Fire Law Blog Fire Service and Public Safety Legal Issues Blog by Curt Varone
The Louisiana Court of Appeals has affirmed a lower court ruling that the City of Kenner’s Civil Service Board wrongfully denied the appeal of an assistant chief who was forced to retire in 2018. The case was brought by Michael Voltolina, who was involuntarily retired after he was off on sick leave for one-year.
Voltolina, a 32 year veteran, sought to return to light duty just before the one-year point was reached. The fire chief denied his request and which confronted with Voltolina with the choice of being “terminated without benefits or to retire and receive medical benefits.” Reluctantly he signed the necessary retirement forms “under duress.” He then appealed to the Civil Service Board contending he was constructively terminated in retaliation for his union activities, and discriminated against in violation of the Americans with Disabilities Act.
The Civil Service Board denied Voltolina’s appeal finding that since he voluntarily retired, it lacked jurisdiction to hear his case. He appealed to 24th Judicial District Court who revered the Civil Service Board. The city appealed to the Fifth Circuit Court of Appeal of Louisiana. The ruling handed down yesterday upheld the district court concluding:
- Based on our review, it is clear that a reasonable employee in Mr. Voltolina’s shoes would have felt compelled to retire, and his retirement was not voluntary.
- We find the Board was manifestly erroneous in finding that Mr. Voltolina voluntarily retired.
- Thus, because Mr. Voltolina did not voluntarily retire, we find that Mr. Voltolina is entitled to an appeal of the City’s refusal to allow him to return to work as an Assistant Fire Chief.
- Accordingly, we affirm the judgment of the district court insofar as it reversed the Board’s dismissal of Mr. Voltolina’s appeal and remanded to the Board for further proceedings.
- Although we agree that Mr. Voltolina’s appeal must be reinstated, we offer no opinion as to the merits of Mr. Voltolina’s appeal.
Here is a copy of the decision:
