
    Morris E. EASLEY, Jr., et al., v. DEPARTMENT OF STATE CIVIL SERVICE and Department of Public Safety and Corrections, Division of Probation and Parole. J.F. SULLIVAN, et al., v. DEPARTMENT OF STATE CIVIL SERVICE and Department of Labor, Office of Employment Security. Charles A. ADCOX, et al., v. DEPARTMENT OF STATE CIVIL SERVICE and Department of Transportation and Development.
    Nos. 89 CA 1779-89 CA 1781.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 18, 1990.
    Writ Denied Feb. 22, 1991.
    
      Floyd J. Falcon, Jr. and Mark E. Falcon, Avant and Falcon, Baton Rouge, for appellants.
    Robert R. Boland, Jr., Civ. Service Gen. Counsel, Dept, of State Civ. Service, Baton Rouge, for appellee Dept, of State Civ. Service.
    Keith Riddle, Staff Atty., Dept, of Public Safety and Corrections, Baton Rouge, for appellee Dept, of Public Safety and Corrections.
    Frank T. Scott, Jr., Staff Atty., Dept, of Labor, Baton Rouge, for appellee Dept, of Labor.
    Anthony J. Bonfanti, Executive Asst. Gen. Counsel, Department of Transp. and Development, Baton Rouge, for appellee Department of Transp. and Development.
    Before LOTTINGER, SHORTESS and CARTER, JJ.
   CARTER, Judge.

These appeals arise out of the summary dismissal of three consolidated civil service appeals.

FACTS

Appellants are employed with permanent status in classified positions by the Department of Public Safety and Corrections, Division of Probation and Parole; the Department of Labor, Office of Employment Security; and the Department of Transportation and Development.

Appellants from each of these three departments filed a “Petition of Appeal/Request for Investigation” before the Civil Service Commission, alleging that, in implementing the new Uniform Classification and Pay Plan (Plan), effective January 1, 1987, and June 29, 1987, years of service was not considered. Appellants reasoned that promotions subsequent to the implementation of the Plan resulted in similarly situated employees with fewer years of service earning substantially more salary than other employees in the same classification with greater seniority. Essentially, appellants contended that, in implementing the Plan, the Director of the Department of State Civil Service (Department) and the Commission violated LSA-Const. art. 10, § 10(A)(1) by failing to consider length of service, that the implementation of the Plan was a violation of the Civil Service Rules and Article, and that the promotional and pay policy under the Plan was discriminatory and a denial of equal protection under the state and federal constitutions. Appellants also requested the implementation of the Plan with consideration for length of service as well as back wages and attorney’s fees.

Thereafter, the Department filed motions for summary disposition, contending that the Commission was without jurisdiction to entertain appellants’ appeals.

The Commission consolidated the three appeals and, after a hearing, determined that the appeals were barred by Civil Service Rule 13.34 and that, as such, the Commission lacked subject matter jurisdiction.

From this adverse ruling, appellants appeal, assigning the following specifications of error:

1. The Commission erred in concluding that the appellants had no right of appeal to the Commission.
2. The Commission erred in concluding that it does not have jurisdiction to hear these appeals under its judicial grant of authority.
3. The Commission erred in refusing to hear these appeals under its legislative-executive grant of authority.
4. The Commission erred in refusing to hear these appeals under the jurisdiction vested in it by virtue of its own Rules.

