day. Shortly
thereafter, Mr. Fernandez filed a notice and application for of appeal via facsimile
and U.S. Mail dated March 31, 2022. The Personnel Board received the faxed copy
of the letter which indicated Mr. Fernandez’s intent to seek review with this Court
and the Personnel Board on April 6, 2022. The Personnel Board provided notice of
the filing to counsel for the Department via email, who then responded the next
day, claiming that “A 5th Circuit appeal is not ripe at this time per the Appeal
Rules.” Mr. Fernandez’s counsel agreed the appeal was premature based on the
assumption that the Department intended to file an application requesting that the
Personnel Board first review the Referee’s decision pursuant to “Rule 8.1” prior to
Mr. Fernandez’s appeal to this Court pursuant to “Rule 8.2.”2 Therefore, Mr.
Fernandez’s counsel indicated that she would withdraw the application for an
appeal pending a final ruling by the Personnel Board. According to the record, the
Department did not file an application for review by the Personnel Board.
Mr. Fernandez then filed a second notice and application for appeal with the
Personnel Board via facsimile and U.S. Mail by a letter dated May 17, 2022. The
Personnel Board again sent notice of the filing to the Department’s counsel by
email, who responded the following day claiming that “[a]n appeal to the 5th
Circuit is not in compliance with the Personnel Board Appeal Rules as an
application for review was never timely filed, and therefore, appeal rights have
2
Rule 8.1 of the Jefferson Parish Department of Personnel Rules of Classified Service allows a party the
option to file an application for review of the referee’s decision by the Personnel Board within 30 days
after the referee’s decision or order is placed in the mail or sent electronically to the interested party,
whichever occurs first. Rule 27 of the Jefferson Parish Personnel Board Rules of Appeal Procedure also
provides the same procedures for seeking review by the Personnel Board. The rules do not require the
filing of an application for review by the Personnel Board prior to filing an application for appeal to
obtain review by the Louisiana Fifth Circuit Court of Appeals. See Rule 8,2 of the Jefferson Parish
Department of Personnel Rules of Classified Service or Rule 31 of the Jefferson Parish Personnel Board
Rules of Appeal Procedure.
22-CA-319 5
prescribed.” Mr. Fernandez’s counsel explained in response that she understood
that the Department challenged the first notice and application for appeal as
premature because it intended to seek reconsideration of the Referee’s decision.
Counsel further requested that the Personnel Board reinstate the first notice and
application for appeal filed by Mr. Fernandez because the Department did not seek
review of the Referee’s order by the Personnel Board.
ASSIGNMENTS OF ERROR
Mr. Fernandez argues that the Personnel Board erred when it found that his
termination was warranted because: 1) his misconduct did not impact his job
efficiency; 2) he was disciplined twice for one instance of misconduct; and 3) the
magnitude of the discipline he received – termination – was not proportionate to
the scale or seriousness of the offense.
The Department argues that Mr. Fernandez’s appeal was untimely and this
Court lacks jurisdiction as a result. The Department argues that, instead of filing an
“application for review” to the Personnel Board within thirty calendar days of the
date on which the decision was sent, Mr. Fernandez filed a “request for appeal” on
May 17, 2022. The Department further argues that, pursuant to the Appeal Rules,
the filing of this appeal to this Honorable Court was untimely.
In the alternative, the Department maintains that the
Referee properly determined that the derelictions of Appellant
impaired the efficient and orderly operations of the Sewerage
Department and were commensurate with termination. As reflected in
the record, continued insubordination and a pattern of unprofessional,
hostile and harassing emails to co-workers and supervisors, even after
documented meetings regarding said misconduct is sufficient to
uphold the termination and find that termination was not manifestly
erroneous. Moreover, sufficient evidence was provided to show that
the misconduct at issue was ‛rationally related’ to the efficiency of the
public service, and being that the suspension pending investigation
was with pay, Appellant was not disciplined twice.
(Footnote in original omitted). The Department avers that Mr. Fernandez “had
become increasingly disagreeable, unprofessional, offensive and aggressive
22-CA-319 6
towards his coworkers” and that issues with “absences, communication and
reliability” continued. The Department further advises that Mr. Fernandez’s FMLA
was approved but “he [. . .] failed to follow up with psychiatry as directed by his
physician and provide any updates as to the status of his condition.”
Mr. Fernandez responds that the Department relied on facts not adjudicated
by the factfinder. He alleges that his absences should have been designated as
FMLA leave, Ms. Joyner did not file a grievance against him, and the employee
investigative report authored by Mr. Todd was not a factor in his termination, per
the termination letter. He also argues that the appeal was timely as he filed his first
notice and application for appeal within 30 days of the effective date of the
Referee’s ruling pursuant to Jefferson Parish Personnel Board Rules of Appeal
Rule 31.
