Bisch v. Las Vegas Metropolitan Police Department

129 Nev., Advance Opinion 3(0
IN THE SUPREME COURT OF THE STATE OF NEVADA
LAURIE BISCH, No. 58810
Appellant,
vs.
LAS VEGAS METROPOLITAN POLICE
DEPARTMENT, A LOCAL FILED
GOVERNMENT EMPLOYER; AND LAS MAY 3 0 2013
VEGAS POLICE PROTECTIVE
ASSOCIATION, INC.,
Respondents.
Appeal from a district court order denying a petition for
judicial review and denying declaratory and injunctive relief in an
employment matter. Eighth Judicial District Court, Clark County;
Jerome T. Tao, Judge.
Affirmed.
Law Office of Daniel Marks and Adam Levine and Daniel Marks,
Las Vegas,
for Appellant.
Marquis Aurbach Coffing and Nicholas D. Crosby and Micah S. Echols,
Las Vegas,
for Respondent Las Vegas Metropolitan Police Department.
Kathryn Werner Collins, Las Vegas,
for Respondent Las Vegas Police Protective Association, Inc.
BEFORE THE COURT EN BANC. 1
1 The Honorable Kristina Pickering, Chief Justice, voluntarily
recused herself from participation in the decision of this matter.
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OPINION
By the Court, PARRAGUIRRE, J.:
The Las Vegas Metropolitan Police Department (LVMPD)
initiated an internal investigation of appellant Laurie Bisch regarding
allegations of insurance fraud after Bisch's dog bit her daughter's 17-year-
old friend, and Bisch represented to medical staff that the girl was her
own daughter but did not use her employer-provided health insurance.
Bisch was not provided a police protective association (PPA)
representative during an internal investigation meeting because she had
retained a private attorney. At issue here is whether Bisch was entitled to
have PPA representation present during an internal investigation
meeting. We hold that she was not. NRS 289.080 did not impose a duty
on the PPA to provide representation to Bisch.
Although the charges of insurance fraud were ultimately
dropped, the LVMPD issued Bisch a formal written reprimand for a
violation of "[c]onduct unbecoming an employee" under LVMPD Civil
Service Rule 510.2(G)(1). Also at issue is whether Bisch's discipline was
based on overly broad criteria or was politically motivated. We conclude
that her discipline was proper because the discipline bore directly on her
fitness to perform her profession. Further, despite the fact that she
established a prima facie case of political motivation, substantial evidence
was presented to rebut the presumption of discrimination. We therefore
affirm the district court's decision.
FACTS
Bisch is a seasoned veteran of the LVMPD. In 2006, she ran
unsuccessfully for Clark County Sheriff, and it was well known that she
planned to run again in 2010.
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In 2008, while Bisch was off duty, her dog bit her daughter's
17-year-old friend. Bisch took the girl to an urgent care facility for
treatment. Unable to contact the girl's mother and concerned that the
urgent care would not provide treatment without a legal guardian present,
Bisch represented to the urgent care staff that the girl was actually her
own daughter, using both her daughter's name and birthday. Bisch paid
for the treatment with her own funds and did not use her employer-
provided health insurance.
Upon learning of the dog bite and ensuing medical treatment,
the girl's mother filed a complaint with the LVMPD, alleging that Bisch
had committed insurance fraud by misrepresenting the girl's identity to
the hospital.
This complaint generated an Internal Affairs (IA)
investigation into Bisch's conduct. Although the IA investigator confirmed
that Bisch had not used her insurance to pay for the treatment, IA
nonetheless scheduled an interview with Bisch. In preparation for this
interview, Bisch informed her PPA representative that she would bring
her private attorney to the interview, but requested that a PPA
representative also be present. Bisch's PPA representative responded
that, per the PPA bylaws, the PPA provided representation only when the
member did not procure his or her own attorney. The interview proceeded
without PPA representation.
Approximately one week later, the IA investigator determined
that Bisch had not committed insurance fraud but still inquired to both
the LVMPD and the district attorney's office as to whether Bisch had
violated any laws. After hearing a cursory description of Bisch's conduct
over the phone, a deputy district attorney informed the IA investigator
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that Bisch may have committed identity theft, a felony under NRS
205.463.
