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This page last updated April 9, 2014

 

Nebraska State Personnel Board Decisions

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

1996

Margaret Wehland v. Nebraska Department of Correctional Services : (Rules -- 13.003.03) Margaret Wehland filed a grievance, appealing the six-months disciplinary probation issued by the Nebraska Department of Correctional Services, and the State Personnel Board appointed Andrew W. 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 agency contended that the Appellant displayed actions/making statements or comments that are considered offensive to an individual or group based on race, ethnic origin, sex, religion, age, gender or disability. The State further contended that the Appellant made a derogatory remark against Native Americans during a staff meeting, and that she had been previously given a warning about the use of terms considered to be inappropriate. The Appellant testified that she made the remark to show a condition and not to be offensive.

The hearing officer found that a statement was made, but testimony in this case did not clearly establish the exact words used. However, the testimony and exhibits did indicate that the word or words used were of an offensive nature and, in this case, used in a degrading way.

The State Personnel Board accepted the recommended decision of the hearing officer that the grievance filed herein by Margaret Wehland be denied and that the actions of the agency be sustained.

Kathy Anstine v. Nebraska Department of Social Services: (NAPE -- 9.1) Kathy Anstine filed a grievance, appealing a decision not to select her for the position of Protective Service Worker, by the Nebraska Department of Social Services, and all parties mutually agreed to have John P. Glynn, Jr. 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 alleges that she, as the most qualified applicant, was not selected as a Protective Advice Worker at the Omaha Metro Adoption Unit at the time the position was advertised and the appointment was made. The Respondent alleges that the Appellant was offered a generic hiring pool Protective Services Worker position which was rejected by the Appellant after having been previously advised that the position she was seeking had now been placed with a group of other Protective Services Worker positions and that the Respondent was within its authority to do so under the Labor Contract. The State testified that prior to interviewing, the conditions of employment were changed and the Appellant was notified of the changes. When the Appellant was offered the "Generic" position she informed management that she was interested in the adoption unit case and not the "Generic" assignment.

The hearing officer found that the Appellant, by agreeing to continue the interview process after being advised of the hiring change from a specific vacancy to a general "Generic" hiring pool, waived any objection she may have had to the change in the hiring process.

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

George Thomas, III v. Nebraska Department of Public Institutions #1 & #2: (NAPE -- 10.1) George Thomas filed grievances, appealing a suspension without pay on April 12, 1994, and termination on June 15, 1994, as a DPI Developmental Technical II, by the Nebraska Department of Public Institutions, and all parties mutually agreed to John P. Glynn, Jr. 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. With regard to Appeal #1, the agency contended that the Appellant committed client abuse and neglect during March, 1994, and presented testimony by one witness to nine separate incidents, for which the Appellant received a five-day suspension and six-month probation. Appeal #2 was also a disciplinary action (termination) following allegations that the Appellant violated policies by bathing one client and showering another at the same time. The Appellant, who had never received a disciplinary action prior to these allegations, either denied or explained all the situations regarding the first set of allegations and then contended that the action was retaliation for a grievance filed against a supervisor for a remark made against Union Stewards. The Appellant did not deny the action of bathing and showering two clients at the same time.

The hearing officer found that the evidence submitted did not support a finding of just cause for the first set of allegations and that the disciplinary action was not made in good faith. As for the second set of allegations, the evidence did support the action taken by DPI, however, the agency did not take into account progressive disciplinary when it terminated the Appellant.

The State Personnel Board accepted the recommendation of the hearing officer that the action of the agency in Appeal #1 be overruled. In Appeal #2, the action was sustained in the finding of patient abuse or neglect, but overruling the termination for the reason that progressive discipline had not been followed.

