author: JUDGE SANDRA CABRINA JENKINS

text:
    IN RE: MEDICAL REVIEW PANEL OF Mario HURST
    NO. 2016-CA-0934
    Court of Appeal of Louisiana, Fourth Circuit.
    MAY 3, 2017
    Rehearing Denied May 11, 2017

      Mario Hurst, 13971 Curran Road, New Orleans, LA 70128, PLAINTIFF/APPELLANT/IN PROPER PERSON
    Jeff Landry, Attorney General, J. Marc Vezina, Special Assistant Attorney General, Kelli M. Khalaf, Special Assistant Attorney General, VEZINA AND GATTU-SO, L.L.C., 401 Weyer Street, P.O. Box 461, Gretna, LA 70054, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Chief Judge James F. McKay, III, Judge Terri F. Love, Judge Sandra Cabrina Jenkins)
   JUDGE SANDRA CABRINA JENKINS

hln this medical malpractice action, Mario Hurst appeals the trial court’s July 1, 2016 judgment granting the Exception of Prescription filed by appellees, the State of Louisiana and Dr. Heather Murphy La-voie. For the reasons that follow, we affirm the trial court’s judgment.

JURISDICTION

“Before considering the merits in any appeal, appellate courts have the duty to determine sua sponte whether subject matter jurisdiction exists, even when the parties do not raise the issue.” Moon v. City of New Orleans, 15-1092, 15-1093 (La. App. 4 Cir. 3/16/16), 190 So.3d 422, 425. This court “cannot reach the merits of an appeal unless our appellate jurisdiction has been properly invoked by a valid final judgment.” Id. A valid final judgment is “one that determines the merits in whole or in part and is identified as such by appropriate language.” Id., 15-1092, pp. 5-6, 190 So.3d at 425 (citing La. C.C.P. arts. 1841, 1918). “ ‘A final appealable judgment must contain decretal language, and it must name the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the relief that is granted or denied.’ ” Id., 15-1092, p. 6, 190 So.3d at 425 (quoting Mid City Holdings, 14-0506, pp. 2-3 (La.App. 4 Cir. 10/15/14), 151 So.3d 908, 910). “The result decreed must be spelled out in lucid, unmistakable language. The quality of definiteness is essential to a proper judgment.” Id. “The specific relief granted should be determinable from the judgment without reference to an extrinsic source such as pleadings or reasons for judgment.” Id.

In this matter, the July 1, 2016 judgment from which Mr. Hurst appeals states as follows:

This matter came for hearing on Defendants’ Exception of Prescription on the 1st day of July, 2016.
PRESENT: Kelli M. Khalaf, Attorney for Defendants, State of Louisiana, Louisiana State University Health - Sciences Center and Dr. Heather Murphy Lavoie
Mario Hurst, Plaintiff, in proper person
After hearing the pleadings, evidence, applicable law, and argument of counsel, the Court granted the Defendants’ Exception of Prescription for the reasons orally assigned, and accordingly,
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Defendants’ Exception of Prescription is hereby granted.

We find that this judgment lacks definitive decretal language necessary for the exercise of our appellate jurisdiction. We cannot determine from the face of the judgment whether the granting of the Exception of Prescription results in the dismissal of all or some of Mr. Hurst’s claims. Although reference to the transcript suggests that the trial court intended to dismiss Mr. Hurst’s case, such relief was not granted in the written judgment. In the absence of decretal language specifying the relief granted, the July 1, 2016 judgment cannot be considered a final, appeal-able judgment. Hence, this court lacks jurisdiction to consider the merits of Mr. Hurst’s appeal.

“This court has converted appeals of non-appealable interlocutory judgments to applications for supervisory writs in cases where the appeals were filed within lathe 30-day period allowed for the filing of applications for supervisory review.” In re Medical Review Panel of Williams v. EMSA Louisiana, 15-1178, pp. 2-3 (La. App. 4 Cir. 10/21/16), 203 So.3d 419, 423. In this matter, Mr. Hurst’s petition for appeal was filed within 30 days of the July 1, 2016 judgment granting appellees’ Exception of Prescription. Accordingly, we will convert the appeal of the judgment to an application for supervisory writs, grant the writ, and consider it under our supervisory jurisdiction.

We now turn to the merits of the substantive issue before us.

FACTS AND PROCEDURAL HISTORY

On May 21, 2013, Mr. Hurst arrived at the emergency department at University Medical Center in New Orleans, where he was seen by Dr. Lavoie, who supervised the health care team. Mr. Hurst complained of a cough with occasional streaks of blood in the phlegm, decreased appetite, occasional blood in the stool, and “left chest pain for several years that originate[d] in left side of throat and radiate[d] to chest.”

Mr. Hurst testified in his deposition that, after seeing Dr. Lavoie, he went to another building across the street where he was seen by Dr. Thomas Clay Crouch, who was a resident. Mr. Hurst complained only of cold symptoms, including a cough and chills. Mr. Hurst’s medical records show that Dr. Crouch ordered various tests, including a chest x-ray, an EKG, blood work, a urine screen, and a stool sample.

Mr. Hurst’s medical records from May 21, 2013 show that his final diagnosis was an upper respiratory infection and a cough. Mr. Hurst was instructed to see his primary care physician for a recheck and routine health maintenance. Dr. Lavoie discharged Mr. Hurst “in good condition.”

|40n July 13, 2015, Mr. Hurst filed a medical malpractice complaint based on the May 21, 2013 visit to Dr. Lavoie. Mr. Hurst alleged negligence based on lack of testing and failure to diagnose his chest pain. Mr. Hurst stated in his complaint that the “discovery date” for the alleged malpractice was January 1, 2015, when the pain in his left chest became “unbearably worse.”

On April 13, 2016, appellees filed an Exception of Prescription, asserting that Mr. Hurst’s medical malpractice claims were barred by prescription because Mr. Hurst did not file his complaint until July 13, 2015, more than two years after the date of the alleged malpractice.

After a hearing at which Mr. Hurst testified, the trial court signed a July 1, 2016 judgment granting appellees’ Exception of Prescription.

DISCUSSION

Standard of Review

“When prescription is raised by peremptory exception, with evidence being introduced at the hearing on the exception, the trial court’s findings of fact on the issue of prescription are subject to the manifest error-clearly wrong standard of review” Specialized Loan Servicing, L.L.C. v. January, 12-2668, pp, 3-4 (La. 6/28/13), 119 So.3d 582, 584. “The relevant issue in a manifest error inquiry is not whether the finder of fact was right or wrong, but whether its decision was a reasonable one.” Marino v. Tenet Healthsystem Med. Ctr., 09-0915, p, 4 (La.App. 4 Cir. 11/24/09), 26 So.3d 297, 300.

Prescriptive Periods for Medical Malpractice Actions

Under La. R.S. 9:5628, there are two prescriptive periods within which to bring a medical malpractice action, one. year from the date of the alleged act, omission, or neglect, or one year from the date of discovery. Santiago v. Tulane Univ. Hosp. & Clinic, 12-1095, p. 8 (La. App. 4 Cir. 4/24/13), 115 So.3d 675, 681 (citing La. R.S. 9:5628(A)). The outermost window for filing a malpractice case, regardless of the date of discovery, is three years. Id.

“Ordinarily, the movant bears the burden of proof on the trial of the peremptory exception of prescription.” Ferguson v. Sugar, 05-0921, 05-0922 (La. App. 4 Cir. 6/25/08), 988 So.2d 816, 824. The burden remains with the movant where the plaintiffs petition makes “a prima facie showing” that the suit was filed within the delays set forth in La. R.S. 9:5628. Id. “A petition should not be found prescribed'on its face if it is brought within one year of the date of discovery and facts alleged with particularity in the petition show that the patient was unaware of the malpractice prior to the alleged date of discovery, and the delay in filing suit was not due to willful, negligent, or unreasonable action of the [plaintiff].” Id. (citing Campo v. Correa, 01-2707, p. 9 (La. 6/21/02), 828 So.2d 502, 509) (emphasis added). If, however, the petition on its face reveals that prescription has run, the burden shifts to the plaintiff to show that his action has not prescribed. Id.

In his complaint before the medical review painel, Mr. Hurst alleged that the single act of malpractice by Dr. Lavoie occurred on" May 21, 2013; Mr. Hurst filed his complaint on July 13, 2015. In his complaint, Hurst stated that the “date of discovery” of the alleged malpractice was January 1, 2015. Mr. Hurst’s complaint, however, sets forth no “facts alleged with particularity ... to show that [he] was unaware of the malpractice prior to the alleged date of discovery.” See Campo, 01-2707, p. 9, 828 So.2d at 509. Because Mr. Hurst’s complaint was filed more than one year after the date of the alleged malpractice, his complaint, on its face, is | (¡prescribed. Accordingly, the burden shifted to Mr. Hurst to show' that his action is not prescribed. Ferguson, 05-0921, p. 9, 988 So.2d at 824.

The Louisiana Supreme Court, in discussing the discovery rule in relation to a medical malpractice action, has defined the date of discovery for purposes of tolling the prescriptive period:

Prescription commences when a plaintiff obtains actual or constructive knowledge of facts indicating to a reasonable person that he or she is the victim of a tort. A prescriptive period will begin to run even if the injured party does not have- actual knowledge of facts that would entitle him to bring a suit as long as there is constructive knowledge of same. Constructive knowledge is whatever notice is .epough to excite attention and put the injured party on guard and call for inquiry. Such notice is tantamount to knowledge or notice of everything to which a reasonable inquiry may lead. Such information or knowledge as ought to reasonably put the alleged victim on.inquiry is sufficient to start running of prescription.

Campo, 01-2707, pp. 11-12, 828 So.2d at 510-11 (internal citations omitted).