The IA investigator concluded his investigation by generating
a report that recommended sustaining the initial complaint lodged against
Bisch on the ground that she had committed identity theft, which, as a
felony, was a terminable offense. Pursuant to LVMPD policy, the IA
investigator's report was sent to Sergeant Ken Romane for approval.
Having received mixed signals from his own supervisor regarding the
nature of the complaint against Bisch, Romane spoke with Bisch and the
IA investigator directly, and decided that he could not in good faith issue
any formal discipline to Bisch. Romane then contacted LVMPD's labor
relations office and stated that the report needed to be "pulled back" and
reconsidered, as he felt the identity theft charge was unsubstantiated.
A few months later, LVMPD informed Romane that the
complaint against Bisch would be sustained, but because Bisch could not
be found to have committed identity theft under NRS 205.463, the
complaint would be sustained for the lesser violation of LVMPD Civil
Service Rule 510.2(G)(1), which forbids "[c]onduct unbecoming an
employee."
Although Romane again sought permission to simply give
Bisch a verbal warning, his supervisor instructed him to give Bisch a
formal written reprimand—the lowest form of official discipline. Eighteen
months later, the written reprimand was removed from Bisch's employee
file as required by LVMPD policy.
Following the written reprimand in 2009, Bisch filed a
complaint with the Employee Management Relations Board (EMRB)
against both the PPA and LVMPD. Bisch alleged that the PPA had
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breached its duty of fair representation when it refused to represent her at
her IA interview. According to Bisch, the PPA's refusal was
discriminatory because it was politically motivated by its endorsement of a
different candidate for sheriff in the 2006 election. Bisch also contended
that NRS 289.080, which governs peace officers' rights during an
investigation, granted her the right to have two representatives of her
choosing at her IA interview and that the PPA's violation of this statute
constituted a separate breach of the duty of fair representation.
With regard to the LVMPD, Bisch contended that it had
implemented overly broad disciplinary criteria by disciplining her for off-
duty conduct that had no actual effect on her ability to perform her job.
Additionally, Bisch argued that her written reprimand was a politically
motivated attempt to thwart her 2010 campaign for sheriff. Following a
two-day hearing, the EMRB denied Bisch's claims in their entirety. The
district court likewise denied Bisch's subsequent petition for judicial
review, and this appeal followed. 2
DISCUSSION
In this appeal, we first address whether the current matter is
moot following the removal of the written reprimand from Bisch's
employee file. Concluding that it is not, we then address whether the
EMRB properly rejected Bisch's duty-of-fair-representation claim and
determine that NRS 289.080 does not impose a duty on Bisch's PPA to
2The district court also denied declarative and injunctive relief, but
since there are no arguments regarding these issues on appeal, we do not
address them here. Powell v. Liberty Mitt. Fire Ins. Co., 127 Nev. ,
11.3, 252 P.3d 668, 672 n.3 (2011) ("Issues not raised in an appellant's
opening brief are deemed waived.").
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provide a representative for an investigatory interview by her employer.
We then address whether the EMRB properly rejected Bisch's claim that
the discipline was politically motivated, concluding that the EMRB
applied the correct legal standard and relied on substantial evidence in
upholding LVMPD's written reprimand.
Standard of review
This court, like the district court, gives considerable deference
to rulings by the Employee Management Relations Board. City of N. Las
Vegas v. State, EMRB, 127 Nev. , , 261 P.3d 1071, 1076 (2011); see
also NRS 233B.135(3). This court reviews pure questions of law de novo
but will affirm the EMRB's decision concerning a question of fact if it is
supported by substantial evidence. City of Reno v. Reno Police Protective
Ass'n, 118 Nev. 889, 894, 59 P.3d 1212, 1216 (2002). Substantial evidence
is evidence that a reasonable person would accept as adequate to support
a conclusion. Id. at 899, 59 P.3d 1219. In determining whether
substantial evidence exists, this court is limited to the record as it was
presented before the EMRB. Id. If the decision lacks substantial
evidentiary support, the decision is unsustainable as being arbitrary or
capricious. Id.Bisch's appeal is not moot
Prior to oral argument, LVMPD notified this court that the
issue of removing the written reprimand is potentially moot, as LVMPD
policy requires the removal of written reprimands from employee files 18
months after the employee signs the adjudication. LVMPD represented to
this court that the 18-month period had passed and that the reprimand is
no longer included in Bisch's employee file.
