author: JjEDWIN A. LOMBARD, Judge.

text:
    STATE of Louisiana v. Jamar HAILEY, a/k/a Jamar Bernard.
    No. 2002-KA-1738.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 17, 2003.
    Rehearing Denied Feb. 6, 2004.

      Eddie J. Jordan, Jr., District Attorney, Zata W. Ard, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellant.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD).
   JjEDWIN A. LOMBARD, Judge.

STATEMENT OF THE CASE

Defendant Jamar Hailey (aka) Jamar Bernard was charged by grand jury indictment on April 15, 1999 with second degree murder, a violation of La. R.S. 14:30.1, and possession of a firearm by a person convicted of an enumerated felony, a violation of La. R.S. 14:95.1. Defendant waived his previously filed motion to suppress the identification on May 26, 2000. Defendant was tried by a twelve-person jury and found guilty as charged of second degree murder on January 20, 2001. The trial court denied defendant’s motion for new trial on July 6, 2001. On July 20, 2001, the State nolle prosequied the firearm charge, and the trial court sentenced defendant to life imprisonment at hard labor without benefit of probation, parole or suspension of sentence. Defendant filed a motion to reconsider sentence, which the trial court did not rule on. Defendant also filed a notice of appeal, which the trial court apparently granted.

The record was lodged with this court on August 27, 2002, and supplemented on March 12, 2003. Defendant filed his brief on May 21, 2003. The State filed its brief on June 9, 2003. Defendant filed a reply brief on June 16, 2003.

FACTS

Defendant was convicted of the second degree murder of Christopher Conner.

New Orleans Police Officer Akron Davis testified that on March 11,1999, at approximately 5:30 p.m., he and his partner were driving on Louisiana Avenue when they heard gunshots. They observed a male, later identified as defendant, running. Defendant, clutching his waistband, slowed to a fast walk after observing l2the officers. He crossed Louisiana Avenue headed uptown on Freret Street. Officer Davis exited the vehicle, and began chasing defendant, who fled upon being told to stop. Officer Davis apprehended defendant within a couple of blocks, after seeing him discard a .357 Sig. caliber semi-automatic handgun. Officer Juan Henry’s testimony essentially tracked that of his partner, Officer Davis.

Detective Michael Mims investigated the homicide. Four spent cartridge casings were recovered near the victim’s body. Detective Robert Hoobler assisted in the recovery of the weapon discarded by defendant. Sgt. Lynn Fletcher drove a witness, Michelle Jones, past defendant for on-the-scene identification procedure. Michelle Jones testified that she witnessed defendant chase and shoot the victim, and then stand over the fallen victim and shoot him again. Defendant ran past Ms. Jones after the shooting. She identified defendant some twenty minutes after the shooting, based upon the pants and shirt defendant was wearing, and his haircut.

Criminalist Joseph Tafarro, qualified by stipulation as an expert in the analysis of serology, fiber and gunshot residues, testified that in accordance with police department policy he did not perform tests on the victim’s bloody clothing because it had been improperly packaged in plastic, resulting in the blood putrefying. Officer Ed Delery, qualified by stipulation as an expert in the development and collection of latent prints, testified that the firearm and spent cartridge casings were negative for latent fingerprints, except a partial one on the slide of the gun that was not suitable for identification.

Dr. Paul McGary, qualified by stipulation as expert in the field of forensic pathology, autopsied the victim, who had seven gunshot wounds that could have been made by five bullets. Two of the wounds were fatal.

DNew Orleans Police Department Crime Scene Technician Tamatra Green collected and packaged as evidence four spent cartridge casings and the murder weapon. Officer Byron Winbush was qualified by stipulation as an expert in the testing and examination of firearms, and in ballistics. He testified that three of the bullets recovered during the autopsy of the victim had been fired by the handgun recovered after the homicide — the one defendant discarded while being chased by Officer Davis. Also, all four of the spent cartridge casings found at the scene of the homicide were fired from the gun.

Lydia Conner, the victim’s aunt, testified that the last time she saw her nephew was the day before he was killed.

Officer Luther Randall testified on behalf of the defendant that he did not participate in the homicide investigation, and did not collect the murder weapon, although his name was listed on the crime lab examination request form as the person who did.

ERRORS PATENT

A review of the record reveals two errors patent. First, the record does not reflect that defendant was arraigned. However, La. C.Cr.P. art. 555 states that an error in failing to arraign a defendant is waived if the defendant enters upon the trial without objecting thereto, and it shall be considered as if he had pleaded not guilty. Defendant went to trial without objecting that he had not been arraigned. Accordingly, this error is harmless.

The second patent error is that the record does not reflect that the trial court ruled on defendant’s motion to reconsider his sentence. When defense counsel filed the motion to reconsider immediately after sentenced was pronounced, the trial court stated that it would let the motion be filed in the record “without a Indecision on it.” While the failure to rule on a motion to reconsider sentence would preclude review of a defendant’s sentence, defendant in the instant case does not seek review of his sentence. The failure to rule on the motion to reconsider sentence does not preclude review of a defendant’s conviction. State v. Foster, 2002-0256, p. 3 (La.App. 4 Cir. 9/11/02), 828 So.2d 72, 74 (expressly-declining to follow State v. Roberts, 2001-0283 (La.App. 4 Cir. 1/23/02), 807 So.2d 1072, where this court stated that without a final sentence a conviction is not appeal-able); see also State v. Davis, 2000-0275 (La.App. 4 Cir. 2/14/01), 781 So.2d 633 (conviction affirmed, remanded for ruling on motion to reconsider); State v. Allen, 99-2579 (La.App. 4 Cir. 1/24/01), 781 So.2d 88 (conviction affirmed, remanded for ruling on motion to reconsider).

ASSIGNMENT OF ERROR

In his sole assignment of error, defendant asserts that the trial court erred in denying him the right to peremptorily backstrike jurors during jury selection.

Baekstriking is a party’s exercise of a peremptory challenge to strike a prospective juror after initially accepting him. State v. Plaisance, 2000-1858, p. 30, n. 4 (La.App. 4 Cir. 3/6/02), 811 So.2d 1172, 1193, n. 4, writ denied, 2002-1395 (La.11/27/01), 831 So.2d 270, cert. denied, Plaisance v. Louisiana, — U.S.-, 123 S.Ct. 2084, 155 L.Ed.2d 1071 (2003). An accused has a constitutionally guaranteed right to peremptorily challenge jurors. La. Const. Art. I, § 17. La.C.Cr.P. art. 795(B)(1) states only that peremptory challenges shall be exercised prior to the swearing of the jury panel. La.C.Cr.P. art. 788(A) states that when a prospective juror is accepted by the State and the defendant, he shall be sworn immediately as a juror, subject to the provisions of La.C.Cr.P. art. 795. Thus, in State v. Watts, 579 So.2d 931 (La.1991), the Louisiana Supreme Court cited LajC.Cr.P.6 art. 795(B)(1) in holding that even though a prospective juror is “temporarily” accepted and immediately sworn as juror in accordance with La.C.Cr.P. art. 788, that juror may nevertheless be challenged peremptorily prior to the swearing of the entire jury panel.

In State v. Taylor, 93-2201 (La.2/28/96), 669 So.2d 364, the Louisiana Supreme Court agreed with the defendant that Watts was violated when the trial court denied the defendant the right to use backstrikes, i.e., exercise his remaining peremptory challenges immediately before the jury panel was sworn, but found the error harmless. In Plaisance, supra, this court held that La.C.Cr.P. art. 795(B)(1), as interpreted in Watts, provided for back-strikes. This court further held that the trial court in Plaisance had erred in denying the defendant the right to use back-strikes, but found that the error harmless, citing Taylor, supra. Thus, a defendant has a right under La.C.Cr.P. art. 795(B)(1) to employ backstrikes, but the erroneous denial of that right is subject to the harmless error analysis.

In the instant case, immediately after the first eight jurors were accepted from the first panel by the State and defendant, defense counsel asked the trial court if it allowed baekstriking. The trial court replied in the negative, and defense counsel noted an objection for the record on that issue. During his exercise of challenges for the second panel, defense counsel again noted an objection to the trial court’s ruling that no backstrikes were allowed. Defendant did not raise the issue of back-strikes again. Only one additional juror, the ninth, was selected from the second panel of prospective jurors. The third and final panel of prospective jurors yielded the last three jurors and an alternate. Defendant was left with three peremptory challenges at the conclusion of jury selection.

|fAt a hearing on defendant’s motion for new trial based on the backstrike issue, defense counsel argued that he had wished to backstrike three jurors. The first was Brooklyn Foster, who defense counsel represented was the daughter of a murder victim whose killer was tried in the same section of court as the instant case. Defendant mentioned a second juror, “Lloyd” Taylor. The only “Taylor” who served on the jury was Lovell Taylor, a female. Defense counsel did not say anything about why he would have backstruck this juror. The third juror defense counsel referred to at the motion for new trial was Jessie Small, who at one point during voir dire stated that he believed defendant must be guilty of something because he was indicted by the grand jury. All three of these jurors had been in the first of the three panels voir dired. In his brief on appeal, defendant states that there is an indication defense counsel would have backstruck juror Calvin Carcise, because both he and Mr. Small had given the same responses as another juror, Mr. Woolridge, about defendant being guilty. However, defense counsel did not mention Mr. Carcise at the motion for new trial.