At the trial of the Exception of Prescription, the court asked Mr. Hurst why it took him two years to file his medical malpractice action:

THE WITNESS:
I didn’t have — I didn’t have concrete knowledge of what was going on here in my chest.
THE COURT:
When did you find out?
THE WITNESS:
I talk, around say like August of 2014. I was kind of — kind of seeing somebody about, you know, working. And I may have been exposed to some chemicals, thing that — that much. And when I spoke with some lawyers dealing with that concern, which was not related to the malpractice, then dealing with the chemicals, I went to this lawyer that was dealing with that. She explained to me that my case sounded like malpractice. ... However, after I was informed of malpractice, I had to do more research. And that’s why I found out that it goes as |7far as when someone doesn’t do something. However I still didn’t have concrete knowledge of what was going on. And I decided, I said I’m going to file it by July, whether I get the diagnosis to be something or not, I’m going to just file it.

The court then asked Mr. Hurst if he had any “medical reports, anything to.indicate when you found out about your condition.” Mr. Hurst responded, “No, sir.”

Based on our review of the record, we find that Mr. Hurst failed to satisfy his burden of proving when he discovered his medical malpractice claims. We find no manifest error in the trial court’s judgment granting appellees’ Exception of Prescription.

Conclusion

Mr. Hurst’s medical malpractice complaint was filed on July 13, 2015, more than one year after the alleged act of malpractice. Although the complaint states that the “date of discovery” was January' 1, 2015, Mr. Hurst did not allege facts “with particularity ... to show that [he] was unaware of the malpractice prior to the date alleged date of discovery.” See Campo, 01-2707, p. 9, 828 So.2d at 509. Mr. Hurst, therefore, had the burden of showing why his claims were not prescribed. Based on our review of the record, we find that Mr. Hurst failed to satisfy his burden of proof.

Accordingly, we exercise our discretion to convert Mr. Hurst’s appeal to an application for supervisory writs, and grant the writ. Finding no manifest error, we affirm the trial court’s July 1, 2016 judgment granting appellees’ Exception of Prescription.

APPEAL CONVERTED TO WRIT APPLICATION; WRIT GRANTED; RELIEF DENIED

      . Although Mr. Hurst makes detailed factual allegations in his brief about why he did not discover the alleged malpractice until January 1, 2015, we note that "[alppellate briefs are not a part of the record on appeal, and this court has no authority to consider facts referred to in appellate briefs if those facts are not in the record on appeal.” Cozzy Spot, LLC v. City of New Orleans, 16-0529, p. 4 (La.App. 4 Cir. 1/11/17), 209 So.3d 224, 227.


source: Caselaw Access Project

author: Judge Terri F. Love

license: Public Domain

text:
    STATE of Louisiana v. Melvin JONES
    NO. 2016-KA-0653
    Court of Appeal of Louisiana, Fourth Circuit.
    MAY 3, 2017
    Rehearing Denied May 23, 2017

      Leon A. Cannizzaro, Jr., District Attorney, J. Taylor Gray, Assistant District Attorney, PARISH OF ORLEANS, 619 South White Street, New Orleans, LA 70119, COUNSEL FOR APPEL-LEE/STATE OF LOUISIANA
    Holli Herrle-Castillo, LOUISIANA APPELLATE PROJECT, P. O. Box 2333, Marrero, LA 70073-2333, COUNSEL FOR DEFENDANT/APPELLANT
    Court composed of Judge Terri F. Love, Judge Madeleine M. Landrieu, Judge Joy Cossich Lobrano
   Judge Terri F. Love

| defendant Melvin Jones (“Mr. Jones”) appeals his conviction of felony carnal knowledge of a juvenile in violation of La, R.S. 14:80. Mr. Jones seeks reversal of his conviction arguing that - material portions of the record bearing on the merits of his appeal are missing, he was unable to cross-examine the individuals who performed the DNA testing, and the trial court erred by admitting evidence of a 1998 allegation of aggravated rape. Although the record does not contain a compléte voir dire transcript, we find the omission is not so material as to prevent a full review: We also find the Confrontation Clause issue was not preserved for appellate review, and the trial court did not abuse its discretion by admitting evidence of'the 1998 alleged aggravated rape. Therefore, we affirm Mr. Jones’ conviction and sentence.

PROCEDURAL HISTORY AND FACTUAL BACKGROUND

In March 2014, Mr. Jones (a.k.a. Melvin Knight) was charged with one count of felony carnal knowledge of a juvenile. The factual background resulting in Mr. Jones’ conviction follows.

[ ¡>The victim S.H. was born in 1984, When-S.H. was young, she suffered from depression after the death of her father and was later diagnosed with mild mental retardation. In 2000, S.H. was sixteen years old and lived in New Orleans with her mother (“J.H.”) and siblings. Testimony revealed that S.H. would occasionally run away from home. S.H. testified that on June 10, 2000, she ran away from home, but she left a note for her mother indicating that she was going to visit Sister Mitchell, a member of their church, at her house. While S.H. did visit Sister Mitchell that day, she proceeded to a friend’s house. Along the way, S.H. stopped to ask an unknown man for the time. S.H. testified that the man she spoke with was Mr. Jones, who asked S.H. to walk with him. Thirty minutes later, S.H. and Mr. Jones arrived at Mr. Jones’ house. Mr. Jones locked the front door and forced S.H. onto the couch and proceeded to have sex with her.

S.H.’s mother J.H. did not know her daughter ran away until she called Sister Mitchell and learned that S.H. had not been seen since she left Sister Mithcell’s house. Concerned, J.H. contacted the police. J.H. subsequently received a phone call regarding S.H.’s whereabouts. The police then escorted J.H. to the house where S.H. was,located. J.H. testified that she found her daughter S.H. disheveled, distraught, crying, and disoriented.

Initially, S.H. told her mother and the police that nothing happened to her because she was afraid of what Mr. Jones might do to her. However, when she | ¡¡was transported to the hospital for observation and examination, S.H. admitted to the nurse that she recently had sexual intercourse. S.H. underwent a pelvic examination, and her mouth and vaginal area were swabbed.

At trial, S.H. testified that she could not remember whether she had consensual sex with a man named Melvin Jones or Melvin Knight. She also stated that at the time of the incident she was not sexually active. On cross-examination, S.H. explained that the reason she fold the police she did not have sex was because she feared Mr. Jones. However, she did ultimately admit to her mother and the police she was raped but did not know by whom.

The original investigation in 2000 did not lead to any arrests. However, the NOPD contracted with Reliagene Technologies to process a backlog of rape kits, including the rape kit performed on S.H. in June 2000, identified as NOPD Item Number F19801-2000. Ms. Gina Pineda (“Ms. Pine-da”) testified as an expert in the field of molecular biology and DNA analysis. Under Ms. Pineda’s supervision, Reliagene processed and tested NOPD Item Number F19801-2000. The kit contained two items for testing including the victim’s blood sample and a vaginal swab. Ms. Pineda testified that she did not conduct the actual testing in this case, but rather reviewed the testing protocol and interpreted the results. From the results, Ms. Pineda concluded that NOPD Item Number F19801-2000 presented DNA of the victim S.H. and the DNA of a male donor.

Over defense’s objection, the State sought to call as a witness S.T., the victim of an alleged sexual assault that occurred in 1998. The trial court allowed |4S.T. to testify. S.T. testified that in 1998 she was fourteen or fifteen years old and living in New Orleans. She related to the jury an incident that occurred in July 1998 while walking home from a friend’s house. She stated that she was approached by a man, who was wearing a Sears uniform and driving a white Sears van. The man spoke to S.T. about helping her get a job. He told her that he had a job application at home and would give it to her if she would accompany him to his apartment. S.T. agreed.

At the apartment, S.T. remained in the front room while the man entered the kitchen to retrieve the application. However, the man returned with a butcher knife and ordered S.T. to disrobe. She complied with his demand but begged him not to hurt her. According to S.T., the man led her to a bedroom where he raped' her. S.T. testified that during the attack her assailant had put the knife down and she attempted to grab it. S.T. testified that she grabbed the knife by the blade and her hand was sliced when her assailant pulled the knife away from her. She stated that the attack lasted approximately forty-five minutes, after which he - gathered the bloody sheets-and they left his apartment. S.T.’s attacker' threw the sheets in a dumpster near his, apartment and drove S.T. around, asking if she was going to tell anyone what happened. When she convinced him she would not tell anyone, he released her. S.T. fled from the van and found her friends, who transported her to the hospital where she underwent a rape examination.,

S.T. testified that she did not know the man who attacked her. In 2012, S.T. was contacted by a detective, who informed her that an arrest was made in relation | fito her assault.

In addition to processing the rape kit in S.H.’s case, Reliagene also processed the rape kit in S.T.’s case, identified as NOPD Item Number G10251-1998. Ms. Pineda testified that the results from the sample-matched the DNA of S.T. and tested positive for the presence of seminal fluid of a male donor,, from which a profile was generated. Ms. Pineda testified that a comparison of the test results from NOPD Itetai Number F19801-2000 and NOPD Item Number G10251-1998 indicated that the sperm profiles in- the two cases matched. The evidence was then returned to NOPD for its review of Reliagene’s work to ensure accuracy of -the results and to upload the results to the National DNA Database (CODIS).

In December 2011, NOPD Sex Crimes Unit received two CODIS match notification letters as to the sexual assault cases involving S.T. in 1998 and S.H. in 2000. Thereafter, Sergeant James Kelly (“Sergeant Kelly”) reviewed the case files, located each victim, and interviewed them. Neither -victim knew Mr. Jones. Based upon the DNA match, Sergeant Kelly obtained an arrest warrant for Mr. Jones. Sergeant Kelly testified that he interviewed Mr. Jones, who denied having sex with the victims. He stated that Mr. Jones admitted to him that he drove his employer’s white van in 1998. Sergeant Kelly placed Mr. Jones under arrest and obtained a search warrant to obtain a buccal swab from Mr. Jones.

