author: DANIEL L. DYSART, Judge.

text:
    Brenda B. SQUARE v. Leonce “Lee” HAMPTON and Amistad Research Center.
    No. 2013-CA-1680.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 4, 2014.

      Willie M. Zanders, Sr., New Orleans, LA, for Plaintiff/Appellant.
    Julie D. Livaudais, Douglas L. Grund-meyer, Sarah V. Myers, Chaffe McCall, L.L.P., New Orleans, LA, for Defendant/Appellee.
    Court composed of Judge DANIEL L. DYSART, Judge, JOY COSSICH LOBRANO, and Judge SANDRA CABRINA JENKINS.
   DANIEL L. DYSART, Judge.

1 iThis is an appeal of a summary judgment granted in favor of defendants-appellants, Leonce “Lee” Hampton, Amistad Research Center and Lance Query. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On July 10, 2009, plaintiff, Brenda B. Square, filed a Petition for Damages against her supervisor, Leonce Hampton, and Amistad Research Center (“ARC”), a non-profit business entity which employed plaintiff since 1994. Plaintiff became the Director of Archives and Library at ARC in 1998.

According to the Petition, plaintiff was the designated Project Director of an IMLS grant which gave her “immediate responsibility for all program activities and the proper and legal expenditures of those funds.” Plaintiff alleges that Mr. Hampton refused to allow her to oversee and manage the program, although she received periodic financial reports from an independent accountant. Plaintiff raised issues concerning the “questionable use” of the IMLS funds to ARC’s Board |2of Directors by letter date January 8, 2008. ARC’s executive committee met in April, 2008, and by letter dated June 6, 2008 from ARC’s President and Chairman of the Board, ARC informed plaintiff that it found “no evidence to substantiate the charges” she raised concerning Mr. Hampton’s management of the IMLS funds. It further advised that plaintiff should have initially addressed her concerns with Mr. Hampton as provided by ARC’s “Personnel Policies.”

On October 3, 2008, plaintiff filed a formal grievance with Mr. Hampton, who replied on October 10, 2009, indicating that he would not review the grievance due to its “untimeliness.” She then appealed to ARC’s Personnel Committee, but received no response.

Plaintiff maintains that, after she raised her concerns, she was subjected to retaliation, citing the following examples: (1) her removal from the position of Director of Library (she was provided with the new job description of Director of Archives); (2) her removal from the position of manager of the Tom Dent Processing Project; (3) the denial of staff assistance (relying solely on volunteers) to address a “backlog of collections acquired in the aftermath of Hurricane Katrina” and at which time ARC’s staff was reduced from 12 to 3 employees; (4) increased harassment and disrespect from Mr. Hampton and other colleagues; (5) her being given “minimal input in the United Church Board for Homeland | sMinistries Grant project, which she initiated;” and (6) ARC’s denial of a formal role for her in ARC’s “recently funded civil rights preservation projects.”

The Petition alleges violations of ARC’s policies in addition to federal and state laws designed to protect an employee who exposes her employer’s “improper and unlawful acts” from retaliation. The Petition seeks damages under Louisiana’s “whistle-blower” statute and damages in the form of mental anguish and emotional distress.

In response to the Petition, ARC and Mr. Hampton filed a Motion to Dismiss based on several grounds, including the Petition’s failure to state a cause of action, the court’s lack of subject matter jurisdiction and the Petition’s untimeliness.

On November 5, 2009, plaintiff filed a First Supplemental and Amending Petition for Damages (“First Amended Petition”), which removed all claims under the federal or state whistleblower laws, and added claims under tort law (specifically, La.C.C. art. 2315) and constitutional claims concerning the alleged violation of plaintiffs “due process and property rights.” With respect to the latter claim, plaintiff added the following allegations-that defendants subjected her to a hostile working environment which caused severe mental anguish and distress; that after she questioned Mr. Hampton’s misuse of grant funds, he “routinely humiliated and embarrassed” her before her peers and “outside professionals;” that Mr. Hampton denied her the opportunity to manage various projects; that Mr. Hampton intentionally delayed a “major grant funded in January 2008,” causing plaintiff to be untimely in submitting reports (which reflected negatively on her in her capacity as the Project Director); that ARC’s Executive Director changed her Lparking permit from a “faculty” permit to a “staff’ permit; that Mr. Hampton “conspired with colleagues” to change procedures without discussing same with her and failing to timely provide notice to her of those changes; that in the “Spring and Summer semesters of 2009,” she was removed as supervisor of interns from Southern University at New Orleans and Xavier University; and that she was not allowed to complete the “grant-funded Ninth Ward Oral History project.”

ARC and Mr. Hampton then filed another Motion to Dismiss based on the failure of the Petition, as amended, to state a cause of action.

By way of a Second Amending and Supplemental Petition (“Second Amended Petition”) filed on March 3, 2011, plaintiff added claims that occurred since the filing of her amended Petition. She alleges that, after she had a subpoena duces tecum served on Mr. Hampton for financial records pertaining to ARC’S grants, she experienced increased hostility and negative treatment from Mr. Hampton and occasionally from her co-workers, including his having issued a written “admonition” to her for her alleged failure to help with “moving activities” related to the move of ARC’S art collection from the New Orleans Museum of Art. Additionally, she was suspended on October 12, 2011.

The Second Amended Petition also alleges other incidents — a November 9, 2010 copy of minutes from a staff planning meeting that included “incorrect statements and distortions of plaintiffs position on a number of issues;” a November 17, 2010 report submitted to Mr. Hampton for ARC’S board meeting [ ¡which he revised “thereby distorting and minimizing [p]lain-tiffs contributions;” in early December, 2010, plaintiff was given tasks to be completed by January 3, 2011, with no eonsid-eration for holiday leave and pre-approved personal leave.

The Second Amended Petition then states that, on January 3, 2011, plaintiff was informed at 4:25 p.m. that certain reports given to her in December were due by 4:00 p.m., although she had never previously been made aware of that deadline (plaintiff maintains she submitted the reports prior to leaving work that day). The following day, January 4, 2011, plaintiff was given a letter of termination (the day before her deposition was scheduled to take place in connection with this litigation).

Plaintiff asserts that her termination was “retaliatory, arbitrary, and capricious” and a violation of her substantive due process. She likewise maintains that her termination was “procedurally flawed.” The Second Amended Petition sought an injunction denying her termination pending a trial on her claim for damages, in addition to back pay and all benefits.

A hearing was held on the injunction on March 14, 2011, and the trial court denied plaintiffs request for injunctive relief. Plaintiff filed a Motion to Appeal the denial of injunctive relief on April 6, 2011.

On January 4, 2012, plaintiff again amended her Petition to name the Administrators of the Tulane Educational Fund (“Tulane University”) and Lance 16 Query as additional defendants. Tulane University was added as Mr. Query’s employer and as the “second employer” of Mr. Hampton. Plaintiff claims that Tulane University allowed Mr. Query and Mr. Hampton to terminate plaintiffs employment after she complained about the alleged misuse of grant funds through her “whistleblower lawsuit.” Plaintiff maintains that Tulane University “clearly” has control over ARC, giving ARC’s listing as a Tulane University library on its website as an example. Plaintiff also maintains that Mr. Query, in his various roles with ARC, functioned as Mr. Hampton’s supervisor.

According to plaintiff, Mr. Query was involved in a June 3, 2010 evaluation of her and her ultimate termination (in that he stood with Tulane University’s security officers as plaintiff was ordered to leave her job by Mr. Hampton). Plaintiff also added the allegations that she has sought medical assistance for her “severe emotional distress and mental anguish” and that she has suffered “increased blood pressure, headaches, [and] sleeplessness.”

Defendants, ARC and Mr. Hampton, filed a Motion for Summary Judgment on October 21, 2011, which was reiterated (and supplemented) in a second Motion for Summary Judgment filed on June 21, 2012. A hearing was held on the Motions on September 28, 2012, and by judgment dated October 2, 2012, the trial court denied summary judgment on plaintiffs claims for intentional infliction of 17emotional distress but granted summary judgment and dismissed with prejudice (as to all defendants) all of plaintiffs remaining claims.

Plaintiff appealed the October 2, 2012 judgment on October 26, 2012. In addition, the ARC defendants filed an application for a supervisory writ in this Court regarding the trial court’s failure to grant summary judgment as to plaintiffs claims for intentional infliction of emotional distress. This Court denied the writ application. See Square v. Hampton, et al, 12-1545, unpub., (La.App. 4 Cir. 12/21/12). The ARC defendants then sought review with the Supreme Court which, on March 8, 2018, granted the writ application, reversing the trial court’s judgment and granting summary judgment on the basis that “[pjlaintiff has failed to produce factual support for her claim of intentional infliction of emotional distress. See White v. Monsanto Co., 585 So.2d 1205 (La.1991).” Square v. Hampton, 13-0167 (La.3/8/13), 109 So.3d 351.

Because plaintiff did not timely pay the costs for the appeal of the October 2, 2012 appeal (nor the costs for the March 21, 2011 appeal), the ARC defendants filed a Motion to Dismiss both appeals on May 17, 2013. Plaintiff then filed “Plaintiffs Motion to Dismiss Appeal, Without Prejudice, and Motion for An Expedited Hearing” on July 31, 2012. The basis of plaintiffs Motion to Dismiss is that “[njeither the March 21, 2011 nor the October 2, 2012 Judgments in question dismissed all of [her] claims against the Amistad Defendants, and are not appealable absent a designation as a final judgment by the District Court.” |sPlaintiff sought a dismissal of her appeal, with the intent to file a new motion for appeal once a final judgment was entered. Plaintiff also maintained that she was not untimely with respect to the appeal costs insofar as the delay for paying those costs begins to run only “upon the signing of a ‘final judgment.’ ”

Both motions to dismiss plaintiffs appeals were heard by the trial court on August 7, 2013. By judgment dated August 7, 2013, the trial court rendered judgment based on the parties’ stipulation that plaintiffs appeals should be dismissed as abandoned “for non-payment of the estimated costs of appeal,” thereby granting the ARC defendants’ Motion to Dismiss Appeals. The trial court then granted a final judgment on the ARC defendants’ Motion for Summary Judgment, dismissing with prejudice:

This case and all of plaintiffs claims therein, including, without limitation, those for injunctive relief and for damages for alleged intentional infliction of emotional distress, wrongful termination, breach of contract, failure to comply with employee policies, deprivation of constitutional rights, violation of La. R.S. 42:1169, violation of Louisiana’s Employment Discrimination Law (La. R.S. 23:301, et seq.), and violation of Louisiana’s Whistleblower Statute (La. R.S. 23:967)....
Plaintiff timely filed the current appeal.

