Bower-Hansen v. Nebraska Dept. of Health & Human Servs.

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www.nebraska.gov/apps-courts-epub/
05/31/2019 08:07 AM CDT
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Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
BOWER-HANSEN v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
Cite as 302 Neb. 847Betty Jane Bower-H ansen, appellant, v. Nebraska
Department of Health and Human Services
et al., administrative agencies of the
State of Nebraska, and the State
of Nebraska, appellees.
___ N.W.2d ___
Filed April 12, 2019. No. S-17-1278.
1. Administrative Law: Judgments: Appeal and Error. 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.
2. ____: ____: ____. When reviewing an order of a district court under
the Administrative Procedure Act for errors appearing on the record, the
inquiry is whether the decision conforms to the law, is supported by com-
petent evidence, and is neither arbitrary, capricious, nor unreasonable.
3. Contracts. When the terms of a contract are clear, a court may not
resort to rules of construction. Instead, the terms of the contract are to
be accorded their plain and ordinary meaning.
4. ____. Courts do not have the power to rewrite a contract to provide
terms contrary to those that are expressed.
5. ____. It is not the province of a court to rewrite a contract to reflect the
court’s view of a fair bargain.
Appeal from the District Court for Lancaster County: Jodi L.
Nelson, Judge. Affirmed.
Nicholas J. Welding, of Norby & Welding, L.L.P., for
appellant.
Douglas J. Peterson, Attorney General, and Ryan C. Gilbride
for appellees.
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Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
BOWER-HANSEN v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
Cite as 302 Neb. 847Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Papik, J.
After the Nebraska Department of Health and Human
Services (DHHS) terminated the employment of Betty Jane
Bower-Hansen as a teacher at the Youth Rehabilitation and
Treatment Center in Kearney, Nebraska, Bower-Hansen sought
to challenge the termination. She initiated grievance proceed-
ings provided by the governing collective bargaining agree-
ment (CBA). Those proceedings concluded when the State
Personnel Board (Personnel Board) dismissed her grievance
appeals. Bower-Hansen sought review of that decision in dis-
trict court, and the district court affirmed the Personnel Board’s
decision. Bower-Hansen now appeals the district court’s deci-
sion. We affirm.
BACKGROUND
June 3, 2016, Meeting.
The facts relevant to this dispute begin with a June 3, 2016,
meeting between Bower-Hansen; John McArthur, the princi-
pal at the treatment center; and LaDene Madsen, the human
resources manager at the center. Bower-Hansen was a member
of the bargaining unit represented by the State Code Agency
Teachers Association (SCATA) at the time, and representatives
of SCATA were also present at the meeting. During the meet-
ing, Bower-Hansen was issued a notice of discipline advising
her that her employment was terminated for cause, effec-
tive immediately.
Bower-Hansen claims that one of her union representatives
asked where Bower-Hansen should file a grievance challeng-
ing her termination of employment and that Madsen said that
it should be filed with Douglas Weinberg, the director of the
Division of Children and Family Services at DHHS. DHHS
apparently does not contest Bower-Hansen’s account of the
June 3, 2016, meeting.
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Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
BOWER-HANSEN v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
Cite as 302 Neb. 847SCATA Grievance Procedures.
The terms and conditions of employment for SCATA mem-
bers were set forth in a CBA entered into between SCATA
and the State of Nebraska. Because terms of the CBA are
central to the arguments and issues in this case, we discuss
them here.
The CBA allows teachers to file a grievance if they believe
there has been a violation, misinterpretation, or misapplication
of the CBA. It establishes a three-level grievance procedure.
The first level (level one) requires the employee to submit the
grievance to the “decision maker.” There is apparently no dis-
pute that the “decision maker” with respect to the termination
of Bower-Hansen’s employment was McArthur.
The CBA further provides that if the grievance is not resolved
to the employee’s satisfaction at level one, the employee
may file a grievance with the “Agency Director” within 10
workdays of the receipt of the response at level one. Again,
there is apparently no dispute that the “Agency Director” was
Weinberg.
If a satisfactory resolution is not reached at the second level
(level two), the CBA allows the employee to seek review from
the Personnel Board. The Personnel Board is required to then
hold a grievance hearing and issue a written response to the
grievance. The Personnel Board’s written response constitutes
the final administrative decision of DHHS.
Importantly, section 7.7 of the CBA provides in part:
The failure of the grievant to proceed to the first or sub-
sequent steps of this grievance procedure within the time
limits specified shall indicate that the grievant has elected
not to file a grievance or has accepted the response pre-
viously rendered, and shall constitute a waiver of any
future appeal.