Pamela Hirschmann-Coffey v. Nebraska Department of Correctional Services: (Rules -- 13.003.05) Pamela Hirschmann-Coffey filed a grievance, appealing her demotion from Unit Case Manager to Unit Case Worker, by the Nebraska Department of Correctional Services, and the State Personnel Board appointed Andrew W. 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 agency contended that the Appellant used physical force by placing her hands on an inmate, and this action is inappropriate for a State employee. The agency contended that the employee failed to maintain satisfactory working relationships with the public, other employees or the inmate populations, and failed to comply with a published administrative regulation. The State also testified that the action was witnessed by a subordinate of the Appellant and that no Use of Force reports or incident reports were filed following the action by the Appellant, which the State felt, was a serious breech of security. The Appellant did not rebut the occurrence of the incident or the fact that no report was filed, but believed this type of action occurs often and does not deserve the degree of discipline imposed.

The hearing officer found that there was no question that the incident occurred and was witnessed by a subordinate employee. Further, the agency considered the use of force with a dangerous prisoner, in the presence of subordinate employees, to be inappropriate; and the degree of discipline followed agency guidelines.

The State Personnel Board accepted the recommended decision of the hearing officer that the grievance filed by Pamela Hirschmann-Coffey be denied and that the decision of the agency be affirmed.

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

Cynthia Hartley v. Nebraska Department of Social Services: (Rules -- 9.007) Cynthia Hartley filed a grievance, appealing the refusal of funeral leave by the Nebraska Department of Social Services (DSS), and 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 Appellant, a 21-year employee with the agency, contends that the DSS denied her funeral leave and granted sick leave for a five-day period of June 9, 12, 13, 14 and 15, 1995. The Appellant testified that she was the sole care-provider for a non-family member that had been stricken with AIDS and subsequently with progressive multifocal lueoekcephalophty (PML) which led to his death. The agency testified that it had granted sick leave in place of funeral leave and that on several occasions, had also granted sick leave for the Appellant to attend to the health needs prior to death.

The hearing officer found that this grievance was not originally processed properly, in that the Appellant skipped Step two. By agreement of both parties, the process was allowed to regress and the step two decision was rendered in effect, denying the grievance. The hearing officer also found that just because the Appellant was offered sick leave during the subject's illness and prior to his death, that it in no way was a precedent that funeral leave should be granted. As for the expansion of the definition of immediate family for the purpose of funeral leave, the hearing officer found that the DSS Director had sole discretion.

The State Personnel Board accepted the recommended decision of the hearing officer that the grievance filed by Cynthia Hartley be denied and that the decision of the agency, to allow sick leave and not funeral leave, be affirmed.

Robert Gottfried and Rodney Moore v. Nebraska Department of Administrative Services: (Rules -- 4.003) Robert Gottfried and Rodney Moore filed grievances, appealing the reassignment of duties, reclassification and appointment of a co-worker from Personnel Analyst II to Personnel Labor Relations Representative, by the Nebraska Department of Administrative Services, and 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 State of Nebraska Classified System Personnel Rules and Regulations. The Appellants contended that the promoted employee was temporarily transferred to the above mentioned position for a period in excess of one year and then the former Director permanently assigned the employee to that position. The agency testified that after the Director resigned the employee, the acting Director reassigned to her previous position, reassigned the duties that the employee had performed as the Labor Relations Representative, had the position reclassified and permanently assigned the employee as the Labor Relations Representative. The State testified that it did not want to keep the employee in that position as a temporary reassignment, nor could it advertise the position under the hiring freeze.

The hearing officer found that the original decisions by the former Director in permanently appointing the employee to the Labor Relations Representative position did not violate the Classified System Personnel Rules and Regulations and were moot by the action of the acting Director to place the employee back in the previous position and follow the appropriate procedures for reclassification and reassignment.

The State Personnel Board accepted the recommended decision of the hearing officer and the grievances were denied.

