Marshall v. Nev. Sys. of Higher Educ. ( 2016 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
LINDA MARSHALL, No. 66214
Appellant,
vs.
NEVADA SYSTEM OF HIGHER
EDUCATION,
FILED
Respondent. APR 2 1 2016
TRACE K. UNDELIAN
ORDER OF AFFIRMANCE CLERK F SUPREME COURT
BY •
DEPUTY CLERK
This is an appeal from a district court order granting
summary judgment in a wage dispute action. Second Judicial District
Court, Washoe County; Elliott A. Sattler, Judge.
Appellant Linda Marshall was employed by the University of
Nevada, Reno (UNR) for almost eight years until she left voluntarily.
Eventually, appellant sought reemployment at UNR in a different
department. She was rehired at a lower rate of pay due to funding
limitations. Approximately three years after her reemployment, aPpellant
asserted that UNR incorrectly interpreted NAC 284.170(1)(b)(2) (2012)
when determining her pay. Without following UNR's formal grievance
policy, appellant filed a complaint against respondent Nevada System of
Higher Education in district court. Both parties filed motions for
summary judgment. The district court granted respondent's motion,
determining that appellant failed to exhaust her administrative remedies.
This appeal follows.
This court reviews a district court's order granting summary
judgment de novo. Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d
1026, 1029 (2005); see also Costello v. Caster, 127 Nev. 436, 439, 254 P.3d
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631, 634 (2011). Summary judgment is proper if the pleadings and all
other evidence on file demonstrate that no genuine issue of material fact
exists and that the moving party is entitled to judgment as a matter of
law. Wood, 121 Nev. at 729, 121 P.3d at 1029. When deciding a summary
judgment motion, all evidence "must be viewed in a light most favorable to
the nonmoving party." Id. General allegations and conclusory statements
do not create genuine issues of fact. Id. at 731, 121 P.3d at 1030-31.
In general, prior to seeking district court relief from an agency
decision, a party must first exhaust available administrative remedies.
Allstate Ins. Co. v. Thorpe, 123 Nev. 565, 571, 170 P.3d 989, 993 (2007).
However, there are exceptions to the exhaustion doctrine that allow a
party to proceed directly to judicial review. See Benson v. State Eng'r, 131
Nev., Adv. Op. 78, 358 P.3d 221, 224 (2015). For instance, this court has
discretion to alleviate the exhaustion requirement when the issues
involved "relate solely to the interpretation or constitutionality of a
statute." State v. Glusman, 98 Nev. 412, 419, 651 P.2d 639, 644 (1982).
Further, this court has held that exhaustion is not required when
administrative proceedings would have been "vain and futile." Engelmann
v. Westergard, 98 Nev. 348, 353, 647 P.2d 385, 389 (1982).
Here, we conclude that appellant failed to exhaust her
administrative remedies. Appellant did not follow UNR's formal grievance
policy, or establish an exception to it, and has not shown how following the
grievance policy would have been vain or futile. Further, in light of that
failure, although appellant's grievance pertains to the interpretation of a
regulation, this court is not required to hear the issue. Rather, this court
does not have to consider the issue, and we decline to do so.
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As a result, we conclude that the district court did not err when it granted
summary judgment and concluded that appellant failed to exhaust her
administrative remedies. Accordingly, we
ORDER the judgment of the district court AFFIRMED.
J.
J.
Gibbons
cc: Hon. Elliott A. Sattler, District Judge
Jonathan L. Andrews, Settlement Judge
Brian R. Morris
University of Nevada, Reno, Office of General Counsel
Washoe District Court Clerk
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