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DAVID A. DURDEN VERSUS PLAQUEMINES PARISH GOVERNMENT

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NO. 2005-CA-1373 COURT OF APPEAL FOURTH CIRCUIT STATE OF LOUISIANA

APPEAL FROM PLAQUEMINES PARISH CIVIL SERVICE COMMISSION NO. 2005-04 , ****** Judge Roland L. Belsome ****** (Court composed of Chief Judge Joan Bernard Armstrong, Judge James F. McKay III, Judge Roland L. Belsome)

Henry T. Arrington Elizabeth C. Harper THE KULLMAN FIRM, P.L.C. 1100 Poydras Street 1600 Energy Centre New Orleans, LA 70163 COUNSEL FOR DEFENDANT/APPELLANT

REVERSED AND RENDERED

The Plaquemines Parish Government (the appointing authority) appeals the decision of the Plaquemines Parish Civil Service Commission (the Commission) to reinstate the plaintiff, David A Durden (Durden), to employment as a truck driver in Solid Waste District #2. For the following reasons, we reverse the Commission and reinstate the termination of employment imposed by the appointing authority. STATEMENT OF FACTS AND PROCEDURAL HISTORY While at work on April 19, 2005, Durden was involved in an altercation with a non-employee, Tony Riley (Riley). The evidence in this case indicates that Riley, who was involved in a prior argument with Durden, came to Durden's workplace (a trash compactor yard in Port Sulphur, Louisiana) to unload garbage with another individual. According to Durden, Riley started the fight by cursing and pushing him. Durden stated that he hit Riley several times then pulled a knife when Riley picked up a shovel. Riley left and Durden was arrested shortly thereafter. Durden was issued a Notice of Suspension on April 22, 2005. A pretermination hearing took place on May 5, 2005. Durden testified at the hearing that he was acting in self-defense. Durden was terminated effective May 11, 2005. Durden appealed both the suspension and the termination to the

Commission. On June 22, 2005, the Commission conducted a hearing on the consolidated appeals. Four witnesses testified at the hearing: Blair Rittiner, Superintendent of Solid Waste District #2; Nancy Gordon, Human Resources Manager; Durden; and Scott Rousselle, Superintendent of Solid Waste District #1. Durden appeared without his attorney, Kevin Connor, whom Durden stated was also representing him in the criminal case. The evidence presented to the Commission revealed that Durden received a prior Notice of Suspension on April 14, 2003 for fighting with a co-worker. The Notice stated: "Any further incidents of this nature will result in disciplinary action up to and including termination of employment. FINAL WARNING." Nancy Gordon, testifying on behalf of the appointing authority, explained the decision to recommend termination as follows: Even after being told in writing though that if he got in another fight while he was at work he might be discharged, he got in another fight. This one was even more serious, it involved a citizen. And it involved a knife, and a cue ball, and words that he was gonna kill him. He was given an opportunity to come to the pre-termination hearing to rebut those charges or to talk to try to mitigate them somehow. And his response was not any remorse, not that, "I'm sorry," not that, "I won't do it again." His whole response was, "That's the way I was brought up, someone gets in your face you got to go after them." And we did not feel that was something that would counter the fact that he had pulled a knife on a citizen. We didn't have any confidence that being out at a job he might not make that same decision to do again. He didn't realize probably the proper reaction at that point would have been to reach over and pick up

a telephone and dial 911 and get a policeman there for himself. His response was to pull a knife. He had been warned previously.... We just couldn't afford the liability of returning him out to the workplace again. And so the only response

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