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In Nevada, "[a] moot case is one which seeks to determine an
abstract question which does not rest upon existing facts or rights."
NCAA v. Univ. of Nev., 97 Nev. 56, 58, 624 P.2d 10, 11 (1981). "Cases
presenting real controversies at the time of their institution may become
moot by the happening of subsequent events." Id. Even if this issue is
now moot, we may still consider this case as a matter of widespread
importance capable of repetition, yet evading review. Personhood Nev. v.
Bristol, 126 Nev. „ 245 P.3d 572, 574 (2010). If so, then Bisch must
demonstrate that (1) the duration of the challenged action is relatively
short, (2) there is a likelihood that a similar issue will arise in the future,
and (3) the matter is important. Id.Despite the apparent removal of the discipline from Bisch's
employee file, the alleged political motivation of the reprimand and the
potential effect it could have on Bisch's political ambitions demonstrate
that an actual controversy still exists. We therefore decline INMPD's
request to dismiss this appeal as moot.
The EMRB properly rejected Bisch's duty-of-fair-representation claim
In challenging the EMRB's rejection of her duty-of-fair-
representation claim, Bisch contends that the PPA breached its duty by
declining to have a PPA representative appear on her behalf at the IA
interview even though NRS 289.080(1) grants her the right to have two
representatives present. We reject this argument.
Bisch contends that the PPA breached its duty of fair
representation to her by refusing to provide her with a PPA representative
of her choosing at her IA interview. As detailed above, in discussing her
upcoming IA interview with her PPA representative, Bisch indicated that
she would be retaining private counsel for the interview but requested
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that a PPA representative also appear on her behalf. At that time, Bisch
was informed that, per PPA policy, if she was represented at the interview
by private counsel, a PPA representative would not appear on her behalf.
Bisch maintains that the PPA's policy of not providing a
representative to appear on behalf of an officer who has retained counsel
and the application of this policy to her in this instance constitute a
violation of the representation rights provided to peace officers under NRS
289.080(1). Bisch contends that NRS 289.080 unambiguously granted her
a right to have two representatives of her choosing at her interview, and
that her union's refusal to provide her with a second representative
constituted a violation of this statute. Therefore, according to Bisch, the
union's violation of the statute constituted a breach of its duty of fair
representation.
NRS 289.080(1) provides:
[A] peace officer who is the subject of an investigation. . . may
upon request have two representatives of the peace officer's
choosing present with the peace officer during any phase of an
interrogation or hearing relating to the investigation,
including, without limitation, a lawyer, a representative of a
labor union or another peace officer.
(Emphasis added.) The PPA argues that the district court correctly
concluded that the plain language of the statute does not create any
affirmative duty on the union to provide a second representative at the
interview, rather, it only provides a right of two representatives. The
district court then looked at the broader statutory scheme to determine
that the statute only provides a right of representation in regards to the
employer, and does not impose any duties on the police union.
The interpretation of NRS 289.080 regarding any duties it
imposes on PPAs is an issue of first impression in Nevada. This court
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reviews questions of law, such as statutory interpretation, de novo.
Nyberg v. Nev. Indus. Comm'n, 100 Nev. 322, 324, 683 P.2d 3, 4 (1984). In
doing so, we apply the plain meaning of the statute and give the words
their ordinary meaning where the statute is plain and unambiguous.
Cromer v. Wilson, 126 Nev. „ 225 P.3d 788, 790 (2010). Where the
statute is ambiguous, we look beyond the plain language of the statute to
determine its meaning. Id. In order to give effect to the Legislature's
intent, we have a duty to consider the statute within the broader statutory
scheme "harmoniously with one another in accordance with the general
purpose of those statutes." S. Nev. Homebuilders Ass'n v. Clark Cnty., 121
Nev. 446, 449, 117 P.3d 171, 173 (2005) (quoting Washington v. State, 117
Nev. 735, 739, 30 P.3d 1134, 1136 (2001)).