DISCUSSION

Plaintiff raises several assignments of error. At the outset, however, we address two preliminary matters. First, plaintiff assigns as error the trial court’s denial of her request for injunctive relief. That issue is not properly before the Court given plaintiffs failure to timely perfect an appeal of that issue.

Under La. C.C.P. art. 3612 B, “[a]n appeal may be taken as a matter of right from an order or judgment relating to a preliminary or final injunction.” As this laCourt recognized, “[although a preliminary injunction is a procedural device, interlocutory in nature, La. C.C.P. art. 3612 does not restrict the right of appeal to only judgments that grant injunctive relief [and] a party aggrieved by a judgment either granting or denying a preliminary injunction is entitled to an appeal.” Sessions, Fishman & Nathan, L.L.P. v. Salas, 04-1790, p. 6 (La.App. 4 Cir. 5/25/05), 905 So.2d 373, 377-8, citing Fabacher v. Hammond Dairy Co., Inc., 389 So.2d 87, 89 (La.App. 4th Cir.1980).

An appeal of “an order or judgment relating to a preliminary injunction must be taken,” however, “within fifteen days from the date of the order or judgment.” La. C.C.P. art. 3612 C (emphasis added). See also Yokum v. Nicholas S. Kamo, Inc., 10-0357, p. 1 (LaApp. 4 Cir. 8/26/10), 47 So.3d 1014, 1015 (“La. C.C.P. art. 3612 grants only a fifteen-day period to appeal an order granting or denying a preliminary writ of injunction.”) Here, the judgment denying plaintiff injunctive relief was rendered on March 21, 2011. Plaintiffs Motion for Devolutive Appeal, filed on April 6, 2011, thus was untimely. The last day on which a timely Motion for Appeal could have been filed was April 5, 2011. According to La. C.C.P. art. 5059, legal holidays are included in “the computation of a period of time allowed or prescribed ... except when ... (3) the period is less than seven days.” Here, plaintiffs Motion for Appeal was filed sixteen days after the judgment denying injunctive relief and therefore, was not timely.

|10As a second preliminary matter, plaintiff purportedly assigns no error to the trial court’s October 2, 2012 ruling which denied the ARC defendants’ motion for summary judgment as to her claim for intentional infliction of emotional distress. However, she nevertheless proceeds to argue that “[t]he evidence in this case is sufficient to reach the Louisiana Supreme Court’s high threshold for intentional infliction of emotional distress,” citing a number of supporting cases. She then outlines the facts set forth in her affidavit that she believes give rise to her claim that “the ‘unsatisfactory job performance’ argument is a mere pretext for the retaliatory conduct directed toward [plaintiff] over a 8-year period, intended to and in fact, inflicted extreme emotional distress.”

Plaintiffs claim for intentional infliction of emotional distress has been eliminated in its entirety by the Supreme Court’s grant of the ARC defendant’s writ application. Square, supra. That decision is the law of the case and, accordingly, we do not address those claims again in this opinion. See, e.g., Duncan v. Bartholomew, 11-0855, p. 17 (La.App. 4 Cir. 3/14/12), 88 So.3d 698, 711 (“[u]nder the law-of-the case doctrine ... prior rulings on [plaintiffs] interlocutory writ ha[ve] conclusive effects on subsequent proceedings.”)

We now turn to plaintiffs remaining assignments of error, all of which arise out of the grant of the ARC defendants’ Motion for Summary Judgment. We Inreview the grant of a summary judgment de novo using the identical criteria that govern the trial court’s 'consideration of whether summary judgment is appropriate. Smitko v. Gulf South Shrimp, Inc., 11-2566, p. 7 (La.7/2/12), 94 So.3d 750, 755. See also Smith v. Treadaway, 13-0131, p. 3 (La. App. 4 Cir. 11/27/13), 129 So.3d 825, 828. “A court must grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law, pursuant to LSA-C.C.P. art. 966(B).” Jackson v. City of New Orleans, 2012-2742, p. 3 (La.1/28/14), 144 So.3d 876, 2014 WL 341020.

Plaintiffs arguments focus largely on her contention that ARC’s personnel policies afforded her “constitutionally protected” due process rights, which ARC violated. Plaintiff relies on ARC’S Personnel Policies, a copy of which was attached to her opposition to the Motion for Summary Judgment, in support of her position that “where the employer has officially provided a ‘due process’ right [in the form of an employment policy manual], a court can find a contractual right or implied contractual right.” More particularly, plaintiff claims that the provisions set forth in paragraph XII, entitled “Termination,” and subpart B “provided guidelines and safeguards for the termination of its employees.” The provision on which she relies states as follows: hj>B. Involuntary Termination

1. Separation for non-exempt employees will take effect after two weeks notice or immediately upon the payment of equivalent salary in lieu of such written notice. For exempt staff, separation will take effect after one month’s notice or immediately upon payment of equivalent salary in lieu of written notice. No severance pay is given for either classification of employees.

We note that subpart B, a provision plaintiff does not address, also provides that:

2. The procedure for involuntary termination is implemented according to Louisiana Civil Code Article 2747 which allows that all employees of the Amistad Research Center are considered “at will” employees. As such, the Amistad can terminate or change the employment relationship “at will”, unless there is a contractual agreement. In general, the Center can terminate an “at-will” employee, or change the employee’s position or compensation without notice. Likewise, all employees can termination their employment “at-will” without notice or reason.

Consistent with subpart B(2), Louisiana law has routinely recognized that, absent a contract of employment, or when employment is for an indefinite period of time, an employee is considered to have “at will” employment. See Jeansonne v. Schmolke, 09-1467, p. 11 (La.App. 4 Cir. 5/19/10), 40 So.3d 347, 358 (“[a]n ‘at will’ employee is one that was not hired for a fixed time period”); Bell v. Touro Infirmary, Inc., 00-0824, p. 4 (La.App. 4 Cir. 3/21/01), 785 So.2d 926, 929 (“a 11sperson employed for an indefinite period is an employee ‘at will’ ”), citing Brannan v. Wyeth Laboratories, Inc., 526 So.2d 1101, 1103-04 (La. 1988).

Our jurisprudence is well-settled that an “at will” employee “is subject to dismissal by his employer at any time, for any reason, without the employer incurring liability for wrongful discharge.” Jeansonne, 09-1467, p. 11, 40 So.3d at 358, citing Saacks v. Mohawk Carpet Corp., 03-0386 (La.App. 4 Cir. 8/20/03), 855 So.2d 359. See also Wusthoff v. Bally’s Casino Lakeshore Resort, Inc., 97-1386 (La.App. 4 Cir. 2/25/98), 709 So.2d 913, 914 (“[a]n employer may dismiss an at will employee at any time for any reason”). Similarly, an “at will” employee may terminate her employment at any time and without exposing herself to liability to her employer. Bell v. Touro Infirmary, Inc., 00-0824, p. 4 (La. App. 4 Cir. 3/21/01), 785 So.2d 926, 928. See also Bains v. Young Men’s Christian Ass’n of Greater New Orleans, 06-1423, p. 9 (La.App. 4 Cir. 10/3/07), 969 So.2d 646, 652 (“in the at-will employment context, either the employer or employee may terminate at any time”)(internal citation omitted).

We recognize that there are exceptions to the general rule that an “at will” employee may be terminated for any reason and at any time. For example, an employee may have a cause of action where his or her termination violated a “statutory or constitutional provision.” Bell, 00-0824, p. 4, 785 So.2d at 928. In that regard, for example, under both federal and Louisiana law, employers are prohibited from taking adverse employment actions based upon certain “protected” characteristics, such as race, gender, age, national origin, or religion. Hare v. Paleo Data, Inc., 11-1034, p. 6 (La.App. 4 Cir. 4/4/12), 89 So.3d 380, 385. As the |14Louisiana Supreme Court noted in Quebedeaux v. Dow Chemical Co., 01-2297, p. 5 (La.6/21/02), 820 So.2d 542, 545-46:

Under LSA-C.C. art. 2747, generally, “an employer is at liberty to dismiss an employee at any time for any reason without incurring liability for the discharge.” See Williams v. Delta Haven, Inc., 416 So.2d 637 (La.App. 2nd Cir. 1982). However, this right is tempered by numerous federal and state laws which proscribe certain reasons for dismissal of an at-will employee. For instance, an employee cannot be terminated because of his race, sex, or religious beliefs. Moreover, various state statutes prevent employers from discharging an employee for exercising certain statutory rights, such as the right to present workers’ compensation claims. Aside from the federal and state statutory exceptions, there áre no “[bjroad policy considerations creating exceptions to employment at will and affecting relations between employer and employee.” See Gil v. Metal Service Corp., 412 So.2d 706, 708 (La.App. 4th Cir.1982).

In this matter, while plaintiff has generally alleged that her “constitutionally protected” “due process” or “property rights” were violated, she cites no constitutional or statutory provision under which she asserts these claims. Nor does she claim to be a member of a “protected class” against whom ARC took an adverse employment action.” We note that classified public employees and civil servants have certain recognized property rights in continued employment and may not be deprived of those rights without due process of law. However, plaintiff is | ^neither a public employee nor a civil servant. We know of no statute or case law (and plaintiff cites neither) which acknowledge the constitutional protection of employment in general.

The record clearly demonstrates that plaintiff had no contract of employment with ARC, as she admitted in her deposition:

Q_[D]id you have a written employment contract with Amistad ever?
A. No I did not.

Accordingly, absent an employment contract, there can be no dispute that plaintiff was an “at will” employee of ARC, as is consistent with ARC’S Personnel Policies, which specifically state that “all employees of [ARC] are considered ‘at will’ employees.” As we recognized in Bell, “[the employer] only needed to prove that [plaintiff] was an ‘at will’ employee” for purposes of establishing that summary judgment was appropriate. Bell, 00-0824, p. 5, 785 So.2d at 929. In fact, the Bell court noted that, for an “at will” employee, “the reasons for termination need not be accurate, fair or reasonable;” likewise, “there need be no reason at all for termination.” Id., 00-0824, p. 4, 785 So.2d at 928. We find, therefore, that the | atrial court correctly granted summary judgment as we find no genuine issue of material fact that plaintiff was an “at will” employee who could be terminated by ARC for any reason and at any time.

