Administrative Services

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Nebraska State Personnel Board Decisions

The following State Personnel Board Decisions regarding employee grievances have been summarized for informational use only.

1995

Calvin Jones v. Nebraska Department of Correctional Services #1: (NAPE -- 10.1) Calvin Jones filed a grievance, appealing his demotion and reduction in pay by the Nebraska Department of Correctional Services, and Martel Bundy was appointed by the State Personnel Board to served as hearing officer. The hearing was held in accordance with the provisions of the 1991-93 NAPE/AFSCME and State of Nebraska Labor Contract. The Appellant was demoted two levels and was issued a 10% salary reduction for allegedly engaging in offensive conduct toward a co-employee. The Appellant argued the disciplinary action was too severe and past disciplinary action by the agency for this type of offense was only to issue suspension without pay.

The hearing officer found the evidence submitted did support a finding of just cause for disciplinary action and the action was made in good faith. The hearing officer did find the discipline was too severe, and recommended the Appellant be reinstated to his former position with full back pay, but the agency may suspend without pay for a period of up to 10 days.

The State Personnel Board accepted the recommendation of the hearing officer and upheld the appeal in part.

The District Court of Lancaster County Ordered the Personnel Board to dismiss the grievance.

LeRoy J. Stegman v. Nebraska Department of Public Institutions: (Rules -- 13.003) LeRoy J. Stegman filed a grievance, appealing his two-week suspension without pay and six-month probation, by the Nebraska Department of Public Institutions. The State Personnel Board appointed John P. Glynn, Jr., to serve as hearing officer, and a hearing was held in accordance with the provisions of the State of Nebraska Classified System Personnel Rules and Regulations. The agency contended the Appellant failed to complete work assignments he agreed to meet, and that the Appellant failed to properly distribute monthly budget status reports.

The hearing officer found that there was no question that the Appellant did not complete the work assignments, but that the agency did not prove that the budget reports were not distributed. The hearing officer recommended that the disciplinary action for the failure to complete the work assignments be sustained, but that the disciplinary action with regard to the distribution of the reports be overruled.

The State Personnel Board accepted the recommended decision of the hearing officer that the grievance was upheld in part and denied in part.

Catherine Boscardin v. Nebraska Department of Social Services #1 & #2: (NAPE -- 9.1) Catherine Boscardin filed a grievance, appealing her five-day suspension without pay, probation and subsequent termination, by the Nebraska Department of Social Services. The State Personnel Board appointed Samuel Van Pelt, to serve as hearing officer, and a hearing was held in accordance with the provisions of the 1991-93 and 1993-95 NAPE/AFSCME and State of Nebraska Labor Contracts. The Appellant filed harassment charges and as a result, was to be transferred to another work site. She waived the 10-day notice of transfer, left her present worksite and attempted to begin at her new site. She was not allowed to work there and then, did not return to her former site. She was disciplined for unauthorized leave, which included the suspension and probation. While on probation, she was terminated for failure to abide by the conditions of the probation.

The hearing officer recommended the Appellant be returned to work with full back pay, and contended the agency's actions were not for just cause and not done in good faith.

The State Personnel Board amended the recommended decision and denied both grievances.

The District Court of Lancaster County affirmed the Board decision.

Bryce Triplett v. Nebraska State Patrol: (SLEBC -- 8 & 9) Bryce Triplett filed a grievance, appealing the decision of the Nebraska State Patrol to deny his transfer to a different post and assigned a new trainee to that position. The parties waived the formal hearing and submitted the case to Harvey Nathan as hearing officer, on stipulated exhibits, an affidavit and supporting briefs. The State contended that the posting of the position was expressly restricted to new trainees.

The hearing officer found seniority was not an issue in this appeal, since the posting was for trainees only. He also found two listings were offered for lateral transfer to current employees previously, but this specific position was not available at that time. This position only became available after the lateral transfers had taken place, and then the position was properly offered to just trainees, not to bargaining unit members.

The State Personnel Board accepted the recommended decision of the hearing officer that the Nebraska State Patrol's decision was made in good faith, and the grievance was denied.

Thomas McAllister v. Nebraska Department of Correctional Services: (NACE) Thomas McAllister filed a grievance, appealing his termination by the Nebraska Department of Correctional Services. The parties mutually agreed to have James Mowbray serve as hearing officer. The agency contended that the Appellant was derelict in his duty after being found sleeping at his post at a high-security facility. The Appellant alleged that the seriousness of his offense should be minimized because the agency ignored the violations of other policies.