In Taylor, supra, the State, the defense and the trial court initially agreed that backstrikes were permissible, but also that challenges were to be made simultaneously. During the exercise of challenges on the first panel of prospective jurors, the State complained that the defendant was saving all of his peremptory challenges to use in backstrikes. The trial court at that point ruled that no backstrikes would be allowed. When jury selection concluded, the defendant had four peremptory challenges remaining, which he said he wished to use. The trial court denied the request. The defendant argued on appeal that he was prejudiced because he would have chosen to backstrike a juror who was selected from the last panel of twelve that was voire dired. The defendant had used one peremptory 17challenge on that last panel, and still had four left for use when selecting the alternate. The Louisiana Supreme Court noted that it had been the final full panel, with only an alternate to be selected afterward, and stated that the defendant could have exercised one of his remaining four peremptory challenges to strike the prospective juror at the same time he struck the other one. The court said that, under those circumstances, the defendant suffered no prejudice.

In Plaisance, supra, defendant’s trial counsel averred in an affidavit attached to the defendant’s brief that there were several members of the first panel of jurors initially selected whom he would have challenged had backstrikes been allowed. However, he failed to specify any particular juror he would have backstruck. Further, as in the instant case, defense counsel had not noted at trial any particular juror he would have backstruck. This court noted these factors, further noted that the voir dire record did not reflect any unsuitable jurors from the first panel, and concluded that the defendant had not been prejudiced by the error in denying defendant his statutory right to use back-strikes.

In State v. Crotwell, 2000-2551 (La.App. 1 Cir. 11/9/01), 818 So.2d 34, as in the instant case, defense counsel inquired during challenges of the first panel of prospective jurors whether he could backstrike, and the trial court replied in the negative. Defendant did not object at that time, but did so after all the challenges had been made on the second panel and all jurors except the alternate had been accepted. However, just as in the instant case, at no time did defense counsel request to back-strike any particular juror. On appeal, the court found that the trial court had erred in denying the defendant the right to back-strike. The court found that the error was harmless, citing defense counsel’s failure to challenge any particular juror with a backstrike, and counsel’s failure at the time of the ruling to |sobject and argue a basis why backstrikes should have been permitted. In addition, the defendant did not allege on appeal any prejudice that might have occurred to him.

In the instant case, just as in Crotivell, supra, defense counsel did not, at any point during the jury selection process or at the conclusion thereof, note any jurors in particular that he would have back-struck. There is no jurisprudence to the effect that defense counsel is required to do so in order to preserve his backstrike claim for review. However, the effect of not requiring a defendant to specify at trial who he would have backstruck is to permit a defendant to gamble upon receiving a favorable jury verdict, and then, upon the return of an unfavorable verdict, scour the voir dire transcript for jurors whom he can claim he would have back-struck. As previously noted, at the hearing on defendant’s motion for new trial, defense counsel only gave reasons for why he would have backstruck two jurors, Ms. Foster and Mr. Small. Defendant makes no argument on appeal as to Lovell Taylor, the third juror to whom defendant referred. While Ms. Taylor said she had served on one jury in which the defendant was found guilty of armed robbery, a number of other prospective jurors eventually accepted also had served on prior juries that had found defendants guilty. Defendant has failed to show any prejudice as a result of being denied a right to backstrike Ms. Taylor.

Defendant was tried for second degree murder. Only ten of the twelve jurors needed to vote to convict in order to return a guilty verdict. The jury verdict in the instant case was unanimous. Even assuming Ms. Foster and Mr. Small had been replaced with jurors who would have ignored the compelling evidence against defendant and voted not guilty, the other ten guilty votes would have been | flsufficient to convict him. Moreover, given the overwhelming evidence against defendant, any rational juror would have found him guilty as charged.

While a defendant has a constitutional right under the Louisiana State Constitution to peremptorily strike prospective jurors, there is no constitutional right to backstrike, only a statutory right. Considering the facts and circumstances of the instant case, defendant has failed to show that he was prejudiced by the trial court’s denial of his statutory right to backstrike or that because he could not backstrike he was thereby denied his constitutional right to peremptorily strike prospective jurors. The error was harmless. That is, the verdict actually rendered in this case was surely unattributable to the error. State v. Snyder, 98-1078, p. 15 (La.4/14/99), 750 So.2d 832, 845. There is no merit to this assignment of error.

CONCLUSION

For the foregoing reasons, the defendant’s conviction and sentence is affirmed.

AFFIRMED.


source: Caselaw Access Project

author: | ¶EDWIN A. LOMBARD, Judge.

license: Public Domain

text:
    Elaine ALEXIS v. CLARENDON NATIONAL INSURANCE COMPANY, Michael J. Pfister, D & P Towing, Inc.
    No. 2002-CA-0671.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 17, 2003.
    Rehearing Denied Feb. 6, 2004.

      James E. Cazalot, Jr., H. Edward Sherman, New Orleans, LA, for Plaintiff/Appellant.
    Andre’ C. Gaudin, Meredith M. Miceli, Burglass & Tankersley, L.L.C., Metaire, LA, for Defendant/Appellee.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD).
   | ¶EDWIN A. LOMBARD, Judge.

This appeal involves the quantum awarded by the jury after trial solely on the issue of damages in a matter concerning a minor automobile accident. For the reasons that follow, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

In 1997, the car driven by Elaine Alexis, appellant, on DeSaix Avenue was struck by a tow truck driven by Michael Pfister, appellee. The tow truck was in the left lane of the two-lane street when, in the process of making a left turn onto Alden, Mr. Pfister swerved into the right-hand lane to accommodate the necessary wide left turn. Mr. Pfister was driving about 5 m.p.h. at the time of the attempted turn and subsequent collision. Alexis, who was restrained, was proceeding at 12-15 m.p.h. in the right lane of DeSaix and slowing to make a right turn. The tow vehicles collided as defendant’s tow truck moved into appellant’s lane as he attempted the turn.

As a result of this low-impact collision, Ms. Alexis contended that she suffered multiple, serious injuries requiring prolonged medical treatment and which rendered her unemployable for over four years. She also claimed to suffer |afrom depression as a result of the accident. She sought treatment from numerous physicians, including an orthopedist, neurologist, psychiatrist, and an internist.

Prior to the accident, Ms. Alexis was employed by the Regional Transit Authority (“RTA”) as a claims adjuster. Ms. Alexis had not worked since the accident, which was some fours years subsequent to the accident.

Alexis initially filed a Petition for Damages against Mr. Pfister, his insurer (Clarendon), and D & P Towing, Inc. Subsequently, appellant amended her petition to include a loss of consortium claim on behalf of her son. Transit Management of Southeast Louisiana, Inc. (“TMSL”), appellant’s employer, intervened in subrogation of workers’ compensation payments.

D & P was subsequently substituted with Chuga-Chuga Choo Choo Trains Towing, which was later dismissed. Ms. Alexis’s Motion for Partial Summary Judgment on the liability of defendants was granted.

After unsuccessful mediation and numerous trial settings, the matter was heard by a jury over seven days. Evidence of Alexis’s prior accidents, which had not been disclosed to the testifying physicians, was presented. More than five days was spent on Alexis’s medical, treat-, ment and she requested up to $1,000,000.00 in damages.

At trial, the only objective evidence of Ms. Alexis’s injuries was occasional muscle spasms,-mainly near the time of the accident, and radiographic evidence of a mild herniation of L5-S1 with no sign of attendant nerve compression. Additionally, the physicians testified that they had not been informed by Ms. Alexis that she had suffered several prior accidents and related injuries, including back injuries suffered in July 1991 and February 1994, and again in 1996, for |swhich she treated up to six months prior to the instant accident and for which she was referred for a lumbar spine MRI that she never received.

Ms. Alexis’s complaints of pain -were not objectively verified at trial. The MRI showed herniation, but the expert testimony indicated that such herniation may or may not cause symptomatology. The independent medical examiners, Drs. Robert Applebaum and Gary Carroll, each performed independent medical examinations of Ms. Alexis and could not confirm Ms. Alexis’s complaints.

Additionally, surveillance videos taken of Ms. Alexis only days after the incident and up until 1999 demonstrated that she had a much- greater physical capacity than she had led her physicians and employer and the jury to believe. The jury saw a tape filmed only weeks after the accident wherein Ms. Alexis was filmed walking, bending, and dancing at a Mardi Gras parade. Also, she was shown lifting and placing a large bag of dog food into the trunk of her car in contradiction, to her deposition testimony that she was unable to lift such items.

The jury awarded Ms. Alexis the following: $15,000 for past medical expenses; $16,700 for past lost wages; $10,000 for past pain and suffering and $0 for the rest of her claims. The trial court entered judgment in favor of TMSL for $38,300 for workers’ compensation payments.

Ms. Alexis filed a Motion for Judgment Notwithstanding the Verdict, Additur, or Alternatively, New Trial. The trial court denied the motion and this appeal followed.