DISCUSSION

Although there is considerable confusion in the jurisprudence as to the jurisdiction of the Civil Service Commission, when there is a request for the type of relief requested herein, we believe that the circumstances and pay inequities of which appellants complain are analogous to those in Hollingsworth v. State, Department of Public Safety, 354 So.2d 1058 (La.App. 1st Cir.1977), writ denied, 356 So.2d 1010 (La.1978) and not those of Thoreson v. Department of State Civil Service, 433 So.2d 184 (La.App. 1st Cir.1983). The disparity in pay of which appellants complain resulted from the mechanics of the system and not from any discriminatory application or implementation of the pay plan. We believe that the conclusions of law by the Civil Service Commission, which we adopt as our own, succinctly set forth the proper application of the law to the facts in this case, as follows:

Appellants complain that when the June 29, 1987 pay plan was implemented, length of service was not considered.
Appellants argue that the failure to consider length of service in implementing the pay plan constitutes a violation of the Civil Service Article. Therefore, appellants contend that these appeals fall within the purview of Civil Service Rule 13.10(c), which reads as follows:
13.10 Appeals to the Commission.
An appeal may be made to this Commission by
(c) Any person in the Classified Service who alleges that he has been deprived of any right, discriminated against, or adversely affected by the violation of any provision of the Article or of any Rule of this Commission.
Appellants also maintain that the implementation of the pay plan discriminated against them. Therefore, appellants contend that these appeals fall within the purview of Civil Service Rule 13.10(e), (h) and (i), which read as follows:
13.10 Appeals to the Commission.
An appeal may be made to this Commission by
(e) Any person in the Classified Service who alleges that he has been discriminated against by the application of the Pay Plan or by the application of any change thereof.
(h) Any person who alleges that he has been the subject of discrimination as defined in Rule 1.14.1.
(i) Any person who alleges that he has been discriminated against by any official action taken by the Director.

While the above-cited provisions of Civil Service Rule 13.10 allow certain appeals concerning pay matters, if the appeal challenges the pay plan itself or a pay rule, the appeal is barred by Civil Service Rule 13.34, which reads as follows:

13.34 Finality of Commission Action on Rules and Plans.
No appeal to the Commission shall lie from the adoption by the Commission, after public hearing, of a Classification Plan, a Pay Plan, or of any Rule, or of any Amendment to said Plans or Rules.
Over the years, the courts have had to address which types of pay complaints are appealable under Civil Service Rule 13.10 and which are barred by Civil Service Rule 13.34. The distinction is now fairly clear. When an employee complains that he is being paid differently from other employees within the same classification, his appeal is allowed under Civil Service Rule 13.10(e). See Gandy v. State Civil Service Commission, 498 So.2d 765 (La.App. 1st Cir.1986); and Thoreson v. Department of State Civil Service, 433 So.2d 184 (La.App. 1st Cir.1983), (wherein because the two classes at issue were assigned to the same pay range, they were treated as a single class). When an employee complains that he is paid differently from other employees in different classifications, his appeal is barred by Civil Service Rule 13.34. See Clark v. Department of Transportation and Development, 413 So.2d 573 (La.App. 1st Cir.1982); Mayeaux v. Department of State Civil Service, 421 So.2d 948 (La.App. 1st Cir.1982); Latona v. Department of State Civil Service, 492 So.2d 27 (La.App. 1st Cir.1986). When an employee complains that an interpretation of a Civil Service Rule concerning pay results in discrimination, the appeal is allowed under Civil Service Rule 13.10. See Gandy, supra. Finally, when an employee complains that a pay rule is unconstitutional, the complaint is barred by Civil Service Rule 13.34 and the Commission lacks subject matter jurisdiction. See Clark, supra; Bell v. Department of Health and Human Resources, 472 So.2d 235 (La.App. 1st Cir.1985) affd. 483 So.2d 945 (La.1986); Murray v. Department of Revenue and Taxation, 543 So.2d 1150 (La.App. 1st Cir. 1989); Casse v. Herbert L. Sumrall, Department of State Civil Service, 547 So.2d 1381 (La.App. 1st Cir. No. CA/89/0148; rendered August 2, 1989).
Thus, whether an appeal is allowed under Civil Service Rule 13.10 or is barred by Civil Service Rule 13.34, requires a determination of what exactly is being challenged. In these appeals, appellants are not complaining of the pay established for their classifications. Appellants do not contend that any Civil Service Rule was violated when the June 29, 1987 pay plan was implemented. Appellants do not contend that if a particular pay rule were interpreted differently, the result would have been different. Appellants basically contend, that the rules governing the implementation of the pay plan do not insure that an employee’s individual pay rate reflects his seniority and therefore, violate the Civil Service Article. In judging these appeals, the Commission would be called upon to judge the constitutionality and/or the equity of the rules governing the implementation of the pay plan. Therefore, the Commission concludes that these appeals are barred by Civil Service Rule 13.34 and that the Commission lacks subject matter jurisdiction.
Appellants herein also complain that employees who were promoted after June 29, 1987 earn substantially more than more (sic) senior employees who were promoted before the implementation of the new pay plan. The identical issue has been addressed in the Appeals of Lillian Gray, et al., Docket Nos. 6653, et al., (Department of Health and Hospitals and Department of State Civil Service), rendered March 8, 1989, wherein the Commission concluded that the complaints were barred by Civil Service Rule 13.34. (Footnote omitted).