The hearing officer found there was no question the incident occurred and was witnessed by a co-employee. The recommendation was to deny the appeal and to let the termination stand.

The State Personnel Board accepted the recommended decision of the hearing officer that the grievance filed by Thomas McAllister be denied and the decision of the agency be affirmed.

The District Court of Lancaster County upheld the Board decision and the termination of the Appellant.

The Nebraska Supreme Court overturned the District Court's ruling and the Personnel Board's decision, on the grounds the agency's Policies and Procedures had not been promulgated with the Secretary of State and were therefore, invalid.

Nancy Gamboa v. Nebraska Department of Social Services: (NAPE -- 11.2) Nancy Gamboa filed a grievance, appealing the refusal of the Nebraska Department of Social Services (DSS), to provide a $300.00 cost-of-living wage increase as provided by the labor contract. The State Personnel Board appointed John P. Glynn, Jr., to serve as hearing officer, and a hearing was held in accordance with the provisions of the 1993-95 NAPE/AFSCME and State of Nebraska Labor Contract. The agency contended that the cost-of-living wage increase was given based on her salary for her previous position and that it should not be applied a second time to the employee, since she was promoted to a new position after the increase was to go into effect.

The hearing officer found the cost-of-living wage increase was properly applied to the position held by the Appellant on the first of January, and the Appellant was then promoted to a new position on the third of January. The hearing officer's recommendation was to dismiss the appeal and sustain the action of the agency.

The State Personnel Board accepted the recommended decision of the hearing officer, that the grievance filed by Nancy Gamboa be denied and the decision of the agency be affirmed.

Angelo Vinci v. Nebraska Department of Correctional Services: (Rules) Angelo Vinci filed a grievance, appealing his disciplinary demotion from Lieutenant to Correctional Officer, by the Nebraska Department of Correctional Services, and the State Personnel Board appointed William J. Wood to serve as hearing officer. A hearing was held in accordance with the provisions of the Nebraska Classified System Personnel Rules and Regulations. The State contended that the Appellant was disciplined for insubordinate acts, conduct inappropriate for a State employee and failure to obey orders. The Appellant was alleged to have made several inappropriate comments with racial and gender connotations which caused a hostile environment. The Appellant claimed that some of these remarks were made away from the workplace, and therefore, he was exercising his right to freedom of speech.

The hearing officer found the agency met its burden of proof to show its decision was made in good faith, and the Appellant did not deny making the statements. The freedom of speech aspect was out-weighed by the agency's need to operate the facility in an efficient manner without the aspect of a hostile environmental present.

The State Personnel Board accepted the recommended decision of the hearing officer, that the Department of Correctional Services' actions be affirmed.

The District Court of Lancaster County overturned the Board decision and remanded the case back for proper disciplinary action.

The Nebraska Supreme Court overturned the District Court's ruling and remanded the case with directions to determine whether the Appellant's statements violated the agency's rules and if so, whether the level of discipline imposed was appropriate.

Barbara Breazier v. Nebraska Department of Correctional Services: (NAPE 10.2) Barbara Breazier filed a grievance, appealing her disciplinary probation by the Nebraska Department of Correctional Services. The State Personnel Board appointed James Mowbray to serve as hearing officer, and a hearing was held in accordance with the provisions of the 1993-95 NAPE/AFSCME and State of Nebraska Labor Contract. The State contended that the Appellant was disciplined for failure to obey orders. The Appellant was alleged to have failed to complete her work assignments after repeated supervisory counseling sessions. The Appellant claimed the work load was too heavy and the deadlines were impossible to meet.

The hearing officer found the Appellant's inability to get her work done in a timely manner was an ongoing problem, and the fact other employees were able to accomplish their work, established the fact the discipline was warranted.

The State Personnel Board accepted the recommended decision of the hearing officer and the grievance filed by Barbara Breazier was denied and the decision of the agency was affirmed.

Patty Kotouc v. Nebraska Department of Correctional Services: (State Government Effectiveness Act) (NAPE 9.6) Patty Kotouc filed a grievance, appealing her transfer from the Nebraska State Penitentiary to the Diagnostic and Evaluation Center, by the Nebraska Department of Correctional Services. The State Personnel Board appointed John P. Glynn, Jr., to serve as hearing officer, and a hearing was held in accordance with the provisions of the 1993-95 NAPE/AFSCME and State of Nebraska Labor Contract. The Appellant claims that her transfer was retaliation and/or discipline for her actions and was a violation of the State Government Effectiveness Act. The agency said the transfer was due to business needs and in accordance with the labor contract.