We likewise find no merit to plaintiff’s contention that ARC’S Personnel Policies “officially provided a ‘due process’ right” or that the court “can find a contractual right or implied contractual right.” This Court noted in Stanton, 00-0403, p. 13, 777 So.2d at 1250, “[t]he contention that a handbook creates a contract between an otherwise ‘at will’ employee and his employer is neither novel nor, in this jurisdiction, meritorious.” The Stanton Court then cited Mix v. The University of New Orleans, 609 So.2d 958, 964 (La.App. 4 Cir.1992), which affirmed the dismissal, by summary judgment, of a wrongful termination case, and noted:

(1) There are no -Louisiana cases holding that employee manuals, policies, or grievances procedures confer any contractual rights upon employees or create any exceptions to the “employment at will” doctrine.
(2) Several Louisiana cases have held that employee manuals as well as company policies and procedures do not confer contractual rights upon employees nor create any exceptions to the “employment at will” doctrine ... Therefore, we hold that the University Grievance Procedure created no contractual rights in favor of Mix. Consequently a determination of whether those procedures were properly followed is irrelevant and raises no genuine issue of material fact.
(3) The employee’s “expectation” that the University would adhere to the provisions of the Grievance Procedure does not give him any legal rights. [Citation omitted.]
(4) The reasons for termination need not be accurate, fair or reasonable.... The question of why Mix was terminated |i7is irrelevant and consequently raises no genuine issue of material fact.

Id., 00-0403, p. 14, 777 So.2d at 1250.

In line with Stanton and Mix, we conclude that ARC’s Personnel Policies do not alter plaintiffs status as an “at will” employee or otherwise reflect a contract of employment between plaintiff and ARC. Nor does plaintiffs longevity as an ARC employee create an implied contractual right to continued employment.

We further reject plaintiffs argument that ARC violated La. R.S. 23:631 “by failing to pay [plaintiff] ‘any amount then due under the terms of employment, whether the employment is by the hour, day, week, or month....’” Plaintiff maintains that “[a]bsent a 30-day notice, she was entitled to compensation for thirty (30) days.” It is unclear on what basis she maintains that she is entitled to pay for thirty days, although it appears that she relies on ARC’s Personnel Policies’ provision that “[f]or exempt staff, separation will take effect after one month’s notice or immediately upon payment of equivalent salary in lieu of notice.”

|18As we have already held, ARC’s Personnel Policies do not create contractual rights between the parties and our jurisprudence clearly indicates that an employer is not liable to an employee for failing to follow its own internal policies (absent an employment contract). The Mix Court surveyed cases involving similar issues, one of which was the Second Circuit case of Williams v. Delta Haven, Inc., 416 So.2d 637 (La.App. 2 Cir.1982), in which the court held that “[pjlaintiffs allegation that the defendant failed to comply with its own personnel policy requiring three warnings to an employee prior to discharge does not amount to an allegation that defendant was contractually obligated to her as part of an employment to give the warnings prior to discharge.” Mix, 609 So.2d at 962, quoting Williams, 416 So.2d at 638. The Williams court reasoned that, “there is no wrongful discharge when an employee hired without a fixed term or other contractual prerequisite to termination is fired.” Id.

Indeed, we noted in Mix that “employment at will may be altered by contract, but not by internal policies, procedures, and manuals.” Mix, 609 So.2d at 963 (emphasis supplied). Accordingly, we find that even had ARC failed to comply with its own internal policy to pay exempt employees “one month’s ... equivalent salary,” this failure would not create an actionable claim.

We do agree that under La. R.S. 23:631 A(l)(a), at the time of plaintiffs termination, ARC was obliged “to pay the amount then due under the terms of employment.” However, plaintiff admitted in her deposition that she “was paid for every day” she worked. ARC, therefore, complied with its statutory requirement to pay plaintiff her accrued salary.

| igNext, plaintiff contends that she is entitled to “penalty wages” under La. R.S. 23:632, which provides for penalties to be assessed against “[an] employer who fails or refuses to comply with the provisions of R.S. 23:631.” Because ARC complied with La. R.S. 23:631, plaintiff is not entitled to penalties under La. R.S. 23:632. See, e.g., Becht v. Morgan Bldg. & Spas, Inc., 02-2047, p. 4 (La.4/23/03), 843 So.2d 1109, 1112 (“[i]n order to recover penalty wages and attorney’s fees under La. R.S. 23:632, the claimant must show that (1) wages were due and owing; (2) demand for payment was made where the employee was customarily paid; and (3) the employer did not pay upon demand”) (emphasis added; citations omitted). Plaintiff has admitted that no wages were “due and owing” and therefore, the first factor for a claim for penalties cannot be met.

Lastly, we turn to plaintiffs argument that she is entitled to damages under La. C.C. art. 2315, and more specifically, that she suffered bodily injury as a result of defendants’ actions. To support this claim, plaintiff relies on the affidavit of her physician that she suffered headaches and high blood pressure problems which he attributes to her “job-related stress.” Plaintiff also relies on the affidavit of her husband, who attested to witnessing her “excruciating headaches” and “physical ill[ness]” resulting for her “stress workload” and that of a counselor, who attested to seeing plaintiff “emotionally upset and sometimes fearful.”

The ARC defendants’ argument that they are not liable for Article 2315 damages is two-fold. First, the ARC defendants maintain that the only liability an employer has for injury to an employee that is not compensable under Louisiana’s Workers’ Compensation Act is for an injury arising out of the employer’s intentional act. Second, citing the Louisiana Supreme Court case of White ¡¡Monsanto, the ARC defendants contends that any claim plaintiff has for physical harm is wholly linked to, and indistinct from, her claim for emotional distress (which, as noted herein, has been dismissed from this action).

We need not reach the merits of the ARC defendants’ contentions, as we have already found that the ARC defendants are not liable under any theory for plaintiffs termination. Plaintiff suggests liability arising from La. C.C. art. 2315, Louisiana’s general tort law, which provides in subpart A that “[e]very act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” Implicit in Article 2315 is an initial finding of wrongful conduct which causes injury. See, e.g., Hornsby v. Bayou Jack Logging, 04-1297, p. 8 (La.5/6/05), 902 So.2d 361, 367 (“[ujnder Louisiana Civil Code article 2315, a person may recover damages for injuries caused by a wrongful act of another”)(emphasis added).

In this matter, plaintiff has failed to demonstrate legally cognizable wrongful conduct on the part of the ARC defendants. Accordingly, the ARC defendants are not liable under Article 2315.

CONCLUSION

For the reasons set forth herein, the trial court’s judgment dismissing Leonce Hampton, Amistad Research Center and Lance Query is affirmed.

AFFIRMED.

      . According to the Petition, ARC is "supported" by Tulane University, the United Church of Christ and "both private and public entities," including the Institute of Museum and Library Services ("IMLS”) which issued a grant to ARC having a term spanning from September 1, 2005 through August 1, 2007.

      . Those "questionable uses" included the salaries of 2 graduate assistants, library consultant fees and travel expenses. Plaintiff questioned these expenditures because, according to plaintiff, there were no graduate students or library consultants working for ARC during that time period and the only authorized travel expense was that required to attend an annual meeting of the African-American Museum Association.

      . ARC’s Personnel Policies, Section XIV, entitled "Appeal,” provides that, in the event an employee believes the ARC policies "have not been properly applied, he or she should report the grievance in writing to the executive director within five working days of the alleged improper application.”

      . Plaintiff includes with this example that she was denied input into EVILS funded "initiatives.”

      . The suspension cited plaintiff's “displaying a serious lack of judgment and unprofessional behavior that are harmful to the operation of the center and infringing on the rights of [ARC] staff persons to work in a non threatening [sic] environment.” Plaintiff maintains that this suspension was based on statements allegedly made by a third party, the content of which is unknown.

      . One of the tasks required the use of the "Charles Rouseve Guide,” which was missing on December 22, 2010, but present when plaintiff returned to work on January 3, 2011.

      .Plaintiff’s Second Amended Petition references the termination letter as an attachment; however, it was not attached to the copy in the record. The letter was attached as an exhibit to plaintiff’s memorandum in opposition to a motion for summary judgment and it reflects that plaintiff was terminated for "chronic unsatisfactory job performance, which is consistently below established standards in production, timeliness, and accomplishment of team goals.”

      . Mr. Query is an ARC board member and its registered agent, and Tulane University's Dean of Libraries and Academic Information Resources.

      . In addition to being a member of ARC’s board of directors, Mr. Query served on its Executive Committee and as the Chairman of its Education and Planning Committee.

      . The third amending Petition repeats and gives more detail regarding many of the allegations contained in her original and subsequent amending petitions.

      . The first Motion for Summary Judgment was not set for hearing as the then-presiding judge left the bench. The second Motion for Summary Judgment was filed so as to include Mr. Query as a mover. We will collectively refer to these parties hereafter as “the ARC defendants.”

      . We note that Tulane University was not a party to the Motion for Summary Judgment and therefore, the judgment does not operate to dismiss it. See Burrows v. Executive Property Management Co., 13-0914 (La.App. 4 Cir. 3/12/14), 137 So.3d 698.

      . We also note that plaintiff took no further actions with respect to .her appeal of the denial of the injunction and continued to actively engage in the litigation, only addressing this appeal when the ARC defendants filed their Motion to Dismiss more than two years after the judgment denying injunctive relief was issued.
      We likewise note that the trial court's August 7, 2012 judgment dismissed the March 21, 2011 judgment and then entered final judgment dismissing plaintiff's claims for in-junctive relief. Because the appeal of the March 21, 2011 judgment was untimely, the trial court's March 21, 2011 became a final judgment. No motion for new trial was filed nor amendment of the judgment sought pursuant to La. C.C.P. art. 1951.

      . Plaintiff ignores the Supreme Court’s ruling altogether, continuing to argue that "the rulings of both the district court and the 5-judge 4th Circuit panel upholding [her] claim of intentional infliction of emotional distress were consistent with Restatement of Torts, Second & Third ...” and that "[t]he District Court and the Fourth Circuit correctly denied the Defendants’ motion for summary judgment regarding the intentional infliction of emotional distress.”

