Bower-Hansen v. Nebraska Dhhs

302 Neb. 847

925 N.W.2d 665

Betty Jane BOWER-HANSEN, Appellant,

v.NEBRASKA DEPARTMENT OF HEALTH AND HUMAN SERVICES et al., Administrative Agencies of the State of Nebraska, and the State of Nebraska, Appellees.

No. S-17-1278.

Supreme Court of Nebraska.

Filed April 12, 2019

Nicholas J. Welding, of Norby & Welding, L.L.P., Lincoln, for appellant.

Douglas J. Peterson, Attorney General, and Ryan C. Gilbride, Lincoln, for appellees.

Heavican, C.J., Miller -Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Papik, J.

After the Nebraska Department of Health and Human Services (DHHS) terminated the employment of Betty Jane Bower-Hansen as a teacher at the Youth Rehabilitation and Treatment Center in Kearney, Nebraska, Bower-Hansen sought to challenge the termination. She initiated grievance proceedings provided by the governing collective bargaining agreement (CBA). Those proceedings concluded when the State Personnel Board (Personnel Board) dismissed her grievance appeals. Bower-Hansen sought review of that decision in district court, and the district court affirmed the Personnel Board’s decision. Bower-Hansen now appeals the district court’s decision. We affirm.

BACKGROUND

June 3, 2016, Meeting.

The facts relevant to this dispute begin with a June 3, 2016, meeting between Bower-Hansen; John McArthur, the principal at the treatment center; and LaDene Madsen, the human resources manager at the center. Bower-Hansen was a member of the bargaining unit represented by the State Code Agency Teachers Association (SCATA) at the time, and representatives of SCATA were also present at the meeting. During the meeting, Bower-Hansen was issued a notice of discipline advising her that her employment was terminated for cause, effective immediately.

Bower-Hansen claims that one of her union representatives asked where Bower-Hansen should file a grievance challenging her termination of employment and that Madsen said that it should be filed with Douglas Weinberg, the director of the Division of Children and Family Services at DHHS. DHHS apparently does not contest Bower-Hansen’s account of the June 3, 2016, meeting.

SCATA Grievance Procedures.

The terms and conditions of employment for SCATA members were set forth in a CBA entered into between SCATA and the State of Nebraska. Because terms of the CBA are central to the arguments and issues in this case, we discuss them here.

The CBA allows teachers to file a grievance if they believe there has been a violation, misinterpretation, or misapplication of the CBA. It establishes a three-level grievance procedure. The first level (level one) requires the employee to submit the grievance to the "decision maker." There is apparently no dispute that the "decision maker" with respect to the termination of Bower-Hansen’s employment was McArthur.

The CBA further provides that if the grievance is not resolved to the employee’s satisfaction at level one, the employee may file a grievance with the "Agency Director" within 10 workdays of the receipt of the response at level one. Again, there is apparently no dispute that the "Agency Director" was Weinberg.

If a satisfactory resolution is not reached at the second level (level two), the CBA allows the employee to seek review from the Personnel Board. The Personnel Board is required to then hold a grievance hearing and issue a written response to the grievance. The Personnel Board’s written response constitutes the final administrative decision of DHHS.

Importantly, section 7.7 of the CBA provides in part:

The failure of the grievant to proceed to the first or subsequent steps of this grievance procedure within the time limits specified shall indicate that the grievant has elected not to file a grievance or has accepted the response previously rendered, and shall constitute a waiver of any future appeal.

Grievance Proceedings.

Less than a week after the June 3, 2016, meeting, Bower-Hansen, with the assistance of counsel, completed a grievance form challenging her termination. Rather than sending the grievance to McArthur as the CBA required, Bower-Hansen sent the grievance to Weinberg in accordance with what she claims Madsen told her at the June 3 meeting.

After several weeks had passed without receiving a response, on June 29, 2016, Bower-Hansen proceeded to the third level (level three) of the grievance procedure and submitted a level three grievance to the Personnel Board. She claims she did so under the belief that she was allowed to skip level one and file her initial grievance at level two and that when she did not receive a timely response, she was entitled to proceed to level three. On July 1, however, Bower-Hansen received a level one grievance response from McArthur. The level one grievance response confirmed that McArthur had received the grievance. It denied the grievance and the relief sought, finding that there was just cause for the termination of Bower-Hansen’s employment.