ANALYSIS

The standard of review is clearly wrong or manifestly erroneous. This court must utilize a two-step analysis as set forth by the Louisiana Supreme Court in Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1979):(l) whether there is a | reasonable factual basis for the trial court’s judgment; and (2) whether the record establishes that the finding is not clearly wrong.

Appellant argues that the appel-lees fail to cite evidence to support the first prong of the review. Appellant has her argument backwards; it is appellant who bears the burden of proving that the trial court was manifestly erroneous, not the appellee’s burden to prove that the trial court was correct. The credibility findings of the jury, confirmed by the trial court, were made based on the live testimony of the witnesses. It is not for this court to substitute its judgment for that of the trier of fact unless there is some manifest error.

Based upon the video evidence of Alexis’s physical capacity when unaware of being watched, the testimony of her own experts that she failed to disclose to them the existence of prior accidents involving her back, and the facts of the accident, the jury award is not clearly wrong. The jurors and the trial court obviously did not believe Alexis’s claims of serious injury, which were not substantiated by objective evidence.

CONCLUSION

Therefore, for the foregoing reasons, we affirm the trial court judgment.

AFFIRMED.


author: 11EDWIN A. LOMBARD, Judge.

text:
    Andrew WHITAKER v. NEW ORLEANS POLICE DEPARTMENT.
    No. 2003-CA-0512.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 17, 2003.
    Rehearing Denied Feb. 6, 2004.

      Eric J. Hessler, Frank G. DeSalvo, A P.L.C., New Orleans, LA, for Plaintiff/Appellant.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge DAVID S. GORBATY, and Judge EDWIN A. LOMBARD).
   11EDWIN A. LOMBARD, Judge.

FACTS

Appellant, Andrew Whittaker, seeks review of the Civil Service Commission’s decision dismissing his appeal of his termination with the New Orleans Police Department (NOPD). The appellant was terminated after he used a police department vehicle while he was off-duty. He said that he had gone to a Christmas party where he had consumed four or five drinks of whiskey without eating. Leaving the party, the car slid in a water puddle and struck a fence at the Cold Storage Warehouse on Alvar Street, causing minor damage to the fence. The appellant said the accident happened when it was raining, and that it would not have happened but for the rain. He said that the Harbor Police Officers who arrived at the scene told him to follow them in his own car to the Harbor Police Department, and he did so.

The NOPD investigating officer said that the appellant was coherent but had alcohol on his breath and that his speech was slurred. Otherwise, the appellant “was fine.” The appellant refused to take a breathalizer test with regard to a possible criminal prosecution, but he submitted to an administrative field sobriety test. He refused to make a statement at the time. The breath test revealed a blood | ¡.alcohol level over the legal limit, specifically .0168. He was not prosecuted for driving while intoxicated.

The appellant later paid for the entire fence, not just the area that had been damaged, for a total cost of $1,700.00, and entered an alcohol rehabilitation program. He was still attending weekly classes at the time of the hearing. The car was old, had high mileage, and was determined not to be worth repairing. The appellant was a four-year veteran of the NOPD and had never been disciplined. However, Superintendent of Police Edward Compass testified at the hearing that it was his policy that any police officer who drives a department vehicle while intoxicated will be terminated. The Superintendent said he did not know whether he issued a formal written policy, but that he had made the internal policy clear to the district commanders. He “had no idea” of whether the appellant knew of the policy. The Superintendent stressed the need for a uniform departmental policy about drinking and driving. It appears that the appellant might have been the first person to be disciplined under the policy. The Superintendent said that the appellant indeed had a “great record.”

LAW AND ANALYSIS

The Civil Service Commission has a duty to decide independently from the facts presented whether the appointing authority has a good or lawful cause for taking disciplinary action and, if so, whether punishment imposed is commensurate with the dereliction. Walters v. Department of Police of New Orleans, 454 So.2d 106 (La.1984). The appointing authority has the burden of proving by the preponderance of the evidence the occurrence of the complained of activity and thyt the conduct complained of impaired the efficiency of the public service. Cittadino v. Department of Police, 558 So.2d 1311 (La. App. 4 Cir.1990). In 13reviewing the decisions of a Civil Service Commission, a reviewing court should not reverse a Commission conclusion as to the existence or absence of cause for dismissal, unless the decision is arbitrary, capricious or an abuse of the Commission’s discretion. Jones v. Louisiana Department of Highways, 259 La. 329, 250 So.2d 356 (1971); Konen v. New Orleans Police Department, 226 La. 739, 77 So.2d 24 (1954).

In civil service disciplinary cases, an appellate court is presented with a multifaceted review function. First, as in other civil matters, deference will be given to the factual conclusion of the Commission. Hence, in deciding whether to affirm the Commission’s factual finding, a reviewing court should apply the clearly wrong or manifest error rule prescribed generally for appellate review. Walters, 454 So.2d at 114.

Second, in evaluating the Commission’s determination as to whether the disciplinary action is based on legal cause and the punishment is commensurate with the infraction, this Court should not modify the Commission’s order unless it is arbitrary, capricious or characterized by an abuse of discretion. Id. “Arbitrary or capricious” means that there is no rational basis for the action taken by the Commission. Bannister v. Department of Streets, 95-0404 p. 8 (La.1/16/96), 666 So.2d 641, 647.

In Stevens v. Department of Police, 2000-1682 (La.App. 4 Cir. 5/9/01), 789 So.2d 622, the officer was responding to a call of an undercover officer in distress. The officer ran a stop sign on a prominent, busy Uptown street and totaled the police vehicle. He alleged his view was blocked by an oak tree. The Superintendent issued a disciplinary letter, imposing a fifteen day suspension. The |4Commission reduced the suspension to ten days, and this court reversed, reinstating the twenty day suspension. This court stated:

Legal cause exists whenever an employee’s conduct impairs the efficiency of the public service in which the employee is engaged. Cittadino v. Department of Police, 558 So.2d 1311 (La.App. 4th Cir. 1990). The Appointing Authority has the burden of proving the impairment. La. Const. Art. X, Sec. 8(A). The appointing authority must prove its ease by a preponderance of the evidence. Cittadino, supra. “Arbitrary or capricious” can be defined as the lack of a rational basis for the action taken. Shields v. City of Shreveport, 579 So.2d 961 (La.1991). A reviewing court should affirm the Civil Service Commission conclusion as to existence or cause for dismissal of a permanent status public employee when the decision is not arbitrary, capricious, or an abuse of the Commission’s discretion, as presented in this case. Employees with the permanent status in the classified civil service may be disciplined only for cause expressed in writing. La. Const., Art. X, Sec. 8(A). Disciplinary action against a civil service employee will be deemed arbitrary and capricious unless there is a real and substantial relationship between the improper conduct and the “efficient operation” of the public service. Newman v. Department of Fire, 425 So.2d 753 (La.1983).
In reviewing the Commission’s findings of fact, the Court’s appropriate standard of review suggests that this Court should not reverse or modify such a finding unless it is clearly wrong or manifestly erroneous. If the Commission’s order is not arbitrary, capricious or characterized by abuse of discretion, this Court should not modify the Commission’s decision. Cittadino, supra.
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. La. Const, art. X, § 12; Branighan v. Department of Police, 362 So.2d 1221, 1223 (La.App. 4 Cir.1978). However, the authority to reduce a penalty can only be exercised if there is insufficient cause for imposing the greater penalty. Id. at 1222. Thus, in the instant case, unless the Commission determined that there was insufficient cause for the appointing authority to impose the fifteen day suspension, the penalty must stand.
| ¡/The appointing authority is charged with the operation of his or her department and it is within his or her discretion to discipline an employee for sufficient cause. Joseph v. Department of Health, 389 So.2d 739, 741 (La.App. 4 Cir.1980); Branighan, supra. The Commission is not charged with such operation or such disciplining. Id. In James v. Sewerage and Water Board of Neto Orleans, 505 So.2d 119 (La.App. 4 Cir.1987), we considered a decision of the Commission which reversed a five day suspension of an employee and suggested a reprimand instead. In reversing the Commission and reinstating the suspension, we reaffirmed and reiterated the holdings in Joseph and Brani-ghan, stating:
It is not the job of the Commission to decide who should be disciplined how. The appointing authority is charged with the operation of his department. He is the one who must run the department, an obviously necessary part of which is dismissing or disciplining employees. While he may not do so without cause, he may, and indeed must, within the exercise of sound discretion, dismiss or discipline an employee for sufficient cause. The Commission is not charged with such operation or such disciplining. Id. at 121.
In Chapman v. Department of Police, 97-1384 (La.App. 4 Cir. 1/28/98), 706 So.2d 656, we rejected the Commission’s reduction of a suspension from thirty days to ten days, holding that the Commission is not charged with the operation of the NOPD or disciplining its employees. We concluded that the Commission’s action was simply a substitution of its judgment for the Superintendent’s judgment. We found that the Superintendent had sufficient cause to impose the penalty and that the NOPD carried its burden of proof. ■ The Commission’s action was an arbitrary and capricious interference with the authority of the Superintendent to manage his department.
Similarly, in Palmer v. Department of Police, 97-1593 (La.App. 4 Cir. 1/28/98), 706 So.2d 658, we reversed the Commission’s reversal of the NOPD’s imposition of a two day suspension. In that case, the Commission substituted its judgment as to the appropriate sanction without an articulated basis for its action. We held the Commission acted arbitrarily and found legal cause for disciplinary action existed where the officer’s actions clearly impaired the efficient operation of the public service.
Recently, in Smith v. New Orleans Police Department, 00-1486 (La.App. 4 Cir. 4/11/01), 784 So.2d 806, we reversed the Commission’s reduction of a suspension from five days to |fitwo days for an officer’s failure to complete an investigation of a shoplifting incident by writing a police report and confiscating surveillance tapes that showed the alleged perpetrator fleeing the scene. We found there was ample evidence to show that the Superintendent acted reasonably and with sufficient legal cause in imposing a five day suspension under the circumstances of the case.
The public puts its trust in the police department as a guardian of its safety, and it is essential that the appointing authority be allowed to establish and enforce appropriate standards of conduct for its employees sworn to uphold that trust. Newman, supra. Indeed, the Commission should give heightened regard to the appointing authorities that serve as special guardians of the public’s safety and operate as quasi-military institutions where strict discipline is imperative.
In the present case, the Commission never found that the Superintendent lacked sufficient cause to impose the suspension or that the NOPD failed to carry its burden of proof. To the contrary, the Commission concluded that Officer Stevens violated a local traffic ordinance and caused an accident that resulted in substantial damage to a NOPD patrol vehicle. The loss of the police vehicle certainly impaired the efficient operation of the police department. Under these circumstances, we find the Commission’s reduction from fifteen to ten days the suspension imposed by the appointing authority on Officer Stevens was an arbitrary and capricious interference with the Superintendent’s authority to manage the NOPD. As in the above-cited cases, the Commission’s action was simply a substitution of its judgment for that of the Superintendent and, thus, cannot stand.
Accordingly, the decision of the Civil Service Commission is reversed and the fifteen day suspension imposed upon Officer Ronald Stevens by the appointing authority is reinstated.

