The opinion
EDDIE WILLIAMS, JR. * NO. 2021-CA-0020
VERSUS *
COURT OF APPEAL
SEWERAGE & WATER *
BOARD FOURTH CIRCUIT
*
STATE OF LOUISIANA
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APPEAL FROM
CITY CIVIL SERVICE COMMISSION ORLEANS
NO. 9097
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JUDGE SANDRA CABRINA JENKINS
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(Court composed of Chief Judge Terri F. Love, Judge Daniel L. Dysart, Judge
Sandra Cabrina Jenkins)
Mr. Eddie Williams, Jr.
11679 Pressburg Street
New Orleans, LA 70128
PRO SE PLAINTIFF/APPELLANT
Ashley Ian Smith
Darryl Harrison
SEWERAGE & WATER BOARD OF NEW ORLEANS
Room 201
625 St. Joseph Street
New Orleans, LA 70165
COUNSEL FOR DEFENDANT/APPELLEE
AFFIRMED
JANUARY 5, 2022
SCJ
TFL
DLD
Eddie Williams, a management development supervisor at the Sewerage and
Water Board of New Orleans (“SWB”) appeals the Civil Service Commission’s
(the “Commission”) decision denying the appeal of his letter of reprimand. For the
reasons that follow, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 2019, Mr. Williams began sending offensive emails to his co-workers,
supervisors, and members of the SWB. As a result, Mr. Williams was instructed to
attend a counseling session with the department manager, Robert Turner. On
September 30, 2019, Mr. Williams attended the counseling session. Additionally
present at the counseling session was Mr. Williams’ immediate supervisor, Chief
of Networks Administration, Fred Tharp. Mr. Williams requested to record the
counseling session on his phone, and his request was denied. Thereafter, Mr.
Williams refused to participate in the counseling session.
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On October 7, 2019, Mr. Williams received a notice of intent to recommend
a letter of reprimand from Mr. Turner. On October 9, 2019, Mr. Williams received
a letter of reprimand for “refusing to carry out any reasonable instructions given by
a supervisor and which do not jeopardize the employee’s safety or are illegal
activities” in violation of the SWB’s policies.
Mr. Williams timely appealed the letter of reprimand. On December 4, 2019,
a Civil Service hearing took place before Hearing Examiner Christina Carroll. At
the hearing, Mr. Williams testified that he knew his emails were offensive. He also
testified that he refused to participate in the counseling session. The hearing
examiner provided the Commission with an advisory report dated May 6, 2020.
The hearing examiner recommended that Mr. Williams’ appeal be denied, finding
that the SWB had cause to issue a written reprimand due to Mr. Williams’
insubordination.
On October 27, 2020, the Commission issued its decision denying Mr.
Williams’ appeal. Mr. Williams now appeals the Commission’s decision.
DISCUSSION
Mr. Williams’ pro se brief designates six issues for review and/or
assignments of error. However, the alleged errors are vague and unclear. The first
two assignments of error relate to the admission of Mr. Williams’ emails into
evidence. The third and fourth assignments of error, respectively, relate to
accuracy of the facts section of the hearing examiner’s report, and the SWB failure
to demonstrate the falsity of Mr. Williams’ emails. In the final two assignments of
error, Mr. Williams asserts he should have been granted permission to record the
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counseling session, and the hearing examiner erred in not recusing herself. Mr.
Williams failed to brief majority of his assignments of error. Pursuant to Rule 2-
12.4 of the Uniform Rules, Courts of Appeal, all assignments of error and issues
for review must be briefed, and the court may consider as abandoned any
assignment of error or issue for review, which has not been briefed.
Despite this noncompliance, this court has considered briefs in improper
form when filed by a pro se party. See Doane v. Omni Royal Orleans Hotel, 2016-
0144, p. 4 (La. App. 4 Cir. 10/26/16), 204 So.3d 615, 618. Accordingly, in light of
Mr. Williams’ pro se status, we consider the merits of his appeal. In his brief, Mr.
Williams argues that the hearing examiner’s report erroneously states that Mr.
Williams’ September 26, 2019 email to his superiors included a statement that his
supervisor was “lying through her teeth.” Mr. Williams contends that the email
was in reference to Shena Walker, who is not his supervisor. Mr. Williams further
argues that the decision of the Commission should be reversed.
