United States Court of Appeals,

Fifth Circuit.

No. 95-30223.

Mariette WALLACE, Plaintiff-Appellant,

v.

SHREVE MEMORIAL LIBRARY, et al., Defendants-Appellees.

June 20, 1996.

Appeal from the United States District Court for the Western District of Louisiana.

Before GARWOOD, EMILIO M. GARZA and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

This case returns to us after the Louisiana Supreme Court declined to accept our certified

question. In the absence of guidance from the high court of Louisiana, we will attempt to determine

Louisiana's law on the issue of whether a library technician for a parish library can be a permanent

classified civil service employee under Louisiana law, even though that employee has never taken a

competitive civil service examination or otherwise complied with civil service requirements. After

independent review of the issue, we determine that such a worker can be a permanent classified civil

service employee, and thus be entitled to due process before dismissal from her job. Therefore, the

summary judgment of the district court is reversed and the case remanded for trial.

BACKGROUND

A full discussion of the facts of this case can be f o und in our previous opinion, W allace v.

Shreve Memorial Library, 79 F.3d 427 (5th Cir.1996) ( "Wallace I" ). In brief, plaintiff-appellant

Mariette W allace was fired from her job as a library technician with defendant-appellee Shreve

Memorial Library. Wallace sued the library, claiming that her Fourteenth Amendment right to due

process was violated when she was fired without a hearing. The library admits that the dismissal was

without due process, but argues that due process was not required, because Wallace did not have a

property interest in her job.

As we noted in Wallace I, "[a] public employee who has a property interest in her job cannotbe fired without due process of law." W allace I, 79 F.3d at 429 (citing Cleveland Bd. of Education

v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985)). "Whether one has a property

interest in her job is determined by state law, in this case, Louisiana law." I d. (citing Bishop v. Wood,

426 U.S. 341, 96 S.Ct. 207 4, 48 L.Ed.2d 684 (1976)). There are two way s Wal l ace can have a

property interest in her job under Louisiana law: (1) if the library contracted with her to fire her only

for cause or (2) if she is a permanent classified employee under the Louisiana civil service system.

Id. In W allace I we held that the l ibrary did no t co ntract with Wallace to fire her only for cause.

Thus, the only way Wallace can have a property interest in her job, and thus be entitled to due process

before dismissal, is if she is a permanent classified employee under the Louisiana civil service system.

In Louisiana, a permanent classified civil service employee has a protected property interest

in her job. B ell v. Dept. of Health and Human Resources, 483 So.2d 945, 949-50 (La.), cert. denied,

479 U.S. 827, 107 S.Ct. 105, 93 L.Ed.2d 55 (1986). "Under the Louisiana Constitution, classified

service is the rule: all state employees are members of the classified civil service unless their positions

are specifically excepted from classified service by law." W allace I, 79 F.3d at 431 (citing L A .C ONST

.

Art . 10, § 2(A) ("The state and city civil service is divided into the unclassified and the classified

service. Persons not included in the unclassified service are in the classified service.")). We noted

in Wallace I that Wallace's position, library technician, is not specifically listed as an unclassified job

in the constitution or the Louisiana Civil Service Rules. Id.

The question of whether Wallace is a classified employee is complicated, however, by another

provision of the Louisiana Constitution. Article 10, § 7 of the Louisiana Constitution sets forth the

requirements for obtaining permanent classified civil service status:

Permanent appointments and promotions in the classified state and city civil service shall be

made after certification by the appropriate department of civil service under a general system

based upon merit , efficiency, fitness and length of service, as ascertained by examination

which, so far as practical, shall be competitive.

Wallace did not take a competitive examination before she was hired, and she was not hired according

to civil service rules, but rather, according to the library policy manual. The library argues that

because Wallace was not hired according to civil service requirements, she can not be a permanent

classified civil service employee.In Wallace I we noted that these two constitutional provisions seemingly conflict: "Article

10, § 2 of the Louisiana Constitution clearly says that all state and city employees not included in the

unclassified service are in t he classified service. Yet, Article 10, § 7 requires classified service

appointments to be made according to civil service rules, based on merit and a competitive

examination." W

allace I, 79 F.3d at 432. Because of this apparent conflict, as well as the dearth of

Louisiana cases resolving the problem, we certified the following question to the Louisiana Supreme

Court:

Assume a parish library has no formal civil service system est ablished and does not hire or

prom ote workers according to civil service rules using co mpet itive examinations. Can a

library technician for that library, who has never taken a competitive examination or otherwise

co mplied with civil service requirements, be considered a classified civil service employee

under Louisiana law?

Id. Because the Louisiana Supreme Court declined to accept our certified question, we resolve the

issue ourselves.

DISCUSSION

In determining whether Wallace is a permanent classified civil service employee, we are

guided by the Louisiana Supreme Court's recent decision in Polk v. Edw ards, 626 So.2d 1128

(La.1993). In P olk the court considered the constitutionality of several statutes allowing gambling.