Grievance Proceedings.
Less than a week after the June 3, 2016, meeting, Bower-
Hansen, with the assistance of counsel, completed a grievance
form challenging her termination. Rather than sending the
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Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
BOWER-HANSEN v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
Cite as 302 Neb. 847grievance to McArthur as the CBA required, Bower-Hansen
sent the grievance to Weinberg in accordance with what she
claims Madsen told her at the June 3 meeting.
After several weeks had passed without receiving a response,
on June 29, 2016, Bower-Hansen proceeded to the third level
(level three) of the grievance procedure and submitted a level
three grievance to the Personnel Board. She claims she did so
under the belief that she was allowed to skip level one and
file her initial grievance at level two and that when she did
not receive a timely response, she was entitled to proceed to
level three. On July 1, however, Bower-Hansen received a
level one grievance response from McArthur. The level one
grievance response confirmed that McArthur had received the
grievance. It denied the grievance and the relief sought, find-
ing that there was just cause for the termination of Bower-
Hansen’s employment.
Bower-Hansen then submitted a level two grievance, object-
ing to McArthur’s denial of her grievance at level one. DHHS
received it on July 20, 2016. DHHS later rejected Bower-
Hansen’s level two grievance on the grounds that she did
not file it within 10 workdays of her receipt of the level one
response on July 1.
Bower-Hansen then filed another level three grievance
with the Personnel Board. DHHS filed a motion to dismiss
Bower-Hansen’s grievance in its entirety. The Personnel Board
appointed a hearing officer to conduct a hearing and recom-
mend a decision. The parties then stipulated to the admission
of various documents for the hearing officer to consider in
resolving DHHS’ motion to dismiss.
The hearing officer later issued a recommended order on
DHHS’ motion to dismiss. His recommended order found that
Bower-Hansen’s grievance should be dismissed because she
failed to file her initial grievance with McArthur as required
by the CBA. The Personnel Board later unanimously adopted
the recommended decision of the hearing officer and dis-
missed Bower-Hansen’s grievance.
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Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
BOWER-HANSEN v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
Cite as 302 Neb. 847District Court.
Bower-Hansen sought review of the dismissal of her griev-
ance in the district court. The district court affirmed the
Personnel Board’s dismissal of her grievance. The district court
agreed with the hearing officer’s finding that Bower-Hansen
had failed to comply with the CBA when she submitted her
initial grievance to Weinberg rather than McArthur.
In addition, the district court found that even if Bower-
Hansen’s initial filing with Weinberg was appropriate, her
subsequent grievance appeals were untimely under the CBA.
The district court explained that after Bower-Hansen received
McArthur’s decision denying her level one grievance, she did
not timely file her level two appeal within 10 workdays.
Bower-Hansen appealed the district court’s decision.
ASSIGNMENT OF ERROR
Bower-Hansen assigns multiple errors to the district court’s
decision, but they can be effectively consolidated and restated
into one: that the district court erred by affirming the decision
of the Personnel Board dismissing her grievance.
STANDARD OF REVIEW
[1,2] 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. J.S. v. Grand Island
Public Schools, 297 Neb. 347, 899 N.W.2d 893 (2017). When
reviewing an order of a district court under 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 neither arbitrary, capricious, nor
unreasonable. Id.ANALYSIS
Bower-Hansen Was Required to
Submit Level One Grievance.
In her primary argument on appeal, Bower-Hansen contends
that she was not required to submit a level one grievance
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Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
BOWER-HANSEN v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
Cite as 302 Neb. 847and could begin the grievance process at level two. If her
initial grievance is understood as a valid level two griev-
ance, the argument goes, it was properly filed with Weinberg
and her subsequent challenges to her termination were timely
raised. As we will explain, however, we disagree with Bower-
Hansen’s position that she was entitled to skip level one of the
grievance process provided by the CBA.
Bower-Hansen offers multiple reasons for her belief that
she was entitled to file her grievance at level two. She first
points us to Nebraska’s Classified System Personnel Rules,
found at title 273 of the Nebraska Administrative Code. She
contends that a provision of those rules, 273 Neb. Admin.
Code, ch. 15, § 008 (2006), applies to her and allowed her
to proceed directly to level two. And, indeed, those rules do
refer to a three-level grievance procedure similar to that set
forth in the SCATA CBA and do contain a provision allowing
for the initiation of grievances at level two “[i]f the grievance
involves an involuntary separation . . . .” 273 Neb. Admin.
