Hanshaw v. Earls ( 2015 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
HANSHAW V. EARLS
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
ALISHA HANSHAW, APPELLEE,
V.
CHARLES ANTHONY EARLS, APPELLANT.
Filed April 28, 2015. No. A-14-993.
Appeal from the District Court for Buffalo County: JOHN P. ICENOGLE, Judge. Reversed
and remanded with directions.
Justin R. Herrmann, of Jacobsen, Orr, Lindstrom & Holbrook, P.C., L.L.O., and, on brief,
Nicholas R. Norton for appellant.
No appearance for appellee.
MOORE, Chief Judge, and IRWIN and RIEDMANN, Judges.
MOORE, Chief Judge.
On August 19, 2014, Alisha Hanshaw filed a petition and affidavit for a harassment
protection order against her workplace supervisor, Charles Anthony Earls, in the district court for
Buffalo County. Following the district court’s entry of an ex parte harassment protection order,
Earls requested a show cause hearing. The district court held a hearing on September 3, 2014, and
filed a subsequent order in which it found that the harassment protection order should remain in
effect for 1 year. Thereafter, Earls filed a motion for reconsideration which was overruled. Earls
appeals. We determine there is insufficient evidence to support the issuance of the harassment
protection order and reverse the district court’s order.
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FACTUAL BACKGROUND
On August 19, 2014, Hanshaw filed a form petition and affidavit for a harassment
protection order against Earls pursuant to Neb. Rev. Stat. § 28-311.09 (Cum. Supp. 2014). At the
time Hanshaw filed the petition, Earls was employed by the University of Nebraska at Kearney as
the Associate Dean of Students and Director of Residence Life and had hired Hanshaw earlier in
the year to serve as the Associate Director in Residence Life. In her position, Hanshaw reported
directly to Earls and had an office which was located next to Earls’ office.
In her petition for a harassment protection order, Hanshaw listed a series of three acts of
harassment Earls had allegedly made toward her. She alleged that on July 25, 2014, she was in a
conference room with a coworker when Earls came up from behind, put his hands on her shoulders,
pulled her body toward his, and kissed her right ear. Hanshaw further stated that this contact was
not wanted or warranted. Hanshaw alleged that a second event occurred during the week of August
4, 2014. She described having been in a coworker’s office when Earls again came up behind her,
rubbed his hands up her back, and squeezed her shoulders. Earls’ touching caused Hanshaw to
jump and squeal before she grabbed a can of compressed air and sprayed it into Earls’ face. Finally,
Hanshaw alleged the third event occurred on August 14, 2014, after she had reported Earls’ earlier
inappropriate actions to other supervisors. Hanshaw stated that she was sitting on a campus bench
when Earls came up from behind, sat next to her, and repeatedly asked where Hanshaw was going.
Earls insisted that he accompany Hanshaw to her next destination and followed her to the human
resources office. During their walk to the human resources office, Hanshaw did not participate in
a conversation with Earls and attempted to walk away from him. According to Hanshaw, Earls
loudly told her twice to quit walking away from him.
On August 21, 2014, the district court entered an ex parte harassment protection order. Five
days later, Earls filed a request for hearing. An evidentiary hearing was held on September 3, 2014.
At the hearing, the district court directed Earls to present his evidence first and Earls complied
without objection. Both Earls and Hanshaw provided testimony related to Hanshaw’s allegations.
Earls admitted that he put his hands on Hanshaw’s shoulders and kissed her right ear on
July 25, 2014. In providing context for this interaction, Earls stated that Hanshaw and another
department employee, Robert Zabowski, had undertaken the responsibility for preparing an
extensive staff training curriculum after another employee had failed to perform any work on the
project despite having represented that the project had been progressing. Hanshaw and Zabowski
assumed responsibility for this curriculum “at the last minute” and impressively completed this
project within a month. Earls reported this curriculum was normally a project that required 7 or 8
months of work. In assessing Hanshaw’s performance on this project, Earls testified that he was
very pleased with the end product and proud of Hanshaw. Earls repeatedly described his mood as
“giddy”. He also testified that he kissed Hanshaw on the ear without thinking and then walked out
of the room. Earls denied that he intended to attain sexual gratification from the kiss and later
became “disappointed” when he learned that his actions caused Hanshaw to react the opposite
from how he had originally intended.
Hanshaw’s version of this event largely matched Earls’ testimony. However, Hanshaw also
added that after Earls kissed her he remarked, “I’d offer a kiss to [Zabowski], but he doesn’t want
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a kiss from a guy.” Following Earls’ kiss, Hanshaw felt “violated, disrespected, belittled, [and]
hurt” and she attempted to avoid any further contact with Earls.