At trial, the State also called as' a witness Anne Montgomery (“Ms. Montgomery”), co-founder of Reliagene and an expert in the field of molecular biology and forensic DNA analysis, whose testimony corroborated Ms. Pineda’d f> testimony regarding Reliagene’s test results. Julia Naylor Kirks (“Ms. -Kirks”), a forensic scientist with the Louisiana State Police Crime Lab and expert in the field of forensic DNA analysis and microbiology, was also called as a witness. Ms. Kirks testified that she received a request to compare the genetic profile obtained from a buccal swab of Mr. Jones to the sperm donor DNA profiles generated by Reliagene in NOPD Item Numbers F19801-2000 and G10251-1998. She concluded that the statistical probability that the sperm donor DNA profile developed in the 2000 and 1998 cases belonged to anyone other than Mr. Jones was one in 141 quadrillion.

Following two days of testimony, the case was submitted to the jury, who found Mr. Jones guilty as charged. Mr. Jones filed motions for new trial and post-verdict judgment of acquittal, which the trial court denied. Mr. Jones was sentenced to ten years with credit for time served. Thereafter, the State filed a multiple bill charging Mr. Jones as a triple felony offender to which Mr. Jones pled guilty. The trial court vacated the original sentence and sentenced Mr. Jones pursuant to the multiple bill to eighteen years with credit for time served. The trial court then granted Mr. Jones’ motion for appeal. Mr. Jones timely seeks appellate review of his conviction and sentence.

INCOMPLETE RECORD

In his first assigned error, Mr. Jones argues that his conviction must be reversed because the record does not contain a complete voir dire transcript, and as |7a result he is deprived of his right to a full judicial review. The portions of the voir dire that are transcribed concern objections during the panel questioning. However, the portions pertaining to peremptory and cause challenges are not included, making it impossible, Mr. Jones argues, to review the viability of the challenges for cause.

La. Const. art. I § 19 guarantees defendants a right of appeal “based upon a complete record of all the evidence upon which the judgment is based.” Additionally, La. C.Cr.P. art. 843 provides in pertinent part:

In felony cases,[... ] the clerk or court stenographer shall record all of the proceedings, including the examination of prospective jurors, the testimony of witnesses, statements, rulings, orders, and charges by the court, and objections, questions, statements, and arguments of counsel.

Nonetheless, an incomplete record may be adequate for full appellate review. State v. Thomas, 92-1428, 93-2083 (La. App. 4 Cir. 5/26/94), 637 So.2d 1272, 1274.

The Louisiana Supreme Court enunciated a three-part standard for reviewing incomplete record claims. State v. Frank, 99-0553, p. 20-21 (La. 1/14/01), 803 So.2d 1, 19-20. First, “[m]aterial omissions from the transcript of the proceedings at trial bearing on the merits of an appeal will require reversal.” Id., 99-0553, p. 20-21, 803 So.2d at 19-20 (citing State v. Robinson, 387 So.2d 1143 (La. 1980) (finding omissions material as substantial portions of the record were missing, including the testimony of four state witnesses, voir dire examination of prospective jurors, and the prosecutor’s opening statements)); See also State v. Diggs, 93-0324 (La.App. 4 Cir. 6/29/95), 657 So.2d 1104 (finding unavailability of witness testimony required a new trial because it could not be determined | «whether the missing testimony was substantial or inconsequential).

Second, “inconsequential omissions or slight inaccuracies do not require reversal.” Frank, 99-0553, p. 21, 803 So.2d at 20 (citing State v. Goodbier, 367 So.2d 356, 357 (La. 1979) (declining to reverse when record did not include voir dire examination transcript and the court reporter’s affidavit indicated that no objections were made by the attorneys during voir dire); See also State v. Lyons, 597 So.2d 593 (La. App. 4th Cir. 1992).

Third, “a defendant is not entitled to relief because of an incomplete record absent a showing of prejudice based on the missing portions of the transcripts. Frank, 99-0553, p. 21, 803 So.2d at 20 (citing State v. Castleberry, 98-1388, p. 29 (La. 4/13/99), 758 So.2d 749, 773). “Prejudice is presumed when a defendant’s challenge for cause is erroneously denied by a trial court and that defendant exhausts his peremptory challenges.” State v. Thomas, 14-0510, p. 17 (La.App. 4 Cir. 5/20/15), 171 So.3d 959, 971 (citing State v. Odenbaugh, 10-0268, p. 24 (La. 12/6/11), 82 So.3d 215, 237).

In State v. Pinion, 06-2346 (La. 10/26/07), 968 So.2d 131, the record contained neither a transcript of the bench conferences nor any documentation showing which jurors were challenged for cause by the defense or stricken by the defense with peremptory challenges. The Louisiana Supreme Court found that although there was evidence that the defense exhausted its peremptory challenges, the lack of any such documentation as to the challenges for cause prejudiced the defendant. Id., 06-2346, p. 9, 968 So.2d at 136. Therefore, it reversed the defendant’s conviction and sentence for lack of documents in the record which would have indicated whether the trial court correctly denied any challenges for cause. Id.

|flHere, the court reporter who transcribed the proceedings filed a Certificate of Unavailability of Transcripts, attesting that no paper tapes or recordings of the trial court could be found, and that while the trial transcript and some portions of the voir dire were available, “an entire transcript of the voir dire cannot be produced ... as nothing can be located regarding this transcript.” The December 9, 2014 minute entry, on the other hand, indicates seven jurors were excused by the defense, three by the State, and seven for cause.

Mr. Jones notes that both he and the State were allowed six peremptory challenges for the jury pursuant to La. C.Cr.P. art. 799 and an additional challenge for the alternate juror. In that Mr. Jones used all of his peremptory challenges, Mr. Jones contends that if one of his challenges for cause were erroneously denied by the trial court, he would be entitled to a new trial. Therefore, Mr. Jones asserts that a complete transcript of the voir dire proceedings is vital to appellate review.

The portions of the voir dire transcript contained in the record do not indicate that the defense lodged any objections during voir dire. Absent a contemporaneous objection, an appellate court may only review those errors which are discoverable by mere inspection of the pleadings and proceedings. La. C.Cr,P. art. 920.

Although neither the minute entries nor the transcript indicate how many challenges for cause were denied or which party requested them, the trial judge’s jury strike sheet is contained in the record. Review of the strike sheet indicates that the trial court granted the State’s challenges for cause as to jurors 7, 8, and 10. The trial court also granted Mr. Jones’ challenges for cause as to jurors 12, 20, 22, and 23. The notes contained on the strike sheet also indicate that the defense challenged for cause jurors 5, 9,11, and 17, but the trial court denied those |inchallenges. There is no information as to the basis of Mr. Jones’ challenges for cause which the trial court denied. Even so, the strike sheet reveals that Mr. Jones exercised peremptory challenges as to those jurors when the challenges for cause were denied.

Mr. Jones contends that without a complete voir dire transcript the possibility exists that -the trial court erroneously denied at least one of his cause challenges; therefore, this Court should reverse the jury’s verdict. Like Pinion, the relevant portions of the voir dire transcript are missing. However, the Pinion court reversed the defendant’s conviction not only because of the missing transcript but also because of “the uncertainty with respect to how many cause challenges the defense made unsuccessfully, and the absence of other contemporaneous records accounting for the selection ’ process, e.g., adequate minutes or jury strike sheets Pinion, 06-2346, p. 9, 968 So.2d 131, 136. This case is distinguishable because contained in the record- is the minute entry of the selection process and the trial court’s jury strike sheet that documents which jurors were challenged for cause by the defense or stricken by the defense with peremptory challenges. See Id., 06-2346, p. 7-8, 968 So.2d at 134-35 (“[T]he failure to record bench conferences will ordinarily not affect the direct review process when the record suggests that the unrecorded bench conferences had no discernible impact on the proceedings and did not result in any specific prejudice to the defendant.”) (citing State v. Hoffman, 98-3118, p. 50-51 (La. 4/11/00), 768 So.2d 542, 587)).

Mr. Jones only raised cause challenges for eight prospective jurors, of which the trial court granted four. Of the remaining cause challenges, Mr. Jones used his peremptory challenges to strike those jurors from the venire. Not a single juror that Mr. Jones challenged in this case became a part of the impaneled jury. |nInstead, the jury was composed of only those jurors to whom Mr. Jones had no objection. Moreover, Mr. Jones does not complain on appeal that the impaneled jury was anything less than impartial. Therefore, Mr. Jones has not shown any prejudice that has resulted from the missing portions of the transcript. Unlike Pinion, we find the omission in this case is not so material as to prevent this Court from conducting a full- review where the omission has no discernible impact and did not result in specific prejudice to Mr. Jones.

CONFRONTATION OF WITNESSES

Mr. Jones asserts in his second assigned error that his Sixth Amendment right to confront the witnesses against him was violated because the Reliagene personnel that performed the DNA testing and analysis did not testify at trial.

Mr. Jones filed a motion in limine to exclude the DNA analysis performed by Reliagene, “unless the prosecution calls the lab tech, who. performed the analysis, to testify.” The trial court did not rule on the motion prior to the commencement of trial. Likewise, there is no evidence that Mr. Jones re-urged the motion or objected to the trial court’s failure to consider the issue prior to the start of trial. Further, Mr. Jones did not lodge a contemporaneous objection at trial during the testimony of the. State’s DNA experts or the -introduction of the Reliagene DNA testing analysis. See La. C.Cr.P. art. 841. Therefore, the assigned error has not been preserved for appellate review, Even if the issue were preserved for. appellate review, the argument lacks merit.