      . In this regard, plaintiff argues that she is entitled to injunctive relief for the deprivation of her due process rights. Again, as discussed previously, plaintiff's appeal of the denial of injunctive relief was untimely and will not be addressed.

      . ARC’s Personnel Policies were "authenticated” by plaintiff’s affidavit attached to her opposition memorandum, in which she attested that the "documents attached” "are true and correct to the best of her knowledge and belief.” Whether this authentication is proper does not appear to be at issue, as the ARC defendants did not object to its use in the summary judgment proceeding.

      ."Exempt Positions” under the ARC Personnel Policies include the "Professional Staff” (which includes "administrative staff and mid-management positions”) and "Program Staff” (those positions which have program and administrative responsibilities "that are more complex than routine clerical tasks and are designated as program staff in position descriptions”). "Non-exempt Positions” include "support staff, persons who perform routine clerical, secretarial, and other office or archival functions under close supervision.”

      . In her First Amended Petition, plaintiff generally alleges that she was subjected to a "hostile working environment which has caused severe mental anguish and emotional distress actionable under La. Civil Code, Article 2315.” However, in order to prevail in a hostile work environment claim, a plaintiff must assert and prove: (1) she belongs to a protected group; (2) she was subjected to harassment; (3) the harassment was motivated by discriminatory animus (for example, race); (4) the harassment affected a term, condition, or privilege of employment; and (5) the employer knew or should have known of the harassment and failed to take proper remedial action. King v. Phelps Dunbar, L.L.P., 2001-1735 (La.App. 4 Cir. 4/2/03), 844 So.2d 1012. Plaintiff has not alleged any of these elements to a hostile work environment claim.

      . See Perry v. City of New Orleans, 11-0901, p. 7 (La.App. 4 Cir. 2/1/12), 104 So.3d 453, 457 (citations omitted); Banks v. New Orleans Aviation Bd., 08-0065, p. 8 (La.App. 4 Cir. 7/9/08), 989 So.2d 819, 824.

      . In fact, in Stanton v. Tulane University of Louisiana, 00-0403, p. 16 (La.App. 4 Cir. 1/10/01), 777 So.2d 1242, 1252, this Court expressly rejected the principle of a recognized property right to employment:
      [Plaintiff] would rely on jurisprudence in other states that he contends creates a "covenant of good faith and Fair Dealing” exception to employment at will, and, alternatively, would have this Court recognize an enforceable property right arising out of an employee's "expectation of continued employment.” This expectation theory was rejected specifically in Mix [v. The University of New Orleans, 609 So.2d 958,] 964. Absent a contract of employment, these concepts remain foreign to the scheme of Louisiana employment law.

      . The ARC defendants, and Mr. Hampton in particular (through his affidavit), cite examples of reasons giving rise to their claims that plaintiff performed poorly in her job which warranted her termination. Because an employer may terminate an "at will” employee without even having a specific reason, we need not address the merits of ARC's decision to terminate plaintiff’s employment.

      . La. R.S. 23:631 A(l)(a), upon which plaintiff relies, provides that "[u]pon the discharge of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, on or before the next regular payday or no later than fifteen days following the date of discharge, whichever occurs first.”

      . The ARC defendants correctly note that plaintiff did not specifically plead the violation of La. R.S. 23:631 in her original or any supplemental pleading. Ordinarily, appellate courts will not consider issues raised for the first time, which were not pleaded in the trial court below and which the trial court has not addressed. Billieson v. City of New Orleans, 09-0410, p. 8 (La.App. 4 Cir. 11/12/09), 26 So.3d 796, 801-802. Nevertheless, we address the merits of plaintiff’s argument.

      .It is unclear from the record whether plaintiff is an “exempt” or "non-exempt” employee as those terms are defined in ARC's Personnel Policies. We assume that plaintiff is an “exempt” employee, given her position as Director of Archives.

      . 585 So.2d 1205 (La.1991).

      . Lane v. State Farm Mut. Auto. Liability Ins. Co., 03-2099, p. 3 (La.App. 4 Cir. 8/25/04), 883 So.2d 5, 8.


source: Caselaw Access Project

author: EDWIN A. LOMBARD, Judge. LOBRANO, J.,

license: Public Domain

text:
    Miochi SUMLING v. DEPARTMENT OF HEALTH.
    No. 2013-CA-0346.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 4, 2014.

      Rowena Teresa Jones, New Orleans, LA, for Plaintiff/Appellant.
    Gregory Brumfield, Jr., Assistant City Attorney, Elizabeth Robins, Assistant City Attorney, Shawn Lindsay, Assistant City Attorney, Sharonda R. Williams, City Attorney, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge MAX N. TOBIAS, Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN, Judge JOY COSSICH LOBRANO, Judge ROSEMARY LEDET).
   EDWIN A. LOMBARD, Judge.

hThe Appellant, Miochi Sumling, seeks review of the decision of the Civil Service Commission upholding her termination by the Appellee, the City of New Orleans. Finding that the Civil Service Commission erred in upholding the discipline imposed by the Appellee, we reverse in part and affirm as amended the decision of the Civil Service Commission.

Ms. Sumling was a permanent classified employee of the Department of Health of the City of New Orleans (“the City”) working as a medical assistant at Health Care for the Homeless (“the Clinic”). On January 23, 2012, Ms. Sumling attended a pre-termination hearing with Patrice Williams, the Executive Director of the Clinic, and Charlotte Parent, the Assistant Deputy Director of the Department of Health. On the same date, Ms. Sumling also received a termination letter, informing her that her termination was effective as of January 23, 2012. The correspondence from the City notified her that a pre-termination hearing was conducted on that morning related to continued incidences occurring between December 27, 2011 and January 8, 2012, regarding Code of Conduct Standard I-_jCustomer2 Service/Courtesy/Respect and Standard II-Job Performance outlined in the City of New Orleans Health Department Employee Manual. Moreover, the letter cited the following violations:

• exam rooms not properly set up to receive new patients;
• incomplete charts;
• lab work ordered and not drawn or not documented; and
• referrals not sent to referring physicians in a timely manner.

The letter goes on to state that there had been several other incidences over the past year where her medical assistant responsibilities were not completed, including documented incidences of a verbal warning on June 6, 2011, and a suspension on August 3rd and 4th, 2011, for a job performance incident.

Subsequently, Ms. Sumling appealed her termination to the Civil Service Commission (“the Commission”), which assigned the appeal to a hearing examiner pursuant to Article X, Section 12 of the Louisiana Constitution of 1974. A hearing was held on April 18, 2012, before the hearing examiner, who considered the testimony of seven (7) witnesses. On behalf of the City, the following witnesses testified: Nurse Practitioner Jennie Robinson; Dr. Roberta Berrien, the Medical Director of the Clinic; Patrice Williams, the Executive Director of the Clinic; and Charlotte Parent, the Assistant Deputy Director of the Department of Health. Additionally, Ms. Sumling testified as well as two former co-workers in her | ¡^support: Pequitta Raymond and Willie Mae Martin, the former Executive Director of the Clinic.

The hearing examiner, in his report, recommended that Ms. Sumling’s appeal be denied finding that she was disciplined for cause. The Commission adopted the hearing examiner’s recommendation in its October 26, 2012 decision and upheld the termination. Ms. Sumling sought rehearing, but her request was denied by the Commission. Ms. Sumling timely filed the instant appeal and raises three (3) assignments of error:

1. The Commission’s failure to provide her with a copy of the hearing examiner’s report prior to the issuance of its decision violated her right to due process.
2. The Commission’s decision, that the Department proved legal cause for discipline, should be reversed as it is manifestly erroneous.
3. The Commission’s decision upholding her termination should be modified.

“The appointing authority (the employer of an employee in the classified civil service) 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.” Lapene v. Dep’t of Police, 11-0902, p. 3 (La.App. 4 Cir. 1/25/12), 81 So.3d 998, 1000, citing Joseph v. Dep’t of Health, 389 So.2d 739, 741 (La.App. 4 Cir.1980). “Legal cause exists for disciplinary action of an employee in the classified civil service whenever the employee’s conduct impairs the efficiency of the public service in which the employee is engaged.” Id. [citations omitted].

“The appointing authority has the burden of proving the impairment by a preponderance of the evidence.” Id. at pp. 3-4, 81 So.3d at 1000 (citations omitted). Moreover, “[t]he 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.” Id. at p. 4, 81 So.3d at 1000, citing Walters v. Dep’t of Police of New Orleans, 454 So.2d 106 (La.1984).

In Lapene, we held that an appellate court should affirm the Commission’s conclusions as to the . existence or cause for dismissal of a permanent employee when the decision is not arbitrary, capricious, or an abuse of the Commission’s discretion. Id. [citations omitted]. Additionally, we have noted that “[t]he decision of the Civil Service Commission is subject to review on any question of law or fact upon appeal to this Court, and this court may only review findings of fact using the manifestly erroneous/clearly wrong standard of review.” Ferris v. Dep’t of Police, 13-0202, p. 2 (La.App. 4 Cir. 11/20/13), 129 So.3d 801, 802 [citation omitted]. When there is a conflict in testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on review. George v. Dep’t of Fire, 93-2421, p. 4 (La.App. 4 Cir. 5/17/94), 637 So.2d 1097, 1101 [citations omitted]. The Commission’s findings of fact cannot be manifestly erroneous where there are two permissible views of the evidence. Id.

FIRST ASSIGNMENT OF ERROR

In her first assignment of error, Ms. Sumling argues that the Commission’s failure to provide her with a copy of the hearing examiner’s report prior to the issuance of its decision violated her right to due process, as this Court previously held in Barquet v. Dep’t of Welfare, 620 So.2d 501, 506 (La.App. 4th Cir.1993).

Ms. Sumling argues that pursuant to Louisiana Constitution Art. X, § 8 of the Louisiana Constitution, U.S.C.A. Const. Amend. 14, she had a property right in her employment which she could not be deprived of without due process of law as a ^classified employee. She alleges that the hearing examiner who presided over her April 2012 hearing and subsequently presented a report to the Commission, failed to fully assess the credibility of the witnesses who testified in his report, as required in Cartwright v. Dep’t of Revenue and Taxation, 442 So.2d 552, 554 (La.App. 1st Cir.1983). She alleges that the hearing examiner’s report was superficial and incomplete as it was only a two-page summary of a 135-page record. The following is a list of omissions that Ms. Sumling contends made the report deficient: 1.) failing to mention all of the persons who testified; 2.) failing to describe the testimony of the person who decided to terminate her; 3.) neglecting to remind the Commission that the suspension appeal was still pending; 4.) failing to mention the lack of evidence of any harm or prejudice to the clinic or patients; 5.) failing to point out the allegations that the Department had failed to prove with any sworn testimony or contemporaneous documentation; and 6.) failing to evaluate any factors relevant to determining the appropriateness of the discipline’s severity.