Of particular relevance to the case at bar is a provision exempting from the civil service system the

Louisiana Economic Development and Gaming Corporati on, the body that overs ees gaming in

Louisiana. The court held that because the gaming corporation was an instrumentality of the state

"it is constitutionally mandated that its employees be included within the state civil service system,

since they are not otherwise excluded." Id. at 1145.

In its opinion the court noted that "the unmistakable intent of the state civil service system is

to inclu de wit hin its scope all employees, officers, agents, and officials of the state, except those

expressly designated t herein as unclassified employees." I d. at 1146. The court placed great

emphasis on the fact that Louisiana's civil service system "rises to constitutional status." I d. at 1147.

"To treat this legislative entity as

... outside of the civil service system would effectively emasculate

the constitutional provision, which mandates civil service for "all persons holding offices and positionsof trust or employment in the employ of ... any instrumentality' of the state." Id.

Based on our reading of Polk, as well as the plain language of Article 10, § 2, we hold that

Wallace can be a permanent classified civil service employee. The fact that she did not obtain her

position through

co mpet it ive exam or otherwise comply with the civil service requirements as

mandated by Article 10, § 7 does not remove he r fro m t he civil service system. Allowing a

governmental body to exclude employees from the civil service system merely by refusing to comply

with the const it ut io nally mandated civil service requirements would bring about that which the

Louisiana Supreme Court decried in Polk: the effective emasculation of the "constitutional provision[

] which mandates civil service". Polk, 626 So.2d at 1146. We would find it exceedingly curious if

the Shreve Memorial Library had the power to do t hat which the Louisiana Legislature did not,

namely, remove employees from the civil service system contrary to the Louisiana Constitution.

The library re lies principally on D igerolomo v. French Market Corp., 272 So.2d 385

(La.Ct.App.1973), for its conte nt io n that an employee must have been employed pursuant to civil

service requirements to claim civil service status. A close reading of D igerolomo in light of Polk,

however, reveals that the case's holding is not so far reaching.

Charles Digerolomo was appointed, by the mayor of New Orleans, as general manager of the

French Market Corporati on, a city-owned corporati on that operated the French Market in New

Orleans. I

d. at 386. After being fired, Digerolomo sued the corporation, claiming that he was

entitled to civil service protecti on. He contended that his po sit io n was not specifically made

unclassified by the constitution, so he was a classified employee. The constitution excepts individuals

in confidential positions of city departments, boards and commissions. L A .C ONST

. Art. 10, § 2(B)(2).

Digerolomo argued that this exceptio n from classified service did not extend to city-owned

corporations.

The Louisiana appellate court, assuming arguendo that Digerolomo's position was classified,

held that he was still not a classified civil service employee because he did not meet any of the

requirements of the constitution "which would bring him under the classified service." D igerolomo,

272 So.2d at 387. Specifically, he never took a competitive examination. I d. The court concluded1 Our conclusion that Digerolomo is not an epochal case is buttressed by the fact that it has

been cited by only one Louisiana court. Wilkinson v. Louisiana State Univ., 316 So.2d 482, 484

(La.Ct.App.1975). And, in the citing case, the employee clearly occupied an unclassified position.

Id. at 483 ("Therefore, being a teacher, he is unclassified according to the Louisiana

Constitution."). Thus, Louisiana courts have not read Digerolomo to broadly hold that

individuals not taking civil service exams or otherwise formally complying with civil service

requirements are precluded from becoming permanent classified civil service employees. by saying "it is undisputed that [Digerolomo] received his position by virtue of political appointment

and [he] did not legally comply with the requirements which woul d bring him under the classified

service as set forth in the Act. Failing to do so, he cannot now urge that he is entitled to its benefits."

Id.

While we do not say that Digerolomo was wrongly decided, we believe that it should be read

narrowly, especially in light of Polk. 1 The facts of D igerolomo militate in favor of a narrow reading.

Digerolomo was the head of a city-owned corporati on, the type of position generally excluded from

classified service. L A .C ONST

. Art. 10, § 2(B)(2). Additionally, he was a political appointee. Wallace

was a library technician, a position that is not unclassified, and is not clos ely analogous to an

unclassified position. There is no evidence she was a political appointee like Digerolomo.

In light of its recent decision in Polk, we do not believe the Louisiana Supreme Court would

expansively read Digerolomo and hold that the failure of a governmental entity to comply with civil

service requirements in hiring individuals precludes those employees fro m obtaining permanent

classified civil service status.

CONCLUSION

It is important to bear in mind that we ar e considering t his case after a grant of summary

judgment in favor of the library. Wallace has not cross-moved for summary judgment. Therefore,

we have viewed all evidence in the light most favorable to the non-movant, Wallace. We do not say

that Wallace is a permanent classified civil service employee; a factfinder will make that

determination. We do, however, hold that a go vernmental employer's failure to comply with civil

service requirements does not preclude its employees from obtaining permanent classified civil service

status. Therefore, there is a fact issue as to whether Wallace was a permanent classified civil service

employee, and summary judgment is inappropriate. The district court's grant of summary judgmentis REVERSED and this case is REMANDED for trial.