Christopherson v. Neb. Dep't of Health & Human Servs.

308 Neb. 610

956 N.W.2d 17

Thomas CHRISTOPHERSON, appellant,

v.NEBRASKA DEPARTMENT OF HEALTH AND HUMAN SERVICES, an agency of the State of Nebraska, et al., appellees.

No. S-20-361.

Supreme Court of Nebraska.

Filed March 12, 2021

NATURE OF CASE

The Nebraska Department of Health and Human Services (DHHS) terminated the employment of appellant Thomas Christopherson as a health program manager, after which Christopherson challenged the termination. He pursued the appropriate grievance proceedings and sought lost wages, including front pay, back pay, and lost benefits. DHHS ultimately withdrew the allegations against Christopherson. However, DHHS contested Christopherson's claim for "front pay," commonly viewed as money awarded in lieu of reinstatement of employment. Following a hearing, the State Personnel Board (Personnel Board) determined that an award of front pay was not appropriate. The Lancaster County District Court affirmed the Personnel Board's decision. Christopherson appeals. Because reinstatement of employment was possible, we find no errors appearing on the record and affirm the order of the district court.

STATEMENT OF FACTS

Christopherson worked as a health program manager in DHHS’ Division of Public Health's environmental health section from 1994 until 2018. In March 2018, Christopherson received a "Written Notice of Allegations" from his supervisor, Judy Martin, deputy director of community and environmental health for DHHS. Summarized, the written notice alleged:

[1.] Christopherson appeared before a village board and urged the board to enter into a contract with his brother's employer. [DHHS] claimed that by doing so, Christopherson used his position with [DHHS] to benefit his brother's company....

[2.] Christopherson authorized the purchase of unnecessary items and then allowed private companies to keep them.... The amount involved exceeded $100,000....

[3.] Christopherson used money [from] a fund dedicated to licensing on services or products that were unrelated to licensing.... [T]he sum of such expenditures was [over] $800,000 ....

[4.] Christopherson failed to ensure that water-well inspections occurred and that violations were enforced.

After Christopherson provided a written response to the allegations, the first allegation was withdrawn. His employment was ultimately terminated.

Christopherson followed the appropriate agency-level grievance procedure under the Classified System Personnel Rules & Regulations. In his grievance, Christopherson sought lost wages, including front pay, back pay, and lost benefits. Christopherson did not seek to be reinstated. This grievance was denied, and Christopherson appealed to the Personnel Board.

At the Personnel Board hearing regarding the merits of Christopherson's grievance, DHHS stated that it had agreed to withdraw the notice of discipline regarding the allegations from Christopherson's personnel file, accept his request for resignation or retirement, and issue him back pay through the date of the hearing. However, DHHS contested Christopherson's claim to front pay, or future earnings. The parties proceeded solely on the issue of front pay. And the issue of Christopherson's entitlement to front pay in lieu of reinstatement has emerged as the sole issue before us in this appeal.

Christopherson testified that he did not request reinstatement in his grievance because of the severity of the allegations surrounding his termination. He testified that he brought his "best work to work" every day for 24 years and was recognized for his work with awards. According to Christopherson, he consistently maintained a good working relationship with his coworkers and supervisors, including Martin. He consistently received good performance reviews from his supervisors. Although Martin had given Christopherson the written notice of allegations and was present at the meetings where he was disciplined, Christopherson testified that Martin had told him she "regretted that this is what she had to do." In 2008, Christopherson won a "manager of the year" award at DHHS, and in 2017, the National Ground Water Association recognized his work.

Christopherson testified that "to be terminated, in my mind, for doing my job, I did not feel I wanted to go back and work in that environment" and that "[i]t's not practical." He claimed that he was "damaged" and that there were "a lot of rumors that I've been made aware of, people in the industry, people in State government. My credibility has been hit pretty hard. I was named as a person in a newspaper article[.]"

With regard to his job search following termination, Christopherson testified that he applied for over 20 different jobs in his field, but was unable to find other employment. He started his own consulting business on June 13, 2018. He earned less than $6,000 from his business during 2018 and the first half of 2019.

Christopherson also submitted evidence of his previous rate of pay, raises, and the value of his benefits relating to his claim of front pay, which he contended should cover the 4 fiscal years from his termination until his full retirement age in 2022.

The Personnel Board unanimously adopted the hearing officer's recommendation that the Personnel Board deny his claim for front pay. The hearing officer noted that his review of the Personnel Board decisions failed to find any case in which front pay had been awarded. With respect to the question of whether the Personnel Board had authority to award front pay, the hearing officer found that "[s]ufficient evidence and testimony was not presented so that a determination could be made as to whether or not the ... Personnel Board has authority to award front pay." However, the hearing officer noted that traditional legal criteria for awarding front pay included, among other factors, situations where the employee could not be reinstated. The hearing officer found that even if front pay was a remedy authorized for this type of grievance, there was not sufficient evidence to indicate that front pay in lieu of reinstatement would be appropriate. The hearing officer said:

In this case reinstatement was possible. There was no showing of intense animosity between [Christopherson] and his supervisor. [Christopherson] had received an award from [DHHS] and had good performance evaluations. [DHHS] had a number of other positions of the same classification as the one held by [Christopherson] and many of these positions reported to different supervisors, so there was a high probability that if the relationship with his former supervisor was significantly damaged, [Christopherson] could have been reinstated to work for another supervisor. In addition, this area is no longer under the supervision of [DHHS]; it has been moved to the Department of Environmental Quality.

The hearing officer also found that Christopherson had not reasonably mitigated his damages, noting that Christopherson applied for a number of positions after his termination but ended his job search less than 2 months after he was terminated. The recommended order adopted by the Personnel Board found that front pay should not be ordered.

Christopherson sought review of the unfavorable decision of the Personnel Board in the district court. The district court first determined the Personnel Board did not have the power to award front pay under its grant of authority from the Legislature. It reasoned that front pay is an equitable remedy and that the Legislature must explicitly confer equitable power on an administrative agency like the Personnel Board. It further noted that the Personnel Board's regulations "do not provide for front pay" and that it had not ordered front pay in past cases.

The district court next found that even if the Personnel Board could award front pay, Christopherson was not entitled to it, because reinstatement of employment was possible. The district court noted:

Christopherson testified that he always had a good working relationship with his coworkers and supervisors.... In fact, the supervisor who signed the notices of allegation and discipline told Christopherson that she regretted having to do so.... Christopherson argues that the nature of the allegations themselves showed that [DHHS] was extremely hostile towards him. But the record does not show that the allegations actually created a hostile environment for Christopherson. While he referred to "rumors," the evidence does not reveal how widely the charges were disseminated.

The court explained that "apart from the allegations themselves, there is little evidence that anyone in [DHHS] bore Christopherson ill will." The district court found that Christopherson "might have been able to step back into his old role" and determined he did not carry his burden of proving that reinstatement was not feasible and that he was therefore entitled to front pay in lieu thereof. The district court affirmed the Personnel Board's decision.

ASSIGNMENTS OF ERROR

Christopherson assigns, summarized and restated, that the district court erred when it found that (1) the Personnel Board did not have the power to award front pay and (2) Christopherson did not carry his burden to show that reinstatement was not feasible and that he was entitled to front pay.

STANDARDS 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. Neb. Rev. Stat. § 84-918(3) (Reissue 2014). 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. Abay, L.L.C. v. Nebraska Liquor Control Comm. , 303 Neb. 214, 927 N.W.2d 780 (2019). An appellate court, in reviewing a district court's judgment for errors appearing on the record, will...