Gary Cline and Robert Neel v. Nebraska State Patrol: (SLEBC -- 9.5.1) Gary Cline and Robert Neel filed grievances, appealing the decision of the Nebraska State Patrol to award days off requested for the bidding period commencing in January, 1996, and all parties mutually agreed to have Brad Ashford serve as hearing officer, and a hearing was held in accordance with the provisions of the 1995-97 SLEBC and State of Nebraska Labor Contract. Both Grievants argued that the applicable labor contract provides that seniority should be used in determining bidding for days off among bargaining unit employees of the Nebraska State Patrol and that the decision by the agency to grant requested days off to junior employees violates that contract. The State contended that it has the sole discretion of the issue of "adequate staffing" for road patrol employees and its decision, not to allow two troopers from the same duty station the same days off, was a reasonable way to ensure adequate staffing as provided for in Article 9.5.1.

The hearing officer found that even though the labor contract does grant the right for the Appellants to bid for days off based on seniority, it also grants management the sole discretion to determine whether the days off selected provide adequate staffing on a given shift. The fact that the sergeants and the Appellants have differing opinions of adequate staffing does not make the management decision arbitrary, without good cause or in bad faith.

The State Personnel Board accepted the recommended decision of the hearing officer that the Nebraska State Patrol's decision was made in good faith, for just cause and was in no way, a violation of the current labor contract. The decision of the agency in this matter was sustained.

After the District Court of Lancaster County upheld the Board decision, the Appellants filed an appeal in the Court of Appeals and later withdrew, as the parties agreed to abide by the decision in a like case pending before the court.

J. D. McConnell v. Nebraska State Patrol: (SLEBC -- 10.5.1) J. D. McConnell filed a grievance, appealing the Nebraska State Patrol's order that he use unscheduled compensatory time in September and October (1995), and all parties mutually agreed to have Brad Ashford serve as hearing officer, and a hearing was held in accordance with the provisions of the 1995-97 SLEBC and State of Nebraska Labor Contract. The Appellant contends that he had accumulated compensatory time in excess of the 120 hours allowed and was notified in both January and March of 1995, that it must be used. He applied and was approved for time off in September and December of 1995. In September, 1995, he accumulated additional compensatory time and received a memo from a supervisor that he take 70 hours of unscheduled compensatory time off in September and October, 1995.

The hearing officer found that the contract states that employees shall be required to take compensatory time within six months of the notice. It is management's responsibility to require time be taken within the six-month period, and it is not a violation of the contract if the employee asks for the time off after the six months have elapsed.

The State Personnel Board accepted the recommended decision of the hearing officer that the Nebraska State Patrol violated the labor contract by requiring the Appellant to use unscheduled compensatory time in September and October (1995), and further stated that the compensatory time used in September and October (1995) which had not been scheduled, be reinstated to the Appellant's Compensatory Time bank.

Debra Stauffer v. Nebraska Department of Social Services: (NAPE -- 10.1) Debra Stauffer filed a grievance, appealing her termination on April 13, 1995, as a Protective Services Worker, by the Nebraska Department of Social Services, and all parties mutually agreed to have James P. Cavanuagh 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 filed the following allegations against the Appellant: inability to assess risk of sexual abuse to children; incompetence in representing a state ward's needs; inability to maintain satisfactory working relationships with the public; negligence in following foster care payment procedures; and, inability to perform the duties of a Protective Service Worker

The hearing officer found that according to the evidence, the Respondent did not prove that it was justified in its termination of the Appellant under the terms of the Contract, because it failed to prove by a preponderance of evidence that the nature, severity and effects of the Appellant's alleged violations warranted termination. The agency did not offer corroborative evidence to meet its Burden of Proof in four of the allegations, and the single remaining charge did not warrant termination.

The State Personnel Board accepted the recommended decision of the hearing officer that the Department of Social Services reinstate the Appellant immediately, without loss of rank or status, have all evidence of this action removed from her personnel file and be awarded full back pay.

The Lancaster County District Court later overturned the State Personnel Board's Order and upheld the agency's termination of the Appellant. The District Court's decision has been appealed to the Court of Appeals.