Stevens, pp. 5-9, 789 So.2d at 625-627.

In the case at bar, the evidence presented at the hearing substantiates the findings of the NOPD and the Civil Service Commission that the appellant violated the rules concerning driving a police vehicle while intoxicated. However, the appellant was a four year veteran of the police department with an unblemished record. Although we applaud the Superintendent’s policy that officers who drink |7and drive must lose their jobs, we find that at the time of this accident, the policy had not been formally publicized, and that the appellant might not have known of the policy, especially as it applied while he was off duty. Evidently, no other officer before him suffered termination for a similar act. He has repaired the damage to the fence, and has entered alcohol rehabilitation. We therefore, find the Commission erred when it affirmed the termination and remand for the determination of a lesser punishment.

REVERSED AND REMANDED.


author: | .KUHN, J.

text:
    Charlotte ST. ROMAIN v. STATE of Louisiana, THROUGH THE DEPARTMENT OF WILDLIFE AND FISHERIES and Lyle Soniat.
    No. 2003 CA 0291.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 12, 2003.
    Rehearing Denied Dec. 11, 2003.

      Jill L. Craft, Baton Rouge, Counsel for Plaintiff/Second Appellant Charlotte St. Romain.
    Stephanie B. LaBorde, Baton Rouge, Counsel for Defendants/First Appellants State of Louisiana, through the Department of Wildlife and Fisheries and Lyle Soniat.
    Before: WHIPPLE, KUHN, and MCDONALD, JJ.
   | .KUHN, J.

Plaintiff-appellant, Charlotte St. Romain, appeals a judgment dismissing from her lawsuit her “state law claims for sexual discrimination” as well as her “sexual harassment claims” against defendants, State of Louisiana, Department of Wildlife and Fisheries (DWF) and Lyle Soniat. We reverse and remand for further proceedings.

I. FACTUAL AND PROCEDURAL BACKGROUND

St. Romain was hired by DWF as a Wildlife Educator Supervisor in April 1999. On May 12, 2000, she was released from her employment obligations.

On November 2, 2000, St. Romain filed this lawsuit naming DWF and her immediate supervisor, Soniat, as defendants, averring that she was wrongfully released from employment because she complained that Soniat created a sexually hostile working environment which DWF permitted to persist. In July 2002, defendants filed a motion for summary judgment seeking dismissal of, among other things, St. Ro-main’s “state law claims of sexual discrimination” and her “sexual harassment claims.”

| .After a hearing, the trial court signed a judgment, which expressly stated St. Romain’s “claims of sexual harassment are subject to the exclusive jurisdiction of the [Civil Service Commission (CSC) ].” In addition, summary judgment was granted to defendants, expressly dismissing St. Ro-main’s “sexual harassment claims.” The judgment signed by the trial court also provides that St. Romain’s “state law claims of sexual discrimination are likewise subject to the exclusive jurisdiction of the [CSC]” and, therefore, dismissed. This appeal by St. Romain followed.

II. SUBJECT MATTER JURISDICTION

Louisiana Constitution article V, § 16(A)(1), addressing the original jurisdiction of our state’s district courts, provides in pertinent part, “Except as otherwise authorized by this constitution or except as ... provided by law ... a district court shall have original jurisdiction of all civil ... matters.” Louisiana ^Constitution article V, § 16(A) vests jurisdiction over all civil and criminal matters in the district courts of Louisiana except as otherwise authorized by the Constitution. A constitutionally-authorized exception to the district courts’ jurisdiction is set forth in La. Const, art. X, § 12(A), which grants to the CSC in the civil service context “the exclusive power and authority to hear and decide all removal and disciplinary cases.” While La. Const, art. X, § 12(A) expressly establishes that the CSC has exclusive original jurisdiction over all removal and disciplinary cases, it is silent on discrimination cases. See La. Dep’t of Agriculture and Forestry v. Sumrall, 98-1587, p. 6 (La.3/2/99), 728 So.2d 1254, 1259.

Louisiana Constitution article X, § 8 states:

(A) Disciplinary Actions. No person who has gained permanent status in the classified state or city service shall be subjected to disciplinary action except for cause expressed in writing. A classified employee subjected to such disciplinary action shall have the right of appeal to the appropriate commission pursuant to Section 12 of this Part. The burden of proof on appeal, as to the facts, shall be on the appointing authority-
(B) Discrimination. No classified employee shall be discriminated against because of his political or religious beliefs, sex, or race. A classified employee so discriminated against shall have the right of appeal to the appropriate commission pursuant to Section 12 of this Part. The burden of proof on appeal, as to the facts, shall be on the employee.

Thus, in order to assess the CSC’s quasi-judicial authority, La. Const, art. X, § 8(B) must be read together with § 12. Sum-rail, 98-1587 at pp. 6-7, 728 So.2d at 1259. Such a reading shows that the constitution limits the jurisdiction of the CSC to two categories of claims: (1) discrimination claims provided for in § 8(B); and (2) removal or disciplinary claims provided for in §§ 12(A) & 8(A).

| BSt. Romain challenges the trial court’s conclusion that under La. Const, art. X, § 8(B), the CSC has the exclusive jurisdiction over her claims for damages for sexual harassment as well as her state claims of sexual discrimination. She urges that because she served under a probationary appointment, she falls outside the ambit of jurisdiction constitutionally allotted to the CSC. Therefore, St. Romain urges under La. Const, art. V, § 16(A), she properly filed all her claims for damages in district court.

At the outset, we note it is undisputed St. Romain served as a Wildlife Educator Supervisor under a probationary appointment. St. Romain was separated from employment when she failed to obtain permanent status after a twelve-month probationary period.

Unless constitutionally infirmed, a civil service rule has the effect of law. See Bannister v. Dep’t of Streets, 95-0404, p. 5 (La.1/16/96), 666 So.2d 641, 645. Thus, in addition to article X of the Louisiana Constitution, it is appropriate to look to the Civil Service Rules for an understanding of a probationary appointment.

“Probationary appointment” is defined in Civil Service Rule 1.26 as an “appointment of a person to serve a working test period in a position.” Rule 1.25 explains that a “position” is “any office and any employment in the Classified Service.” Permanent appointments and promotions in the classified service shall be made only after certification as ascertained by examination which, as far as practical, shall be competitive. La. Const, art. X, § 7. A probationary employee | fimay be separated by the appointing authority at any time. Civil Service Rule 9.1(e). This is because a probationary employee has no property right in retaining his position. See Truax v. Dep’t of Public Safety and Corrections, 93-1574, p. 5 (La.App. 1st Cir.6/27/94), 640 So.2d 1389, 1391. Thus, the mandatory determination of cause justifying the appointing authority’s decision to undertake a disciplinary action against a “person who has gained permanent status in the classified state service” of La. Const, art. X, § 8A is not a protection afforded to a probationary employee. Id. Lacking a property right in his or her position, elimination of the cause determination for a probationary employee subjected to a disciplinary action is not offensive to the provisions of La. Const, art. X, which are designed to protect career employees from political discrimination by eliminating the “spoils” system. See AFSCME, Council # 17 v. State ex rel. Dep’t of Health and Hospitals, 01-0422, p. 6 (La.6/29/01), 789 So.2d 1263, 1268.