Here, the statute does not expressly impose any affirmative
duties, but only provides the employee the right to have two
representatives of his or her choosing present at an interrogation, which
would necessarily prevent the employer from barring the employee from
having two representatives. Because the statute does not impose any duty
for any entity to provide a representative, we are unable, therefore, to
conclude from the plain language of the statute that NRS 289.080
supports Bisch's arguments. 3
3 Bischalso cites N.L.R.B. v. J. Weingarten, Inc., 420 U.S. 251 (1975),
for the proposition that a union member has a "right" to have a union
representative present during an employer interrogation., The Weingarten
Court held only that an employer may not force an employee to participate
in an interrogation without a union representative. 420 U.S. at 262. It
made no mention of the union's duties to the employee/member in such a
situation.
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Though we reject Bisch's argument that the statute imposes a
duty on the PPA on its face, looking to the broader statutory scheme
provides further illumination. NRS 289.080 is part of NRS Chapter 289's
"Peace Officer Bill of Rights." See Ruiz v. City of N. Las Vegas, 127 Nev.
255 P.3d 216, 218 (2011) (indicating that the Peace Officer Bill of
Rights is codified at NRS 289.010-.120). In Nevada and other states with
such statutes, law enforcement bills of rights afford peace officers certain
procedural protections when dealing with their employer in an adversarial
setting. For example, NRS 289.120 provides: "Any peace officer aggrieved
by an action of the employer of the peace officer in violation of this chapter
may, after exhausting any applicable. . . administrative remedies, apply
to the district court for judicial relief." NRS 289.120 provides judicial
review for violations of this chapter by employers and indicates that the
duties of NRS Chapter 289 are only imposed on employers, not PPAs.
We conclude, therefore, that the protection provided by NRS
289.080 is only in regard to Bisch's employer. Because nothing in NRS
289.080 or the rest of the Peace Officer Bill of Rights governs a PPA's
responsibility toward its members, the EMRB correctly concluded that
NRS 289.080 did not impose an additional duty of fair representation on
the PPA.
The EMRB properly upheld LVMPD's written reprimand of Bisch
After the IA investigation concluded, Bisch was issued a
written reprimand for violating Civil Service Rule 510.2(G)(1) by
committing misconduct outside of her official duties. She challenged this
discipline before the EMRB in an effort to force the LVMPD to remove the
written reprimand from her employee file. Bisch contended that removal
was required because improper criteria had been used in issuing the
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discipline under Civil Service Rule 510.2(G)(1) and because she had been
improperly punished for political reasons. The EMRB rejected these
arguments, and the district court similarly declined to grant judicial
review. On appeal, Bisch reiterates these arguments in support of her
position that the written reprimand should have been removed. For the
following reasons, we conclude that the EMRB properly upheld the
LVMPD's written reprimand.
The conduct for which Bisch was disciplined was sufficiently related
to the performance of her duties as a peace officer
Bisch argues that the LVMPD disciplined her for off-duty
conduct, which she argues is an unconstitutional application of arbitrary
discipline criteria. The regulation under which Bisch was disciplined,
Civil Service Rule 510.2(G)(1), provides a basis for discipline as follows:
The term "misconduct" shall mean not only
improper action by an employee in his official
capacity, but also any conduct by an employee
unconnected with his official duties, [(1)] tending
to bring the Department into public discredit
which [(2)] tends to affect the employee's ability to
perform his duties efficiently. . . .
The LVMPD counters that the application of the disciplinary criteria was
appropriate and supported by substantial evidence. We find Bisch's
arguments to be without merit.
Bisch cites Stevens v. Hocker for the proposition that discipline
criteria that punishes an employee for off-duty conduct is arbitrary and
capricious unless the improper conduct bears directly on the fitness of the
employee to perform his or her profession. 91 Nev. 392, 394, 536 P.2d 88,
89-90 (1975). In Stevens, an off-duty prison guard was arrested for
disorderly conduct after drunkenly yelling at his wife. Id. at 393, 536 P.2d
at 89. Despite having never been convicted of a crime, the guard was
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discharged from his job based on a rule that forbade "conduct detrimental
to the good of the institution." Id. at 393-94, 536 P.2d at 89-90 (citation
omitted). This court reversed the discipline, concluding that the language
of the rule was "so illusive as to embrace an almost unlimited area of
conduct." Id. at 394-95, 536 P.2d at 90. While the court recognized that it
had previously upheld the imposition of discipline for violation of equally
amorphous rules prohibiting "unprofessional conduct," the Stevens court
reasoned that in those cases, "the conduct in issue bore directly upon
fitness to perform the profession involved." Id. (citing Moore v. Board of
Trustees, 88 Nev. 207, 495 P.2d 605 (1972); Meinhold v. Clark Cnty. Sch.