Standard of Review
An employee subjected to disciplinary action by his or her appointing
authority has the right to appeal to the Commission. Honore’ v. Dept. of Public
Works, 2014-0986, p. 8 (La. App. 4 Cir. 10/29/15), 178 So.3d 1120, 1126 (citing
La. Const. Art. 10 §§ 8, 12). On appeal, the appointing authority must prove by a
preponderance of the evidence good or legal cause for taking disciplinary
action. Honore’, 2014-0986, p. 8, 178 So.3d at 1126-27. The Commission “has the
authority to ‘hear and decide’ disciplinary cases, which includes the authority to
modify (reduce) as well as to reverse or affirm a penalty.” Cornelius v. Dep't of
Police, 2007-1257, p. 6 (La. App. 4 Cir. 3/19/08), 981 So.2d 720, 724 (citing La.
Const. Art. 10, § 12; Fihlman v. New Orleans Police Department, 2000–2360
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(La.App. 4 Cir. 10/31/01), 797 So.2d 783). The legal basis for any modification in
a disciplinary action can only be that sufficient cause for the action was not shown
by the appointing authority. “The protection of civil service employees is only
against firing (or other discipline) without cause.” Cornelius, 2007-1257, p. 6, 981
So.2d at 724 (citing Fihlman, 2000–2360, p. 5, 797 So.2d at 787).
The Commission must decide independently from the facts presented
whether the appointing authority had legal cause for taking the disciplinary action,
and if so, whether the punishment imposed is commensurate with the dereliction.
Milton v. Dept. of Public Works, 2016-0625, p. 10 (La. App. 4 Cir. 3/22/17), 216
So.3d 825, 831.
An appellate court reviews a Commission’s findings of fact by applying
manifest error standard of review. Milton, 2016-0625, p. 10, 216 So.3d at
831(citing Adams v. Department of Police, 2008-0468, p. 3 (La. App. 4 Cir.
2/12/09), 7 So.3d 763, 765). In determining whether the disciplinary action was
based on good cause and whether the punishment imposed is commensurate with
the dereliction, an appellate court should not modify the Commission’s decision
unless it is arbitrary, capricious, or characterized by an abuse of discretion. Patin v.
Dept. of Police, 2012-1693, p. 2 (La. App. 4 Cir. 6/26/13), 159 So.3d 476, 478
(citing Cure v. Dept. of Police, 2007–0166, p. 2 (La. App. 4 Cir. 8/1/07), 964 So.2d
1093, 1094). A decision is “arbitrary or capricious” when there is an absence of a
rational basis for the action taken. Milton, 2016-0625, p. 10, 216 So.3d at 831.
Good Cause for Discipline
It is undisputed that Mr. Williams sent offensive emails to his co-workers,
supervisors, and members of the SWB. As a result of the emails, Mr. Williams was
instructed to attend a counseling session for his behavior. It is also undisputed that
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Mr. Williams refused to participate in the counseling session after he was advised
that he could not make an audio recording of the session. Mr. Williams was further
advised that his failure to participate in the session would result in disciplinary
actions taken against him.
At the December 4, 2019, Mr. Turner testified that he received complaints of
Mr. Williams’ disruptive emails.
MR. ZANETTI [for the SWB]: How did you become involved with
Mr. Williams?
MR. TURNER: It was—we had a situation where Mr. Williams was
emailing a lot of emails to many of the people within our organization
up to the top leadership and people outside of the organization that
were causing some problems from just a general supervisory position
as well as a disruption to normal operation within the board . . .
* * *
MR. ZANETTI: What do you recognize that as?
MR. TURNER: These are just samples of the emails that Mr.
Williams was sending around to (sic) including Shena Walker, Mr.
Tharp, Ms. Hudson, Ghassan Korban who is the executive director,
and myself.
Mr. Turner also testified that the SWB’s internet usage policy prohibits
offensive and disruptive information, including character slurs, rude or hostile
references, profanity, and vulgarity. Mr. Turner further testified that Mr. Williams
left the counseling session prior to its completion.
MR. ZANETTI: And why is this disruptive to [the SWB’s] activities?
Why would insubordination of an employee leaving a meeting against
supervisor[’s] authority be considered insubordinate?
MR. TURNER: Well I think [its] kind of the definition of
insubordination. I’m giving you -- once you’re given a directive you
are expected to carry this directive out and failure to do that in my
opinion is insubordination.
* * *
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MR. ZANETTI: . . . Based on that action is that why he’s receiving
(sic) the letter of reprimand?
MR. TURNER: He is receiving (sic) a letter of reprimand for that
action and also for the continued sending of inflammatory and
disruptive emails.
MR. ZANETTI: And had he not sent the inflammatory, disruptive,
and offensive emails would he have only gotten a verbal counseling?
MR. TURNER: Yes. Well he would have only gotten a verbal
counseling except for the fact that he got up and left the meeting and
then refused to attend a subsequent meeting.
Further, at the hearing, Mr. Williams admitted that he was aware his emails
were offensive, and was aware that he would be subjected to discipline if he left
the counseling session.