In Sumrall, the court examined, among other rules, former Civil Service Rule 13.10, entitled “Appeals to the Commission,” in reaching its conclusion that the Civil Service rules which purported to authorize appeals to the CSC on discrimination claims other than those based upon the classified employee’s political or religious beliefs, sex, or race were unconstitutional. 98-1587 at p. 10, 728 So.2d at 1262. According to subsection (f) of former Rule 13.10, an appeal could be made to [the CSC] by:

Any person who shall have applied for or been examined for the Classified Service, without having acquired permanent status therein, and who alleges discrimination in the review of his application, admission to an examination, scoring of examinations, the establishment of an eligible list or certification therefrom

|7The Summit court held that La. Const, art. X, § 10 did not include in its extensive list of rulemaking power the authority to enact rules to expand the jurisdiction of the CSC, expressly including subsection (f) of Rule 13.10 among those rules that purported to created a right to appeal to the CSC distinct from those listed in La. Const, art. X, §§ 8 and 12(A), which thereby expanded the CSC’s jurisdiction to hear appeals. 98-1587 at p. 10, 728 So.2d at 1262.

Under La. Const, art. X, § 7, permanent appointments in the classified service are constitutionally permissible only after certification by the appropriate Civil Service authority. Also see Civil Service Rule 9.2(a) (providing that the permanent appointment of a probationary employee shall begin upon certification by the appointing authority that the employee has met the required standard of work during the probationary period). Therefore, subsection (f) of former Civil Service Rule 13.10 included in its scope the claims of a probationary employee who alleged discrimination in his or her attempt to gain permanent status. Also see Williams v. Chief Administrative Officer, 398 So.2d 1252 (La.App. 4th Cir.1981) (holding that substantively identical predecessor rule of former Civil Service Rule 13.10(f) was the exclusive provision a probationary employee had to appeal his claim of discrimination). Thus, from the Sumrall court’s articulation of the scope of the CSC’s jurisdiction of La. Const, art. X, § 8(B) claims, we conclude that the claims of a probationary employee alleging discrimination in the review of his or her application to gain permanent status pursuant to La. Const, art. X, § 7 fall outside the ambit of the CSC’s jurisdiction.

Accordingly, we hold that the claims of sexual discrimination and/or sexual harassment alleged in probationary employee St. Romain’s petition are not [^included in the parameters of the jurisdiction afforded to the CSC under La. art. X, §§ 8 and 12(A). As such, St. Romain properly filed her suit in district court. See La. Const, art. V, § 16(A). Thus, that portion of the trial court’s judgment which concludes it lacks jurisdiction over “plaintiffs state law claims of sexual discrimination” is vacated. And that portion of the judgment which states, “In addition, the Court finds that plaintiffs claims of sexual harassment are subject to the exclusive jurisdiction of the [CSC] and are not properly raised in the first instance in the District Court,” is also vacated.

III. SUMMARY JUDGMENT

Appellate courts review summary judgments de novo under the same criteria that govern the trial judge’s consideration of whether a summary judgment is appropriate. Guillory v. Interstate Gas Station, 94-1767, p. 5 (La.3/30/95), 653 So.2d 1152, 1155. A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). The summary judgment procedure is favored and shall be construed to accomplish the just, speedy, and inexpensive determination of actions. La. C.C.P. art. 966(A)(2).

The initial burden of proof is on the mover to show that no genuine issue of material fact exists. La. C.C.P. art. 966(C)(2). However, once the mover has made a prima facie showing that the motion should be granted, if the non-mov-ant bears the burden of proof at trial on the issue before the court, the burden shifts to him to present evidence demonstrating that material factual issues remain. La. C.C.P. art. |9966(C)(2); J. Ray McDermott, Inc. v. Morrison, 96-2337, pp. 10-11 (La.App. 1st Cir.11/7/97), 705 So.2d 195, 202-03, writs denied, 97-3055, 97-3061, 97-3062, 97-3063 (La.2/13/98), 709 So.2d 753, 754.

A document which is not an affidavit or sworn to in any way, or which is not certified or attached to an affidavit, is not of sufficient evidentiary quality on summary judgment to be given weight in determining whether or not there remain genuine issues of material fact. Murphy v. L & L Marine Transp., Inc., 97-33, p. 6 (La.App. 5th Cir.5/28/97), 695 So.2d 1045, 1048. An attachment to a memorandum is not properly before the court on a motion for summary judgment and should not be considered in resolving the motion. State v. Exxon Corp., 95-2501, pp. 7-8 (La.App. 1st Cir.6/28/96), 676 So.2d 783, 787. Unless the motion has been made and supported by affidavits, together with sworn or certified copies of all papers or documents referred to, or depositions or answers to interrogatories, La. C.C.P. art. 967 does not shift the burden to the adverse party to set forth specific facts showing that there is a genuine issue for trial. Kennington v. H. Blume Johnson, Inc., 94-0744, p. 2 (La.7/1/94), 638 So.2d 1066, 1067.

In its oral reasons for judgment, the trial court stated:

I READ EVERY PAGE OF EVERY DEPOSITION THAT I WAS GIVEN, NO MATTER WHO SUBMITTED IT OR WHAT PAGES I WAS CITED TO, BUT I DID READ EVERYTHING THAT WAS IN THERE. I ALSO REVIEWED ALL THE OTHER DOCUMENTARY EVIDENCE WHICH INCLUDES BUT IS NOT LIMITED TO THE CIVIL SERVICE COMPLAINT FILED BY MS. ST. ROMAIN, THE PINK SLIP THAT WAS GIVEN TO MS. ST. ROMAIN WHEN SHE WAS DISCHARGED, THE DECISION OF THE CIVIL SERVICE REFEREE, THE FILINGS MS. ST. ROMAIN MADE WITH THE E.E.O.C., THE WORKPLACE VIOLENCE REPORTS THAT SHE FILED IN OCTOBER 1999 ALONG WITH ALL THE VARIOUS CORRESPONDENCE AND EMAILS THAT WERE EITHER ATTACHED TO THE DEPOSITIONS OR WERE | ^ADMITTED SEPARATELY FOR THE PURPOSES OF [THIS MOTION].

Because a document which is not an affidavit or sworn to in any way, or which is not certified or attached to an affidavit, is not of sufficient evidentiary quality on summary judgment to be given weight in determining whether or not there remain genuine issues of material fact, the trial court clearly exceeded the scope of his authority in consideration of whether defendants are entitled to summary judgment. Thus, we limit our de novo review of the trial court’s grant of summary judgment to a consideration of the pleadings and the depositions, which were the only permissible items properly before the court in this case. See La. C.C.P. art. 966(B).

The applicable substantive law determines the materiality of facts in a summary judgment setting. See J. Ray McDermott, Inc., 96-2337 at p. 11, 705 So.2d at 203. Therefore, we now turn to a discussion of the state and federal law proscribing sexual harassment in the employment context, which is the substantive law applicable to the facts of this case in this appeal.

In the Prohibited Discrimination in Employment on the Basis of Race, Color, Religion, Sex and National Origin Act (Louisiana’s Prohibited Discrimination Act), set forth in La. R.S. 23:332 et seq., Louisiana statutorily affords protection from discrimination to employees. Louisiana’s Prohibited ^Discrimination Act is expressly applicable to “the state, or any state agency.” See La. R.S. 23:302(2). And because La. R.S. 23:332 A mirrors federal law, 42 U.S.C.A. § 2000e et seq. (Title VII claims), Louisiana courts routinely look to federal jurisprudence for guidance in application of Louisiana’s Prohibited Discrimination Act. See Robinson v. Healthworks Intern., L.L.C., 36,802, p. 5 (La. App.2d Cir.1/29/03), 837 So.2d 714, 718, writ not considered, 2003-0965 (La.5/16/03), 843 So.2d 1120.

In Title VII claims, under 42 U.S.C.A. § 2000e-2(a)(l), as well as in eases applying Louisiana’s Prohibited Discriminatory Practice Act, it is “an unlawful employment practice for an employer ... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 63, 106 S.Ct. 2399, 2404, 91 L.Ed.2d 49 (1986); Alphonse v. Omni Hotels Management Corp., 94-0157, p. 2 (La.App. 4th Cir.9/29/94), 643 So.2d 836, 838.

Liability under both Louisiana’s Prohibited Discrimination Act and Title VII claims may be predicated on two types of sexual harassment — “quid pro quo” or “hostile environment.” “Quid pro quo” harassment exists when an employer |12places unwanted terms or conditions on employment, benefits or other employment advantages in exchange for sexual favors. A “hostile environment” is harassment that, while not affecting economic benefits, creates a hostile or offensive working environment. Vinson, 477 U.S. at 64-65, 106 S.Ct. at 2404-05; Alphonse v. Omni Ho tels Management Corp., 94-0157 at p. 2, 643 So.2d at 838.

To prevail in a sexual harassment action based on hostile environment, a plaintiff must assert and prove that she belonged to a protected group; she was subjected to unwelcome sexual harassment; the harassment was based on sex; the harassment affected a term, condition, or privilege of employment; and the employer knew or should have known of the harassment and failed to take proper remedial action. Id.