Louis Martin v. Nebraska Department of Public Institutions: (Rules -- 13.003.07 & 13.003.08) Dr. Louis Martin filed a grievance, appealing his investigatory suspension and subsequent termination as Chief of Service for the Forensic Mental Health Services at the Lincoln Regional Center, by the Nebraska Department of Public Institutions, and the State Personnel Board appointed Sherri Collins-Wimes 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 State contended it issued the investigatory suspension notice containing the following charges: Failure to comply with a lawful order or to accept a proper assignment from an authorized supervisor; Failure to maintain satisfactory working relationships with the public or other employees; insubordinate acts or language which seriously hamper the agency's ability to control, manage or function; acts or conduct which adversely affects the employee's performance and/or the employing agency's performance or function; and, inefficiency, incompetence or negligence in the performance of duties. The charges were the result of the content of several memos written by the Appellant communicating his disagreement with management's decisions and referred to several administrative personnel as "incompetent" and "irresponsible," in the reports and recommendations provided by a private consultant.

The hearing officer found that the Appellant's memo to the agency Director was considered to be insubordinate, and that the Appellant failed to fulfill basic job responsibilities, including failure to provide facilitative leadership and overall management of the Forensic Mental Health Services.

The State Personnel Board considered the recommended decision of the hearing officer and issued an amended Order stating that the statements made by the Appellant did constitute insubordination and that the Appellant did not spend adequate time with patients, failed to comply with directives from management and declined to collaborate with other administrators and with individuals as a team. The Order also specified that the termination action by the agency was taken for just cause and in good faith, and the termination of Dr. Louis Martin was affirmed.

The Lancaster County District Court affirmed the decision of the State Personnel Board.

The matter was appealed to the Court of Appeals, whereby the Board’s decision was reversed and remanded, ordering that Martin be reinstated effective the date of his dismissal.  The Court of Appeals based its decision on the fact that Martin’s due process rights were violated because he was not provided a full explanation of DPI’s evidence and an opportunity to rebut the evidence gathered during the investigation prior to being terminated from his employment.

Pat Holmquist v. Nebraska Department of Social Services: (Rules 13.003) Pat Holmquist filed a grievance, appealing her temporary transfer from the Lincoln Local Office to the Central Office in Lincoln, by the Nebraska Department of Social Services, and 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 Nebraska Classified System Personnel Rules and Regulations. The Appellant alleged that DSS gave her an ultimatum to transfer or quit; that she was being moved from a supervisory position to a contract position for disciplinary reasons; and, the move was a demotion. The agency contended that it was just a temporary reassignment within the same city where she had been working and there was no change in classification and pay. The agency did question the timeliness of the grievance, if the relief sought was appropriate and if the Appellant had attempted to modify her appeal.

The hearing officer found no evidence or testimony at the hearing that the Appellant was issued any ultimatum. He also found no evidence that the Appellant's transfer was a move from a supervisory position to a contractual one, in that there was no change in classification or pay. The transfer was not a disciplinary action, but could have been motivated by the tense situation between the Appellant and an employee she supervised. There was also evidence that the Appellant had previously requested a transfer to the Lincoln Local Office. Contrary to the Respondent's claim, evidence showed that the grievance was filed in a timely manner and as to changing the relief sought, that issue is not necessary to resolve in this case, since the State Personnel Board does not have the authority to order payment of attorney fees or require an employee to be transferred from one agency to another.

The State Personnel Board accepted the recommended decision of the hearing officer that the appeal of Pat Holmquist be dismissed and that all actions were made in good faith and in compliance with the Nebraska Classified System Personnel Rules and Regulations.

Jeanne Golliday v. Nebraska Department of Correctional Services: (Rules -- 13.003.05) Jeanne Golliday filed a grievance, appealing her disciplinary demotion from Unit Manager to Unit Case Manager, by the Nebraska Department of Correctional Services, and the State Personnel Board appointed Sherri Collins-Wimes to serve as hearing officer, and 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 failure to maintain satisfactory working relationships with the public or other employees, and acts or conduct which adversely affect the employee's performance and/or the employing agency's performance or function. The allegations were the result of an incident report filed against the Appellant, and the State also produced a witness to substantiate the charges. The Appellant claimed she was singled out for disciplinary action; that the language of the disciplinary rule was broad and vague; the disciplinary action was improper for the offense; and, the discipline was not progressive.