She avers that the hearing examiner’s report misled the Commission, which relied heavily upon the findings of the hearing examiner. The Commission’s decision, she argues, adopted verbatim the wording of the report with the Commission’s addition of an introduction and the insertion of legal standards.

Ms. Sumling maintains that the Commission would have benefited from her input about the incompleteness of the report. However, she was unable to alert the Commission to the deficiencies of the report because, pursuant to Civil Service Rule II, Sec. 4.14, she did not receive a copy of the report until after the Commission made its decision.

|fiMs. Sumling argues that she was clearly prejudiced because the Commission decided the case based on the incomplete and superficial guidance of the hearing examiner’s report, which was not subject to input from the parties. She notes that she had the right to ask for rehearing and did request that the Commission reconsider its decision. Moreover, she contends that the Commission’s cursory denial of her rehearing request evidences that the Commission did not substantively consider her arguments.

Ms. Sumling relies heavily upon our decision in Barquet. In Barquet, the plaintiff argued that the City’s practice of keeping the hearing examiner’s report entirely secret not only violated Art. X, 12, but also his due process rights under both the Louisiana and U.S. Constitutions. Our Court, she argues, agreed with the plaintiff and held that “[fjailure to provide a copy of the hearing examiner’s report to the parties clearly violated Barquet’s right to due process.... A copy of the hearing examiner’s report shall be a part of the record and be provided to all parties in a reasonable time prior to a decision by the Commission.” Id. at 506.

Here, Ms. Sumling contends that she was precluded from bringing the deficiencies of the report to the Commission’s attention. As a result of the report being provided ex parte to the Commission members, who decided her case, she argues that she was deprived of a truly fair hearing. Thus, she maintains that we 17should follow our holding in Barquet, and find that the City violated her right to due process by failing to provide her with a copy of the hearing examiner’s report pri- or to the Commission making its decision.

We find that Ms. Sumling’s reliance upon Cartwright and Barquet is misplaced. The holding of the First Circuit in Cartwright is not binding upon this Court. Moreover, it is evident that the hearing examiner had to have weighed the credibility of the witnesses in reaching his ultimate recommendation to the Commission. Furthermore, in Barquet, we held that the “[fjailure to provide a copy of the hearing examiner’s report to the parties clearly violated Barquet’s right to due process.” Barquet, 620 So.2d at 506. Our court further held that “[a] copy of the hearing examiner’s report shall be a part of the record and be provided to all parties in a reasonable time prior to a decision by the Commission.” Id. The plaintiff in Barquet sought a copy of the hearing examiner’s report because it was not provided to the parties at all, even though the Commission considered the report when it considered his appeal. Id.

In the matter sub judice, Ms. Sumling acknowledges that Civil Service Rule II, Sec. 4.14 currently states that a hearing examiner’s report shall only be | sfurnished to the parties after the Commission has rendered its decision. Additionally, when Barquet was rendered, as Ms. Sumling also recognizes, former Rule II, Sec. 4.13 provided that only “an official transcript of the employee appeal hearings,” as well as any exhibits, constituted the official record whereas presently the hearing examiner’s report is also included in the official record. We cannot apply Barquet’s holding involving an outdated Civil Service Rule to the facts of the instant case. e

The Civil Service Rules were followed by the hearing examiner and the Commission in this instance. We recognize that Ms. Sumling does not argue that the Sec 4.14, Rule II violates her due process rights, but rather its application violated her due process rights as a result of the alleged deficiency of the hearing examiner’s report. The brevity of the report does not evidence that the hearing examiner did not consider all of the testimony presented. Even if the report at issue was incomplete, however, the Commission had the benefit of the full record prior to making its decision. Indeed, the Commission in its decision states that it “reviewed a copy of the transcript and all documentary evidence.” Furthermore, Ms. Sumling’s due process rights were not violated where she had the opportunity to seek rehearing, which she availed herself of, from the Commission’s decision. Thus, we find that this assignment of error is without merit.

InSECOND AND THIRD ASSIGNMENTS OF ERROR

We address jointly Ms. Sumling’s remaining assignments of error wherein she argues that the Commission’s finding that legal cause for discipline was proven by the Department was in error as well as its decision to uphold her termination.

Our Supreme Court has reasoned that appellate courts “must evaluate the commission’s imposition of a particular disciplinary action to determine if it is both based on legal cause and is commensurate with the infraction; the court should not modify the commission’s order unless it is arbitrary, capricious, or characterized by abuse of discretion.” Mathieu v. New Or leans Pub. Library, 09-2746, p. 5 (La.10/19/10), 50 So.3d 1259, 1262-63 [citations omitted and emphasis added]. “ ‘Arbitrary or capricious’ means there is no rational basis for the action taken by the Commission.” Fuller v. Dep’t of Fire, 07-0369, p. 4 (LaApp. 4 Cir. 9/19/07), 968 So.2d 731, 734 [citations omitted]. Cause for discipline of an employee exists whenever the employee’s conduct impairs the efficiency of the public service in which the employee is engaged. Cittadino v. Dep’t of Police, 558 So.2d 1311, 1315 (LaApp. 4th Cir.1990).

Regarding legal cause, Ms. Sumling argues that the Commission’s decision, that the Department proved legal cause for discipline, should be reversed as manifestly erroneous because it is not supported by findings of fact nor does it have a rational basis. She argues that the Commission’s decision merely summarizes some testimony and ends with a conclusion that is factually and legally insufficient. She reiterates her assertion that the Commission’s decision is a barely modified version of the hearing examiner’s alleged deficient report. She further contends that the Commission makes no factual findings on the specific | ^allegations ⅛ the termination letter and fails to include any assessment of witness credibility.

The Commission’s decision lacks a rational basis, she argues, because it does not contain findings of fact to support the decision. She further avers that the Commission’s “conclusion” contains implied finding of fact(s), which are not legally sufficient, and reflects that the Commission considered evidence beyond the specific incidences listed in the termination letter, which would have been improper. She argues that upholding her termination based on the “conclusion” comments would also be manifestly erroneous.

By failing to make specific factual findings on the allegations in the termination letter, the Commission violated its duty to base a decision solely on the specific allegations made in the disciplinary notice. She relies upon Montgomery v. Dep’t of Streets, 593 So.2d 1352 (LaApp. 4th Cir. 1992), in arguing that the purpose of the notice requirement is based on the constitutional duty of the appointing authority to inform the employee in detail of charges, and also to limit subsequent proceedings to those charges. She contends that her undisputed explanations for her behavior were ignored by the Commission.

She argues that the evidence only established that at one time she: forgot to pull down exam-table paper; unintentionally slammed a door while rushing to tend to another patient; and failed to fax non-emergency referrals because she was following her clinic director’s orders to leave her regular work and prepare the clinic for painting. Thus, she maintains that her actions did not provide a rational basis for termination of employment.

Regarding the testimony contained in the record, she argues that the Commission glossed-over the testimony of Jennie Robinson and Charlotte Parent. | nThe Commission failed to address that only one nurse practitioner, Ms. Robinson, out of four, at the Clinic, expressed a problem with her. The Commission, she argues, did not consider that Ms. Robinson was a new employee and nurse practitioner, who Ms. Sumling alleges was more concerned about her job status than having patients wait while Ms. Sumling prepared the exam table. Moreover, she alleges, the Commission ignored the testimony of the Assistant Deputy Director, Charlotte Parent, who emphasized the importance of progressive discipline when deciding to fire Ms. Suml-ing at the request of Ms. Williams. Ms. Parent also emphasized in her testimony that an earlier suspension of Ms. Sumling was an important factor in her decision to terminate Ms. Sumling. However, Ms. Sumling argues that the Commission did not note that it had recently reversed Ms. Sumling’s August 2011 suspension. Lastly, she maintains that the Commission ignored the failure of the Department to prove any policy violations, or any harm.

Ms. Sumling argues that the Department of Health failed to meet of burden of proof that the conduct complained of impaired the efficiency of the public service in a “real and substantial” manner. Citta-dino, 558 So.2d at 1315. Thus, she avers that the Commission’s decision affirming the Department’s termination is manifestly erroneous and should be reversed.

The City argues that the Commission rendered its decision affirming Ms. Suml-ing’s termination after a thorough review of the record. The Commission considered the testimony of Ms. Williams as the Executive Director, when she testified as to the corrective steps taken to improve Ms. Sumling’s performance, but to no avail. The Commission, the City argues, carefully weighed its decision and is allowed to credit the testimony of one or more witnesses over that of other witnesses. Thus, the Commission’s decision cannot be arbitrary or capricious.

| 12As previously explained, the Commission’s conclusion as to the existence of legal cause should not be reversed unless the decision is arbitrary, capricious or an abuse of the commissioner’s discretion. Fuller, 07-0369, p. 4, 968 So.2d at 734 [citations omitted]. “ ‘Arbitrary or capricious’ means there is no rational basis for the action taken by the Commission.” Id. [citations omitted]. Cause for discipline of an employee exists whenever the employee’s conduct impairs the efficiency of the public service in which the employee is engaged. Cittadino, 558 So.2d at 1315.

In the instant matter, three witnesses testified as to Ms. Sumling’s work performance: Jennie Robinson (“Ms. Robinson”), Dr. Roberta Berrien (“Dr. Ber-rien”), the Medical Director of the Clinic, and Patrice Williams (“Ms. Williams”), the Executive Director of the Clinic.

Ms. Robinson is a nurse practitioner who works full-time at the Clinic. She explained that her job performance is affected by Ms. Sumling’s because she writes orders which she gives to Ms. Suml-ing as well as giving charts to her. She further testified that Ms. Sumling was not her subordinate, but that she would request that Ms. Sumling, as a medical assistant, perform certain work-related duties. She testified that Ms. Sumling’s work performance as “overall poor” and Ms. Suml-ing had exhibited disrespectful behavior towards her.