In granting summary judgment the trial court concluded that defendants, as movers on the motion, established that the harassment St. Romain was subjected to by Soniat was not based on her sex. The trial court stated:

I CERTAINLY CONCLUDE THAT THE ACTIONS OF MR. SONIAT WERE OUTRAGEOUS AND INTOLERABLE ... THEY WERE CERTAINLY BOORISH AND OFFENSIVE. BUT I DO NOT SEE EVIDENCE THAT THEY WERE SEXUALLY BASED OR SEXUALLY DISCRIMINATORY. COMPLAINTS IDENTICAL IN NATURE TO THOSE OF MS. ST. ROMAIN CAME FROM MALES AND FEMALES ALIKE.

While direct comparative evidence of how an alleged harasser treated members of both sexes in the mixed-sexed workplace may remove all material facts on the issue of whether the harassment is based on sex in a same sex harassment case, see Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80-81, 118 S.Ct. 998, 1002, 140 L.Ed.2d 201 (1998). St. Romain’s hostile work environment claims are not allegations of same sex harassment. Thus, we find the fact that Soniat was offensive | isand boorish to members of both sexes is not dispositive of the issue of whether the harassment was based on sex.

To be actionable, harassing conduct need not be motivated by sexual desire. Oncale, 523 U.S. at 80, 118 S.Ct. at 1002. And a harassment claim does not prohibit all verbal or physical harassment in the workplace; it is directed only at discrimination because of sex. Id. To prove that a hostile work environment claim is based on sex, the critical issue is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed. Id.

Thus, in our de novo review of the allegations of the pleadings and the deposition testimony, we focus not on the issue of whether Soniat was offensive and boorish to both male and female employees; rather, we ask if St. Romain has set forth facts from which a reasonable trier of fact could conclude women at DWF were exposed to disadvantageous terms or conditions of employment to which men were not.

St. Romain testified of the hostile management practices of supervisor, Lyle So-niat, to whom St. Romain’s immediate supervisor Wayne Huston answered in the DWF chain of command. In setting out the DWF hierarchy involved in this lawsuit, St. Romain explained that Soniat had the power to determine whether she would obtain permanent status, although Huston determined whether she was entitled to merit increases. St. Romain said that although Soniat showed hostile and violent management practices in supervising males and females alike, his rude behavior was directed much less frequently toward the men than toward the women at DWF. Standing very close to the woman he was reprimanding, St. Romain explained, 114Soniat would become red-faced and would shake his finger in the woman’s face. St. Romain directly experienced So-niat’s hostile conduct on numerous occasions and witnessed other females treated in similar fashion. She described that So-niat’s tone toward the woman he was reprimanding was “demeaning ... very frightening and very distasteful,” explaining that the supervisor frequently cursed at the woman during the tirade.

St. Romain stated that on one occasion, she and two other women attended a hunters’ safety education workshop with the National Rifle Association (NRA) at DWF’s request. During the session, although he lacked the anatomical part, So-niat made a special point of demonstrating his understanding of how a woman, who he advised was a champion shooter, physically moved her breast out of the way putting the gun barrel against her body. St. Ro-main said that she and the other two females found Soniat’s demonstration unnecessary and inappropriate. According to St. Romain’s testimony, in another NRA training session on handguns, all the females were singled out and excluded while the men were permitted to attend and participate.

St. Romain testified to Soniat’s propensity to remark about the size and appearance of female employees, commenting that the female was fat or referring to her as having a “fat ass.” She stated that she frequently heard Soniat advising women that they should not eat or to take up exercise. St. Romain did not recall Soniat making such comments to or about the overweight men at DWF. St. Romain said that Soniat routinely referred to females at DWF as “go f* *ks.” And the deposition testimony of another female at DWF reiterated Soniat’s comments to and about the appearance of females he believed to be overweight. Describing Soniat as hfiSomeone who did not like women, the female DWF employee repeated Soniat’s statement insinuating that women are good only for the purpose of engaging in sexual activity.

Based on review of the deposition testimony, we find ample evidence from which a reasonable trier of fact could conclude women at DWF were exposed to disadvantageous terms or conditions of employment to which men were not. Thus, we believe a reasonable trier of fact may well conclude that the harassment to which St. Romain alleges she was subjected was based on sex. Thus, the trial court erred in concluding that St. Romain failed to point out material facts on the issue of whether the harassment to which she alleges she was subjected was based on sex. Accordingly, we reverse the grant of summary judgment.

IV. DECREE

That portion of the trial court’s judgment which states:

In addition, the Court finds that plaintiffs claims of sexual harassment are subject to the exclusive jurisdiction of the Department of Civil Service (sic) and are not properly raised in the first instance in the District Court

is reversed. That portion of the judgment which states:

The Court further finds that plaintiffs state law claims of sexual discrimination are likewise subject to the exclusive jurisdiction of the | ^Department of Civil Service (sic) and are not properly raised in the first instance in the District Court. Therefore, Defendants’ second motion for Summary Judgment requesting the dismissal of plaintiffs sexual discrimination claims is hereby GRANTED as to her claims of sexual discrimination under state law,

is reversed. And that portion of the judgment which states:

The Court concludes that plaintiff has failed to demonstrate that Dr. Soniaf s behavior and actions complained of were sexually discriminatory, sexually based or sexual in nature, or severe or pervasive from a sexual standpoint. In accordance with admissions made by the plaintiff in connection with the EEOC investigation of her complaint and plaintiffs failure to raise sexual discrimination during her Civil Service appeal, the Court concludes that Dr. Soniat’s actions were not sexually discriminatory and do not constitute sexual harassment. Accordingly, Defendants’ ... motion for Summary Judgment requesting the dismissal of plaintiffs sexual harassment claims is hereby GRANTED,

is reversed.

This matter is remanded for further proceedings. Appeal costs in the amount of $1,692.04 are assessed against defendants, State of Louisiana, Department of Wildlife and Fisheries (DWF) and Lyle Soniat.

REVERSED AND REMANDED.

      . Because the trial court’s judgment sets out St. Romain's claims of sexual discrimination distinctly from her claims based on allegations of sexual harassment, we refer to these claims separately.

      . Defendants filed an appeal based on the trial court's denial of their motion for summary judgment. But an appeal does not lie from the trial court's denial of a motion for summary judgment, see La. C.C.P. art. 968, and the trial court’s certification of that denial is ineffectual. Belanger v. Gabriel Chemicals, Inc., 00-0747, p. 5 (La.App. 1st Cir.5/23/01), 787 So.2d 559, 563, writ denied, 01-2289 (La. 11/16/01), 802 So.2d 612. Thus, defendants' appeal of those portions of the trial court's judgment which deny their motion for summary judgment is dismissed.

      . In their motion for summary judgment, defendants alleged that they were entitled to dismissal of St. Romain's claims of retaliatory discharge, assault, battery, abuse of rights, and intentional infliction of emotional distress. The trial court denied defendants the requested relief except on the issue of St. Romain's entitlement to recover damages for the battery claim, which was not appealed.

      . After noting that St. Romain's “state law claims of sexual discrimination” are subject to the exclusive jurisdiction of the CSC, the judgment states, "Defendants' second motion for Summary Judgment requesting the dismissal of plaintiff's sexual discrimination claims is hereby GRANTED, as to her claims ... under state law.” The record shows only one pleading seeking summary judgment was filed by the defendants. In that single pleading, defendants incorporated the numerous reasons set forth in an attached memorandum among which was the issue of the district court's jurisdiction over St. Romain’s state claim of sexual discrimination. At the oral argument of this matter, the parties agreed that the issue of jurisdiction was raised by the trial court on its own motion, and we find no error with this procedure. See Boudreaux v. State, Dep’t of Transp. and Dev., 01-1329, p. 13 (La.2/26/02), 815 So.2d 7, 8. Moreover, we are mindful that the nature of a pleading must be determined by its substance, not by its caption. See Wiggins v. State Through Dep’t of Transp. and Dev., 97-0432, p. 4 (La.App. 1st Cir.5/15/98), 712 So.2d 1006, 1008, writ not considered, 98-1652 (La.9/25/98), 726 So.2d 6. Thus, despite the designation as the grant of defendants' "second” motion for summary judgment, on appeal, we treat the matter as a review of the grant of an exception objecting to the trial court's lack of jurisdiction over the subject matter of the action. See La. C.C.P. art. 925 A(6).

      . Louisiana Code of Civil Procedure article 1 provides, "Jurisdiction is the legal power and authority of a court to hear and determine an action or proceeding involving the legal relations of the parties, and to grant the relief to which they are entitled.” Jurisdiction over the subject matter is the legal power and authority of a court to hear and determine a particular class of actions or proceedings, based upon the object of the demand, the amount in dispute, or the value of the right asserted. La. C.C.P. art. 2.

      . It is undisputed that in an appeal to the CSC, St. Romain claimed that she had acquired permanent status. A referee of the CSC concluded that St. Romain did not achieve permanent status after a 12-month probationary period and denied her relief.