LAW AND DISCUSSION
The Jefferson Parish Department of Public Works – Sewerage is a classified
civil service system governed by a statutory system established by Title 33,
Chapter 5, Part I of the Louisiana Revised Statutes. A classified civil servant is
afforded protection in disciplinary actions taken without cause. La. Const. art. 10 §
8(A); see Robinson v. Jefferson Par. Dep’t of Pub. Works-Drainage, 13-474 (La.
App. 5 Cir. 12/19/13), 131 So.3d 433, 437. A dismissal of a civil servant “for
cause” is synonymous with legal cause. Id. citing Lewis v. Jefferson Par. Dep’t of
Pub. Works, 99-16 (La. App. 5 Cir. 5/19/99), 761 So.2d 558, 559, writ denied, 99-
2906 (La. 1/14/00), 753 So.2d 215. Legal cause for disciplinary action exists if the
facts found by the civil service commission disclose that the employee’s conduct
impaired the efficiency of the public service. See id. The appointing authority --
here the Department of Public Works – Sewerage -- has the burden of proving, by
a preponderance of the evidence, that the complained of activity or dereliction
occurred, and that such dereliction bore a real and substantial relationship to the
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efficient operation of the appointing authority. Becker v. Jefferson Par. Dep’t of
Parks & Recreation, 09-662 (La. App. 5 Cir. 1/12/10), 30 So.3d 1007, 1013.
Where an appointing authority has disciplined an employee for an infraction,
the appointing authority is estopped from seeking at a later date to revive this
incident as ground for further disciplinary measures. Bruno v. Jefferson Par.
Library Dep’t, 04-504 (La. App. 5 Cir. 11/30/04), 890 So.2d 604, 609. But,
evidence of prior infractions coupled with the instant offense may evidence either
an employee’s unreliability or his indifference to the requirements of his job.
Duckett v. Jefferson Par. Dep’t of Pub. Works - Streets, 20-452 (La. App. 5 Cir.
11/3/21), 330 So.3d 1209, 1221, writ denied, 21-1794 (La. 1/26/22), 332 So.3d 85,
and cert. denied sub nom., 214 L.Ed.2d 78, 143 S.Ct. 204 (2022). Repeated
infractions by an employee may justify dismissal. Id.The Jefferson Parish Personnel Rules Rule II, Section 8.1 grants the
Jefferson Parish Personnel Board the authority to hear and decide all removal and
other actions appealable under the Rules. Stamps v. Jefferson Par. Admin., 09-443
(La. App. 5 Cir. 12/8/09), 30 So.3d 19. The Personnel Board has a duty to decide,
independently from the facts presented, whether the appointing authority has good
and lawful cause for taking disciplinary action and, if so, whether the punishment
imposed is commensurate with the dereliction. Id. citing St. Pe’ v. Jefferson Par.
Dep’t of Pub. Works-Drainage Pump Stations, 06-779 (La. App. 5 Cir. 3/13/07),
956 So.2d 623, 625. Rule 12(a) of Jefferson Parish Personnel Board Rules of
Appeal Procedure provides that the Personnel Board may appoint a referee to hear
and decide any appeal pending before the Personnel Board. “The decision of a
referee shall become the final decision of the Personnel Board on the date that the
referee’s decision is filed with the Director unless an application for review of the
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referee’s decision is filed in accordance with Rule 27.” Jefferson Parish Personnel
Board Rules of Appeal Procedure, Rule 12(d).3
A party may seek review of a final decision of the Board by this Court by
filing an application for appeal in accordance with Rule 31 of the Jefferson Parish
Personnel Board Rules of Appeal Procedure:
Final Decisions of the Board shall be subject to review on any
question of law or fact upon appeal to the Louisiana Fifth Circuit
Court of Appeal. An application for appeal from a final decision of
the Board shall be effectuated in accord with the Uniform Rules -
Courts of Appeal, Rule 3, 3-1, The Special Appeals, Administrative
Cases. The application for appeal shall be in writing and must be filed
with and received by the Personnel Department during established
department working hours and within thirty (30) calendar days of the
effective date of the decision from which the appeal is taken.4
Rule 18 provides that “decisions and orders shall be final and effective as of the
date rendered, as reflected in the decision or order, and shall be filed with the
Personnel Director on the date rendered.” Id.On appeal, this court should apply the clearly wrong or manifest error
rule. An appellate court review of an administrative disciplinary
decision is limited to a determination of whether the decision was
made in good faith for legal cause; unless the record contains
insufficient evidence to support the administrative decision or shows
that the decision was clearly wrong, the decision must be affirmed.
St. Pe’, 956 So.2d at 625. (Internal citation omitted). A civil service board’s
findings of fact are entitled to the same weight as findings of fact made by a trial
court and are not to be overturned in the absence of manifest error. Decou-Snowton
v. Jefferson Par. Dep’t of Juvenile Servs., 22-55 (La. App. 5 Cir. 11/9/22).
