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.

2000

Richard Leech v. Department of Correctional Services Appeal: (Rules --13) Richard Leech filed a grievance claiming that the Department of Correctional Services violated the Classified System Personnel Rules and Regulations when he was issued disciplinary action of a three-salary grade demotion. The State Personnel Board appointed William J. Wood 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 Respondent charged the Appellant with failure to obey orders.

The hearing officer found that the Respondent's discipline of the Appellant was greater than the degree of severity necessary to correct the Appellant's behavior, therefore, not in good faith, and recommended the Appellant be reinstated with back pay and benefits up to the date of the Appellant's resignation, and that his personnel file be cleared.

The State Personnel Board accepted the recommended decision of the hearing officer that the action by the agency be overturned.

Steven Wilson v. Department of Health & Human Services: (Rules -- 4) Steven Wilson filed a grievance claiming that the Department of Health & Human Services violated the Classified System Personnel Rules and Regulations by appointing a Unit Manager for the Central Service Area on a temporary basis. In an earlier hearing based on a Motion to Dismiss filed by the Respondent, the hearing officer recommended that a hearing be held with the issues limited to unfair hiring practices and whether the Appellant should receive compensation for the duration of the temporary appointment.

The State Personnel Board accepted the recommended decision of the hearing officer, Sherri Wimes, that the Respondent's motion for dismissal be denied. The State Personnel Board then appointed William J. Wood 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 hearing officer found that the temporary position was vacated and the position was opened competitively for filling on a permanent basis, but the Appellant did not apply for the position. The Appellant also did not appeal the permanent filling of the position. The hearing officer recommended that the grievance be denied.

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

Benny Noordhoek v. Nebraska Department of Correctional Services: (NAPE -- 10.1) Benny Noordhoek filed a grievance appealing his demotion and removal from the Special Operations Response Team (SORT) by the Nebraska Department of Correctional Services. The parties agreed to have Paul Caffera serve as hearing officer, and a hearing was held in accordance with the provisions of the 1999-2001 NAPE/AFSCME and State of Nebraska Labor Contract. The Appellant was disciplined for allegedly not following evidence procedures and failing to report an accidental discharge of a firearm by a co-worker.

The hearing officer found that the Appellant was not the only employee that reportedly mishandled evidence, but was the only one disciplined. He also found that the Appellant, and the co-worker responsible for the incident, were aware that the item in question was not evidence. The recommended decision reduced the demotion to a 3-day suspension.

The State Personnel Board voted to accept the recommended decision of the hearing officer with the modification that the entire discipline is to be removed and the Appellant is to be returned to the SORT team. This action was taken to comply with a District Court ruling that the Personnel Board cannot modify the decision of the agency, but only has the power to affirm or reverse the decision. The Board also added findings of fact and conclusions of law to the decision.

Deborah Smith v. Nebraska Department of Correctional Services Appeal #3: (NAPE -- Motion to Dismiss) Deborah Smith filed a grievance that alleged the Nebraska Department of Correctional Services violated Section 4.9 of the labor contract. The parties agreed to have Samuel Van Pelt serve as hearing officer, and a hearing was held in accordance with the provisions of the 1999-2001 NAPE/AFSCME and State of Nebraska Labor Contract. The Respondent filed a Motion to Dismiss based on the fact that the appeal was not filed in a timely manner at the Step 3 procedure.

The hearing officer found that the Appellant received the step two response on August 4, 1999, and according to the labor contract, should have been filed at step three on or before August 25, 1999. The third step appeal was received by the DAS-Employee Relations Division on September 3, 1999. The hearing officer's recommended decision was to dismiss the appeal.

The State Personnel Board voted to accept the recommended decision of the hearing officer.

Dean Naylor v. Department of Correctional Services Appeals #1 & #2: (Rules --13) Dean Naylor filed two grievances appealing two disciplinary actions enacted by the Department of Correctional Services. The State Personnel Board appointed William J. Wood 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 Respondent issued a written warning to the Appellant for being late to work on three occasions within a 90-day period, and also issued a five-day suspension and six-month disciplinary probation to the Appellant for allegedly making inappropriate statements to co-workers, in front of inmates.

The hearing officer found that the written warning issued was in good faith and for cause, and recommended that it should stand. With regards to the inappropriate remarks, it was found that the agency also acted for cause and in good faith, but the penalty did not constitute progressive discipline and was more severe than necessary to correct the behavior. The recommendation was to vacate the disciplinary action, and that the agency should impose discipline that was progressive and suited to the violation, possibly six-months disciplinary probation.

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

Ronald Summerhill v. Department of Health & Human Services: (Rules/NAPE) On a Motion to Dismiss filed by the Respondent, the Personnel Board conducted a hearing and dismissed this appeal as the appeal was not timely filed and not filed in the proper venue at the first step.

Dean Naylor v. Department of Correctional Services #3: (Rules --13) Dean Naylor filed a grievance appealing his reassignment to third shift by the Department of Correctional Services. The State Personnel Board appointed William J. Wood 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 Respondent reassigned the Appellant to third shift citing that the previous Lieutenant's skills were weaker than those of the Appellant in areas that were important on this shift. The appellant claimed that the move was not taken in good faith and was actually additional disciplinary action.