      . Compartmentalizing as separate and distinct from St. Romain’s entitlement to relief for the conduct she alleges constituted sexual harassment, the trial court judgment expressly recognized that St. Romain’s claim of sexual discrimination under federal law was properly before district court, see Smith v. Lorch, 98-0319 (La.App. 1st Cir.4/1/99), 730 So.2d 530, and defendants do not challenge this determination although they assert that St. Romain has not pleaded entitlement to such recovery. Our review shows that St. Ro-main’s petition does not set forth the legal conclusion that she is entitled to recovery under 42 U.S.C.A. § 2000e (Title VII). But at the oral argument of this appeal, counsel expressly represented St. Romain is pursuing the federal sexual discrimination claim. And in an amending and supplemental pleading, St. Romain incorporated into the petition the dismissal of her formally-filed charge of discrimination with the Equal Employment Opportunity Commission (EEOC). See Bernard v. LHHRA-Southwest Charity Hospital of Lafayette, 358 So.2d 653, 654 (La.App. 1st Cir. 1978) (claimant must file a charge with the EEOC to assert a Title VII claim for relief). Because Louisiana is a fact pleading jurisdiction, see Baker v. Maclay Properties Co., 94-1529, p. 18 (La. 1/17/95), 648 So.2d 888, 897, St. Romain’s failure to expressly state the legal conclusion that she is entitled to Title VII recovery is, therefore, not injurious to her claim. Based on the facts pleaded, St. Ro-main's hostile work environment sexual harassment claim under Title VII is coextensive with her sexual harassment claim under La. R.S. 23:332 et seq. Thus, the dismissal of her sexual harassment claims encompassed St. Romain’s entitlement to recovery under both the federal and the state legislation.

      . Although we recognize both Louisiana’s Prohibited Discrimination Act and Title VII claims have been held to apply only to employers, see e.g., Spears v. Rountree Oldsmobile-Cadillac Co., 26,810, p. 5 (La.App.2d Cir.4/5/95), 653 So.2d 182, 184; see also McCain v. City of Lafayette, 98-1902, pp. 4-7 (La.App. 3d Cir.5/5/99), 741 So.2d 720, 722-24, writ denied, 99-1578 (La. 9/17/99), 747 So.2d 563 (defendants not liable in their individual capacities for federal and state age discrimination claims), in this appeal, defendants have presented a collective defense on the propriety of the trial court's grant of summary judgment on the dismissal of St. Ro-main's sexual harassment claims focusing their arguments on a lack of material facts to support a prima facie case. And the issue of whether Soniat is liable in his individual capacity to St. Romain for her sexual harassment and discrimination claims asserted under La. R.S. 23:332 et seq. and/or 42 U.S.C.A. § 2000e et seq. was not specifically raised in the memorandum incorporated in their summary judgment motion. Thus, we decline to address the issue at this time. See La. C.C.P. arts. 962 and 966(A); see also La. C.C.P. art. 2164.


author: J^MOON LANDRIEU, Judge Pro Tempore.

text:
    STATE of Louisiana v. Michael JACKSON.
    No. 2003-KA-0427.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 10, 2003.

      Eddie J. Jordan, Jr., District Attorney, Donna R. Andrieu, Assistant District Attorney, New Orleans, LA, for the State.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge LEON A. CANNIZZARO, JR. and MOON LANDRIEU, Judge Pro Tempore).
   J^MOON LANDRIEU, Judge Pro Tempore.

STATEMENT OF THE CASE

On April 30, 2002 the State filed a bill of information charging the defendant-appellant with one count of possession of cocaine with the intent to distribute, a violation of La. R.S. 40:967(A)(1), and one count of possession of heroin with the intent to distribute, a violation of La. R.S. 40:966(A)(1). The defendant pled not guilty to both counts at his arraignment on May 3, 2002. On May 15, 2002 the court heard and denied the defendant’s motion to suppress evidence. Trial began on October 29, 2002; after a one-day recess, trial concluded on October 31, 2002 when the twelve-person jury returned verdicts of guilty as charged on both counts. On November 21, 2002 the trial court denied motions for new trial filed by the defendant pro se and by counsel. On November 22, 2002 the court sentenced the defendant to serve twenty years at hard labor on each count to run concurrently with each other and any other sentences, with credit for time served. The court denied the defendant’s motion to reconsider sentence and granted his motion for an appeal. The State filed a multiple bill charging defendant with being the same person who pled guilty to the crime of aggravated battery in 121990, possession of cocaine in 1986 and manslaughter in 1992. The trial court denied defendant’s motion to quash the multiple bill of information. The hearing on the multiple bill of information has been continued. After the appeal record was lodged in this Court, counsel moved to supplement the record with the motion hearing transcript, which was done on May 1, 2003. After counsel filed a brief, the appellant pro se moved to file a supplemental brief. That motion was granted, and on June 18, 2003 the record was sent to defendant, who has not filed a pro se brief as of this date, although he has unsuccessfully sought to supplement the record with the tape recording of the motion hearing and his trial attorney’s file.

STATEMENT OF THE FACTS

The New Orleans Police Department (“NOPD”) received complaints about narcotics violations in the area of LaSalle and Josephine Streets. On April 15, 2002 at approximately 7:15 p.m., Officer Thedrick Andres took up a position from which he could view this intersection with binoculars. Officer Andres testified that the area was particularly well lit, like daytime. Other officers were in marked units farther away, in locations from which they could support the operation. Officer Andres saw a black male wearing a black shirt and blue jeans standing near the intersection. The subject, later identified as the defendant, attempted to flag down several vehicles, but initially none stopped. After a few minutes, a black truck pulled up by the defendant. The defendant approached the truck and engaged in a conversation with the driver. Officer Andres observed the defendant look around nervously, reach in the rear waistband of his pants, and extract what appeared to be a white paper napkin. From that' napkin the defendant removed a silver foil and handed it to the driver of the truck; the driver gave the defendant currency. The | ¡¡defendant then balled the white napkin back up, looked around again, and placed it back into the rear of his waistband. The truck then left the area.

Based on his experience, Officer Andres believed he had witnessed a drug transaction. Accordingly, he contacted his backup teams and asked Officer Louis Faust and his partner to conduct an investigatory stop of the Ford truck that was driving out of the area and that Officers Mike Pierce and Kevin Newton stop the defendant. He provided a description of the defendant as a black male, around five feet six inches in height, wearing a black t-shirt and blue jeans. As the uniformed officers exited their marked vehicle, the defendant fled on foot. Although Officer Andres lost sight of the defendant as he ran around a corner, he did see the defendant reach into his rear waistband as he ran and communicated that observation to the officers pursuing the defendant.

Officer Faust made an in-court identification of the defendant as the person arrested.

Officers Pierce and Newton acted on Officer Andres’ request that the defendant be stopped. Officer Pierce testified that as they pulled up to the intersection, they exited their marked unit and identified themselves to the defendant as police officers. The defendant then ran, and they pursued him on foot, never falling more than twenty feet behind. They observed the defendant reaching into the back of his pants as he ran. When the defendant reached St. Andrew Street, he turned the corner, ran to the front of a Dodge Neon automobile, and discarded a white object by the right front tire. Officer Pierce was able to apprehend the defendant a few steps away when the defendant stumbled. Officer Newton retrieved the object the defendant had discarded and discovered that it was |4a. white napkin yvrapped around several tin foils containing what appeared to the officers to be heroin and clear plastic bags containing powder that appeared to the officers to be cocaine. The defendant was arrested and searched. That search resulted in the seizure of a plastic bag containing green vegetable matter described by Officer Pierce as appearing to be marijuana, and approximately fifty dollars in cash.

Both Officers Pierce and Newton testified that the defendant was wearing a black t-shirt and blue jeans when they apprehended him. From the scene of the arrest, they transported the defendant to the Sixth District station and then to Central Lock-up. The defendant did not change clothes from the time of the arrest to the time they delivered him to Central Lock-up. Officer Newton confirmed Officer Pierce’s testimony.

Corey Hall, a criminalist and expert in the testing and analysis of controlled dangerous substances, testified that he tested a white powder inside the plastic bags; the powder tested positive for cocaine. He tested powder that was wrapped in foil; it tested positive for heroin. A test of the seized vegetable matter was positive for marijuana.

The defendant testified on his own behalf. He stated that he was wearing a flowered shirt on the day in question. He identified the shirt in a photograph taken at Central Lock-up during the booking process. The defendant admitted that another photograph, a Polaroid, taken at Central Lock-up at the beginning of the booking process showed him in a black t-shirt without a flowered over shirt. He accounted for the change by testifying that, when Officer Andres wrestled him to |sthe ground, the officer placed the flowered shirt into the defendant’s back pocket. The defendant further admitted that the photograph in which he was wearing the flowered shirt showed a maroon-colored shirt, not a black t-shirt, underneath. The defendant stated that the maroon shirt was a sweatshirt provided by the sheriffs office because the holding cell was cold, and he admitted that his black t-shirt was underneath the sweatshirt.

The defendant denied that he sold and possessed drugs. He said that he was in the area of Josephine and LaSalle Streets to visit an elderly relative who lived in the 2400 block of St. Andrew Street. He had first spent a little time playing dice with some old friends whom he knew because his mother used to live on Josephine Street. According to the defendant, as he was walking to his relative’s home, an officer appeared with his gun drawn and said, “Freeze. Don’t run.” The defendant said he ran because he had been shot the year before and was startled. Officer Andres tackled him, and then asked him who had run past. When the defendant said no one had, he was placed in the police car and arrested. He denied all knowledge of any of the drugs or of a drug sale. He did admit having pled guilty in prior cases to manslaughter, to possession of cocaine, and to having been a convicted felon in possession of a firearm.