In Bullcoming v. New Mexico, 564 U.S. 647, 181 S.Ct. 2705, 180 L.Ed.2d 610 (2011), the defendant’s aggravated driving while intoxicated conviction was based primarily on a forensic laboratory report which certified that his blood-alcohol concentration was above the legal limit. The analyst who signed the report | ^.certification did not testify at trial. The State called another analyst familiar with the laboratory’s procedures to testify instead. The Buttcoming court found the report could only be used against the defendant if the defendant had an opportunity to confront at trial the analyst who performed, observed, or supervised the forensic examination. The Coürt noted that the Sixth Amendment was not satisfied by the “surrogate” witness who was familiar with the laboratory’s practices but who had formed no independent opinion concerning the forensic examination results. Id., 564 U.S. at 661-62, 131 S.Ct. at 2715-16. The key question in Confrontation Clause cases is whether the evidence sought to be admitted is testimonial in nature: “As a rule, if an out-of-court statement is testimonial in nature, it may not be introduced against the accused at trial unless the witness who made the statement is unavailable and the accused has had a prior opportunity to confront that witness.” Id., 564 U.S. at 657, 131 S.Ct. at 2713.

By contrast, in Williams v. Illinois, 567 U.S. 50, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012), the Supreme Court held that the Confrontation Clause was not violated when the state’s DNA expert testified on the basis of a report by another DNA expert, who did not testify at trial, that the DNA profile of a blood sample taken from the defendant matched the DNA profile taken from the biological traces found on the victim of a sexual assault. Two reasons for the Court’s finding were offered. First, the expert’s reliance on the report was not offered to prove' the truth of the matter asserted because the results of the DNA test were' relayed by the expert solely for the purposé of explaining the assumptions on which his opinion rested. Id., 567 U.S. at 55-59, 132 S.Ct. at 2227-28. Second, the DNA profile’ was produced before the defendant was identified as a suspect and was not inherently inculpatory. Id., 567 U.S. at 57-59, 132 S.Ct. at 2228. The Court reasoned that the ^report was different from the extrajudicial statements the Sixth Amendment was originally intended to reach. The Court explained:

The report was produced before any suspect was identified. The report was sought not for the purpose of obtaining evidence to be used against the petitioner, who was not even under suspicion at the time, but for the purpose of finding a 'rapist who was on the loose. And the profile that Cellmark provided was not inherently inculpatory. On the contrary, a DNA profile is evidence that tends to exculpate all but one of the more than 7 billion people in the world today. The use of DNA evidence to-exonerate persons who have been wrongfully accused or convicted is well known. If DNA profiles could not be introduced without calling the technicians who participated in the preparation of the profile, economic pressures would encourage proser eutors to forgo DNA testing and rely instead on older forms of evidence, such as eyewitness identification, that are less reliable. [... The Court’s] conclusion will not prejudice any defendant who really wishes to probe the reliability of the DNA testing [... ] because those who participated in the testing may always be subpoenaed by the defense and questioned at trial.

Id.

This Court considered Bullcoming and Williams in State v. Grimes, 11-0984 (La. App. 4 Cir. 2/20/13), 109 So.3d 1007, where the defendant was convicted of aggravated rape, aggravated kidnapping, and sexual battery of two victims in 1993 and 1997. At the time of the attacks, the perpetrator was unknown, although DNA analysis of the sexual assault kits identified the defendant as the perpetrator in 2005. Citing Williams, this Court stated, “even if forensic DNA reports are admitted in evidence without in-court testimony of the scientist/analyst who signed the certification or performed or observed the test reported in the certification [... ] generally, there is no Sixth Amendment Confrontation Clause violation because the reports are not testimonial.” Id., 11-0984, p. 28-29, 109 So.3d at 1023 (emphasis in original); See also State v. Bolden, 11-2435, p. 4 (La. 10/26/12), 108 So.3d 1159, 1161-62 (finding no Confrontation Clause violation if “the tests on the victim’s samples were conducted before the defendant was identified as the | ^assailant or targeted as a suspect.”).

Further, the Louisiana Supreme Court stated that as a matter of state law the computer generated statements (i.e. printouts of the DNA profiles that are developed) “did not constitute statements of a declarant for purposes of La. C.E. art. 801 (defining a statement as an oral or written assertion by a declarant, or ‘person who makes a statement’).” Id., 11-2435, p. 5, 108 So.3d at 62.

Applying this analysis, the State’s expert witnesses’ testimony and the DNA report generated by Reliagene do not constitute testimonial evidence. Therefore, the expert testimony does not violate the Confrontation Clause because “[o]ut-of-court statements that are related by the expert solely for the purpose of explaining the assumptions on which that opinion rests are not offered for their truth and thus fall outside the scope of the Confrontation Clause.” Williams, 567 U.S. at 58, 132 S.Ct. at 2228. Additionally, neither DNA report was prepared for the primary purpose of accusing Mr. Jones as a suspect in the sexual assaults. The tests of the victims’ samples were extracted in 1998 and 2000, and uploaded into the State’s CODIS database in 2003, well before the 2012 computer-generated CODIS match identified Mr. Jones as the assailant or targeted him as a suspect in the cases. The primary purpose of the testing was not to target a specific or known suspect, as noted in Bullcoming, but rather to catch an unknown sex offender. Cf. Williams, 567 U.S. at 92-95, 132 S.Ct. at 2248-49.

PRIEVR EVIDENCE

In his third assigned error, Mr. Jones claims the trial court erred by allowing the admission of other crimes evidence. “A trial court’s ruling on the admissibility of evidence of other crimes will not be overturned absent an abuse of discretion,” State v. Mark, 13-1110, p. 16 (La.App. 4 Cir. 7/30/14), 146 So.3d 886, 899 (citing State v. Wright, 11-0141, p. 10-11 (La. 12/6/11), 79 So.3d 309, 316).

Courts may not admit evidence of other crimes to show the defendant as a man of bad character who has acted in conformity with his bad character. La. C.E. art. 404(B)(1). Evidence of other crimes, wrongs or acts committed by the defendant is generally inadmissible because of the “substantial risk of grave prejudice to the defendant.” State v. Prieur, 277 So.2d 126, 128 (La. 1973). However, the State may introduce evidence of other crimes, wrongs or acts if. it establishes an independent and relevant reason such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. La. C.E. art. 404(B)(1). Even when the other crimes evidence is offered for a purpose allowed under art. 404(B)(1), the evidence is not admissible unless it tends to prove a material fact at issue or to rebut a defendant’s defense. State v. Martin, 377 So.2d 259, 263 (La. 1979); Prieur, 277 So.2d at 130.

“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.” La. C.E. art. 403. In this case, the probative value of the other crimes evidence was not substantially outweighed by unfair prejudice, confusion, undue delay, or waste of time. Prior to trial, the trial judge questioned the victim of the 1998 incident to test the admissibility of the evidence to be offered at trial. When the victim testified at trial, she was the first witness, and given her testimony was no more than ten pages in length, it was not so time-consuming as to risk distracting the jury from the charges at issue at the trial. The evidence was presented in a clear, orderly manner, and the witness was subject to cross-examination, during which the prosecutor and defense counsel showed the jury that the evidence of the 1998 incident was not |1firelated to the instant case.

Likewise, there was no showing that the jury was misled or confused by the presentation of the other sexual crime evidence. At the beginning of voir dire, the trial court read the indictment to the potential jurors and instructed them it was the State’s burden to prove only the charged offense, carnal knowledge of a juvenile, which it also defined for the jurors. Therefore, we find no error of the trial court by allowing the State to present the other crimes evidence because the probative value of the 1998 sexual offense evidence was not substantially outweighed by the danger of unfair prejudice.

In addition, to the extent that the State proved Mr. Jones’ identity based on the DNA evidence and that consent was not a defense to the charge, evidence of the unrelated sexual assault had no effect on the jury’s verdict. Thus, even if the admission was erroneous, the error was harmless. Mark, 13-1110, p. 22, 146 So.3d at 902 (“An error is harmless if it can be said beyond a reasonable doubt that the guilty verdict was surely unattributable to the error.”) (internal quotations omitted).

DECREE

Although portions of the voir dire transcript are missing from the record, we find the minute entry and the jury strike sheet offer sufficient documentation to provide a full review of Mr. Jones’ conviction and sentence. In that the impaneled jury consisted of only those jurors to whom Mr. Jones had no objection and the DNA evidence established that the statistical probability that the sperm donor DNA profile developed by Reliagene matched anyone other than Mr. Jones was one in 141 quadrillion, we find Mr. Jones has not shown any prejudice resulting from the incomplete record. We affirm Mr. Jones’ conviction and sentence.

AFFIRMED

      . Initials of the victims and their family members are used throughout this opinion pursuant to La. R.S. 46:1844(W), which bars the disclosure of the names, addresses, or identities of crime victims under the age of eighteen and of all victims of sex offenses.