The Department argues that the appeal is untimely because Mr. Fernandez
did not file his application for appeal until May 17, 2022, more than 30 days after
the effective date of the March 28, 2022 judgment -- after Mr. Fernandez relied on
3
As noted above, a party has 30 days after the earlier of the mailing or electronic delivery of the referee’s
decision to apply for review by the Personnel Board.
4
The Rules of Appeal Procedure do not define “Personnel Department.” Rule 1, Section 1(18) of the
Jefferson Parish Department of Personnel Rules of Classified Service defined “Department” as “The
Department of Personnel, including both the Personnel Board and the Director of Personnel.
22-CA-319 9
a false representation from the Department’s counsel regarding appeal procedures.
His counsel received an email from the Department’s counsel on April 7, 2022,
which incorrectly claimed the matter was not ripe for appeal in response to Mr.
Fernandez’s notice and application for appeal submitted shortly after the Referee
issued the March 28, 2022 judgment. Mr. Fernandez’s counsel replied to that
email, copying Referee Nass as well as the Personnel Director and the executive
assistant of the Personnel Department, and indicated they would withdraw the
timely notice and application for appeal, pending the resolution of the
Department’s application for review of the Referee’s ruling. However, the
Department never requested a review of the Board’s decision, and there is no
indication that the first notice and application for appeal was withdrawn from the
record.
La. C.C.P. art. 5051 dictates that the articles of the Code of Civil Procedure
“be construed liberally, and with due regard for the fact that rules of procedure
implement the substantive law and are not an end in themselves.” We find that the
letter dated March 31, 2022 that Mr. Fernandez sent to the Personnel Board
provided the Department with adequate notice of his intention to appeal and the
Department is not prejudiced by our decision to accept the notice and application
for of appeal filed to seek review by this Court as timely in order to permit review
of the Personnel Board’s decision. The purpose of the notice of an application for
appeal is “to provide a simple and efficient method for taking an appeal and to
ensure that the opposing party is given notice of the petitioning party’s intent to
appeal.” See Appendix A. Louisiana Code of Civil Procedure Selected Articles, 1
La. Civ. L. Treatise, Civil Procedure Appendix A (2d ed.). Furthermore,
[a]ppeals are favored in law, must be maintained whenever possible,
and will not be dismissed for mere technicalities. Any doubt
concerning the validity of an appeal should be resolved in favor of the
appellant to the end that an appeal can be sustained. Unless the
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grounds for dismissal are free from doubt, the appeal should
be maintained.
Jones v. ABC Ins. Co., 19-141 (La. App. 5 Cir. 1/29/20), 290 So.3d 317, 324
(citations removed).
Accordingly, we find that the April 6, 2021 notice to the Personnel Board
constituted a timely application for appeal pursuant to Uniform Rules, Courts of
Appeal – Rule 3-1.1 and Rule 31 of the Board’s Rules of Appeal Procedure.
Pursuant to the Board’s Rules of Appeal Procedure Rule 27(g), because an
application for review was not timely filed, the Referee’s decision became final on
March 29, 2021 when the judgment was filed with its director. We therefore
disagree with the Department’s argument that Mr. Fernandez’s appeal was
untimely and should be dismissed.
Next, we find that the testimony and evidence presented by the Department
is sufficient to support the referee’s findings that it proved by a preponderance that,
notwithstanding Mr. Fernandez’s absences and whether they should be classified
as AWOL or permissible due to FMLA provisions, Mr. Fernandez’s conduct
violated several Jefferson Parish Personnel Rules and departmental policies and
procedures, and the Department terminated his employment in good faith for legal
cause. The referee did not commit manifest error in his determination that Mr.
Fernandez committed several acts of misconduct that included insubordination,
using coarse, hostile, profane or insolent language, the failure to carry out assigned
duties, tasks and responsibilities in a prudent manner, and the utterance of verbal or
written threats communicated directly or indirectly that a reasonable person would
perceive as intimidation.
DECREE
22-CA-319 11
Based on the foregoing, the judgment of the Jefferson Parish Personnel
Board affirming Mr. Fernandez’s termination and dismissing his appeal is
affirmed.
AFFIRMED
22-CA-319 12
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX
www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
FEBRUARY 27, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
22-CA-319
E-NOTIFIED
JEFF PARISH PERSONNEL BOARD (CLERK)
JESSICA M. VASQUEZ (APPELLANT) CRYSTAL M. HEINE (APPELLEE)
MAILED
JEFFERSON PARISH PERSONNEL BOARD
(DISTRICT JUDGE)
200 DERBIGNY STREET
SUITE 3100
GRETNA, LA 70053