To support his testimony that he was wearing a flowered shirt, the defendant presented the testimony of Major William C. Hunter of the Orleans Parish Sheriffs Office. Major Hunter testified that he is in charge of the intake booking in the Records and Release Divisions. He identified two bags of items, a valuable property bag and a clothing bag, which he matched to the defendant’s arrest by the folder number assigned at intake. The clothing bag contained one pair of black | rjeans and one partially black shirt. The bag also contained a visor that was not reflected on the inventory attached to the bag.

Major Hunter testified during cross-examination that it was possible for an inmate to change clothing with another inmate while in the holding cell. This admission is consistent with the testimony of Officer Newton. Major Hunter further testified that there were several steps in inmate processing. He identified defense exhibit VI, which is entitled “Suspect Rap Sheet” and contains the computerized photograph of the defendant in the black flowered shirt, as the identification step during which the inmate’s fingerprints are electronically sent to the State and a criminal history returned. In further testimony Major Hunter identified the Polaroid photograph of the defendant as having been taken during an earlier step in the booking process. The Polaroid was taken for the sheriffs office file. Major Hunter was unable to state what happened to the black shirt the defendant was wearing in the first photograph; it was not in the clothing bag nor was it listed on the inventory.

The State called Officers Andres and Pierce on rebuttal. Officer Andres denied having physically apprehended the defendant or having tackled him on the ground. He testified that the defendant was not wearing the flowered shirt or a visor during the surveillance. Both officers stated that the defendant was never wearing a flowered shirt.

ERRORS PATENT

A review of the record for errors patent reveals none.

I ^ASSIGNMENT OF ERROR: The trial court should have allowed defense witness, Ladrine Day, to testify at trial.

The appellant admits that Ms. Day violated the trial court’s sequestration order in effect during the trial.

Exclusion of witnesses is governed by La. C.E art. 615 which mandates that, upon request of a party, the court shall order the witnesses excluded from the courtroom or from a place where they can see or hear the proceedings, and refrain from discussing the facts of the case with anyone other than counsel in the case. La.C.Cr.P. art. 764. “The resolution of sequestration problems is within the sound discretion of the trial court.” State v. Coleman, 2002-1000, p. 16 (La.App. 4 Cir. 9/25/02), 828 So.2d 1130, 1140. This Court noted:

The purpose of the rule of sequestration is “to prevent witnesses from being influenced by the testimony of earlier witnesses” and “to strengthen the role of cross-examination in developing the facts.” State v. Chester, 97-2790 (La.12/1/98), 724 So.2d 1276.
In examining sequestration violations, the reviewing court considers the facts of each case to determine whether or not prejudice resulted. Further, a violation of the sequestration order does not warrant a mistrial absent an indication that the infraction materially prejudiced the defendant. State v. Barber, 30,019 (La. App. 2 Cir. 1/21/98), 706 So.2d 563.

Coleman, pp. 16-17, 828 So.2d at 1140.

In Coleman, as in the instant case, the sequestration order was given at the beginning of the first day of trial. The violation of the sequestration order by the defense witnesses occurred on the second day of trial. The trial court found that the defense witnesses, whom the defendant wished to call to rebut an allegation that he used drugs, did not willfully or deceitfully violate the court’s sequestration order. Nevertheless, they were not permitted to testify. On appeal, this Court found no abuse of the trial court’s discretion because the defendant during his own testimony admitted using marijuana.

| ¡¡Here, the defendant attempted to call Ladrine Day to testify after the State had concluded its case and two defense witnesses had testified. The State objected, noting that she was present when the State’s first two witnesses testified that morning; it is unclear whether Ms. Day was also present when the defense witnesses testified. A recess was called, and the parties retired to chambers. When they returned, the judge informed the jury that the defendant’s witness had been excused because she was present in court when other witnesses testified. The court explained the purpose of the sequestration rule and admonished the jury that the disqualification of the witness should not be considered as an adverse reflection on either the State or the defense. The defense counsel did not object on the record to the disqualification of the witness or the trial judge’s admonition.

La.C.Cr.P. art. 841 precludes review of an alleged error for which there was no contemporaneous objection. This issue was not preserved for review. We note that defense counsel made no proffer on the record of the nature of Ms. Day’s expected testimony, nor did he object to the court’s refusal to allow her to testify.

The failure to make a proffer was a factor in State v. Watson, 02-1154 (La. App. 5 Cir. 3/25/03), 844 So.2d 198, the case upon which the appellant relies to support his argument that he has a constitutional right to present witnesses. The court there stated:

In State v. Jones, 354 So.2d 530, 532 (La.1978), the Louisiana Supreme Court explained:

Although our jurisprudence allowing trial judges to 19enforce sequestration pursuant to La.C.Cr.P. art. 764 by excluding testimony of disobedient witnesses does reflect a legitimate state interest in preventing testimonial influence that interest is not sufficient to override the defendant’s rights to have compulsory process and to present a defense under either the federal or the state constitution.
The exclusion of a witness is a disfavored sanction, absent a showing that the sequestration violation occurred with the consent, connivance, procurement or knowledge of the party or his counsel for whom the witness was to testify. Warren, 437 So.2d at 840.
In the present case, the trial court excluded the testimony of Latasha Dabney because she had been present during the testimony of the defendant. Her presence in the courtroom was known to defense counsel, who had previously advised Dabney he would not need her testimony. Because the violation of the sequestration order occurred with the consent and knowledge of defense counsel, the exclusion of Dabney’s testimony was within the trial court’s discretion.
Further, defense counsel never stated on the record the substance of Dabney’s testimony and never proffered her testimony pursuant to La. C.E. art. 103. Therefore, the record does not reflect whether Dabney was in a position to offer testimony that might have substantially helped the defense and the defendant failed to preserve the excluded testimony for appeal by failing to proffer the evidence. See, State v. Searcy, 621 So.2d 83, 87-88 (La.App. 2 Cir. 6/23/93).

State v. Watson, pp. 20-21, 844 So.2d at 211. (Footnotes omitted.)

Trial counsel in the instant case never proffered Ms. Day’s testimony on the record. Appellate counsel avers that Ms. Day is the defendant’s common-law wife and would have testified that he was wearing the flowered shirt earlier in the day. This statement of expected testimony can be found in the defendant’s pro se |inmotion for new trial wherein he averred further that his counsel should have discovered and presented the testimony of several witnesses who would have established that Ms. Day and he were together shopping throughout the day. The defendant stated that the stores they visited would have surveillance tapes that would have depicted him wearing the flowered shirt. Notably, however, the defendant in this motion does not aver that Ms. Day was with him at the time of his arrest, nor does he list any witnesses who would have testified that he had the shirt on at the time he was at the intersection of Josephine and LaSalle Streets.

During his testimony, the defendant admitted that he had a black t-shirt on under the flowered shirt; he did not dispute that he was photographed at Central Lock-up without the flowered shirt on before he was photographed with it on. Ultimately, whether he was wearing the flowered shirt earlier in the day does not eliminate the possibility that he had removed it at the time of the incident. The defendant himself contended that the shirt was placed in his back pocket by one of the officers. Arguably the defendant could have done so himself, prior to engaging in the drug activity, for the specific purpose of confusing his identity later.

Even assuming that the issue of Ms. Day’s disqualification was preserved, the defendant was not prejudiced by the court’s refusal to allow her to testify that the defendant was wearing a flowered shirt over a black t-shirt earlier in the day. This assignment lacks merit.

CONCLUSION

For the foregoing reasons, we affirm the defendant’s convictions and sentence.

AFFIRMED.

      . The defendant was also sentenced on a marijuana charge.

      . At trial, Officer Louis Faust testified that he and his partner were the team who attempted to stop the truck. He stated that they were unsuccessful in locating it.

      . The defendant repeatedly testified that it was Officer Andres who apprehended him even though all of the police witnesses testified that Officer Andres was the officer who was conducting the surveillance and was not on the takedown team.

      . The defendant was allowed to dress in the clothing prior to testifying to show that the items fit him.

      . La.C.Cr.P. art. 841 provides:
      A.An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. A bill of exceptions to rulings or orders is unnecessary. It is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take, or of his objections to the action of the court, and the grounds therefor.
      B. The requirement of an objection shall not apply to the court's ruling on any written motion.
      C. The necessity for and specificity of evidentiary objections are governed by the Louisiana Code of Evidence.

      . Appellate counsel alternatively argues that this case be remanded for a hearing on the content of Ms. Day’s testimony and whether her violation of the sequestration order was with the knowledge or connivance of defense counsel, citing State v. Jones, 354 So.2d 530 (La.1978). However, in Jones defense counsel's request to proffer the testimony had been denied. Furthermore, the witness at issue had been subpoenaed by the State, and it was not until after trial commenced that defense counsel learned the witness may have testimony favorable to the defendant and sought to subpoena him as a defense witness. The State objected on the grounds that its own subpoenaed witness had violated the sequestration order. The Jones case appears to be distinguishable from the instant case.