      . At the time of the offense in 2000, La. R.S. 14:80 was not defined as a crime of violence under La. R.S. 14:2 and carried a minimum sentence of six years and eight months and a maximum sentence of twenty years.


text:
    Bradley Ryan AKERS and Eliza Maria Mortz v. The COLUMNS HOTEL, INC., Michael McCormick and ABC Insurance Company
    NO. 2016-CA-0870
    Court of Appeal of Louisiana, Fourth Circuit.
    MAY 10, 2017

      Paul N. Vance, BALDWIN HASPEL BURKE & MAYER, 3600 Energy Centre, 1100 Poydras Street, New Orleans, LA 70163-2200, COUNSEL FOR THIRD-PARTY' PLAINTIFF/APPELLANT, THE COLUMNS HOTEL, INC.
    Craig B. Mitchell, Michael S. Rodriguez, MITCHELL & ASSOCIATES, APLC, 615 Baronne Street, Suite 300, New Orleans, LA 70113, COUNSEL FOR THIRD-PARTY DEPENDANT/APPEL-LEE, LOUISIANA RESTAURANT ASSOCIATION SELF-INSURERS FUND
    (Court composed of Judge Terri F. Love, Judge Madeleine M. Landrieu, Judge Joy Cossich Lobrano)
   Judge Terri F. Love

| plaintiff filed suit against another employee of defendant hotel after receiving injuries in a physical altercation while at work. This appeal arises from a third-party demand of the defendant/third-party plaintiff hotel against a third-party defendant, the Louisiana Restaurant Association Self-Insurers Fund. Defendant hotel contends that the indemnity agreement between the parties covered the altercation. The fund filed a motion for summary judgment contending that their indemnity agreement was not an insurance policy, and did not provide coverage to the defendant hotel. The trial court agreed and granted the motion for summary judgment. The trial court dismissed all of the claims against the fund with prejudice.

The defendant hotel appeals contending that the issue is not properly determined on a motion for summary judgment and that the exclusions did not apply. After reviewing, we find that the trial court correctly granted the motion for summary judgment, as the defendant hotel had not waived the right to deny coverage, and the physical altercation was excluded from coverage in a provision of the indemnity agreement. The judgment of the trial court is affirmed.

|¡¡FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Bradley Akers filed suit against Michael McCormick for damages and personal injuries resulting from a physical altercation that took place while they were working as employees for The Columns Hotel, Inc. (“Columns”). The Columns then filed suit, as a third-party plaintiff, against the Louisiana Restaurant Association Self-Insurers Fund (“LRASIF”) contending that the parties’ indemnity agreement provided coverage for damages resulting from the altercation. LRASIF filed a Motion for Summary Judgment asserting that no coverage was provided under the indemnity agreement. The trial court granted the Motion for Summary Judgment and dismissed the claims against LRASIF with prejudice. The Columns filed a Motion for New Trial, which the trial court denied. The Columns’ devolutive appeal followed.

The Columns now appeals, maintaining that the trial court erred: 1) because the exclusions in the indemnity agreement were not applicable to the facts, 2) the exclusions were improper to consider on summary judgment, 3) and because the LRASIF waived the right to utilize the exclusions.

MOTION FOR SUMMARY JUDGMENT

“The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969.” La. C.C.P. art. 966(A)(2). “[A] motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(A)(3). “The only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written ^stipulations, and admissions.” La. C.C.P. art. 966(A)(4). The burden of proof lies with the party motioning for summary judgment. La. C.C.P. art. 966(D)(1). However, “if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense.” Id. Instead, the mover must “point out to the court the absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense.” Id. “The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.” Id.

“In determining whether the trial court erred in granting plaintiffs’ Motion for Summary Judgment on the petition to annul, we must discern whether genuine issues of material fact exist.” Descant v. Herrera, 03-0953, p. 8 (La.App. 4 Cir. 12/22/04), 890 So.2d 788, 793. “The standard for reviewing the trial court’s grant or denial of a Motion for Summary Judgment requires de novo review” using the same criteria as the trial court. Id.

WAIVER

The Columns contends that LRASIF waived the ability to raise the exclusions contained in the indemnity agreement because LRASIF initially defended Mr. McCormick without a reservation of rights. To buttress the claim, the Columns cites to jurisprudence regarding the waiver of exclusions in insurance policies.

“Waiver is generally understood to be the intentional relinquishment of a known right, power, or privilege.” Steptore v. Masco Const. Co., Inc., 93-2064, p. 4 (La. 8/18/94), 643 So.2d 1213, 1216. ‘Waiver occurs when there is an existing | ¿right, a knowledge of its existence and an actual intention to relinquish it or conduct so inconsistent with the intent to enforce the right as to induce a reasonable belief that it has been relinquished.” Id.

Prior to revisions made in 2010, La. R.S. 23:1195(A)(1) stated that “[t]his arrangement shall not be an insurer, shall not be deemed to be insurance and shall not be subject to the provisions of Chapter 1 of Title 22 of the Louisiana Revised Statutes of 1950.” (emphasis added). The Louisiana Supreme Court’s interpretation found that the bolded limiting clause meant that self-insurance’s designation as “not insurance” had “a circumscribed and limited meaning” instead of providing that self-insurance was never treated as insurance. Louisiana Safety Ass’n of Timbermen Self-Insurers Fund v. Louisiana Ins. Guar. Ass’n, 09-0023, p. 11 (La. 6/26/09), 17 So.3d 350, 357. In other words, self-insurance could sometimes be treated as insurance. However, the Legislature amended La. R.S. 23:1195(A)(1) in 2010 to redact the bolded portion. The statute now specifically provides that “[t]his arrangement shall not be an insurer, shall not be deemed to be insurance and shall not be subject to the Louisiana Insurance Code.” La. R.S. 23:1195(A)(1) (emphasis added). Further, the statute states that “[t]he member employers of the arrangement likewise shall not be insurers or be subject to the Louisiana Insurance Code.”

“When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.” La. C.C. art. 9. The revised portions of La. R.S. 23:1195 are clear and unambiguous. The Legislature deleted the section subjecting group insurers to a portion of the Louisiana Insurance Code. Group insurers are now exempt from the Louisiana |RInsurance Code, shall not be considered insurers, and shall not be considered insurance. No caveats remain. As such, we need not consider the jurisprudence interpreting the waiver of exclusions in insurance contracts. Accordingly, we will determine whether the indemnity agreement provisions provided that the exclusions were waived even if LRASIF initially undertook the defense of Mr. McCormick.

“The contract of indemnity forms the law between the parties and must be interpreted according to its own terms and conditions.” Yocum v. City of Minden, 566 So.2d 1082, 1086 (La. App. 2nd Cir. 1990). “The general rules which govern the interpretation of other contracts apply in construing a contract of indemnity.” Id. “Interpretation of a contract is the determination of the common intent of the parties.” La. C.C. art. 2045. “When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in.search of the parties' intent.” La. C.C. art. 2046.

The indemnity agreement for workers’ compensation and employer’s liability provides that:

It is a contract of indemnity between you (the employer named on the Membership Application) and us (the Louisiana Restaurant Association Self Insurance Trust or the “Fund”. The terms of the Agreement may not be changed or waived except in writing or by written .endorsement issued by the Fund, both of which shall be considered part of the Agreement.

Under Section III. Employer’s Liability Indemnity Protection (Part B)- states that:

The Fund may, but is not obligated to, also defend any co-employee, or anyone for whom you are legally responsible, whose acts or omissions may. have caused or contributed to the bodily injury suffered.
* * *
The Fund has no duty' to defend a claim, proceeding or suit for damages which is not covered by |6this Employer’s Liability Indemnity Protection (Part B). The Fund may, at its sole option, defend any non-covéréd claim; however, in no event shall the Fund’s actions in defending a non-covered claim be considered as a waiver of its right to deny Indemnity Protection to you and any covered person for any non-covered claim. In the event the Fund undertakes the defense of you or any covered person for a non-covered claim, the Fund reserves the right to withdraw its defense at any time, (emphasis added).

The language contained in the indemnity agreement clearly states that LRASIF does not waive the right to deny coverage by undertaking the defense óf a person on a non-covered claim. Further, the indemnity agreement also gives LRASIF the right to withdraw its defense at any time. As such, we do not find that LRASIF waived its right to deny covérage based upon the exclusions contained in the indemnity agreement by representing Mr. McCormick and later withdrawing.

POLICY EXCLUSIONS

The Columps asserts that the trial court erred by granting LRASIF’s Motion for Summary Judgment because it failed to prove the exclusions apply to the facts of this case and because applying the exclusions requires fact finding, which is improper on summary judgment.

LRASIF relied upon three exclusions in the Motion for Summary Judgment: 1) bodily injury exclusion, 2) assault and battery exclusion, and 3) employment practices exclusion. The bodily injury exclusion reads as follows:

5. Bodily injury to an employee resulting from any act or omission by you, any other covered person, or any person, for whom you are legally responsible, which a reasonable person would expect to cause any bodily injury. This exclusion applies even if the bodily injury, which actually results, is-of a different kind or degree than would be expected, or is sustained by a different person than expected.

The assault and battery exclusion states:

176. Bodily injury to an employee which results from assault, battery, homicide, conversion, intentional infliction of emotional distress, libel, slander, defamation, invasion of privacy, malicious prosecution, false imprisonment, rape, sexual assault, or any criminal activity.

Lastly, the employment practices exclusion reads:

12. Any and all damages arising out of coercion; criticism; demotion; evaluation; reassignment; discipline; defamation; harassment; humiliation; discrimination against or termination of any employee, or any personnel activities, policies, acts or omissions; sexual harassment; racial discrimination; hostile work, environment; sexual discrimination; or employment discrimination; whether caused by you, by any other covered person, or by any person for whom you are legally responsible.

As we stated above, the interpretation of the indemnity agreement is accomplished with the same rules of interpreting contracts. Yocum, 566 So.2d at 1086. Again, the “[interpretation of a contract is the determination of the common intent of the parties.” La. C.C. art. 2045. “When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made' in search of the parties’ intent.” La. C.C. art. 2046. “The words of a contract must be given their generally prevailing meaning.” La. C.C, art. 2047. “Words susceptible of different meanings must be interpreted as having the meaning that best conforms to the object of the contract.” La. C.C; art. 2048.

