Day v. Department of Institutions

HAWTHORNE, Justice.

Alleging that the State Department of Institutions has unjustifiably terminated her employment as a clerk, Mrs. Lelia Murray Day seeks in these proceedings before the State Civil Service Commission to be reinstated in her former position with full back salary to the date of reinstatement.

This is the second time this case has been before this court. Our prior decision was on Mrs. Day’s appeal from a judgment of the Civil Service Commission maintaining an exception of no right of action filed by the Department of Institutions on the ground that she had permitted more than 30 days to elapse between the time when she had been deprived of her rights or otherwise discriminated against and the date of her demand for a hearing before the Civil Service Commission. See Day v. Department of Institutions, 228 La. 105, 81 So.2d 826.¹ The Department of Institutions in filing its exception took the position that Mrs. Day had orally resigned on' September 1, 1953, and that she did not apply to the Civil Service Commission for a hearing until February 8, 1954. The Civil Service Commission maintained this exception, finding that Mrs. Day had allowed more than 30 days to elapse between her oral resignation on September 1 and her appeal to the Commission on February 8, and that consequently her appeal was not timely under Rule 13.2 of the Commission. On appeal this court overruled the exception and remanded the case to the Civil Service Commission for further proceedings according to law. On the remand the Civil Service Commission tried Mrs. Day’s case on the merits and denied the relief sought. She has again appealed to this court.

In the course of the prior opinion we set forth the contention of the appointing authority and announced the law applicable as follows:

“ * * * The contention of the appointing authority that Mrs. Day orally resigned effective September 1, 1953, and the conclusion reached by the Civil Service Commission that Mrs. Day knew at the latest in November, 1953, that the Department of Institutions had treated her as having resigned and had removed her from the payroll as of September 1, 1953, could not stand the test prescribed in the Rules adopted by the Commission itself. In order to make effective the removal of the subject employee from the payroll, the fact of the acceptance of her alleged oral resignation and of her removal from the payroll should have been made known by a statement in writing to her and to the Director in advance of such action (Italics ours.) See Day v. Department of Institutions, supra, at 228 La. 112, 81 So.2d 828.

In this former opinion we pointed out that the only written notice received by the appellant was a letter from Dr. Grant dated January 27, 1954. As Mrs. Day’s appeal to the Civil Service Commission was filed on February 8, 1954, it was taken less than 30 days from the date of this letter and was therefore timely under Rule 13.2 of the Commission. See Day v. Department of Institutions, supra.

Pursuant to Article 14, Section 15(0) (1), of the Louisiana Constitution, “* * The decision of the appropriate Civil Service Commission shall he final on the facts, but an appeal shall be granted to the Supreme Court of Louisiana on any question of law if application to the Commission is made within thirty (30) days after the Commission’s decision becomes final”. (Italics ours.)

In the instant case the Civil Service Commission has found as a fact — this finding of fact is final, and we do not have jurisdiction to review it — that Mrs. Day orally resigned from her position on September 1, 1953; that written notice of her removal from the payroll because of her oral resignation was given to her by the letter of Dr. Grant dated January 27, 1954 ;² and that the director of the department had likewise received written notice of Mrs. Day’s removal from the payroll by reason of her resignation of September 1, 1953. The Civil Servic'e Commission then said: “Thus, all the 'requirements of the Rules as construed by the Supreme Court [in the first Day case] have been met.” The Commission consequently refused to reinstate Mrs. Day, finding that she had been effectively removed from the payroll as of January 27, 1954.

We find no error of law in this ruling.

As heretofore pointed out, the Commission found as a fact that Mrs. Day orally resigned on September 1, 1953. This fact standing alone would not have the effect, under our previous decision in this case, of removing her from the payroll. We said in our previous decision that before her removal from the payroll could become effective, the acceptance of her oral resignation and her removal from the payroll would have to be made known by a statement in writing to her and to the director in advance of such action. The Commission found that appellant orally resigned on September 1, and that her removal from the payroll under the decision in the above case was made known to her in writing on January 27. The question then presented is whether she is entitled to pay for this period of time.

According to the findings of the Commission, Mrs. Day obtained a leave of absence without pay beginning August 19 or 20, 1953, and since that time has never returned to her classified position in, or done a day’s work for, the Department of Institutions: According to the Commission, the evidence failed to establish that Mrs. Day ever terminated her leave of absence without pay. Consequently it follows that on January 27, 1954, when her oral resignation became effective and she was legally removed from the payroll, she was still on leave of absence without pay.

We are therefore of the opinion that the decision of the Commission refusing to reinstate Mrs. Day and denying to her any back salary is correct and should be affirmed.

For the reasons assigned the decision of the Civil Service Commission is affirmed.

FOURNET, C. J., dissents and assigns written reasons. PONDER, J., dissents.

1 . The writer of this opinion only concurred in the decree in that case, which announced the rule of law controlling here. See 228 La. 113. 81 So.2d 828.

2 . Tfie record also shows that a copy of this letter was mailed to the director of the Department of State Civil Service.