Code, ch. 15, § 008.
As promising for Bower-Hansen’s position as the provi-
sion quoted above may initially sound, the argument collapses
upon further scrutiny. As Bower-Hansen concedes, the terms
and conditions of her employment were provided by the CBA.
This is relevant because the Classified System Personnel
Rules provide as follows: “Employees subject to certified
Collective Bargaining Agreements as prescribed in Section
81-1373 and 1374 are not covered by these rules to the extent
that wages, hours and other terms and conditions of employ-
ment are provided for by contract.” 273 Neb. Admin. Code,
ch. 1, § 004.03 (2006). Neb. Rev. Stat. § 81-1373 (Reissue
2014) refers to a number of units created by statute for col-
lective bargaining purposes. Among them, there is a unit
composed of “employees required to be licensed or certified
as a teacher.” § 81-1373(1)(k). In the CBA, the State recog-
nizes SCATA as the collective bargaining agent for teachers
employed by the State. Because the terms and conditions of
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Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
BOWER-HANSEN v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
Cite as 302 Neb. 847Bower-Hansen’s employment are provided in the CBA, the
Classified System Personnel Rules do not, of their own force,
apply to Bower-Hansen.
We recognize that the CBA incorporates some sections of
the Classified System Personnel Rules by reference, but it does
not incorporate the provision allowing employees to skip level
one of the grievance process. Moreover, that provision is flatly
inconsistent with the provision of the CBA providing that the
failure of the grievant to proceed to the first step or subsequent
steps of the grievance process constitutes a waiver of the right
to any future appeal. The provision in the Classified System
Personnel Rules allowing for some grievances to be filed at
level two does not apply to Bower-Hansen.
Bower-Hansen next argues that she was entitled to initiate
her grievance at level two, because Madsen advised her that
she could do so at the June 3, 2016, meeting. But, in fact, there
is no allegation that Madsen told Bower-Hansen that she could
initiate her grievance at level two; Bower-Hansen and her
union representatives allege only that she was told she should
submit her initial grievance to Weinberg. We question whether
Bower-Hansen could ever rely on Madsen’s advice rather than
the terms of the CBA, but she certainly could not rely on
something Madsen is not even alleged to have said. Given the
absence of any allegation or evidence that Bower-Hansen was
told she could proceed directly to level two of the grievance
process, we find no basis to conclude that a statement made at
the June 3 meeting allowed her to do so.
Bower-Hansen Failed to
Comply With CBA.
Because Bower-Hansen was not entitled to initiate her
grievance at level two, either she did not file a level one griev-
ance or she submitted one, but to the wrong official. In either
case, Bower-Hansen failed to comply with the grievance pro-
cedures in the CBA. As we have already explained, the CBA
explicitly provides that employees cannot skip levels in the
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Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
BOWER-HANSEN v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
Cite as 302 Neb. 847grievance process. If Bower-Hansen’s initial grievance was a
level two grievance, she ran afoul of this language.
Bower-Hansen can make different arguments if her initial
grievance is treated as a level one grievance sent to the wrong
official. Here, Bower-Hansen could contend that Madsen told
her to file her grievance with Weinberg. Additionally, Bower-
Hansen could point out that DHHS, at least for a time, over-
looked the fact that she submitted her grievance to the wrong
official. After all, even though Bower-Hansen submitted the
initial grievance to Weinberg, she received a response from
McArthur, who considered her grievance and denied it, not
because it was submitted to the wrong official, but because
he found her termination of employment was supported by
good cause.
But even assuming these facts could excuse Bower-
Hansen’s submission of the grievance to the wrong official,
they cannot excuse the fact that she did not timely file a
level two grievance after receiving McArthur’s denial at level
one. DHHS did not receive Bower-Hansen’s challenge to
McArthur’s response at level one until July 20, 2016. Even
Bower-Hansen does not contend on appeal that this was
timely under the provision in the CBA requiring level two
grievances to be filed within 10 workdays of the receipt of a
denial at level one.
Bower-Hansen Waived Her Right
to Continue to Pursue
Her Grievance.
As demonstrated above, whether Bower-Hansen’s initial
grievance is treated as a level one or level two grievance, she
failed to comply with the CBA. Bower-Hansen argues that
even if she failed to comply with the terms of the CBA, her
grievance could not be dismissed on this basis. For reasons we
will explain, we disagree.