Earls had little recollection of the alleged incident that occurred on August 4, 2014. He
recalled that Hanshaw had a startled reaction and sprayed something that was in her hands. After
Hanshaw sprayed the substance, Earls remembered that everyone laughed. Earls did not recall
Hanshaw spraying anything into his face and did not perceive Hanshaw taking any offense to his
actions.
Hanshaw had a more vivid memory of the August 4 incident. She testified that Earls came
up behind her and put his hands on her back and shoulders. She described Earls putting his hands
on the upper part of the small of her back and then running his hands up her back. Caught off
guard, Hanshaw jumped, squealed, and grabbed the closest thing to her: a can of air. Hanshaw
testified that she pointed the can at Earls and shot it in his face. Hanshaw described feeling
“disgusting” and “violated” following this second incident.
After the incident on August 4, Hanshaw met with Earls to discuss how Earls’ kiss had
affected her. Hanshaw testified that Earls admitted to remembering the incident and he stated that
he remembered “not having done it well”. Hanshaw interpreted Earls’ statement to signify that he
had intended to kiss her and had been hoping to get more out of the kiss than he did. Earls had a
different view of their meeting and he testified that he and Hanshaw had resolved any issues
between them during their meeting.
Hanshaw reported Earls’ actions to the university’s human resources department on August
12 and an investigation was opened. Both Hanshaw and Earls agreed that Earls was not aware of
Hanshaw’s reporting when Earls came up to Hanshaw while she was sitting on a campus bench on
August 14. The parties also agreed that they engaged in a brief conversation regarding the staff
training before walking together toward the human resources office. Hanshaw was going to an
appointment in the office to discuss her allegations against Earls while Earls was going into the
office to turn in a curriculum notebook. During their walk to the human resources office, Hanshaw
and Earls’ conversation turned contentious and Earls told Hanshaw not to walk away from him.
When Hanshaw continued to walk away, Earls realized that the conversation would not be
productive and did not pursue it further. Following this conversation, Earls sent Hanshaw an email
in which he expressed concern about tension between them, praised Hanshaw for her hard work,
and offered to talk with Hanshaw about the situation in whatever manner she was comfortable.
Finally, Hanshaw testified that Earls’ actions had affected her everyday life. She disclosed
that she was on anti-anxiety medicine to control her paranoia and has attended counseling.
Additionally, Hanshaw has become afraid of running into Earls in public places and has her
husband pick up their children from daycare because Earls’ children also attend the same daycare.
She requested the court grant her the protection order.
In addition to the parties’ testimony, LeAnn Clausen, another assistant director within the
Residence Life department, testified in support of Hanshaw. Clausen reported that Hanshaw came
into her office immediately after Earls kissed her. She observed Hanshaw was visibly upset, to the
point of trembling and shaking. Following that initial conversation, Clausen discussed the incident
with Hanshaw on several other occasions. Along with serving as a confidante for Hanshaw,
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Clausen also testified that she actively tried to keep Earls from having any further contact with
Hanshaw.
At the time of the show cause hearing, Earls was on paid administrative leave as required
by university procedure. However, the university had not taken any adverse action against Earls
during the pendency of the investigation. Although Earls asserts in his brief that his employment
with the university has since been terminated, such information was not contained in the record
and we do not consider it. A party’s brief may not expand the evidentiary record. State v. Patton,
287 Neb. 899, 845 N.W.2d 572 (2014). A bill of exceptions is the only vehicle for bringing
evidence before an appellate court; evidence which is not made a part of the bill of exceptions may
not be considered. Id.
Following the evidentiary hearing, the district court filed its order on September 9, 2014,
in which it continued the harassment protection order for the statutory period of 1 year. In
continuing the order, the court stated that it found “the conduct of [Earls] occurred knowingly and
willfully, that it was directed at [Hanshaw], and that [Earls’] conduct seriously terrified or
intimidated [Hanshaw].”
On September 15, Earls filed a motion styled as a “motion to reconsider, alter, or amend
or, in the alternative, for new trial”. Earls’ motion argued that the district court applied an
erroneous subjective standard, rather than the objective “reasonable person” standard, to determine
whether his conduct terrified or intimidated Hanshaw. Earls also stated that the evidence
demonstrated that he never had the intent to terrify or intimidate Hanshaw. The district court
overruled the motion following a hearing.
Earls appeals.
ASSIGNMENTS OF ERROR
Summarized, Earls assigns error to the district court’s determination that sufficient
evidence had been adduced at the show cause hearing to sustain the issuance of the harassment
protection order for 1 year.
STANDARD OF REVIEW
A protection order is analogous to an injunction. Richards v. McClure, 290 Neb. 124, 858
N.W.2d 841 (2015). Accordingly, the grant or denial of a protection order is reviewed de novo on
the record. Id.
ANALYSIS
Procedure at Show Cause Hearing.
As an initial matter, we note that a petitioner who files for a harassment protection order
has the burden to establish by a preponderance of the evidence the truth of the facts supporting a
protection order. See Mahmood v. Mahmud, 279 Neb. 390, 778 N.W.2d 426 (2010). An ex parte
order does not relieve the petitioner of this burden. See id. The contested factual hearing in
protection order proceedings is a show cause hearing, in which the fact issues before the court are
whether the facts stated in the sworn application are true. Id. At the same time, we also recognize
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that the procedures at a show cause hearing might be less elaborate than those commonly used at
civil trials. See Richards v. McClure, supra; Mahmood v. Mahmud, supra.
Because it is the petitioner’s burden to establish the facts supporting the protection order,
it follows that the petitioner is the party to first present its evidence at the show cause hearing. That
procedure was not followed in this case as the court directed Earls to present his evidence prior to
Hanshaw. There is nothing further in the record to support the court’s reasoning for its procedure.
We acknowledge that Earls did not object to this sequence at the hearing and does not
separately argue this issue in his brief on appeal. Nonetheless, we take this opportunity to remind
the lower courts that because the petitioner has the burden to establish facts necessary to support
a protection order, the petitioner should be the party to first produce evidence.
Sufficiency of Evidence.
The central question presented in this case is whether Earls’ conduct reached the level
where a reasonable victim would be seriously terrified, threatened, or intimidated. Earls contends
that his conduct did not reach such a level. Upon our de novo review, we conclude there is not
sufficient evidence in the record to support the issuance of a harassment protection order.
A harassment protection order is proper when a person has “engage[d] in a knowing and
willful course of conduct directed at a specific person which seriously terrifies, threatens, or
intimidates the person and which serves no legitimate purpose.” Neb. Rev. Stat. § 28-311.02(2)(a)
(Reissue 2008); Linda N. v. William N., 289 Neb. 607, 856 N.W.2d 436 (2014). A course of
conduct is “a pattern of conduct composed of a series of acts over a period of time, however short,
evidencing a continuity of purpose, including a series of acts of following, detaining, restraining
the personal liberty of, or stalking the person or telephoning, contacting, or otherwise
communicating with the person.” § 28-311.02(2)(b). The Legislature has stated that the purpose
for a harassment protection order is to “protect victims from being willfully harassed, intentionally
terrified, threatened, or intimidated by individuals who intentionally follow, detain, stalk, or harass
them or impose any restraint on their personal liberty and which will not prohibit constitutionally
protected activities.” § 28-311.02(1).
This court has summarized the application of the law governing harassment protection
orders as follows:
Nebraska’s stalking and harassment statutes are given an objective construction and . . .
the victim’s experience resulting from the perpetrator’s conduct should be assessed on an
objective basis. In re Interest of Jeffrey K., 273 Neb. 239, 728 N.W.2d 606 (2007). Thus,
the inquiry is whether a reasonable [victim] would be seriously terrified, threatened, or
intimidated by the perpetrator’s conduct.
Glantz v. Daniel, 21 Neb. Ct. App. 89, 837 N.W.2d 563 (2013). In a recently decided case, the
Nebraska Supreme Court reaffirmed the objective construction of this state’s stalking and
harassment statutes. See Richards v. McClure, supra.
Our review of the record shows that Earls twice initiated inappropriate physical contact
with Hanshaw while he was her supervisor within the Residence Life department. First, Earls
kissed Hanshaw when he was “giddy” about Hanshaw’s work on the curriculum project. Then,
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Earls put his hands on the small of Hanshaw’s back and her shoulders while she was in another
employee’s office. After each of these incidents, Hanshaw described feeling violated and
disgusted. She further testified that she had to take anti-anxiety medicine and has attended
counseling sessions because of Earls’ conduct. Hanshaw’s third allegation against Earls was not
related to inappropriate touching, but rather related to her attempts to avoid any further contact
with Earls as a result of the first two incidents.
Although Earls’ physical contact with Hanshaw was clearly not appropriate in the
workplace, we cannot conclude those two incidents reached a level that would amount to
harassment under the statute. Hanshaw’s testimony demonstrates that she was repulsed by Earls’
workplace conduct, but there is no evidence that she was seriously terrified, threatened, or
intimidated by that conduct. Further, Hanshaw’s third allegation does not rise to the level of
harassment. The record demonstrates that Earls simply attempted to have a conversation with
Hanshaw, a subordinate employee, while he was unaware of any allegations against him. Hanshaw
may have some viable claim against Earls because of his conduct, but we conclude that a
harassment protection order is not her proper remedy.
CONCLUSION
Because there was insufficient evidence to support the protection order, we reverse, and
direct the district court to vacate the harassment protection order on remand.
REVERSED AND REMANDED WITH DIRECTIONS.
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