Dist., 89 Nev. 56, 506 P.2d 420 (1973)). Applying this rule, the Stevens
court concluded that "[appellant's] off-duty transgression. . . had [no]
bearing at all upon his performance as an employee of the Nevada State
Prison," and therefore it reversed the prison guard's termination. Id. at
395, 536 P.2d at 90.
Bisch is incorrect that Stevens renders the discipline for her
off-duty conduct improper. Like in Stevens, the language of Civil Service
Rule 510.2 is relatively broad in terms of the types of conduct that may be
disciplined. However, like the court in Stevens, we do not consider such
language unconstitutionally vague where the disciplinary criterion is
applied to conduct that directly bears upon an employee's fitness to
perform the profession. Our next step, then, is to determine whether the
conduct here bears directly upon Bisch's fitness to perform her profession.
A police officer's job is to uphold the law, and the act of lying to the urgent
care staff in order to circumvent a perceived parental-consent law could
plausibly bear directly upon Bisch's fitness to be an officer. Unlike the
conduct of the prison guard in Stevens, Bisch's untruthfulness could be
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used to impeach her credibility if she were called as a witness to testify at
a trial. Accordingly, protecting the integrity of the police department is a
legitimate basis for imposing discipline. A number of other jurisdictions
have upheld similar discipline "where the position requires high morals,
control, and discipline and the off-duty conduct is in violation of specific
employment policies." Utah Dep't of Corr. v. Despain, 824 P.2d 439, 446
(Utah Ct. App. 1991). 4 Thus, we conclude that the disciplined conduct
bore directly on her fitness to be an officer. 5
4Despain cites a number of similar cases in other states. 824 P.2d at446 n.16 (citing Wilson v. Swing, 463 F. Supp. 555, 564 (M.D.N.C. 1978)
(affirming the discharge of a police officer for engaging in an extramarital
affair with another police officer because the termination "was clearly
designed to further the Department's interest in its morale, discipline,
effectiveness and reputation in the community"); Puzick v. City of Colo.
Springs, 680 P.2d 1283, 1286 (Colo. App. 1983) (affirming suspension of an
off-duty police officer for sexual misconduct because such conduct "has the
effect of impairing the operation or efficiency of the department" or may
bring "the department into disrepute"); Millsap v. Cedar Rapids Civil
Serv. Comm'n, 249 N.W.2d 679, 686 (Iowa 1977) (affirming suspension of
an off-duty police officer for intoxication and unbecoming conduct because
"[i]t is well established that the image presented by police personnel to the
general public is vitally important to the police mission")). We further
note that Despain and the cases it cites deal with termination and
suspension, whereas here the discipline was a written reprimand, a lesser
level of discipline.
5 Bisch also argues that the LVMPD unilaterally changed its
discipline criteria outside of the collective bargaining process by
disciplining her for conduct that did not actually bring the LVMPD into
public discredit or actually affect her ability to perform her duties. We
reject this argument, as Bisch did not present evidence that the LVMPD
ever changed the regulation outside of the collective bargaining process,
and the regulation does not require Bisch to actually bring the LVMPD
into public discredit or affect her ability to perform, only that her conduct
tended to do both of these things.
13
Substantial evidence supports the EMRB's conclusion that Bisch was
not disciplined for political reasons
NRS 288.270(1)(f) provides that discrimination against an
employee by a local government employer or the employer's designated
representative for "political or personal reasons or affiliations" constitutes
a prohibited practice. On appeal, Bisch maintains that the EMRB should
have ordered that her written reprimand be stricken from her employee
file because the LVMPD improperly disciplined her for political reasons in
violation of that statute. In particular, Bisch contends that she received
this written reprimand not as the result of a by-the-book IA investigation,
but because the LVMPD wanted to use the reprimand against her in her
upcoming run for sheriff. The LVMPD counters that the EMRB decision
to uphold the reprimand was proper because Bisch failed to supply
sufficient evidence of political motivation, she provided no evidence that
the sheriff was involved in the disciplinary investigation, and the EMRB
determined that the investigation was initiated following a complaint by
the dog-bite victim's mother, not at the behest of the sheriff or any of the
sheriffs subordinates.