HEARING EXAMINER: . . . So had anybody ever told you before
that they thought your emails were offensive or inflammatory?
MR. WILLIAMS: Of course.
* * *
HEARING EXAMINER: And they told you if you left you would be
subject to discipline?
MR. WILLIAMS: I said I’d gladly take whatever disciplinary action
that they would heap on me rather than take whatever they gonna (sic)
say while I’m not in the meeting and let that be official. They may say
I turned the tables over and dumped coffee in their laps. They could
say anything.
HEARING EXAMINER: And so why do you feel that the discipline
for leaving the meeting is not for cause?
MR. WILLIAMS: For cause? Well first of all I don’t think that a
person should allow himself to be entrapped. I don’t think the law
should force a person to allow himself to go into a situation where he
feels he’s being entrapped.
In Shepack v. New Orleans Police Dep’t, 2000-1345, p. 1 (La. App. 4 Cir.
5/16/01), 791 So.2d 733, 734, a police officer was issued a letter of reprimand for
violating departmental rules by performing a traffic stop while off duty in a private
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vehicle, when there was no felony in progress. Subsequent to the letter of
reprimand, the police officer received an increased penalty of a three-day
suspension. The police officer appealed, and the Commission affirmed the penalty.
Id.
The police officer argued that the penalty was excessive. This Court noted
“[w]here there is a sufficient basis for the imposition of the disciplinary action, the
Civil Service Commission may not substitute its judgment of what the proper
penalty should be for the penalty imposed by the appointing authority based on
what the Civil Service Commission perceives to be mitigating factors.” Shepack,
2000-1345, p. 4, 791 So.2d at 736 (citing Palmer v. Dep’t of Police, 97–1593 (La.
App. 4 Cir. 1/28/98), 706 So.2d 658). The Court further noted the officer’s
contentions that the Commission acted arbitrary and capricious by sustaining the
decision to supersede the letter of reprimand with a three-day suspension, and that
the Commission should have substituted the penalty. The Court noted that the
officer cited no cases to support any of his contentions. The Court found it was not
error for the Commission to sustain the penalty imposed by the appointing
authority. Id., at p. 4, 791 So.2d at 736.
The circumstances in this matter are similar to Shepack. Mr. Williams was
disciplined for violating departmental policies and received a letter of reprimand.
We note, while the officer in Shepack disciplinary action was increased from a
letter of reprimand to a three-day suspension, the Shepack court found that there
was no error in the penalty imposed for violating departmental polices. Similar to
Shepack, Mr. Williams has not cited any legal authority to support his arguments.
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Accordingly, we do not find that the Commission was arbitrary or capricious
in finding that Mr. Williams’ refusal to participate in the counseling session
established legal cause for the SWB to issue Mr. Williams a written reprimand.
Was the letter of reprimand commensurate of the offense?
We now turn to the disciplinary action taken. Mr. Williams argues that the
Commission’s denial of his appeal should be reversed. We disagree.
The Commission allows for one of several disciplinary actions to be taken,
including a letter of reprimand. The disciplinary action against Mr. Williams is
consistent with Rule IX, Section 1.1 of the Rules of the Commission for the City of
New Orleans, which provides:
When an employee in the classified service is unable or unwilling to
perform the duties of his/her position in a satisfactory manner, or has
committed any act to the prejudice of the service, or has omitted to
perform any act it was his/her duty to perform, or otherwise has
become subject to corrective action, the appointing authority shall
take action warranted by the circumstances to maintain the standards
of effective service. The action may include one or more of the
following:
(g) letters of reprimand as defined in Rule I.
See Rule IX, Section 1.1 of the Rules of the Commission for the City of New
Orleans.
In upholding the letter of reprimand, the Commission noted that at all times
relevant to the appeal, Mr. Williams had permanent status as a classified employee.
Further, the Commission adopted the reasons set forth from the hearing examiner’s
report.
Mr. Williams’ admitted refusal to attend a verbal counseling session
was insubordinate, and the Sewerage & Water Board had cause to
issue Mr. Williams a written reprimand. Insubordination disrupts
efficient operation of the Sewerage & Water Board.
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Upon review of the record, we find the Commission’s decision to uphold
Mr. Williams’ letter of reprimand is rationally based on the facts established in the
record. The record reflects that Mr. Williams sent offensive emails to employees of
the SWB. Mr. Williams was instructed to attend a verbal counseling session for his
offensive emails. Consequently, Mr. Williams was warned that his refusal to
participate would result in a disciplinary action, and he failed to adhere to the
warning. In light of these circumstances, we do not find that the Commission erred
in denying Mr. Williams’ appeal.
CONCLUSION
For the foregoing reasons, we affirm the Commission’s denial of Mr.
Williams’ appeal.
AFFIRMED
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