The hearing officer found the Appellant's transfer was in violation of the labor contract and recommended the transfer should not be carried out. The hearing officer further found that the agency did not violate the State Government Effectiveness Act.

The State Personnel Board accepted the recommended decision of the hearing officer that the Appellant be returned to her former position.

Patricia Peters v. Nebraska Department of Social Services: (NAPE 9.6) Patricia Peters filed a grievance, appealing her termination by the Nebraska Department of Social Services. The State Personnel Board appointed Samuel Van Pelt, to serve as hearing officer, and a hearing was held in accordance with the provisions of the 1993-95 NAPE/AFSCME and State of Nebraska Labor Contract. The Appellant, who was serving disciplinary probation, was issued a list of 28 separate allegations of misconduct and lack of efficiency.

The hearing officer found the agency proved by a preponderance of evidence the disciplinary action imposed was consistent with the terms and conditions of the labor contract, and recommended the grievance be denied and the agency's actions remain in effect.

The State Personnel Board accepted the recommended decision of the hearing officer and the grievance filed by Patricia Peters was denied.

Andrea Lindner v. Nebraska Department of Public Institutions: (Rules -- 14) Andrea Lindner filed a grievance appealing the fact that the Nebraska Department of Public Institutions would not remove written warnings from her file. The State Personnel Board appointed Andrew Russell to serve as hearing officer, and a hearing was held in accordance with the provisions of the State of Nebraska Classified System Personnel Rules and Regulations. The Appellant requested the removal of two written warnings from her personnel file and the State argued that the grievance was not filed within the 15 days required.

The hearing officer found the Appellant's request to have the notices removed was not filed within the timelines in one instance, but was in the second. The agency agreed to remove the second notice, and the hearing officer recommended the appeal regarding the first notice be denied.

The State Personnel Board accepted the recommended decision of the hearing officer and the grievance filed by Andrea Lindner was denied.

Bryan Riley v. Nebraska Department of Correctional Services: (NAPE 10.2) Bryan Riley filed a grievance, appealing his termination by the Nebraska Department of Correctional Services. The State Personnel Board appointed Martel Bundy to serve as hearing officer, and a hearing was held in accordance with the provisions of the 1993-95 NAPE/AFSCME and State of Nebraska Labor Contract. The State contended the Appellant was disciplined for failure to obey orders, contempt or disrespect toward a supervisor, and that the Appellant committed an act which adversely affected the employee and Department's performance. The Appellant was alleged to have removed money from the facility that was for inmates, he refused to submit to a polygraph test and was abusive toward a supervisor. The Appellant contended that such violations did not warrant termination.

The hearing officer found the allegation of the Appellant's mishandling of the inmates' funds was proven, as was the disrespect and abusive actions toward a supervisor. The hearing officer also found it was a violation of a State Statute to refuse to submit to a polygraph test. The recommended decision was to deny the grievance and allow the disciplinary action of the agency to stand.

The State Personnel Board accepted the recommended decision of the hearing officer and the grievance filed by Bryan Riley was denied and the decision of the agency was affirmed.

The District Court of Lancaster County affirmed the Board decision.

Greg Clark v. Nebraska Department of Administrative Services: (NAPE -- 9.1) Greg Clark filed a grievance appealing the selection of another person to fill a position by the Nebraska Department of Administrative Services. The State Personnel Board appointed Martel Bundy to serve as hearing officer, and a hearing was held in accordance with the provisions of the 1993-95 NAPE/AFSCME and State of Nebraska Labor Contract. The Appellant contended that the agency violated the Labor Contract when he was not hired for a position when he had higher application and interview scores. The agency contended that it only used the interview score to choose the best candidate, and since the two candidates were close in score, that the DAS Affirmative Action Plan was initiated. The successful candidate was a member of a minority group.

The hearing officer found the agency's use of an Affirmative Action Plan was administered correctly and following the addition of the AA Plan score, the successful candidate did have a substantially higher rating. The hearing officer recommended the grievance be denied and the decision of DAS would stand.

The State Personnel Board accepted the recommended decision of the hearing officer and the grievance was denied.

Mark Hutchins v. Nebraska Department of Roads: (NAPE -- 10.1) Mark Hutchins filed a grievance appealing his termination by the Nebraska Department of Roads. The State Personnel Board appointed Peter Blakeslee to serve as hearing officer, and a hearing was held in accordance with the provisions of the 1993-95 NAPE/AFSCME and State of Nebraska Labor Contract. The agency alleged that the Appellant had been drinking on the job and was under the influence while operating a motor vehicle which was involved in an accident. The Appellant admitted he had a drinking problem and was receiving treatment. The Appellant claimed the discipline was too severe for a first-time offense.

