Gregory Matusoff v. Department of Fire

GREGORY MATUSOFF * NO. 2019-CA-0932 VERSUS * COURT OF APPEAL DEPARTMENT OF FIRE * FOURTH CIRCUIT * STATE OF LOUISIANA * * *******

TFL LOVE, J., CONCURS IN THE GRANTING OF REHEARING On May 20, 2020, this Court issued a unanimous opinion wherein we reversed the Civil Service Commission’s decision to terminate Mr. Matusoff’s employment with the New Orleans Fire Department. We found that the Commission abused its discretion because “termination was not commensurate with the alleged infraction.” Matusoff v. Dep’t of Fire, 19-0932, p. 8 (La. App. 4 Cir. 5/20/20), ___ So. 3d ___, ___, 2020 WL 2562940, *_. We then “vacate[d] the discipline imposed by the NOFD and restore[d] Mr. Matusoff to his status as an active firefighter.” Id. Mr. Matusoff filed an application for rehearing contending that this Court should have awarded him back wages and emoluments. I agree. Pursuant to La. R.S. 49:113, “[e]mployees in the state or city civil service, who have been illegally discharged from their employment, as found by the appellate courts, shall be entitled to be paid by the employing agency all salaries and wages withheld during the period of illegal separation.” Accordingly, I agree with the majority that Mr. Matusoff is entitled to “all back wages and emoluments of employment from the date of his termination until the day of his reinstatement with the exception of the period from February 12, 2019 through March 11, 2019.” See Perry v. City of New Orleans, 11-0901, pp. 9-10 (La. App. 4 Cir. 2/1/12), 104 So. 3d 453, 458, decision clarified on reh’g (11/15/12); Perkins v. Sewerage & Water Bd., 95-1031 (La. App. 4 Cir. 2/29/96), 669 So. 2d 726, 729-30; Brumfield v. Dep’t of Fire, 531 So. 2d 1094, 1095 (La. App. 4th Cir. 1988). However, if Mr. Matusoff earned any salaries from private employment during the period of separation, that “amount shall be credited and set-off all wages and salaries.” La. R.S. 49:113.