She explained that on December 29, 2011, while setting-up to examine a patient she asked Ms. Sumling to prepare the examination bed, which did not have paper pulled over it. Ms. Robinson left the patient in the examination room in order to call Ms. Sumling into the room to prepare the examination table. Ms. Sumling allegedly entered the room, quickly pulled the paper down and slammed the door as she exited the room, which startled Ms. Robinson and the patient.

1 iaMs. Robinson further testified that later that day she questioned Ms. Sumling about the status of a patient’s “labs” that Ms. Robinson had ordered, but were not yet received. Ms. Sumling, according to Ms. Robinson, rudely responded that she was off and would not be answering any questions. Another medical assistant then aided Ms. Robinson.

Ms. Robinson documented both of the aforementioned work incidents as well as other incidents involving Ms. Sumling that occurred between December 27-29, 2011. as well as on January 3, 2012, in a Memorandum to Ms. Williams dated January 19, 2012. She explained that the memorandum was meant to address problems she had with Ms. Sumling’s work performance, unprofessional behavior and disrespectful behavior toward her. Ms. Robinson requested working with a new medical assistant in her memorandum. Ms. Robinson did not testify regarding other work-performance issues alleged in her January 19, 2012 memorandum, such as Ms. Sumling not completing referrals and not checking-in patients promptly.

Dr. Berrien testified that she began working directly with Ms. Sumling in November 2011, as they prepared patients for examination and followed-up on patients’ needs. While Dr. Berrien testified that Ms. Sumling’s work performance in general was not up to par, Dr. Berrien ultimately testified that during the eight-day period at issue she had taken a vacation; thus, she could not offer insight into Ms. Suml-ing’s work performance during the relevant time period.

Ms. Williams testified that she and Dr. Berrien completed a February 2011 evaluation of Ms. Sumling, wherein she received a rating of Competent. The 114report further detailed that Ms. Sumling needed improvement in teamwork, attention to detail, flexibility, and reliability with job responsibilities, and consistent tracking of services and reports. Ms. Williams further explained that the Clinic needed to improve its performance to comply with strict Federal guidelines, but personnel performance was an impediment to this goal. Ms. Williams testified that Ms. Sumling was unable to keep up with the pace of the Clinic and assist at the appropriate level.

Ms. Sumling, however, testified that she disagreed with much of Ms. Robinson’s testimony. Regarding the door-slamming incident, she explained that while the other medical assistant was still at lunch, she was checking-in two (2) patients in the afternoon. She testified that she checked in Ms. Robinson’s first patient before proceeding to wipe down the examination table, but did not pull the paper over the table because it was still wet. She explained that she forgot to pull down the paper before calling the patient. After she began checking-in the second patient, Ms. Robinson called her to return to the examination room to pull down the paper over the table. She complied with the request and closed the examination room door. Ms. Sumling admitted that she slammed the door when she closed it because she was rushing to return to the second patient. She stated that when Ms. Robinson addressed the incident with her, Ms. Robinson only discussed the paper not having been pulled down over the table and that it was not Ms. Robinson’s responsibility to pull down the examination paper. She explained that failing to pull down the paper and slamming the examination-room door were inadvertent.

Additionally, she testified that she was familiar with the allegation that some referrals, which were written on December 27th and December 28th, were not sent to the referring offices until January 3, 2012. Ms. Sumling explained that the l1ficlinic was being renovated on December 27th and December 28th and Ms. Williams requested that she (Ms. Sumling) and other staff remove items from the walls of the clinic so that the clinic could be painted while the staff was out during the holidays. Ms. Sumling testified that she left the referral forms in her box until January 3, 2012, because she was preparing the clinic to be painted. She testified that none of the referrals were emergencies. When she returned to work on January 3, 2012, she sent out the referrals.

With respect to the allegation in the Corrective Action Plan that she neglected to move a waiting patient to an exam room for over an hour, Ms. Sumling explained that there was an issue with the Clinic’s newly installed electronic system that resulted in the patient waiting to be seen. She testified that although the patient had been checked-in electronically at the front desk, the new system was not showing, in the back of the office, that the patient was checked-in. She testified that she reported the glitch to Dr. Berrien. Ms. Sumling testified that this incident did not occur during the eight-day period at issue.

Regarding her job performance, Ms. Sumling testified that: 1) she performed her job well and to the best of her ability; 2) she never received a patient complaint about her work, and 3) she always followed directions and complied with her job duties. Moreover, character witnesses and former co-workers Pequitta Raymond and Willie Mae Martin, further attested to Ms. Sumling’s competency.

Ms. Williams and Ms. Parent testified regarding Ms. Sumling’s termination. Ms. Williams testified that she received a complaint about Ms. Sumling’s work as well as a memorandum from Ms. Robinson regarding Ms. Sumling. Ms. Williams testified that she recommended Ms. Sumling for release from the Clinic, but it was

|1fithe Department of Health that opted to terminate her due to a lack of available medical assistant positions within the Department.

Ms. Williams further testified that a Corrective Action Plan (supplement) was completed for Ms. Sumling because Ms. Sumling had received several verbal warnings from both herself and Dr. Berrien. She further explained that the first or original Corrective Action Plan for Ms. Sumling was created in 2010, but she composed the current Corrective Action Plan, which was a compilation of all of Ms. Suml-ing’s corrective actions. She testified that the document was created on January 23, 2012, and was presented to Ms. Parent on the same date. She explained that the purpose of a Corrective Action Plan is to: give feedback to staff and show them where they are in corrective action line. You start with a verbal. Then you go to written, suspension, and termination. This is how the department — it’s a Health Department document that we use to do that.

Ms. Williams further testified the information used to create the Corrective Action form was provided by herself, Dr. Berrien and Ms. Robinson.

In a post-termination Civil Service Annual Evaluation Report, dated February 27, 2012, which Ms. Williams prepared and signed, Ms. Sumling received an overall rating of Needs Improvement. Ms. Williams explained that such as rating means:

[t]hat the person in the position was not doing their responsibilities; was not performing efficiently and they think they needed to work on several areas to improve their performance and their position.

117Lastly, she testified that the only performance rating below “Needs Improvement” is “Unsatisfactory,” which leads to termination as a consequence.

Ms. Parent testified that in her capacity as the Deputy Director of the Department of Health for the City of New Orleans, she made the decision to terminate Ms. Suml-ing’s employment. She further testified that she had suspended Ms. Sumling in the past. She explained that she considered Ms. Sumling’s poor evaluations, corrective actions plan, and suspension in deciding to terminate Ms. Sumling’s employment. Ms. Parent elaborated that within the “progressive discipline continuum” implemented by the Health Department, Ms. Sumling demonstrated continuous job performance issues such that further disciplinary actions were necessary.

Our review of the record shows that only one person observed and documented her observations of Ms. Sumling during the eight-day period at issue: Ms. Robinson. No other witness on behalf of the Department of Health provided specific information about Ms. Sumling’s job performance during the relevant eight-day time period. While it is evident that there was tension between these two co-workers during said period, Ms. Robinson’s testimony does not reflect that Ms. Sumling’s job performance impeded the efficiency of the public service. Even if the Commission found Ms. Robinson’s testimony to be more credible than Ms. Sumling’s, Ms. Robinson’s testimony only evidences that on one day Ms. Sumling incompletely prepared an examination bed and did not answer a work-related question while she was off-duty. Furthermore, neither Ms. Robinson nor anyone else on behalf of the Department of Health testified that Ms. Sumling delayed executing patient referrals or delayed checking-in patients during the eight-day Intime period. Thus, Ms. Sumling’s testimony regarding these allegations is uncontradicted.

Recognizing that “cause” for termination of an employee includes conduct prejudicial to the public service involved or detrimental to its efficient operation, we find that the record reflects that there was sufficient cause to discipline Ms. Sumling. However, her alleged conduct did not warrant the imposition of the most extreme level of discipline. Dismissal from permanent employment is the most extreme form of disciplinary action that can be taken against a classified or city employee. Hills v. New Orleans City Council, 98-1101, pp. 6-7 (La.App. 4 Cir. 12/9/98), 725 So.2d 55, 58, unit not considered, 99-0954 (La.4/30/99), 741 So.2d 6 [citation omitted]. While there may have been legal cause for some level of discipline against Ms. Suml-ing, the evidence presented coupled with the Department of Health’s emphasis on progressive discipline does not merit the imposition of termination based upon the record before us.

Consequently, we find that the penalty imposed by the Appointing Authority and upheld by the Commission was not commensurate with the infraction. See Walters v. Dep’t of Police of New Orleans, 454 So.2d 106 (La.1984). As the Louisiana Supreme Court recently reasoned, the Commission independently ensures the propriety of the imposed punishment:

Our review of other civil service systems within the state shows the position of the commission or board reviewing the disciplinary action of the appointing authority exercises the authority to not only ensure the discipline was imposed in good faith for cause, but to independently ensure that the particular punishment imposed was proper,

h adty of Bossier City v. Vernon, 12-0078, p. 15 (La.10/16/12), 100 So.3d 301, 311.

Recognizing Ms. Sumling’s over three years of employment with the Department of Health, consistent pre-termination ratings of competency, and the recent reversal of her suspension, we find that the termination of her employment is excessive and lacks a rational basis. Thus, we vacate the penalty of termination. We order that Ms. Sumling be suspended for fourteen days and that she is to be reinstated to her medical assistant position with back pay and other benefits from February 7, 2012.

DECREE

For the forgoing reasons, the decision of the Civil Service Commission upholding the termination of employment of Miochi Sumling is modified, and she is to be reinstated with back pay and other benefits from February 7, 2012.

REVERSED IN PART; AFFIRMED AS AMENDED.

LOBRANO, J., dissents with reasons.

LOBRANO, J.,

dissents with reasons.

hi respectfully dissent from the majority opinion that reversed the Civil Service Commission’s decision upholding the termination of employment of Miochi Sumling and that ordered the Department of Health of the City of New Orleans to reinstate Sumling to her medical assistant position and to compensate Sumling for back pay and other benefits from February 6, 2012.

In Mathieu v. New Orleans Public Library, 09-2746 (La.10/19/10), 50 So.3d 1259, the Louisiana Supreme Court, citing Bannister v. Department of Streets, 95-0404 (La.1/16/96), 666 So.2d 641, stated the following regarding Civil Service cases:

Each case must be decided on its own facts with substantial deference afforded to the appointing authority. Reviewing courts should not second guess the appointing authority’s decision, but only intervene when decisions are arbitrary and capricious or characterized by an abuse of discretion.