The hearing officer found the agency followed the labor contract and administered disciplinary action for just cause. The hearing officer determined that the disciplinary action was not too severe considering the fact damage was done to state property and the Appellant's actions endangered the lives of fellow workers. The recommendation by the hearing officer was to deny the grievance.

The State Personnel Board accepted the recommended decision of the hearing officer and the grievance was denied.

The Appellant appealed the State Personnel Board's decision to the District Court and the Court dismissed the appeal for lack of prosecution.

Ilene Borgman v. Nebraska Department of Administrative Services: (State Government Effectiveness Act) Ilene Borgman filed a grievance appealing her transfer with additional duties by the Nebraska Department of Administrative Services as a violation of the "Whistleblower Act." The State Personnel Board appointed John P. Glynn, Jr., to serve as hearing officer, and a hearing was held in accordance with provisions of the Nebraska Classified System Personnel Rules and Regulations. The Appellant contended that the agency transferred her and added more duties in retaliation for her having contacted the State Ombudsman regarding wrongdoing by her supervisor. The agency argued that it imposed the transfer because of downsizing in the Print Shop and that relocating her work site to the Print Shop would increase efficiency.

The hearing officer found the action of the agency was of a retaliatory nature and through testimony, found that Ombudsman's report showed reasonable grounds to believe that a violation of the "Whistleblower's Act" had occurred. The hearing officer recommended that the Appellant's transfer and assignment of additional duties be prohibited.

The State Personnel Board accepted the recommended decision of the hearing officer.

LeRoy J. Stegman v. Nebraska Department of Public Institutions #3: (Rules -- 13) LeRoy J. Stegman filed a grievance, appealing his termination by the Nebraska Department of Public Institutions. The State Personnel Board appointed John P. Glynn, Jr., to serve as hearing officer, and a hearing was held in accordance with the provisions of the State of Nebraska Classified System Personnel Rules and Regulations. The agency contended that the Appellant failed to furnish correct information as to a budget surplus of the institution, and the Appellant argued that the evidence was based in hearsay and conclusion.

The hearing officer found the Appellant had received written warnings, disciplinary suspension and probation for similar violations in the past, and the dismissal of the Appellant was supported by the evidence. The recommended decision was to uphold the actions of the agency.

The State Personnel Board accepted the recommended decision of the hearing officer that the grievance be denied.

The District Court of Lancaster County overruled the Personnel Board and ordered the agency to reinstate the grievant, with back pay.

Donald Bennett v. Nebraska Department of Public Institutions: (Rules -- 6 & 7) Donald Bennett filed a grievance appealing the fact that the Nebraska Department of Public Institutions did not reclassify his position rather than create a new position at the Grand Island Veterans Home. The State Personnel Board appointed Andrew Russell to serve as hearing officer, and a hearing was held in accordance with the provisions of the State of Nebraska Classified System Personnel Rules and Regulations. The Appellant felt that he had been performing the majority of the duties of another classification, but was not reclassified, and then the position was filled by another individual.

The hearing officer found the agency had the management right to modify, assign and reassign the Appellant's duties. Since the Appellant did not appeal the selection of another person to fill the permanent position, but only the fact that he was doing the work and should have been reassigned, the recommended decision was to dismiss the grievance.

The State Personnel Board accepted the recommended decision of the hearing officer and the grievance was denied.

Monica Bartling v. Nebraska State Patrol: (SLEBC -- 9.6.1) Monica Bartling filed a grievance appealing the Nebraska State Patrol's decision regarding her assigned days off. The parties mutually agreed to have James Mowbray serve as hearing officer, and a hearing was held in accordance with the provisions of the 1993-95 SLEBC and State of Nebraska Labor Contract. The Appellant contended that seniority should be the determining factor in an employee's assigned days off, while the agency contended that it had the right to modify days off, according to a needs coverage agreement, which treated K-9 officers as a specialty assignment.

The hearing officer found the contract to be silent in the area of specialty assignments, and therefore, the day off should be determined by seniority. As for coverage, including K-9 troopers, the agency did not prove it should deny the Appellant's request because of the "David City" unwritten policy. The hearing officer recommended the Appellant be granted the days off requested and the appeal be upheld.

The State Personnel Board accepted the recommended decision of the hearing officer that the Nebraska State Patrol grant the Appellant the requested days off.

The District Court of Lancaster County overruled the Personnel Board decision, and the Nebraska Court of Appeals affirmed the District court's ruling.