The following FY2019-2020 State Personnel Board Decisions regarding employee grievances have been summarized for informational use only.

Laramie Shaffer v. Nebraska Department of Correctional Services Appeal (SCATA)

The Appellant filed a grievance after his applications for tuition assistance were denied. The State Personnel Board designated William Morris as Hearing Officer, and the hearing was held in accordance with the Nebraska Classified System Personnel Rules. The rules of evidence were invoked.

Mr. Shaffer has been a NDCS employee since 2012. He earned his teaching certification and entered into an “Individual Teacher Contract” with NDCS in 2018. When he did so, he became covered under the SCATA Labor Contract. NDCS policy states employees on original probation are ineligible for tuition assistance. Under the SCATA contract, teachers are subject to a two-year probationary period from the date they begin employment as teachers.

The Hearing Officer found that the evidence clearly shows that teachers, without exception, are subject to a two-year probation starting when they become teachers, and they are not eligible for tuition assistance during their probation. The Hearing Officer recommended the Board deny the appeal.

The State Personnel Board adopted the recommendation.

Thomas Christopherson v. Nebraska Department of Health and Human Services Appeal (Rules)

The Appellant filed a grievance after the Department of Health and Human Services disciplined him in the form of termination. The State Personnel Board designated William Wood as Hearing Officer, and the hearing was held in accordance with the Nebraska Classified System Personnel Rules. The rules of evidence were invoked.

At the hearing, the Respondent withdrew its Notice of Discipline from the Appellant’s personnel file, indicated that it would accept the Appellant’s resignation or notice of retirement, and awarded the Appellant back pay and benefits to the date of the hearing. This satisfied the Appellant’s request for relief, except for his request for front pay. The Appellant did not request reinstatement. Therefore the remaining issues to be resolved were: Should front pay be awarded? If front pay is awarded, what amount should be awarded? The Hearing Officer found that an award of front pay is not appropriate in this matter as the majority of the criteria traditionally used to justify front pay are not present and Mr. Christopherson failed to appropriately mitigate his loss. The Hearing Officer recommended the Board dismiss the appeal.

The State Personnel Board adopted the recommendation. The Appellant appealed to District Court. The District Court affirmed the Board's decision. The Appellant appealed to the Nebraska Supreme Court.

Mitchell Salomons v. Nebraska Department of Administrative Services Appeal (Rules)

The Appellant filed a grievance against the action of the Nebraska Department of Administrative Services. The State Personnel Board designated Melanie J. Whittamore-Mantzios as Hearing Officer, and the hearing was held in accordance with the Nebraska Classified System Personnel Rules. Following the hearing, the parties were able to resolve the matter, and a settlement was reached. Based on this settlement, the Hearing Officer recommended that the appeal be dismissed.

The State Personnel Board adopted the recommendation.

Cindy Goranson v Nebraska Department of Health and Human Services Appeal (NAPE)

The Appellant filed a grievance after, during a computer outage, the Department of Health and Human Services required the Appellant to use vacation time or travel to an alternate worksite during a winter weather advisory. The Appellant argued the Respondent violated section 14.6 of the NAPE/AFSCME Labor Contract. The State Personnel Board designated Jeanelle R. Lust as Hearing Officer, and the hearing was held in accordance with 2019-2021 State of Nebraska and NAPE/AFSCME Labor Contract.

The issue to be decided by the Hearing Officer was whether the Respondent violated Section 14.6 when it required the Appellant to use earned vacation time when the Respondent was unable to provide a usable work site due to a computer outage and it was unsafe to travel to an alternate work site due to weather conditions. The State of Nebraska’s Emergency Weather policy states in part, “Employees choosing not to work during adverse weather conditions must use accrued vacation leave….” The Hearing Officer found that there was no delay in the Appellant’s exercise of vacation leave. Therefore, there is no basis to support a finding that the contract has been violated by requiring the Appellant to take vacation leave when her work site was unavailable due to a computer outage. The Hearing Officer concluded that the Nebraska Department of Health and Human Services did not violate Section 14.6 of the 2017-2019 Labor Contract between the State of Nebraska and NAPE/AFSCME and recommend the grievance be denied.

The State Personnel Board affirmed the recommendation.

Katlin Liss v Nebraska Department of Health and Human Services Appeal (NAPE)

The Appellant filed a grievance after, during a computer outage, the Department of Health and Human Services required the Appellant to use vacation time or travel to an alternate worksite during a winter weather advisory. The Appellant argued the Respondent violated section 14.6 of the NAPE/AFSCME Labor Contract. The State Personnel Board designated Jeanelle R. Lust as Hearing Officer, and the hearing was held in accordance with 2019-2021 State of Nebraska and NAPE/AFSCME Labor Contract.

The issue to be decided by the Hearing Officer was whether the Respondent violated Section 14.6 when it required the Appellant to use earned vacation time when the Respondent was unable to provide a usable work site due to a computer outage and it was unsafe to travel to an alternate work site due to weather conditions. The State of Nebraska’s Emergency Weather policy states in part, “Employees choosing not to work during adverse weather conditions must use accrued vacation leave….” The Hearing Officer found that there was no delay in the Appellant’s exercise of vacation leave. Therefore, there is no basis to support a finding that the contract has been violated by requiring the Appellant to take vacation leave when her work site was unavailable due to a computer outage. The Hearing Officer concluded that the Nebraska Department of Health and Human Services did not violate Section 14.6 of the 2017-2019 Labor Contract between the State of Nebraska and NAPE/AFSCME and recommend the grievance be denied.

The State Personnel Board affirmed the recommendation.

Miten Bhavsar v. Nebraska Department of Administrative Services Appeal (Rules)

The Appellant filed a grievance after the Department of Administrative Services disciplined him in the form of termination. The discipline was based upon allegations that the Appellant acted in an inappropriate and bullying manner towards coworkers. The State Personnel Board designated Melanie J. Whittamore-Mantzios as Hearing Officer, and the hearing was held in accordance with the Nebraska Classified System Personnel Rules. The rules of evidence were not invoked.

During the hearing, the Appellant raised the issue of a due process violation because he was not interviewed prior to receiving the Notice of Allegations. The Hearing Officer stated that the mitigation meeting, held prior to his termination, provided the Appellant with his pre-termination due process rights; there was no due process violation.

The Hearing Officer found that grounds for discipline exist as the Appellant violated 273 NAC 14-003.10 and 14-003.15. However, the Hearing Officer also found that the Respondent failed to prove a lesser discipline than termination of employment was not appropriate. Therefore, the Hearing Officer recommended that Mr. Bhavsar’s termination be reversed and that the matter be remanded to the Respondent to impose a lesser discipline than termination of employment.

The State Personnel Board affirmed the recommendation.

Lacy Dye v. Nebraska Department of Health and Human Services Appeal (NAPE)

The Appellant filed a grievance after the Department of Health and Human Services disciplined her in the form of termination. The discipline was based upon an allegation that the Appellant shared confidential information with another specialist who was listed as the perpetrator. The State Personnel Board designated Melanie J. Whittamore-Mantzios as Hearing Officer, and the hearing was held in accordance with the Nebraska Classified System Personnel Rules. The rules of evidence were not invoked.

The Hearing Officer agreed that the Appellant’s conduct was wrong in sharing the information; however, the Hearing Officer believes that since the confidential information was not shared with an actual perpetrator and since no confidential information was shared outside of DHHS, the nature and severity of the offense in this case is lessened. This, together with the Appellant’s lack of disciplinary history and no evidence of adverse performance, demonstrate that in this instance termination of employment violated Section 10.1 of the NAPE/AFSCME Contract. The Hearing Officer affirms that grounds do exist to discipline Ms. Dye; however, she believes that the Appellant should be given the opportunity to demonstrate that she will not make this mistake again. Therefore, the Hearing Officer recommended that the matter be remanded to the Respondent to impose a lesser discipline than termination of employment.

The State Personnel Board affirmed the recommendation.

Stacy Fratt v Nebraska Department of Health and Human Services Appeal (NAPE)

The Appellant filed a grievance after she did not receive holiday pay for July 4, 2019. The Appellant was in paid status on July 3, 2019. However, on July 5, 2019, due to car trouble, the Appellant was absent for the entire workday. She used 6.7 hours of paid leave, but was placed in “unapproved leave without pay status” for the remaining 1.3 hours and was therefore not given the July 4th holiday pay. The Appellant argued the Respondent violated Section 14.1 of the NAPE/AFSCME Labor Contract. The State Personnel Board designated Terri M. Weeks as Hearing Officer, and the hearing was held in accordance with 2019-2021 State of Nebraska and NAPE/AFSCME Labor Contract. At the State Personnel Board Meeting, the Board voted to amend the Hearing Officer’s recommended Conclusions of Law.

The operative statute is Neb. Rev. Stat § 84-1001(5), specifically.

In order to receive pay for such holiday an employee, whether part time or full time, must not have been absent without pay on the workday immediately preceding or immediately following the holiday unless excused by his or her supervisor.

The Nebraska State Personnel Board did not interpret a “workday” to mean the “entire workday;” the statute does not say “entire workday.” As the Appellant was not disciplined for her July 5th absence and was paid for 6.7 hours for the workday “immediately following” the July 4, 2019 holiday, the Board found that even though her “leave” was “unapproved” for payroll purposes, her “absence” from work was “excused.” Thus, Ms. Fratt’s excused absence was with pay the day immediately following the July 4, 2019, holiday. Therefore, the Board concluded that Ms. Fratt is entitled to pay for the July 4, 2019, holiday.

The State Personnel Board upheld the appeal of Stacy Fratt.

Michelle Sides v. Nebraska Department of Health and Human Services Appeal (NAPE)

The Appellant filed a grievance after the Department of Health and Human Services disciplined her in the form of termination. The discipline was based upon an allegation that the Appellant accessed confidential information for non-job related reasons. The State Personnel Board designated Robert F. Bartle as Hearing Officer, and the hearing was held in accordance with the Nebraska Classified System Personnel Rules. The rules of evidence were not invoked.

The Hearing Officer noted that the information gathered was a type of “directory information” that is accessible through other public records; consequently, the violation is less onerous. Ms. Sides’s termination was based on this single violation, therefore the Hearing Officer determined that progressive discipline was not followed. The Hearing Officer recommended that the matter be remanded to the Respondent to impose a lesser discipline than termination of employment.

The State Personnel Board adopted the recommendation.

Rueben Adams v. Nebraska Department of Transportation Appeal (NAPE)

The Appellant filed a grievance stating that he was passed over for a promotion and that the Respondent violated Section 9.1 of the Labor Contract. The Respondent argued that the position was filled through the reclassification process, and therefore, the matter is non-grievable. The State Personnel Board designated C. Thomas White as Hearing Officer to rule solely on the grievability of the matter; a hearing was held in accordance with the Nebraska Classified System Personnel Rules. The rules of evidence were not invoked.

The Hearing Officer found that Mr. Adams’ grievance is a written complaint, alleging a violation of the contract and is grievable. He also concluded that the decision of the designee that the matter is not grievable was made without a basis in contract.

The State Personnel Board adopted the recommendation. The matter was returned to Step 2 for a decision on the merits.

Purva Deshmukh v. Nebraska Department of Health and Human Services Appeal (Rules)

The Appellant filed a grievance after the Department of Health and Human Services disciplined her in the form of termination. The discipline was based upon an allegation that the she failed to maintain appropriate work relationships and was insubordinate. The State Personnel Board designated Sean Davis as Hearing Officer, and the hearing was held in accordance with the Nebraska Classified System Personnel Rules. The rules of evidence were not invoked.

The Appellant maintained that the alleged incident never occurred. Neither party presented corroborating evidence nor were there witnesses to the incident. The Hearing Officer concluded that the incident most likely did occur, therefore cause for discipline exists. However, he also noted that the Appellant’s denial of the incident caused the Respondent to raise level of discipline imposed. The hearing officer does not believe this should have been a consideration, as her denial of the incident does not alter the nature of the infraction. Additionally, the Appellant had a clean disciplinary record, and termination appears inconsistent with past discipline for similar violations. For these reasons, the hearing officer found that progressive discipline was not followed. The Hearing Officer recommended that Ms. Deshmukh’s termination be reversed and that the matter be remanded to the Respondent to impose a lesser discipline than termination of employment.

The State Personnel Board affirmed the recommendation.