Christopherson v. Nebraska Dept. of Health & Human Servs. ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/28/2021 12:08 AM CDT
- 610 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
CHRISTOPHERSON v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
Cite as 308 Neb. 610Thomas Christopherson, appellant, v. Nebraska
Department of Health and Human Services,
an agency of the State of Nebraska,
et al., appellees.
___ N.W.2d ___
Filed March 12, 2021. No. S-20-361.
1. Termination of Employment: Wages: Equity: Words and Phrases.
Front pay as an equitable remedy in employment law is money awarded
for lost compensation during the period between judgment and reinstate-
ment or in lieu of reinstatement.
2. Termination of Employment: Wages. Front pay is a disfavored remedy
that may be awarded in lieu of reinstatement, but not in addition to it,
where the circumstances make reinstatement impractical.
3. ____: ____. The availability of front pay as a remedy presupposes that
reinstatement is impractical or impossible due to circumstances not
attributable to the plaintiff.
4. ____: ____. Front pay is a remedy designed to make the employee
whole. Front pay is designed to achieve precisely what reinstatement
would achieve, were reinstatement feasible: to place the wronged
employee in the same position he or she would be in if reinstatement
were possible.
5. ____: ____. Front pay makes up the difference between the earnings an
employee would receive were the old employment to continue and the
earnings expected in present and future employment.
6. ____: ____. Factors supporting front pay as an appropriate substitute
remedy to reinstatement include hostility and animosity between the
parties such that reinstatement is rendered impractical or inappropriate.
Appeal from the District Court for Lancaster County: Susan
I. Strong, Judge. Affirmed.
- 611 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
CHRISTOPHERSON v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
Cite as 308 Neb. 610Ryan M. Kunhart and Gretchen L. McGill, of Dvorak Law
Group, L.L.C., for appellant.
Douglas J. Peterson, Attorney General, and James A.
Campbell, Solicitor General, for appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Miller-Lerman, J.
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 ulti-
mately withdrew the allegations against Christopherson.
However, DHHS contested Christopherson’s claim for “front
pay,” commonly viewed as money awarded in lieu of reinstate-
ment 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 sec-
tion 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,
- 612 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
CHRISTOPHERSON v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
Cite as 308 Neb. 610Christopherson used his position with [DHHS] to benefit
his brother’s company. . . .
[2.] Christopherson authorized the purchase of unnec-
essary items and then allowed private companies to keep
them. . . . The amount involved exceeded $100,000. . . .
[3.] Christopherson used money [from] a fund dedi-
cated to licensing on services or products that were unre-
lated 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 allega-
tions, the first allegation was withdrawn. His employment was
ultimately terminated.
Christopherson followed the appropriate agency-level griev-
ance 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 resigna-
tion 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 reinstate-
ment 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 recog-
nized for his work with awards. According to Christopherson,
he consistently maintained a good working relationship with
- 613 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
CHRISTOPHERSON v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
Cite as 308 Neb. 610his coworkers and supervisors, including Martin. He consist­
ently 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 recog-
nized 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 ques-
tion 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
- 614 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
CHRISTOPHERSON v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
Cite as 308 Neb. 610authority 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 offi-
cer 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 eval­
uations. [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 super­
visors, so there was a high probability that if the relation-
ship with his former supervisor was significantly dam-
aged, [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 termi-
nated. 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 rem-
edy 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.
- 615 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
CHRISTOPHERSON v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
Cite as 308 Neb. 610The 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 work-
ing relationship with his coworkers and supervisors. . . .
In fact, the supervisor who signed the notices of allega-
tion and discipline told Christopherson that she regret-
ted 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 them-
selves, 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 reinstate-
ment 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
- 616 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
CHRISTOPHERSON v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
Cite as 308 Neb. 610under 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 nei-
ther 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 not substitute
its factual findings for those of the district court where com-
petent evidence supports those findings. Id. The meaning and
interpretation of statutes and regulations present questions of
law which an appellate court decides independently of the deci-
sion made by the court below. Id.ANALYSIS
Christopherson claims that the district court erred when
it found that the Personnel Board lacked authority to grant
the equitable relief of front pay. Christopherson specifically
claims the district court erred when it found that he could be
reinstated and that therefore, the Personnel Board properly
denied his claim for front pay. We find no error by the dis-
trict court.
Front Pay.
[1-5] Front pay as an equitable remedy in employment law
has been described by the U.S. Supreme Court as “money
awarded for lost compensation during the period between
judgment and reinstatement or in lieu of reinstatement.”