“A provision susceptible of different meanings must be interpreted with a meaning that renders it effective and not with one that renders it ineffective.” La. C.C. art. 2049. “Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole.” La. C.C. art. 2050. “Although a contract is worded in general terms, it must be interpreted to cover only those things it appears the - parties intended to Isinclude.” La. C.C. art. 2051,

The Columns contends that Mr. McCormick acted in self-defense, which would present a factual question unsuitable for summary judgment. However, the exclusions in the indemnity agreement do not contain a self-defense provision. Therefore, while-the issue of self-defense may be an unresolved factual issue, it is not a material or genuine factual issue in the present case. See Hewitt v. Allstate Ins. Co., 98-0221, pp. 5-6 (La.App. 4 Cir. 1/27/99), 726 So.2d 1120, 1122-23.

We find that the bodily injury exclusion is unambiguous. The indemnity agreement does not cover the Columns for injuries Mr. McCormick inflicted upon Mr. Akers because Mr. McCormick’s acts are such that “a reasonable person would expect to cause” bodily injury. It is irrelevant whether Mr. McCormick intended to harm or injure Mr. Akers, or whether Mr. McCormick was acting in- self-defense. There is no dispute about whether the physical altercation between Mr. Akers and Mr. McCormick actually occurred. The dispute lies within determining the cause of the altercation, the actions taken during the altercation, and the initial aggressor of the altercation. Neither of which factors into the application of the bodily injury policy exclusion, and summary judgment was properly granted.

Likewise, we find that the assault and battery exclusion is unambiguous and also applicable. The Louisiana “Supreme Court has held that a battery is a harmful or offensive contact with a person resulting from an act intended to cause that contact.” Lawson v. Straus, 95-1537, p. 4 (La.App. 4 Cir. 3/14/96), 673 So.2d 223, 226. “It is not necessary that any actual damage be intended.” Id. “The contact involved can be ‘merely offensive and insulting’ and no physical harm is necessary for battery to occur.” Lawson, 95-1537, pp. 4-5, 673 So.2d at 226, quoting Caudle v. Betts, 512 So.2d 389, 391 (La. 1987). “Even a ‘good-natured practical joke’ can be a battery. Id. “Assault is, speaking generally, threat of a battery.” Lawson, 95-1537, p. 5, 673 So.2d at 226. As we stated above, it is undisputed that a physical altercation occurred between Mr. Akers and Mr. McCormick. The actions of Mr. McCormick are consistent with that of an assault and battery. As such, the events would be excluded from coverage by the indemnity agreement. Therefore, we find that the trial court correctly granted LRASIF’s Motion for Summary Judgment. The judgment of the trial court is affirmed.

DECREE

For the above-mentioned reasons, we find that the trial court correctly granted LRASIF’s Motion for Summary Judgment because it had not waived the right to deny coverage and the actions were excluded from coverage pursuant to exclusions in the indemnity agreement. Accordingly, the judgment of the trial court is affirmed.

AFFIRMED

LANDRIEU, J., CONCURS IN THE RESULT.

LOBRANO, J., CONCURS IN THE RESULT.


author: Judge Edwin A. Lombard BROUSSARD, J.

text:
    Melissa WILSON v. DEPARTMENT OF PROPERTY MANAGEMENT
    NO. 2016-CA-1124
    Court of Appeal of Louisiana, Fourth Circuit.
    MAY 10, 2017

      Dale E. Williams, LAW OFFICE OF DALE EDWARD WILLIAMS, 212 Park Place, Covington, LA 70433, COUNSEL FOR PLAINTIFF/APPELLEE
    Stephanie-Dovalina, ASSISTANT CITY ATTORNEY, Adam J. Swensek, CHIEF DEPUTY CITY ATTORNEY, Cherrell S. Taplin, SENIOR CHIEF DEPUTY CITY ATTORNEY, Rebecca H. Dietz, CITY ATTORNEY, City of New Orleans, 1300 Perdido Street, Suite 5E03, New Orleans, LA 70112, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Judge Edwin A. Lombard, Judge Rosemary Ledet, Judge Terrel J. Broussard, Pro Tempore)
   Judge Edwin A. Lombard

_JjThe Appellant, the Department of Property Management for the City of New Orleans (“DPM”), seeks review of the decision of the Civil Service Commission (“Commission”), reversing the termination of the Appellee, Melissa Wilson, Finding that the DPM improperly terminated Ms. Wilson in accordance with the requirements of Civil Service Rule IX, we affirm the decision of the Commission.

Facts

Ms. Wilson, served as “Title Abstractor I” at the Department of Property Management for the City of New Orleans (“DPM”) with permanent status. Ms. Wilson’s primary duties consisted of processing work orders from various other City departments; she was the only person responsible for such task. Specifically,' she entered information from work orders into a spreadsheet, time stamped them, then ensured the completion of the work orders. George Patterson, Director of the |2DPM, expressed that processing work orders is a vital task to the DPM because it is one of the department’s Key Performance Indicators (“KPI”).

In February 2015, Ms. Wilson ceased reporting to work. She later produced physician documentation indicating she would be receiving medical treatment and therefore, could not return to work until her treating physician reassessed, her condition on March 30, 2015. Her treating physician submitted all appropriate paperwork for Family Medical Leave Act (“FMLA”) leave. However, on March 30, 2015, Ms. Wilson failed to return to work. Instead, she produced a second physician’s letter that expressed her inability to return to work until the completion of another medical reassessment on April 13, 2015. Again, Ms. Wilson failed to return to work on the date indicated in the letter. On April 14, 2015, Ms. Wilson produced a third physician’s letter that extended her absentee period until April 28, 2015. The DPM honored all Ms. Wilson’s requests for medical leave.

In Ms. Wilson’s absence, other employees of the DPM aided in processing the work orders; yet, a backlog ensued because they strained to process them. Mr. Patterson testified that this departmental strain became untenable in late April. Consequently, he sought approval from the Civil Service to hire a temporary replacement during Ms. Wilson’s absence. Civil Service rejected his ■ request because the payroll budget could only be accessed to hire Ms, Wilson’s permanent replacement.

On April 28, .2015, Ms. Wilson did not return to work. On May 5, 2015, the DPM notified Ms. Wilson that a pre-termination hearing, would be held due to her inability to return to work. In the DPM’s notification, it expressed that Ms. Wilson ^exhausted all her FMLA leave time and did not submit certification that she could return to work in any capacity from her medical provider.

At the pre-termination hearing, Ms. Wilson produced another physician’s letter, which permitted her return to work with the condition the DPM took precautions for any sudden loss of Ms. Wilson’s balance. On May 15, 2015, the day after the hearing, the DPM terminated Ms. Wilson. Mr. Patterson stated he considered her to be a liability to both the City and his department. Ms. Wilson believed at the time of her termination she still possessed forty-nine (49) days of unused sick leave and nearly two weeks of annual leave.

Ms. Wilson appealed her termination to the Commission, which granted her appeal. On review, the Commission first found that she could not perform the essential functions of her job as of May 15, 2015. Nonetheless, the Commission also ruled that the DPM improperly terminated Ms. Wilson when they did not first permit her to exhaust all her allocated sick and annual leave before her termination. The Commission specifically found that the DPM failed to meet its burden of proof that Ms. Wilson did not submit the proper documentation to justify her absence, permanent disability, or inability to resume her duties at the DPM. Subsequently, the Commission reinstated Ms. Wilson and required the DPM to pay her backpay and emoluments.

The DPM timely filed the instant appeal in this Court, raising two (2) assignments of error:

1. The Commission committed legal error by augmenting the plain language of Civil'Service Rule IX with additional unwritten requirements.
2. The Commission improperly substituted its judgment for the Appointing Authority’s judgment.

^Standard of Review

The Louisiana Constitution bestows the Commission the authority to modify, affirm or reverse all disciplinary actions. La. Const. art. X, § 12; Pope v. New Orleans Police Dep’t., 04-1888, p. 5 (La.App. 4 Cir. 4/20/05), 903 So.2d 1, 4. A permanent status employee in the classified city service must be terminated for good cause expressed in writing. La. Const. art. X, § 8(A); Walters v. Dep’t of Police of New Orleans, 454 So.2d 106, 113 (La. 1984). A good cause for termination exists when the employee’s conduct is detrimental to the efficient operation of the public service. Laviolette v, Dep’t. of Police, 16-0095, pp. 5-6 (La.App. 4 Cir. 8/24/16), 200 So.3d 962, 966 (citing Walters, 454 So.2d at 113). The Appointing Authority must prove a legal cause exist to the Commission. Muhammad v. New Orleans Police Dep’t, 00-1034, pp. 4-5 (La.App. 4 Cir. 7/11/01), 791 So.2d 788, 791 (citing Wilson v. New Orleans Aviation Board, 96-1350, p. 2 (La.App. 4 Cir. 1/15/97), 687 So.2d 593, 595). “Legal cause exists when the employee’s conduct impairs the efficiency of the public service in which the employee is engaged.” Id., 00-1034, p.7, 791 So.2d at 792 (citing Cittadino v. Department of Police, 558 So.2d 1311 (La. App. 4 Cir. 1990)), The Appointing Authority must also prove the “actions complained of bear a real and substantial relationship to the efficient operation of the public service.” Id. (citing Neff v. City Planning Comm’n, 95-2324 (La.App. 4 Cir. 9/11/96), 681 So.2d 6). Both requirements must be proven by a preponderance of the evidence. Id.

This Court must review the Commission’s finding of facts pursuant to the clearly wrong or manifest error standard. Id., 00-1034, pp. 4-5, 791 So.2d at 790-791; see also Vara v. Dep’t of Police, 16-0036, p. 5 (La.App. 4 Cir. 6/29/16), 197 So.3d 294, 297. The Commission’s conclusion of “whether the disciplinary | fiaction is based on legal-cause and the punishment is commensurate with the infraction” should be reviewed determining whether the finding is arbitrary, capricious or an abuse of discretion. Id. The Commission’s conclusion is arbitrary or capricious if it lacks a rational basis. Bannister v. Dep’t. of Streets, 95-404 (La. 1/16/96), 666 So.2d 641. Therefore, this Court shall only modify the Commission’s reinstatement of Ms. Wilson if there is no rational basis for the Commission’s ruling.