Therefore, for the above reasons, appellants’ assignments of error are without merit. The judgment is affirmed at appellants' costs.

AFFIRMED.

SHORTESS, J., dissents with reasons.

SHORTESS, Judge,

dissenting.

These proceedings stem from a Civil Service Commission decision dismissing three separate appeals on the grounds that Civil Service Rule 13.34 provides no jurisdiction for it to hear appeals contesting the adoption of, inter alia, a pay plan or any rule, or any amendment thereof. The Commission decision reads, in part:

Appellants do not contend that if a particular pay rule were interpreted differently, the result would have been different. Appellants basically contend that the rules governing the implementation of the pay plan do not insure (sic) that an employee’s individual pay rate reflects his seniority and therefore, violate the Civil Service Article.

The three petitions of appeal, on the other hand, each assert that plaintiffs “are satisfied with the classifications and pay afforded their positions under the ... Pay Plan ... [but] are aggrieved by the method in which the Plan was implemented.”

One plaintiff, Charles Adcox, complains that he maintained the same position, District Engineer Supervisor I, earning $3,134.00 monthly both before and after implementation of the Pay Plan, but that post-adoption promotions by others to the position earn between $3,424.00 to $3,634.00 notwithstanding less years of service in the position. The other claims are similar.

The majority reasons that these claims are analogous to those in Hollingsworth, where the operation of step increases within a grade prior to promotion to the next grade resulted in a disparity among various members of the same level occupying the same position. We concluded in Hollings-worth essentially that the step increases were part and parcel of the whole system, and that any disparity resulting from these within-grade adjustments prior to a promotion resulted simply from the “mechanics of the system.” Hollingsworth, 354 So.2d at 1059-60. In Hollingsworth the disparity resulted solely from the operation of the Pay Plan. Where the disparity results from the exercise of discretion, i.e., implementation of the Pay Plan, the result is different. See, e.g,, Gandy v. Civil Service Commission, 498 So.2d 765 (La.App. 1st Cir.1986) (wherein acts or directives of the Commission and/or Director which function to implement the Pay Plan are not barred by Rule 13.34 but rather are appeal-able under Rule 13.10(e)).

“Pay Plan” is defined in the Civil Service Rules as simply “the schedule of pay rates or ranges and a list showing the assignment of each job in the job evaluation plan.” Rule 1.24. The Pay Plan is prepared by the Director, submitted to the Commission for approval, and then submitted to the governor for his signature. Rules 6.2 and 6.3. The Commission, upon adoption, is charged with the manner of implementation. Rule 6.3(b) (the Commission “upon adoption of a Pay Plan, shall specify the manner in which the Pay Plan is to be implemented”). The Pay Plan adopted in 1987 eliminated the concept of “steps” within grades. See generally Louisiana State Personnel Manual, Uniform Pay Plan. Also, the 63-grade General Schedule and 27-grade Wage Grade Schedule was transformed into the existing 32 General Schedule levels. Id. at Part 6.1. Step increases were replaced with 4% annual merit increases. Id. Each level has a pay range with a range minimum and maximum. Id. The Commission, in implementing the Plan, has some discretion in assigning rates within the range. See Id. at Part 6.6.