Bower-Hansen then submitted a level two grievance, objecting to McArthur’s denial of her grievance at level one. DHHS received it on July 20, 2016. DHHS later rejected Bower-Hansen’s level two grievance on the grounds that she did not file it within 10 workdays of her receipt of the level one response on July 1.

Bower-Hansen then filed another level three grievance with the Personnel Board. DHHS filed a motion to dismiss Bower-Hansen’s grievance in its entirety. The Personnel Board appointed a hearing officer to conduct a hearing and recommend a decision. The parties then stipulated to the admission of various documents for the hearing officer to consider in resolving DHHS’ motion to dismiss.

The hearing officer later issued a recommended order on DHHS’ motion to dismiss. His recommended order found that Bower-Hansen’s grievance should be dismissed because she failed to file her initial grievance with McArthur as required by the CBA. The Personnel Board later unanimously adopted the recommended decision of the hearing officer and dismissed Bower-Hansen’s grievance.

District Court.

Bower-Hansen sought review of the dismissal of her grievance in the district court. The district court affirmed the Personnel Board’s dismissal of her grievance. The district court agreed with the hearing officer’s finding that Bower-Hansen had failed to comply with the CBA when she submitted her initial grievance to Weinberg rather than McArthur.

In addition, the district court found that even if Bower-Hansen’s initial filing with Weinberg was appropriate, her subsequent grievance appeals were untimely under the CBA. The district court explained that after Bower-Hansen received McArthur’s decision denying her level one grievance, she did not timely file her level two appeal within 10 workdays.

Bower-Hansen appealed the district court’s decision.

ASSIGNMENT OF ERROR

Bower-Hansen assigns multiple errors to the district court’s decision, but they can be effectively consolidated and restated into one: that the district court erred by affirming the decision of the Personnel Board dismissing her grievance.

STANDARD OF REVIEW

A judgment or final order rendered by a district court in a judicial review pursuant to the Administrative Procedure Act may be reversed, vacated, or modified by an appellate court for errors appearing on the record.

J.S. v. Grand Island Public Schools , 297 Neb. 347, 899 N.W.2d 893 (2017). When reviewing an order of a district court under the Administrative Procedure Act for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. Id.

ANALYSIS

Bower-Hansen Was Required to Submit Level One Grievance.

In her primary argument on appeal, Bower-Hansen contends that she was not required to submit a level one grievance and could begin the grievance process at level two. If her initial grievance is understood as a valid level two grievance, the argument goes, it was properly filed with Weinberg and her subsequent challenges to her termination were timely raised. As we will explain, however, we disagree with Bower-Hansen’s position that she was entitled to skip level one of the grievance process provided by the CBA.

Bower-Hansen offers multiple reasons for her belief that she was entitled to file her grievance at level two. She first points us to Nebraska’s Classified System Personnel Rules, found at title 273 of the Nebraska Administrative Code. She contends that a provision of those rules, 273 Neb. Admin. Code, ch. 15, § 008 (2006), applies to her and allowed her to proceed directly to level two. And, indeed, those rules do refer to a three-level grievance procedure similar to that set forth in the SCATA CBA and do contain a provision allowing for the initiation of grievances at level two "[i]f the grievance involves an involuntary separation ...." 273 Neb. Admin. Code, ch. 15, § 008.

As promising for Bower-Hansen’s position as the provision quoted above may initially sound, the argument collapses upon further scrutiny. As Bower-Hansen concedes, the terms and conditions of her employment were provided by the CBA. This is relevant because the Classified System Personnel Rules provide as follows: "Employees subject to certified Collective Bargaining Agreements as prescribed in Section 81-1373 and 1374 are not covered by these rules to the extent that wages, hours and other terms and conditions of employment are provided for by contract." 273 Neb. Admin. Code, ch. 1, § 004.03 (2006). Neb. Rev. Stat. § 81-1373 (Reissue 2014) refers to a number of units created by statute for collective bargaining purposes. Among them, there is a unit composed of "employees required to be licensed or certified as a teacher." § 81-1373(1)(k). In the CBA, the State recognizes SCATA as the collective bargaining agent for teachers employed by the State. Because the terms and conditions of Bower-Hansen’s employment are provided in the CBA, the Classified System Personnel Rules do not, of their own force,...