The hearing officer found that the move was not taken in good faith, since the Respondent had not taken proper steps to assure that the Lieutenant formerly assigned to this shift was encouraged to correct his work deficiencies; and that since the Appellant had just been placed on probation, the move would not afford proper supervision. The hearing officer recommended that the reassignment be overturned.

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

George Vogel v. Department of Roads #2(Rules -- 13) George Vogel filed a grievance claiming that the Department of Roads violated the Classified System Personnel Rules and Regulations when he was suspended for five days and placed on six-months probation. The State Personnel Board appointed Gary Burger, 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. At the hearing, the Respondent alleged that the Appellant failed to treat employees with respect, failed to adequately supervise personnel, and had committed workplace harassment. The Appellant claimed that the Respondent failed to provide due process by not providing proper explanation and description of the incidents which led to the allegations.

The hearing officer found that the agency did provide due process and the allegations against the Appellant were supported by the evidence. The hearing officer recommended that the appeal be denied and that the discipline be affirmed.

The State Personnel Board rejected the recommended decision of the hearing officer and adopted its own findings of fact and conclusions of law. The Board's decision overturned the Appellant's discipline and awarded back pay and benefits. The Board did add that the Agency shall not be precluded from issuing proper notice of proposed charges, holding a new mitigation meeting, and imposing appropriate discipline, if warranted.

James Stejskal v. Department of Administrative Services: (NAPE -- 10.1) James Stejskal filed a grievance against the Department of Administrative Services appealing his termination as an Accountant II. The parties agreed to have Peter Blakeslee serve as hearing officer, and a hearing was held in accordance with the provisions of the 1999-2001 NAPE/AFSCME and State of Nebraska Labor Contract. The Appellant was terminated for alleged failure to maintain a satisfactory working relationship, insubordination and conduct adversely affecting the employee's performance.

The hearing officer found that there was insufficient evidence to show that the Agency met its burden of proof and that the Agency did not have just cause to impose disciplinary action in the form of termination.

The State Personnel Board voted two "for" and two "against" the recommended decision. In accordance with Section 14.009.03C of the Rules, "If a tie vote is cast, the Agency Head's decision shall prevail." The termination was affirmed.  The Appellant appeal the decision to the District Court, which reversed the Board's decision, and the Court of Appeals affirmed the District Court's order.

Dean Naylor v. Department of Correctional Services #4, #5 and #6: (Rules --14 - Motions to Dismiss) Dean Naylor filed three grievances appealing his performance evaluations and incentive pay increase by the Department of Correctional Services. The State Personnel Board appointed Sue Dedick 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 on Motions to Dismiss filed by the Agency. The Respondent claimed that according to the "Rules," performance evaluations and incentive (merit) increases, are non-grievable issues.

The hearing officer found that the State of Nebraska Classified System Personnel Rules and Regulations are clear with regard to non-grievable issues, which do include performance evaluations and incentive (merit) pay increases. The recommended decisions were to dismiss all three appeals.

The State Personnel Board accepted the recommended decisions of the hearing officer in all three cases.

Frances Jane Tooley v. Nebraska State Patrol: (Rules) Frances Jane Tooley filed a grievance appealing the Nebraska State Patrol's requirement that she move her residence to Lincoln, Nebraska. The State Personnel Board appointed Gary Burger 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 claimed that being required to move her residence was discriminatory, since 12 male officers were not required to move, and she had previously received authorization to maintain her present residence. The Respondent alleged that the Appellant's residence is outside of the 10-mile radius allowed by policy.

The hearing officer found that the agency did have the authority to request the Appellant move her residence to within the allowable distance of the worksite. The hearing officer also found that the Appellant was in a work status during the commute to and from the worksite. The hearing officer recommended that the Agency's request for the Appellant to move her residence be affirmed.

The State Personnel Board rejected the recommended decision and adopted its own finds of fact and conclusions of law. The Board sustained the appeal and eliminated the requirement that the Appellant move.

Deborah Smith v. Nebraska Department of Correctional Services Appeal #5: (NAPE -- Motion to Dismiss) Deborah Smith filed a grievance regarding a written warning she received from the Nebraska Department of Correctional Services. The parties agreed to have Samuel Van Pelt serve as hearing officer, and a hearing was held in accordance with the provisions of the 1999-2001 NAPE/AFSCME and State of Nebraska Labor Contract. The Respondent filed a Motion to Dismiss based on the fact that the appeal was not filed in a timely manner at Step 3.

The hearing officer found that the Appellant received the step two response from the Agency Head on November 20, 1999, and according to the labor contract, the appeal should have been filed at step three, on or before December 14, 1999. The third step appeal was received by the DAS-Employee Relations Division on December 15, 1999. The hearing officer's recommended decision was to dismiss the appeal.

The State Personnel Board voted to accept the recommended decision of the hearing officer.