Pollard v. E. I. du Pont de Nemours & Co., 532 U.S. 843, 846,
121 S. Ct. 1946, 150 L. Ed. 2d 62 (2001). Courts have charac-
terized front pay as a substitute for reinstatement. See Sellers
v. Mineta, 358 F.3d 1058, 1063 (8th Cir. 2004) (“[f]ront pay is
a disfavored remedy that may be awarded in lieu of reinstate-
ment, but not in addition to it, where the circumstances make
reinstatement impractical”). The availability of front pay as
a remedy “presupposes that reinstatement is impractical or
impossible due to circumstances not attributable to the plain-
tiff.” Id. at 1064. Like reinstatement, front pay is a remedy
- 617 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
CHRISTOPHERSON v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
Cite as 308 Neb. 610designed to make the employee whole. Pollard v. E. I. du Pont
de Nemours & Co., supra. As one court explained, “front pay
is designed to achieve precisely what reinstatement would
achieve, were reinstatement feasible: to place the wronged
employee in the same position he or she would be in” if rein-
statement were possible. Kempfer v. Automated Finishing,
Inc., 211 Wis. 2d 100, 127, 564 N.W.2d 692, 703 (1997).
Front pay “makes up the difference between the earnings an
employee would receive were the old employment to continue
and the earnings expected in present and future employment.”
Id. Thus, in a grievance proceeding, front pay substitutes for
reinstatement, because it remedies future economic losses
flowing from the employee’s termination. Id. Front pay works
in conjunction with recovery of past wage loss through a back
pay award and ensures that the wronged employee is made
whole. Id.Front Pay as a Remedy Under
the Personnel Rules.
Christopherson first contends that the district court erred
when it found that the Personnel Board did not have the power
to award front pay. He argues that since the Personnel Board
utilizes other equitable remedies such as reinstatement, and
because reinstatement and front pay are alternative remedies,
see Sellers v. Mineta, supra, it logically follows that the
Personnel Board would also possess the power to award front
pay as an alternative to reinstatement.
Below, we set forth the statutes pertaining to the Personnel
Board from which Christopherson claims front pay could be
impliedly authorized. Neb. Rev. Stat. § 81-1318 (Reissue 2014)
provides for the creation of a State Personnel Board, describes
how its members should be appointed and confirmed, and also
references Neb. Rev. Stat. § 81-1318.01 (Reissue 2014) as the
statute where the board’s “powers” are enumerated. Section
81-1318 states in part:
The board may delegate to a group of three or
more members any or all of the powers which it may
- 618 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
CHRISTOPHERSON v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
Cite as 308 Neb. 610exercise. The board shall be authorized to designate and
delegate its powers under section 81-1318.01 to hearing
officers to conduct grievance appeal hearings and recom-
mend a decision to the board for final action. A vacancy
in the board shall not impair the right of the remaining
members to exercise all the powers of the board, and
three members of the board shall at all times constitute a
quorum of the board.
(Emphasis supplied.)
Section 81-1318.01, to which reference is made in § 81-1318,
provides:
The State Personnel Board shall ensure the fair and
equitable administration of the State Personnel System by:
(1) Operating as prescribed by rules and regulations
adopted and promulgated by the personnel division of the
Department of Administrative Services;
(2) Reviewing and approving, by majority vote, rules
and regulations adopted and promulgated by the person-
nel division;
(3) Determining the grievability of issues or doing
so through the designation of a board member. Issues
determined to be not grievable shall be subject to sum-
mary dismissal;
(4) Adjudicating grievance appeals and rendering final
binding decisions;
(5) Rendering decisions consistent with the rules and
regulations adopted and promulgated by the person-
nel division;
(6) Reviewing and providing counsel regarding any
matter affecting the State Personnel System; and
(7) Performing the actions required pursuant to the
State Government Effectiveness Act.
We note and the parties acknowledge that the Classified
System Personnel Rules & Regulations do not enumerate
the remedies available to the Personnel Board in a grievance
proceeding such as the one giving rise to this case. We agree
with the parties that the record shows that certain equitable
- 619 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
CHRISTOPHERSON v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
Cite as 308 Neb. 610remedies have been awarded in the past. But the failure to
adopt “rules and regulations” upon which to equitably “ren-
der decisions” per § 81-1318.01(5) frustrates our analysis.
Without such regulatory guidance, Christopherson asks this
court to identify one of the “powers” of the Personnel Board
to which reference is made in § 81-1318 as the authority to
order front pay and to find that the district court erred as a
matter of law when it declined to find that the equitable rem-
edy of front pay was available. Because of our disposition as
outlined below in which we agree with the district court that
reinstatement is feasible, we need not resolve the issue of
whether the authority to grant front pay is one of the “pow-
ers” to which reference is made in § 81-1318 and included in
the “equitable administration” of the system by the Personnel
Board in § 81-1318.01.
Christopherson’s Reinstatement.
Other courts have held that front pay is available only when
the employee cannot be reinstated. See Sellers v. Mineta, 358
F.3d 1058 (8th Cir. 2004). Although Christopherson contends
there was sufficient hostility and animosity with his former
employment such that reinstatement would be impossible, the
district court found that Christopherson could be reinstated. We
find no error by the district court.
[6] The jurisprudence recognizes that factors supporting
front pay as an appropriate substitute remedy include hostil-
ity and animosity between the parties such that reinstate-
ment is rendered impractical or inappropriate. See Standley
v. Chilhowee R-IV School Dist., 5 F.3d 319 (8th Cir. 1993).
Such hostility must make an amicable and productive work
relationship impossible. See Cox v. Dubuque Bank & Trust
Co., 163 F.3d 492 (8th Cir. 1998). In its decision, the district
court offered examples of cases involving acts of extreme
or excessive hostility, such as social media posts about the
employee, managers attempting to “blackball” the employee in
the industry, intimidation and harassment, repeated instances
of harassment, and humiliation and threats that the manager
- 620 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
CHRISTOPHERSON v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
Cite as 308 Neb. 610would find other ways to fire the employee. See, e.g., Hunter
v. Town of Mocksville, North Carolina, 897 F.3d 538 (4th Cir.
2018); Palasota v. Haggar Clothing Co., 499 F.3d 474 (5th
Cir. 2007); Hammond v. Northland Counseling Center, Inc.,
218 F.3d 886 (8th Cir. 2000); Standley v. Chilhowee R-IV
School Dist., supra; Spulak v. K Mart Corp., 894 F.2d 1150(10th Cir. 1990), abrogated on other grounds, Hazen Paper
Co. v. Biggins, 507 U.S. 604, 113 S. Ct. 1701, 123 L. Ed. 2d
338 (1983). A review of the case law indicates that front pay
is often found in discrimination cases, where a hostile work
environment leading to illegal discrimination could not easily
be remedied with an order of reinstatement. For example, in
the disability case of Mathieu v. Gopher News Co., 273 F.3d
769 (8th Cir. 2001), the court found that the employee would
face additional disputes about reasonable accommodations and
would continue to be overseen by the person responsible for
the discriminatory decisions if reinstated. Such an ongoing
relationship was sufficient evidence of hostility to award front
pay. Id.In this case, the findings of the hearing officer as later
endorsed by the district court as to why reinstatement was pos-
sible were stated as follows:
The only traditional criteria that [Christopherson] met
for receiving front pay was that he was nearing retire-
ment. He met none of the other criteria. There was a high
probability that he could be successfully reinstated to a
position with [DHHS]. There was no showing that the
work conditions were too antagonistic for him to return.
There was no showing that [DHHS] had a long history of
resisting attempts to correct any discrimination or other
human resources deficiencies in the way it treated its
employees. In addition, [Christopherson] had a duty to
mitigate. His mitigation efforts were insufficient in that
he failed to seek comparable employment after June 21,
2018, and he did not seek reinstatement.
In our view, the foregoing findings were supported
by the record. The record shows that unlike the repeated
- 621 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
CHRISTOPHERSON v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
Cite as 308 Neb. 610harassment and hostility typically supporting awards of
front pay, Christopherson’s relationship with his managers
and employer remained relatively professional despite the
serious nature of the allegations from which this appeal
arises. Christopherson testified that he consistently had a
good working relationship with his coworkers and super­
visors. Martin, Christopherson’s supervisor, had told him she
“regretted” having to proceed with the discipline and ter-
mination. Christopherson testified that he had 24 years of
bringing his “best work” to DHHS and received favorable
performance reviews and awards. The record does not show
that the allegations and rumors actually created a hostile
environment for Christopherson. According to the record,
many available positions under different supervisors exist at
the classification previously held by Christopherson, show-
ing that Christopherson, if reinstated, could obtain compa-
rable compensation and responsibility. As the hearing officer
noted, the area in which Christopherson worked is no longer
under the supervision of DHHS and has been moved to the
Department of Environmental Quality, further distancing him
from past management. The record supports a finding that
Christopherson did not carry his burden to show that reinstate-
ment was not feasible. Thus, he was not entitled to the alterna-
tive relief of front pay.
CONCLUSION
The decision of the district court which affirmed the
Personnel Board’s decision to deny Christopherson’s claim for
front pay following his termination from DHHS is supported
by competent evidence and is neither arbitrary, capricious,
nor unreasonable. Accordingly, we affirm the order of the dis-
trict court.
Affirmed.
Cassel, J., concurring.
I do not understand anything in this court’s opinion to
express or foreshadow an opinion on whether front pay is
- 622 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
CHRISTOPHERSON v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
Cite as 308 Neb. 610authorized by either the statutes or the regulations applicable
to the Personnel Board in grievance proceedings. Nor do I
understand this court’s holding—that sufficient evidence in the
record supported the district court’s finding that Christopherson
did not prove reinstatement was not feasible—to imply that
with different proof, front pay would have been available. With
that understanding, I join the court’s opinion.