The hearing officer concluded that there was no evidence provided to warrant the charge that the Appellant was "Singled-Out," and that the language with regard to the disciplinary rules was clear on its face. It was also concluded that the disciplinary action was proper and progressive, in that the Appellant had received several disciplinary actions during the preceding 12-month period, including a six-month probation for engaging in conduct inappropriate for a state employee.

The State Personnel Board accepted the recommended decision of the hearing officer that the Department of Correctional Services proved that the agency had just cause for imposing discipline and that the decision was made in good faith and in compliance with the Nebraska Classified System Personnel Rules and Regulations.

Scott Loder v. Nebraska Department of Public Institutions: (NAPE -- 1.7 & 3.1) Scott Loder filed a grievance, appealing issuance of a written Notice of Allegations, by the Nebraska Department of Public Institutions, and all parties mutually agreed to have John P. Glynn, Jr. serve as hearing officer, and a hearing was held in accordance with the provisions of the 1995-97 NAPE/AFSCME and State of Nebraska Labor Contract. The Grievant alleged that the written Notice of Allegations filed against him on May 18, 1995, which was later dismissed, was made in bad faith, did not offer equal treatment with dignity and respect, that the Lincoln Regional Center failed to investigate completely prior to making the allegations, and the process violated his Constitutional Rights. The State contended that it issued the Notice of Allegations, which included the charge that the Appellant released confidential information to an outside individual following an escape, in regard to an article that appeared in the Lincoln Journal-Star. Prior to the informal hearing on the Notice of Allegations, the Appellant was denied access to information concerning the allegations by the agency. After the allegations were dismissed, the grievance was filed and denied through steps one and two.

The hearing officer concluded that DPI did act in good faith by both issuing the written Notice of Allegations and by denying this grievance. He also recommended that the actions of DPI be sustained and the grievance be dismissed.

The State Personnel Board considered the recommended decision of the hearing officer and issued the amended Order which included that the allegation that DPI acted in bad faith is contrary to evidence and law.

Charles O'Callahan, et. al. v. Nebraska State Patrol: (SLEBC -- 10.1.8)) Nine Appellants filed grievances, appealing the "Rotating Shift Starting Times" implemented by the Nebraska State Patrol, and all parties mutually agreed to have L. Kenneth Polikov serve as hearing officer, and a hearing was held in accordance with the provisions of the 1995-97 SLEBC and State of Nebraska Labor Contract. The Appellants contended that Troop A had voted on November 15, 1995, to establish permanent shifts and according to the SLEBC Labor Contract, they shall bid their preferences for shift (day-4:00 a.m. to 4:00 p.m. or night-4:00 p.m. to 4:00 a.m.) and then days off with permanent staggered starting times within the shift. The State argued that because of a shortage of personnel and due to leave provisions, training and special assignments, there was a measurable gap in coverage between 2:00 a.m. and 6:00 a.m., therefore, a plan was instituted whereby Troopers would take turns starting earlier or later to cover the gap. Each Trooper would work the adjusted schedule three or four times in the six-month bid period. The Appellants felt that this action suspended the seniority rights granted by the Contract and did not fall under a temporary condition.

The hearing officer concluded that under these conditions, this plan becomes unreasonable in that it continues a temporary situation indefinitely. Under the terms of the Contract, management has the ability to change starting and ending times by giving a thirty-six (36) hour notice of a temporary change in shift assignment and scheduling, but the implemented plan is a violation of the vote of the Troop and suspends seniority rights.

The State Personnel Board considered the recommended decision of the hearing officer and issued the amended Order where the Board upheld the grievances filed by the Appellants, and ordered that the Nebraska State Patrol discontinue its practice of adjusting the starting times of Troopers assigned to permanent shifts and starting times within 10 days of the entry of this order.