Deborah Smith v. Nebraska Department of Correctional Services Appeal #2: (NAPE -- Motion to Dismiss) Deborah Smith filed a grievance regarding the Nebraska Department of Correctional Services' failure to grant a vacation leave request in a timely manner. The parties agreed to have Paul Caffera serve as hearing officer, and a hearing was held in accordance with the provisions of the 1999-2001 NAPE/AFSCME and State of Nebraska Labor Contract. The Respondent filed a Motion to Dismiss based on the fact that the grievance was moot, since the notification of denial had already occurred and the date of the request has passed.

The hearing officer found that allowing the grievance to proceed would result in a waste of time, money and other resources, with no benefit to the Grievant, even if she were to prevail at a full hearing. The hearing officer's recommended decision was to dismiss the appeal.

The State Personnel Board voted to accept the recommended decision of the hearing officer.

Doris Olena v. Department of Health and Human Services(Rules -- 13) Doris Olena filed a grievance claiming that the Department of Health and Human Services violated the Classified System Personnel Rules and Regulations when she was demoted from a Corrections Youth Supervisor to a Corrections Youth Security Specialist II. 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. At the hearing, the Respondent alleged that the Appellant failed to follow policy in the treatment of clients. The Appellant claimed that the Respondent did not provide specific policies with regards to the incidents in question.

The hearing officer found that the agency did not impose the discipline in good faith and for cause, since the Respondent was relying on policies that were not applicable to this incident. It also appeared that the discipline was excessive, with similar employees receiving disciplinary probation and not demotion. The hearing officer recommended that the discipline imposed by the agency be reversed and that the Appellant receive lost wages and benefits due to her demotion.

The State Personnel Board voted to accept the recommended decision of the hearing officer.

Deborah Smith v. Nebraska Department of Correctional Services Appeal #1: (NAPE -- 10.1) Deborah Smith filed a grievance regarding a written warning she received from the Nebraska Department of Correctional Services. The parties agreed to have Paul Caffera serve as hearing officer, and a hearing was held in accordance with the provisions of the 1999-2001 NAPE/AFSCME and State of Nebraska Labor Contract. The Respondent alleged that the Appellant abused sick leave in accordance with definitions outlined in the Administrative Regulations, Operational Memorandums and the Agency's Employee Handbook, as well as the labor contract.

The hearing officer found that the Appellant used sick leave nearly as fast as it was accrued and that at the conclusion of the three-year period from 1997 to 1999, the Appellant had a 19.73 hour balance, out of a total 362.97 hours earned. The hearing officer also found that in the five-and-one-half years the Appellant was employed by the Agency, a total of over 500 hours of sick leave had been used. The hearing officer recommended that the disciplinary action be sustained and the grievance be denied.

The State Personnel Board voted unanimously to accept the recommended decision of the hearing officer.

Nancy Vandenberg v. Nebraska State Patrol: (NAPE -- 8.6) Nancy Vandenberg filed a grievance when the Nebraska State Patrol failed to grant her a pay increase at the completion of her original probation. The parties agreed to have Sharon Imes serve as hearing officer, and a hearing was held in accordance with the provisions of the 1999-2001 NAPE/AFSCME and State of Nebraska Labor Contract. The Appellant alleged that according to the 1997-1999 Labor Contract, she was entitled to a pay increase at the end of her original probation.  The Respondent stated that the end-of-probation increases were eliminated on July 1, 1999, when the 1999-2001 contract went into effect.

The hearing officer found that since the employee was hired during the 1997-99 contract, and that the 1999-2001 contract did not specifically address the end-of-probation raise as being eliminated, that the Appellant was entitled to the appropriate increase.

The State Personnel Board voted unanimously to accept the recommended decision of the hearing officer.

Don Divis v. Nebraska Department of Correctional Services: (NAPE -- Motion to Dismiss) Don Divis filed a grievance regarding a suspension without pay he received from the Nebraska Department of Correctional Services. The parties agreed to have Samuel Van Pelt serve as hearing officer, and a hearing was held in accordance with the provisions of the 1999-2001 NAPE/AFSCME and State of Nebraska Labor Contract. The Respondent filed a Motion to Dismiss based on the fact that the appeal was not filed in a timely manner.

The hearing officer found that when the Appellant was placed on suspension in August of 1999, the Appellant believed that he was not covered by the NAPE/AFSCME Labor Contract.  In May of 2000, the Appellant filed a grievance with regard to the suspension and claimed that he had just found out he was covered by the labor contract.  The Appellant had not filed a grievance under the Classified System Personnel Rules and Regulations during the period in which he thought he was not covered by the labor contract.  The hearing officer found that since he did not grieve the suspension, either under the "Rules" or labor contract within the proper timelines, the recommended decision was to dismiss the appeal.

The State Personnel Board unanimously voted to accept the recommended decision of the hearing officer.

Dean Naylor v. Department of Correctional Services Appeal #7: (Rules) On its own Motion, the Personnel Board conducted a hearing and dismissed this appeal as the appeal was not timely filed and that the subject matter was not grievable under the Classified System Personnel Rules and Regulations.