The appellate judges ruled that Dwayne Olivier was entitled to be paid at a higher rate than the city paid him after abolishing a temporary position he held.
The court also awarded Olivier $2,500 in attorney feels but refused his appeal for penalty wages.
Olivier, who joined the department in 1985, was a fire captain when he was injured and went on sick leave, according to his suit.
On Oct. 31, 2005, Mayor Lynn Lejeune and the City Council established a fire inspector’s position. The following day, according to the suit, Olivier took that job, at an hourly rate of $13.36.
On Oct. 16, 2006, shortly after the election of Bob Morris as mayor, Olivier was injured again and took sick pay at the inspector’s hourly rate.
On Jan. 2, 2007, Morris abolished the fire inspector’s post and several other positions, according to the case record.
At that point, Olivier was re-instated as a fire captain and continued drawing sick pay, but at his captain’s rate of $9.78 hourly rather than the higher inspector’s rate.
According to Dist. Judge James P. Doherty’s ruling the Municipal Fire & Police Civil Service Board in February 2007 agreed with the city’s decision to abolish the inspector’s post and refused to make it a permanent position.
Olivier continued on sick leave until Oct. 16, 2007, when the 52 continuous weeks allowed under law elapsed.
In May 2008, demanded to be paid sick pay he alleged was owed him -- the 10 months difference between the two rates. The city refused and Olivier sued.
“The court finds the inspector was a temporary position and the city had the right to eliminate it. It had not been in existence for 18 months and had not been adopted as a permanent post,” Doherty ruled.
“It is the court’s opinion that full pay means pay to which an individual is entitled to receive based on the position they occupy,” he wrote.
His conclusion is that Oliver while on sick leave was paid properly as an inspector from October 2006 until January 2007, and was paid properly as a fire captain from February 2007 until October 2007 after the inspector post was eliminated.
The 3rd Circuit noted it found no authority which interprets the meaning of full pay, as it applies to sickness or incapacity.
“Defendant cites La.R.S. 33:2556 which states that: ‘Temporary appointments may be made to positions in the classified service without the appointees acquiring any permanent status therein.’
“They concede that had Plaintiff been a permanent employee in a classified position, additional protections would have been available to him. However, Defendants argue that Plaintiff had no right or expectation to permanent employment in the fire inspector position since it was a provisional position.
“After reviewing the statute, we conclude that the rate at which Plaintiff was entitled to receive sick pay was vested when sick pay became due at the rate of pay then being received by Plaintiff. Defendant argues that this conclusion conflicts with the civil service laws.
“We have reviewed the statutes cited by Defendants and find nothing in them that would prevent an employee in a temporary position from being entitled to sick pay at the rate of pay he was receiving at the time of injury or when he became ill.
“Therefore, we find that the trial court erred in finding that Plaintiff’s pay could be cut when the position he had been employed in at the time of his illness was terminated. Accordingly, we reverse the judgment of the trial court in this regard and order payment of the difference between the payment he received after January 2, 2007, and the amount due to him as fire inspector.”
The difference is $3.58 per hour.
“After reviewing the record, we find that the City posed a good-faith non-arbitrary defense to liability for the unpaid wages. Therefore, we decline to impose penalty wages,” the court said.