The Commission’s alleged violation of Civil Service Rule IX

In the first assignment of error, the DPM argues that the. Commission’s order to reinstate Ms. Wilson violated Civil Service Rule IX, Section 1.1, because it created an additional requirement to terminate employees under Rule IX. Specifically, the DPM argues that the Commission misinterpreted Rule IX because Rule IX does not require a department to await an employee’s exhaustion of her accrued sick and/or annual leave before terminating an employee. Civil Service Rule IX, Section 1.1, provides the following:

When an employee in the classified service is unable or unwilling to perform the duties of his/her position in a satisfactory manner, or has committed any act to the prejudice of the service, or has omitted to perform any act it was his/her duty to perform, or otherwise has become subject to corrective action, the appointing authority shall take action warranted by the circumstances to maintain the standards of effective service. The action may include one or more of the following:
(a) termination from the service... .

|RIn support of the argument, the DPM relies on Ramie v. Dep’t of Fire, 617 So.2d 92 (La. App. 4 Cir. 3/30/93), and Muhammad, supra, to establish that the Appointing Authority is authorized to terminate an employee who is unable or unwilling to perform his or her job functions. The Commission’s ruling did not dispute the DPM’s authority to terminate Ms. Wilson, but merely required the DPM to satisfy its burden of proof that Ms. Wilson was either permanently unable or unwilling to perform her job functions.

There are many dissimilarities between the case at issue and Ramie and Muhammad. In Ramie, the employee conceded that he could not perform his duties as a firefighter. He did not know whether he would be able to resume his duties as a firefighter. Ramie, 617 So.2d at 94. Likewise, in Muhammad, the employee admitted he could not return to work. Muhammad, 00-1034, p. 2, 791 So.2d at 789. Also, in Muhammad, the employee’s physician recommended that the, employee not return to work and that the department grant him full and permanent disability. Id. Neither case is factually analogous to the instant case.

Neither Ms. Wilson nor her physician suggests that she is unable to return to work. Although the Commission found that Ms. Wilson was unable to perform the essential functions of her job as of May 15, 2015, it did not rule that she was permanently unable to perform her job functions. Ms. Wilson produced a letter from her physician that permitted her to return to work if the DPM took precautions for any sudden loss of her balance. However, the DPM chose to terminate Ms. Wilson because, as Mr. Patterson, Director of the DPM, testified, the City found her to be a “liability.” There is no Civil Service rule that permits the Appointing Authority to terminate an employee who can, or could eventually, perform his or her job functions but may be a “liability” to the department.

|7Next, the DPM argues that the FMLA does not require the employer to allow an employee to exhaust all his or her available FMLA leave in addition to all remaining sick and annual leave days before termination. The DPM cites the United States Court of Appeals, Eleventh Circuit case, Strickland v. Water Works, 239 F.3d 1199 (11th Cir. 2001), in support of its assertion. However, this case is adverse to the DPIVFs assertion because the court in Strickland stated:

The plain meaning of this regulation [29 C.F.R. § 825.207(f)] is that an employee who has an FMLA-qualifying condition may take both 12 weeks of unpaid leave under the Act, plus any paid leave his employer provides unless the employee chooses, or the employer requires, that the two leave entitlements run concurrently.

Id. at 1205 [emphasis added]. Therefore, we find that Strickland supports the interpretation of the FMLA to allow employees to tack on sick and/or annual leave after the exhaustion of FMLA leave.

The DPM next argues that the Commission’s cited legal support is distinguishable from this case and establishes additional requirements of a Rule IX termination. Specifically, the DPM contests that Marziale v. Dep’t of Police, 06-0459 (La.App. 4 Cir. 11/8/06), 944 So.2d 760, and Laviolette, supra, establish that the Appointing Authority must prove that the employee terminated was: 1) unwilling to return to work; 2) would not be able to return to work in the future; or 3) failed to produce documentation justifying the employee’s absences. The DPM asserts that the Appointing Authority only needs to prove the reasons provided in the employee’s termination letter. Therefore, the DPM claims it satisfied this ^requirement because the letter stated, and it was later ruled by the Commission, that Ms. Wilson was unable to perform her position duties at the time of her pre-termination hearing. We disagree.

In Marziale, the employee suffered injuries preventing him from performing his duties as an officer. Marziale, 06-0459, pp. 1-3, 944 So.2d at 762-63. After three years of the employee using his leave due to injuries he sustained, the NOPD terminated him although he indicated his willingness to return to work once medically cleared. Id., 06-0459, p. 9, 944 So.2d at 766. The NOPD’s termination letter specified its reason for termination as being that the employee failed to submit the proper documentation. Id., 06-0459, p. 4, 944 So.2d at 763. For all three years, the employee produced documentation from his physician. Id., 06-0459, p. 2, 944 So.2d at 762-63. The officer submitted a physician letter before the NOPD terminated him, wherein the physician indicated that the officer could return to work in a light duty position. Id., 06-0459, p. 3, 944 So.2d at 762-63. This Court reinstated the employee, holding that the NOPD failed to satisfy its burden of proof to show a good cause to dismiss the officer for unwillingness or inability to perform job functions, or for a failure to submit the proper medical documentation. Id., 06-0459, pp. 13-14, 944 So.2d at 768.

Likewise, in Laviolette,' this Court found that the NOPD did not meet its burden of proof to terminate an officer. Laviolette, 16-0095, p. 7, 200 So.3d at 967. In Laviolette, an officer suffered injuries and as a result could not complete his duties as an officer for nearly a year. Id.,16-0095, p. 1, 200 So.3d at 964. Consequently, the NOPD sent a notification for a pre-termination hearing to the officer. Id. The NOPD later terminated the officer although he indicated a willingness to return to work in two, months after being medically cleared by a new fyphysician. Id. Notably, the officer’s new treating physician cleared him to return to full duty within the two months indicated by the officer. Id., 16-0095, p, 2, 200 So.3d at 964-65. This Court in Laviolette cited the following rule from Marziale: “[i]n order to prevail, the appointing authority must establish by a preponderance of the evidence that Captain Laviolette was either unwilling or unable to perform his duties as a police captain.” Id., 16-0095, p, 7, 200 So.3d at 967 (citing Marziale, supra). Similarly to Marziale, applying the rule stated above, this Court found that the NOPD failed to meet its burden of proof to establish that the officer was either unwilling or unable to return 'to work in the foreseeable future. Laviolette, 16-0095, p. 7, 200 So.3d at 967. This Court also noted that the officer possessed “ample sick leave.” Id. Thus, we find that both Marziale and La-violette provide that an employer seeking to terminate an employee under Civil Service Rule IX must prove that the employee either: 1) is unwilling or unable to perform job functions; or 2) failed to submit the proper medical documentation.

The DPM failed to meet its burden of proof that Ms. Wilson was unwilling or unable to perform job functions, or that she failed to submit the proper documentation. Ms. Wilson indicated her willingness to return to work at her pre-termination hearing. At the hearing, she also provided documentation from her treating physician that she could return to work if the DPM took precautions for her sudden loss of balance. Ms. Wilson submitted all her physician’s documentation, such as the physician letter that allowed her to return to work throughout her absence from work. Therefore, we find that both Marziale and Laviolette are' analogous to this case. We also find that the DPM failed to prove Ms. Wilson to be unwilling or unable to perform her job functions, or that she did not submit the proper documentation for her medical leave,

ImLastly, the DPM argues that Civil Service Rule VIII, Section 2 does not create a duty for city departments to allow employees to exhaust all their sick leave. The DPM specifically argues that no provision or language of Rule VIII supports this position. The DPM further relies on Civil Service Rule VII, Section" 2.5 to assert that employees may convert unused sick leave into either cash or retirement credits upon separation. The DPM cites Lafleur v. City of New Orleans, 01-3224 (La. 12/4/02), 831 So.2d 941, to illustrate the process of converting |nunused sick leave prior to retirement.. Lafleur and Section 2.5 are inapplicable in this case because Ms. Wilson neither retired, nor did she plan to retire.

Section 2 does not expressly provide that employers should allow employees to exhaust all their sick leave, but it does imply such a notion. As noted by the Commission, Section 2.2(d) does consider that an employee could use more than thirty (30) days of sick leave.

Nonetheless, Louisiana jurisprudence does expressly provide that employees may exhaust their sick leave before termination. Ziegler v. Department of Fire, 426 So.2d 311 (La. App. 4 Cir. 1/13/83). In Ziegler, the NOFD dismissed a fireman, not permanently disabled, with over one-year of sick leave left before termination. Id. at 313-14. The NOFD reasoned the termination was warranted because the department found it difficult “to

maintain a full force” during the fireman’s absence. Id. at 313. This Court stated “that consideration alone cannot be sufficient to terminate employment if the employee is entitled to take sick leave and is not totally and permanently disabled.” Id. We reinstated the fireman, holding if he could foreseeably return to the fire department, the department must allow him to use all his sick leave before terminating him. Id. at 313-14.

| ^.Likewise, the DPM dismissed Ms. Wilson, an employee that desired to return to work, who was not permanently disabled, and who had unused sick leave remaining before her termination. Additionally, Ziegler is similar to the case at bar because the DPM terminated Ms. Wilson due to the strain the department suffered during her absence. Pursuant to our holding in Ziegler, we find no error in the reinstatement of Ms. Wilson by the Commission. Thus, this assignment of error lacks merit.