As we have noted, section 7.7 of the CBA provides that the
failure of an employee to “proceed to the first or subsequent
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Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
BOWER-HANSEN v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
Cite as 302 Neb. 847steps of this grievance procedure within the time limits speci-
fied shall indicate that the grievant has elected not to file a
grievance or has accepted the response previously rendered,
and shall constitute a waiver of any future appeal.” Whether
Bower-Hansen skipped level one or failed to timely file a
level two grievance, she failed to proceed to the required steps
of the grievance procedure in the time limits specified. The
CBA provides that such a failure constitutes a waiver of
future appeals.
Bower-Hansen urges us to find that she did not waive her
claims under the terms of the CBA. She claims that a finding
of waiver results in the dismissal of her grievance on “techni-
cal” grounds. Brief for appellant at 10. According to Bower-
Hansen, such a dismissal runs contrary to principles govern-
ing the interpretation of collective bargaining agreements. In
support of her argument that a finding of waiver would be an
impermissible “technical” dismissal of a grievance, Bower-
Hansen invokes language from a 1934 opinion from this court.
In that opinion, we quoted language from another court stating
that collective bargaining agreements “‘ought to be construed
not narrowly and technically but broadly and so as to accom-
plish its evident aims.’” Rentschler v. Missouri P. R. Co., 126
Neb. 493, 500, 253 N.W. 694, 698 (1934), quoting Yazoo & M.
V. R. Co. v. Webb, 64 F.2d 902 (5th Cir. 1933).
[3] The language Bower-Hansen relies on does not pre-
clude a collective bargaining agreement from providing for
the waiver of claims for the failure to comply with procedural
steps. At most, it adopts a rule of construction for collective
bargaining agreements. Even if that rule of construction might
apply in some circumstances, it would have no bearing here.
When the terms of a contract are clear, a court may not resort
to rules of construction. Kercher v. Board of Regents, 290
Neb. 428, 860 N.W.2d 398 (2015). Instead, the terms of the
contract are to be accorded their plain and ordinary meaning.
See id. We have previously applied this familiar rule when
presented with a collective bargaining agreement. See Murphy
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Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
BOWER-HANSEN v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
Cite as 302 Neb. 847v. City of Lincoln, 245 Neb. 707, 515 N.W.2d 413 (1994).
Here, section 7.7 of the CBA provides that if an employee
fails to timely follow all of the steps of the grievance process,
the employee waives the right to future appeals. Given these
clear terms, rules of construction do not come into play.
The language in the CBA providing that the failure to
timely follow all of the steps of the grievance process consti-
tutes a waiver of the right to future appeals also distinguishes
this case from Parent v. City of Bellevue Civil Serv. Comm., 17
Neb. App. 458, 763 N.W.2d 739 (2009), a Nebraska Court of
Appeals opinion cited by Bower-Hansen. In Parent, a collec-
tive bargaining agreement required a city to take disciplinary
action against a police officer within 30 days of being notified
of a potential cause for discipline. After the city terminated
the employment of an officer outside the 30-day deadline and
the officer challenged his termination, the district court held
that the city could not validly terminate the officer’s employ-
ment. The Court of Appeals reversed. It explained that the
collective bargaining agreement provided a timeline for an
investigation, but “no explicit recourse for the employee in the
case of a delay.” Id. at 464, 763 N.W.2d at 745. Based on the
absence of any language precluding the city from imposing
discipline outside the 30-day deadline, the Court of Appeals
held that the city’s failure to adhere to the deadline did not
deprive it of the power to impose discipline.
[4,5] Unlike the collective bargaining agreement in Parent,
the CBA in this case explicitly and plainly provided a conse-
quence for the failure to proceed to each of the required steps
of the grievance procedure by the specified deadlines: waiver
of the right to future appeals. Bower-Hansen can prevail only if
this language is not enforced. Courts do not, however, have the
power to rewrite a contract to provide terms contrary to those
that are expressed. See Berens & Tate v. Iron Mt. Info. Mgmt.,
275 Neb. 425, 747 N.W.2d 383 (2008). Nor is it the province
of a court to rewrite a contract to reflect the court’s view of a
fair bargain. Id.- 857 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
BOWER-HANSEN v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
Cite as 302 Neb. 847Because Bower-Hansen waived the right to continue to
pursue her grievance under the terms of the CBA, the district
court did not err in affirming the Personnel Board’s dismissal
of her grievance.
CONCLUSION
We find that the district court did not err in affirming
the order of the Personnel Board dismissing Bower-Hansen’s
grievance. We therefore affirm the order of the district court.
A ffirmed.