Id., p. 15, 50 So.3d at 1268.

In my opinion, the record supports the hearing examiner’s conclusion, which was adopted by the Commission, that the Department of Health proved that it terminated Sumling for legal cause, and that documented concerns about Sumling’s job performance justified the Department of Health’s decision to make a ^change to improve the efficient operation of the clinic for the homeless. The decision of the Commission to uphold the termination of Sumling’s employment had a rational basis and was not arbitrary and capricious or characterized by an abuse of discretion.

Furthermore, I note that while the termination letter sent to Sumling detailed certain incidents that occurred between December 27, 2011 and January 3, 2012, the letter also stated that there were several documented incidents in the year pri- or to her termination where Sumling did not complete tasks that she knew were her responsibility. That statement is supported by testimony presented at the hearing. Dr. Roberta Berrien, the Medical Director of the clinic, testified that she worked closely with Sumling from November 2011 until her termination on January 23, 2012, and that Sumling’s work performance “wasn’t up to par.” She also stated that during the time that she worked with Sumling, patients were not appropriately prepped for visits, items needed were not in the examination rooms and requested referrals had not been obtained. In her role as supervisor of nurse practitioners, Dr. Berrien regularly heard from them regarding similar deficiencies in Sumling’s work performance. Patrice Williams, the Executive Director of the clinic, testified that Sumling received several warnings in the 1 ½ year period prior to her termination, and Williams had personally spoken to Sumling several times about the fact that she was not performing her job duties well and needed to improve.

Because I find that the Department of Health’s decision to terminate Sumling’s employment was not arbitrary and capricious or characterized by an abuse of discretion, I would affirm the decision of the Civil Service Commission denying Suml-ing’s appeal.

      . The City corrected the January 23, 2012 termination letter on January 30, 2012, in order to replace incorrect dates stated for Ms. Sumling's suspensions.

      . Testimony elicited at trial indicates that the Clinic was closed from Friday, December 30, 2012 thru Monday, January 2, 2012, or four days out of the eight days at issue. The Clinic reopened on January 3, 2012. Thus, the record reflects that the work dates specifically at issue are December 27-29, 2011, and January 3, 2012.

      .Ms. Sumling was given a two-day suspension after being reprimanded as a result of a July 14, 2011 incident involving Dr. Roberta Berrien, the Medical Director of the Clinic. The Commission, in case No. 7900, granted Ms. Sumling’s appeal of the suspension and reversed the order of suspension.

      . Louisiana Constitution Art. X, 12(B), entitled Appeal, provides:
      (B) Cities. Each city commission established by Part I of this Article shall have the exclusive power and authority to hear and decide all removal and disciplinary cases, with subpoena power and power to administer oaths. It may appoint a referee to take testimony, with subpoena power and power to administer oaths to witnesses. The decision of a commission shall be subject to review on any question of law or fact upon appeal to the court of appeal wherein the commission is located, upon application filed with the commission within thirty calendar days after its decision becomes final.

      .Currently, Civil Service Rule II, Sec. 4.14 reads:
      An official transcript of employee appeal hearings shall be made by the Court Reporter appointed by the Civil Service Commission and only this transcript, its accompanying exhibits and the hearing examiner's report shall constitute the complete and official record of said hearings. (adopted March 13, 1980; amended June 10, 1982, adopted December 17, 1992, effective December 31, 1992). However, the hearing examiner’s report shall be furnished to the parties only after the Commission renders its decision in the matter. No briefs from the parties will be filed (accepted) after the expiration of twenty days following the submission of the matter for adjudication by the Commission, (adopted June 19,1995). [Emphasis added].

      . Civil Rule II, Sec. 4.13 formerly read:
      An official transcript of employee appeal hearings shall be made by the Court Reporter appointed by the Civil Service Commission and only this transcript and accompanying exhibits shall constitute the complete and official record of said hearings.

      . See footnote 2, supra.

      . The hearing examiner noted that Ms. Sumling’s disciplinary letter did not address the allegation of rudeness.

      . Ms. Williams testified that the report was actually filled-out in January, but she did not specify whether it was filled-out prior to Ms. Sumling's termination. The Hearing Commission ruled that the form could not be used to justify Ms. Sumling's termination because it was generated after her termination; however, because it supported other testimony, the Commissioner allowed it into evidence.

      . Lange v. Orleans Levee Dist., 10-0140, p. 14 (La. 11/30/10), 56 So.3d 925, 934 [citations omitted].


author:
MADELEINE M. LANDRIEU, Judge.
      JENKINS, J.,

text:
    Kearney LOUGHLIN, et al. v. UNITED SERVICES AUTOMOBILE ASSOCIATION.
    No. 2013-CA-1285.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 4, 2014.

      Kearney S. Loughlin, Attorney at Law, New Orleans, LA, for Plaintiff/Appellant.
    James Robert Nieset, Jr., Ralph J. Au-coin, Jr., Porteous, Hainkel & Johnson, LLP, New Orleans, LA, for Defendant/Ap-pellee.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, SR., Judge DANIEL L. DYSART, Judge MADELEINE M. LANDRIEU, Judge SANDRA C. JENKINS).
   MADELEINE M. LANDRIEU, Judge.

_JjThe plaintiffs, Kearney and Terri Loughlin, filed a petition to annul a judgment of contempt rendered against them in an underlying lawsuit. In response, United Services Automobile Association (USAA) filed peremptory exceptions of prescription, no cause of action, and no right of action, all of which were sustained by the trial court. For the reasons that follow, we reverse the judgment of the trial court and remand for further proceedings.

FACTS AND PROCEEDINGS BELOW

In 2005, Kearney Loughlin and members of his family filed suit against USAA arising from property damage caused by Hurricane Katrina to a family home owned by Mr. Loughlin, his mother, and his sister. At the time of Hurricane Katrina, Mr. Loughlin and his wife, Terri, lived in an apartment in the home. At all times pertinent, Mr. Loughlin was both a plaintiff and counsel of record in the property damage lawsuit.

|2The facts giving rise to the contempt judgment, which the Loughlins seek to annul, was based upon alleged misrepresentations made by the Loughlins relative to the service of certain discovery motions that had been filed by USAA in the underlying lawsuit. See, Regina Soniat Taitón v. USAA Casualty Ins. Co., No. 2005-12956, Civil District Court, Parish of New Orleans, State of Louisiana. The contempt judgment was appealed to this court and affirmed. Regina Soniat Taitón v. USAA Casualty Ins. Co., 2006-1513, 2007-1414, (La.App. 4 Cir. 3/19/08), 981 So.2d 696.

The Loughlins now allege to have recently discovered that the judgment of contempt was procured by fraud or ill practices. Thus, on November 8, 2012, they filed a Petition for Nullity of Judgment. In response, USAA filed exceptions asserting that the action was prescribed and that the Loughlins had neither a cause, nor right of action. At the hearing on the exceptions, no evidence was introduced and no testimony was taken.

Therefore, we must rely on the allegations in the petition. Denoux v. Vessel Management Services, Inc., 2007-2143, pp. 5-6 (La.5/21/08), 983 So.2d 84, 88.

According to the petition, the events that led to the contempt judgment began when USAA filed a motion on three issues which were set for hearing on June 23, 2006 before the Honorable Judge Nadine Ramsey, the presiding judge. On June 8, 2006, Mrs. Loughlin was served by the civil sheriff with the motion filed by USAA and with a memorandum USAA filed in opposition to a motion that had been filed by the plaintiffs. The order attached to USAA’s motion was blank. |sMrs. Lough-lin did not realize, therefore, that the USAA motions were set for hearing.

On the morning of June 23, 2006, while at the courthouse on another matter, Mr. Loughlin was informed that USAA’s motions were set for hearing that day before Judge Ramsey. Mr. Loughlin told Judge Ramsey, that they had not been served with a rule setting the hearing. Based on this representation, the hearing was rescheduled for June 29, 2006. After Mr. Loughlin relayed this information to Mrs. Loughlin, she reviewed the papers served on her and discovered that an “order” attached as an exhibit to an already-resolved motion had apparently been signed by Judge Ramsey scheduling the hearing for June 23, 2006, and USAA’s opposition memorandum, in the.absence of any motion having been filed, had also been set for hearing that same day.

USAA then filed a memorandum in which it argued that the Loughlins should be held in contempt for denying that they had been served with USAA’s motion and its opposition memorandum. At the hearing on June 29, 2006, USAA called a deputy civil sheriff to testify that he had served the two documents on Mrs. Loughlin. When Judge Ramsey reviewed the motion served on Mrs. Loughlin, she realized that the court had signed the blank order that USAA had attached as an exhibit instead of the order setting the motion for hearing. Judge Ramsey recognized this to be an error on the part of her staff and denied the motion for contempt in a judgment signed on July 17, 2006.

On August 18, 2006, four matters were set for hearing. Neither Mr. or Mrs. Loughlin was present at this hearing. Further, Mrs. Loughlin was not a party to the action at that point in the proceedings because her claim for damage to the contents of her apartment pursuant to a renter’s policy had been dismissed. Sharonda |4WiIIiams appeared on behalf of the plaintiffs. During the hearing, USAA again argued that the Loughlins had received notice of the June 23, 2006 hearing and had lied about it. According to the allegations in the petition to annul, Judge Ramsey concluded that the Loughlins should have noticed that the motion was set for hearing, but did not conclude that any misrepresentation had been made by the Loughlins to the court.

After the hearing, USAA’s attorney submitted a draft judgment on the issue of contempt, which was forwarded to the Loughlins. The Loughlins objected to the proposed judgment. Judge Ramsey ultimately signed a judgment on September 12, 2006 that stated “the Court finds that misrepresentations of material facts regarding service of notice of hearing were made by Kearney L. Loughlin and Terri B. Loughlin ... for the reasons orally assigned in open court on August 18, 2006, a transcribed copy of which is attached hereto and made a part hereof.” As stated earlier, this contempt judgment was affirmed by this court.