The Commission Improperly Substituted its Judgment for that of the Appointing Authority

In its second assignment of error, the DPM argues that the Commission improperly substituted its judgment for that of the Appointing Authority, which met its burden to terminate Ms. Wilson under Rule IX. The Commission, the DPM avers, agreed that legal cause existed for Ms. Wilson’s termination as she could not perform the duties of her position. Nevertheless, the DPM contends that the Commission abused its discretion in holding that she should not have been terminated until her two months of unused sick/annual leave were exhausted.

The DPM maintains that it showed sufficient cause for Ms. Wilson’s termination by establishing that:

• she was unable to perform the functions of her job on May 15, 2015;
• The DPM was adversely affected by Ms. Wilson’s absence and by not having a dedicated person to process and track work orders, resulting in the DPM being prevented from meeting KPIs; and
• holding her position open past the exhausting of her FMLA leave, impaired the efficient operation of the Department.

11sThe ruling, it argues, was therefore an arbitrary and capricious interference with the DPM’s authority to manage its department. We disagree.

Ms. Wilson was terminated pursuant to Rule IX, Section 1, entitled “Maintaining Standards of Service.” Paragraph 1.1, which states in pertinent part:

When an employee in the classified service is unable or unwilling to perform the duties of his/her position in a satisfactory manner, ... the appointing authority shall take action warranted by the circumstances to maintain the standards of effective service.

As previously stated, the Commission is tasked with not only conducting an independent review of whether there was good or lawful cause for taking disciplinary action, but also reviewing whether the punishment imposed was commensurate with the dereliction. Williams v. Dep’t of Utilities, 03-1473, p. 4 (La.App. 4 Cir. 1/28/04), 867 So.2d 26, 29. In the instant matter, we note that the Commission never stated that, the DPM had good or lawful cause for taking disciplinary action, although it determined Ms. Wilson could not perform “the essential functions of her job as of May 15, 2015.”

Ms. Wilson produced a letter from her physician at her pre-termination hearing indicating that she could return to work on May 18, 2015, “with precautions for sudden loss of balance.” The Commission also considered that Ms. Wilson expressed at the hearing that she desired to return to work. Thus, the Appointing Authority was unable to show that Ms. Wilson would not be able to resume her duties after treatment or in the foreseeable future to carry its burden of proof. Laviolette, 16-0095, p. 7, 200 So.3d at 967. Lastly, the Commission recognized that Ms. Wilson, as a long-term civil service employee, had accumulated a substantial amount of sick and annual leave time that she was |14entitled to exhaust while she recovered from her documented illness pursuant to our holdings in Ziegler, supra, and Brumfield v. Dep’t of Fire, 569 So.2d 75, 77 (La. App. 4th Cir. 1990). Thus, we find that this assignment of error lacks merit.

Conclusion

For the foregoing reasons, the decision of the Civil Service Commission to reinstate Melissa Wilson with backpay and emoluments is affirmed.

AFFIRMED

BROUSSARD, J., CONCURS WITH REASONS

BROUSSARD, J.

CONCURS WITH REASONS

hi concur with the decision to affirm for the reasons stated in the majority opinion. However, I write separately to address whether the DPM proved by a preponderance of evidence that it was Ms. Wilson’s conduct that impaired the efficiency of public service. The record and evidence offed by DPM support the position that the City’s/ DPM’s budget policy, which failed to anticipate the need to reasonably accommodate the illness of its employees through hiring temporary employees or other accommodations that are required by state and federal laws, caused or contributed to the inefficiency of the public service provided by DPM.

It is well settled that, in an appeal before the Commission, an appointing authority has the burden of proving by a preponderance of the evidence: 1) the occurrence of the complained of activity and 2) that the conduct complained of impaired the efficiency of the public service. Gast v. Dep’t of Police, 2013-0781, p. 3 (La. App.3/13/14), 137 So.3d 731, 733 (quoting Cure v. Dep’t of Police, 2007-0166 (La.App. 4 Cir. 8/1/07), 964 So.2d 1093, 1094). If the Commission finds that an appointing authority has met its initial burden and had sufficient cause to issue discipline, it must then determine if that discipline “was commensurate with the infraction.” Abbott v. New Orleans Police Dep’t., 2014-0993, p. 2 (La. App. 4 Cir. 11/15), 165 So.3d 191, 197 (citing Walters v. Dep’t. of Police of City of New Orleans, 454 So.2d 106, 113 (La.1984)).

As the record indicates, the DPM rejected Mr. Patterson’s request for approval to hire a temporary replacement because the payroll budget could only be accessed to hire Ms. Wilson’s permanent replacement. Civil Service Rule 12.6, entitled “Non-disciplinary Removals,” provides as follows:

The provisions of this rule shall be made generally available to all employees. An employee may be non-disciplinarily removed under the following circumstances. ... Subsection (a) is subject to the provisions of the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA).
(a) Absence from Work
An employee may be removed under the following circumstances:
1. When, on the effective date of removal, the employee is unable to perform the essential functions of his job due to illness or medical disability and he has fewer than eight (8) hours of sick leave to his credit and his job must be performed without further interruption. (Emphasis added.)

Civil Service rules have the force and effect of laws. Bradford v. Department of Hospitals, 255 La. 888, 897, 233 So.2d 553, 556 (1970). Rule 12.6 plainly and unambiguously subjects terminations based on an employee’s inability to perform a job due to illness or disability to the provisions of the American with Disabilities Act (ADA). As a general rule, the ADA makes it unlawful for employers, to discriminate against a “qualified individual with a disability” because of the disability. 42 U.S.C. § 12112(a). The term “qualified individual with a disability” is defined as a person who, “with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8). The ADA imposes upon employers a duty to provide reasonable accommodations for known disabilities of its employees unless doing so would result in an undue hardship to the employer. Moss v. Harris Country Constable Precinct One, et al., 851 F.3d 413, 417 (5th Cir. 2017); Schilling v. Louisiana Department of Transportation and Development, 662 Fed.Appx. 243, 246 (5th Cir. 2016).

In this ease, I find that the admission by the DPM that the DPM budget for Ms. Wilson’s position failed to anticipate the illness of its employees and/or the need to hire temporary employees to accommodate Ms. Wilson’s illnesses exposes possible violations of state and federal requirements to accommodate workers , who are willing to work but who are impaired by illness or physical challenges. Further, I find that the DPM provided no rational basis for its policy to use funds only for a permanent replacement of Ms. Wilson’s position. This budgetary policy on its face appears to be inefficient and placed an illegal burden on Ms. Wilson and similarly situated employees. DPM failed to demonstrate the rational basis for this flawed budgetary decision. DPM’s choice to limit its budgetary resources only to replace Ms. Wilson was not excluded as a factor in the inefficient operation of the DPM. Again, the DPM had a duty to reasonably accommodate Ms. Wilson during this ■ time of illness, whether that reasonable accommodation included reassignment, leave of absence, and/or modification to policies. See 42 U.S.C. § 12111(9). Consequently, I find that the DPM failed to prove that Ms. Wilson’s conduct impaired the efficiency of public service. For these reasons, I agree with the majority that the Civil Service Commission’s decision should be affirmed. ■

      . The City maintains KPIs for each department of the City of New Orleans that the Chief Administrative Officer of the City compiles and releases to the public. A department of the city may be adversely affected by failure to meet a KPI. :

      . Rules of the Civil Service Commission City of New Orleans, published February 24, 2016, http://www.nola.gov/civil-service/documents/ rules_2-24-2016-(bmg-revisions).

      . Currently, the provision is found in section(b) of the regulation and states:
      (b) If neither the employee nor the employer elects to substitute paid leave for unpaid FMLA leave under the above conditions and circumstances, the employee will remain entitled to all the paid leave which is earned or accrued under the terms of the employer’s plan. 29 C.F.R. § 825.207(b)

      . Rules of the Civil Service Commission, Rule VIII, Sec, 2.5, states:
      Use: An employee who has taken sick leave shall file with his or her appointing authority a letter stating the cause of the absence from work, provided that:
      (a) If the amount of sick leave taken exceeds six .(6) consecutive working days, a registered physician must certify to the nature of the illness or injury and the necessity for absence after the sixth ■ consecutive working day.
      (b) If there is a reasonable doubt of the validity of the employee's claim for consecutive sick leave of six (6) working days or less, the appointing authority may require a statement from a registered physician or some other acceptable proof that the employee was ill, provided that the employee has been previously notified of the policies and conditions under which a physician's certificate will be required for absence of less than six (6) consecutive working-days.
      (c) When an appointing authority has determined that an employee has charged an absence against sick leaye although no actual illness or injury as defined in Rule I occurred, the appointing authority must deduct the value of the absent time from the employee’s accrued annual leave or pay and may also take disciplinary action as deemed appropriate under the circumstances.
      (d) When computing sick leave taken, deduction shall be made from accrued sick leave only for those days upon which an employee is scheduled to work.
      (e) When there is a death in the immediate family of the employee, as defined in Rule I, the employee shall be allowed to use a maximum .of three (3) leave- days of sick leave. If travel time is deemed necessary, the appointing authority may grant an extra two (2) leave days of sick leave; but in no case shall the sick leave granted under this section aggregate more than five (5) leave days, (amended April 20, 1995).

      . Rules of the Civil Service Commission, Rule VIII, Sec. 2.2, states in pertinent part;
      Bonus Sick Leave Days; Each January 1, employees appointed subsequent to December 31, 1978, except for Emergency, Transient or other employees paid at special rates of pay in accordance with Rule IV, Section 4.1, shall be granted bonus sick days as follows; (amended April 20, 1995)

      (d) Any employee who uses thirty (30) days or more of leave without pay in any calendar year shall not be able to accrue the bonus .sick days for that year.