The Commission to implement the Pay Plan adopted interim rules for the purpose of “effecting the transition from old class titles to new job titles,” Rule 18.1, and “effecting transition from the old Wage Grade (WG) and Grade Scale (GS) pay structure to a new pay structure,” Rule 19.1. The problem that has emerged is: The Commission is barred by Rule 13.34 from hearing an appeal contesting the constitutionality of the adoption of a pay plan or a rule, but under Thoreson v. Department of Civil Service, 433 So.2d 184 (La.App. 1st Cir.1983) (Thoreson II) and the express language of Rule 13.10(e), appellate jurisdiction does exist to hear an appeal alleging discrimination in the application of the Pay Plan. Application and implementation are essentially the same thing. The Commission has attempted to implement the Pay Plan through rules. Rule 13.10(e) and Rule 13.34 are thus entirely at odds.

In Thoreson II, the rule at issue was not alleged to be facially unconstitutional, rather the exercise of discretion in implementing the plan was the source of the problem. The same can be said of Gandy inasmuch as the exercise of discretion in interpreting a particular rule was alleged to be discriminatory. Here, the Commission has attempted to transform its duty to exercise its discretion as a quasi-executive entity into a set of rules. The problem derives from the fact that rules do not enforce themselves. The transition rules implicitly recognize this and grant discretion to the Director to waive any rule “to resolve problems which arise as a result of transition to the new pay system ... and approve personnel actions when he determines such approval to be in the best interest of the State Service.” The Commission, however, is under a constitutional mandate to “establish and implement a uniform classification and pay plan.” Thoreson, 433 So.2d at 202; LSA-Const.Art. 10, § 10. In Thore-son, we held that this mandate could not be shirked by “submission to Governor’s orders which are not in keeping with said mandate.” Id. Whether the discretion to implement the Pay Plan is shifted to the Director or remains with the Commission is of no moment because it is the ultimate responsibility of the Commission to fulfill its constitutional mandate. Whether the complaint is that the Director has acted or failed to act, or that the Commission has acted or failed to act, the crucial question is whether the action or inaction is within the sphere of discretion which arises from the duty to implement the Pay Plan.

Plaintiffs at bar complain not that the range of pay or the grade assigned their respective positions is facially discriminatory, but that the pay afforded them within that range, compared to the pay of others with less experience but who were promoted to the same position under the present Pay Plan, is less. In Hollingsworth the disparity resulted from a merit factor, i.e., step increases prior to promotion, without implicating the exercise of discretion. Here the disparity results not from a merit factor but, fortuitously, from the date of promotion, and, more importantly, the rules discussed above appear to place resolution of the problem within the sphere of discretion arising from the duty to implement the Pay Plan. Hollingsworth is therefore in-apposite.

In Gandy we observed the particular expertise of the Commission in addressing matters such as these before us because it is more familiar with a system of job classification based in large part upon merit. Gandy, 498 So.2d at 769. In addition, we stated that appeals to the Commission should be denied “only for the most compelling reasons.” Id. (quoting Smith v. Board of Commissioners of Port of New Orleans, 262 La. 96, 262 So.2d 383, 384 (1972)).

In my opinion, the Commission is vested with subject matter jurisdiction, so I respectfully dissent. 
      
      . Appellants in these appeals are as follows:
      1. Morris E. Easley, Jr. and four other employees of the Department of Public Safety and Corrections, Division of Probation and Parole;
      2. J.F. Sullivan and 347 other employees of the Department of Labor, Office of Employment Security; and
      3.Charles A. Adcox and fifty-nine other employees of the Department of Transportation and Development.
     
      
      . Sullivan and Adcox also sought certification as a class action.
     
      
      . The numerous DOTD employees joining the appeal are listed separately on Exhibit A which is attached to the petition for appeal.
     