Based on this contempt judgment, USAA’s attorney filed a disciplinary complaint against the Loughlins with the Office of Disciplinary Counsel (ODC) in 2008. The ODC brought formal charges against the Loughlins in 2011. Judge Ramsey was deposed as part of the ODC proceeding. In her deposition taken on November 9, 2011, Judge Ramsey stated that she had made no findings that the Loughlins had made any misrepresentations to her at any time. Specifically, she stated that her law clerk had made a mistake in processing the motion and memorandum served on Mrs. Loughlin on June 8, 2006, and that she could not identify any misrepresentation of fact made by the Loughlins at the June 29, 2006 hearing. The ODC ultimately dismissed the charges against the Loughlins.

IsAfter the ODC dismissed the charges, the Loughlins filed the instant suit to annul. As stated previously, USAA responded by filing peremptory exceptions of prescription, no right of action, and no cause of action, along with a motion for sanctions. On May 17, 2013, the trial court heard the exceptions.' On May 20, 2013, the court rendered judgment with written reasons granting the exceptions, but denying the motion for sanctions. The trial court’s judgment states, in pertinent part:

Here, Plaintiffs Petition for Nullity was not filed until November 8, 2012, almost 6 full years after Plaintiffs had knowledge of the judgment of contempt rendered in August 2006. Plaintiffs have denied from the beginning that they misrepresented anything at all to the trial court, and they stated in their Petition of Nullity they knew all along that the judgment of contempt was incorrect. These two facts show that Plaintiffs had constructive notice on the day the Judgment was rendered and are sufficient to “excite Plaintiffs attention and put him on inquiry,” (citation omitted). The constructive notice requirement was satisfied in August of 2006, thus starting the running of prescription at that time. Plaintiffs’ claim is prescribed.

This appeal followed.

ISSUES

The Loughlins assert seven assignments of error, which we consolidate for discussion: (1) whether the trial court erred in granting USAA’s peremptory exception of prescription, and (2) whether the trial court erred in granting USAA’s peremptory exceptions of no cause of action and no right of action.

DISCUSSION

I. Exception of Prescription

The Loughlins assert that the trial court erred in granting USAA’s exception of prescription because USAA did not meet its burden of proving the claim was prescribed. They argue here that they did not learn until November 9, 2011 that | r,Judge Ramsey had not actually made a finding on contempt, despite the language in the judgment to the contrary. The Loughlins allege that counsel for USAA knowingly presented a judgment to Judge Ramsey for her signature that did not comport with her finding, and that Judge Ramsey signed it in error — a matter of ill practice. In the opinion of this court on appeal of the underlying matter, we stated: “Realizing that it had been lied to on three separate occasions, the trial court found the Loughlins in contempt of court and levied a fine of $1,000, presumably $500.00 on each.” Taitón, 2007-1414, p. 25, 981 So.2d at 713. The Loughlins now allege that they discovered on November 9, 2011 that Judge Ramsey had made no such finding, and that the judgment saying otherwise had been signed as a result of fraud or ill practices on the part of USAA and/or ill practice on the part of Judge Ramsey.

In reviewing the granting of an exception of prescription, this court “will review the entire record to determine whether the trial court’s finding of fact was manifestly erroneous.” Barcia v. La. Med. Malpractice Ins. Co., 2010-1424 (La. App. 4 Cir. 5/25/2011), 67 So.3d 659, 662-663. Louisiana Code of Civil Procedure article 2004 states that a final judgment obtained by fraud or ill practices may be annulled when the action is brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices. The one year prescriptive period begins to run from the knowledge of the facts, not their legal consequences. Succession of Albritton, 497 So.2d 10, 12 (La. App. 4th Cir.1986). The party pleading the exception of prescription bears the burden of proof unless the action is prescribed on the face of the petition. Brown v. American National Property & Casualty Co., 98-2292, p. 1 (LaApp. 4 Cir. 10/28/98), 720 So.2d 1278,1279.

17Here, the petition alleges that the fraud or ill practices were first discovered on November 9, 2011, the day of Judge Ramsey’s deposition. Their petition was filed on November 8, 2012, within one year of the alleged discovery. Therefore, the petition is timely on its face, and USAA bears the burden of proving the claim has prescribed.

On an exception of prescription, the trial court is not required to accept the allegations in the petition as true. Bowers v. Orleans Parish School Bd., 95-2530 p. 7 (LaApp. 4 Cir. 5/29/96), 694 So.2d 967, 972. “Evidence may be introduced to support or controvert any of the objections pleaded.” La. C.C.P. art. 931. When no evidence is admitted, the exception must be decided on the face of the petition. Denoux v. Vessel Management Services, Inc., 2007-2143, pp. 5-6 (La.5/21/08), 983 So.2d 84, 88.

No evidence was attached to USAA’s exception of prescription. Further, a review of the transcript of the trial on the exception revealed that USAA did not introduce evidence to support the exception. Because the claim is not prescribed on the face of the petition, and there is no evidence in the record to contradict the allegations, we find that the trial court erred in granting the exception of prescription. We reverse the trial court’s judgment on the exception of prescription and remand for evidentiary proceedings.

II. Exceptions of No Cause of Action and No Right of Action

In Badeaux v. Southwest Computer Bureau, Inc., 2005-0612 p. 6 (La.3/17/06), 929 So.2d 1211, 1216-1217, the Louisiana Supreme Court stated that one of the primary differences of the two exceptions is “that the focus in an exception of no right of action is on whether the particular plaintiff has a right to bring the suit, while the focus in an exception of no cause of action is on whether the law 1 ^provides a remedy against the particular defendant.” Because the exceptions of no right of action and no cause of action are questions of law, appellate review of these decisions is de novo. Homot v. Cardenas, 2006-1341 (LaApp. 4 Cir. 10/3/07), 968 So.2d 789.

We first turn to the Loughlins’ contention that the trial court erred in granting USAA’s exception of no cause of action. On a trial of an exception of no cause of action, no evidence may be introduced to support or controvert the exception. La. C.C.P. art. 932. In considering the merits of an exception of no cause of action, the trial court is required to decide whether to grant or deny the exception on the face of the petition. Badeaux, 2005-0621, p. 7, 929 So.2d at 1218. Each well-pleaded fact in the petition must be accepted as true. Id. If the petition states a cause of action on any ground or portion of the demand, the exception should be overruled. Id.

USAA argues that the Loughlins failed to state a cause of action because USAA is immune from civil suits based on the disciplinary complaint. We disagree. USAA bases its argument on Louisiana Supreme Court Rule XIX § 12, which states in pertinent part, “[c]ommunications to the board, hearing committees, or disciplinary counsel relating to lawyer misconduct or disability and testimony given in the proceedings shall be absolutely privileged, and no lawsuit predicated thereon may be instituted against any complainant or witness.” USAA argues that this rule prohibits the Loughlins from filing a petition to annul a judgment against the lawyer who made the complaint. We find, however, that this lawsuit is not predicated on the disciplinary proceedings, but rather on the judgment rendered well before the disciplinary proceedings began. The disciplinary proceedings are relevant to this suit only because Judge Ramsey was deposed during the course of 19the disciplinary proceedings, and the Loughlins contend that this deposition first alerted them to the fraud or ill practices. Rule XIX § 12 does not apply to this situation. Therefore, we reverse the trial court’s judgment granting the exception of no cause of action.

We next turn to the Loughlins’ contention that the trial court erred in granting USAA’s exception of no right of action. USAA first argues that the Loughlins do not have a right of action because they voluntarily acquiesced in the judgment by paying the $400.00 fine. This argument is misplaced. Louisiana Code of Civil Procedure article 2003 provides that a defendant who voluntarily acquiesces in a judgment may not annul that judgment for any of the grounds enumerated in Louisiana Code of Civil Procedure article 2002. Article 2002 is directed to vices of form, such as lack of process and lack of jurisdiction. Here, the Loughlins seek to annul the judgment for a vice of substance under Louisiana Code of Civil Procedure article 2004, specifically fraud and/or ill practices. Article 2002, which prohibits a defendant from annulling a judgment once he has paid the judgment, is not applicable.

USAA next argues that the petition for nullity was barred by Louisiana Code of Civil Procedure article 2005 because the grounds for contempt were considered on appeal. Louisiana Code of Civil Procedure article 2005 states that “a judgment affirmed, reversed, amended, or otherwise rendered by an appellate court may be annulled only when the ground for nullity did not appear in the record of appeal or was not considered by the appellate court.” In their appeal in the Taitón case, the Loughlins did not contend that the contempt judgment was based on fraud or ill practices. While they believed the contempt judgment was incorrect, the Lough-lins 11ftdid not become aware of the fraud or ill practices until Judge Ramsey’s deposition in 2011.

Because the Loughlins were not barred from bringing the action based on having paid the fine, and the allegation of fraud or ill practices was not considered by the appellate court, we find that the trial court erred in granting USAA’s exception of no right of action.

CONCLUSION

Accordingly, for the reasons stated, the trial court’s judgment granting USAA’s peremptory exceptions of prescription, no cause of action, and no right of action is reversed, and the matter is remanded to the trial court for further proceedings consistent with this disposition.

REVERSED AND REMANDED.

JENKINS, J.,

dissents with reasons.

|,I respectfully dissent from the majority’s opinion, finding that the trial court did not manifestly err in granting United Services Automobile Association’s exception of prescription. Under the manifest error standard of review, even if this Court would have decided the case differently had it been the original trier of fact, the trial court’s judgment should nonetheless be affirmed unless it is found to be clearly wrong. Welch v. Winn-Dixie, 94-2331 (La.5/22/95), 655 So.2d 309. A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been committed. U.S. v. United States Gypsum Co., 333 U.S. 364, 394, 68 S.Ct. 525, 541, 92 L.Ed.2d 746, 766 (1948). See also, Stobart v. State, Through Dep’t of Transp. & Dev., 617 So.2d 880, 882 (La.1993); Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La. 1990). Based on a review of the record, I cannot say that the trial court was clearly wrong and would therefore affirm the trial court’s judgment grating the exception of prescription.

      .Terri Loughlin was also a plaintiff and counsel of record at some point in the proceedings. However, the record establishes that Mrs. Loughlin was neither counsel of record nor a plaintiff when the contempt judgment at issue in this appeal was rendered.

      . We reduced the contempt penalty from $1,000 to $400.

      . Although an exception of no cause of action must be decided on the face of the petition, evidence may be introduced to support or controvert exceptions of prescription and no right of action. La. C.C.P. art. 931.