In Reno Police Protective Ass'n v. City of Reno, 102 Nev. 98,
715 P.2d 1321 (1986), this court adopted the framework used in
adjudicating federal prohibited-labor-practice claims under the National
Labor Relations Act for use in resolving state prohibited-labor-practice
claims against employers brought under NRS 288.270. Specifically, this
court concluded that
[am n aggrieved employee must make a prima fade
showing sufficient to support the inference that
protected conduct was a motivating factor in the
employer's decision. Once this is established,
the burden of proof shifts to the employer to
14
demonstrate by a preponderance of the evidence
that the same action would have taken place even
in the absence of the protected conduct. The
aggrieved employee may then offer evidence that
the employer's proffered "legitimate" explanation
is pretextual and thereby conclusively restore the
inference of unlawful motivation.
Reno Police Protective Ass'n, 102 Nev. at 101-02, 715 P.2d at 1323 (citing
N.L.R.B. v. Transp. Mgmt. Corp., 462 U.S. 393, 403 (1983), abrogated by
Director, OWCP v. Greenwich Collieries, 512 U.S. 267, 276-78 (1994);
N.L.R.B. v. United Sanitation Serv., 737 F.2d 936, 939 (11th Cir. 1984)).
This court adopted this test, referred to as the Transportation
Management test, prior to the U.S. Supreme Court's modification of that
test in Greenwich Collieries. Under the revised federal framework, it is
not enough for the employee to simply put forth evidence that is capable of
being believed; rather, this evidence must actually be believed by the fact-
finder. Greenwich Collieries, 512 U.S. at 276-78. Only upon meeting this
burden of persuasion does the burden of proof shift to the employer. Id.We find this revised framework persuasive and adopt the federal burden
of persuasion for the plaintiff to establish a prima facie case of
discrimination in order to shift the burden to the employer.
It appears that the EMRB applied the Reno Police Protective
Ass'n standard, which is the pre-Greenwich Collieries standard and
required Bisch to only satisfy the burden of production. Bisch argues that
the EMRB applied the incorrect frameworks in McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802 (1973), and Padilla-Garcia v. Guillermo
Rodriguez, 212 F.3d 69, 77-78 (1st Cir. 2000), in determining her
employment discrimination case. While the EMRB's order does not clearly
state which burden of proof was applied, Bisch's argument overstates the
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ambiguity in the EMRB's analysis. Despite citing the Padilla-Garcia test,
the EMRB also cited and properly applied the Reno Police Protective Ass'n
analysis. Thus, contrary to Bisch's assertions, the EMRB did apply the
Reno Police Protective Ass'n analysis (albeit not as modified in Greenwich
Collieries—which only serves to change her burden of proof to a burden of
persuasion). Further, even if the EMRB did not apply the heightened
standard of persuasion, there is substantial evidence to support a
determination that the burden of persuasion was satisfied. We therefore
proceed to examine how the EMRB applied the Reno Police Protective
Association/Greenwich Collieries test.
Here, the EMRB first determined that Bisch had provided
evidence sufficient to establish a prima facie case that her discipline was
politically motivated. The EMRB noted that it was widely known
throughout the LVMPD that Bisch had run for sheriff in 2006 and was
planning to run again in 2010. Further, the EMRB noted that Romane,
the supervisor assigned to administer the discipline, testified that when
he asked the IA investigator about the report, the investigator told him it
was a "tower caper" 6 and that his attempts to give Bisch a verbal warning
6 Both Bisch and LVMPD agree that a tower caper is a complaint
that high-ranking officials pay particular attention to. According to
LVMPD, the term refers to any complaint in which a crime has potentially
been committed and gets put on a list so that the head of IA can stay
apprised of the investigation into the complaint. Bisch asserts that this
term refers to an investigation overseen by the high-ranking officers for
political purposes. The district court noted, however, that Bisch provided
"no citations to any testimony or evidence in the record supporting this
broad and considerably more inflammatory characterization."
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were repeatedly met with resistance by those higher in the chain of
command. Thus, although the parties contest the meaning of the phrase
"tower caper," the EMRB determined that Bisch established a prima facie
case of discrimination.
Because Bisch established a prima facie case, the EMRB
correctly concluded that the burden then shifted to the LVMPD to rebut
the presumption of discrimination. See Reno Police Protective Ass'n, 102
Nev. at 101-02, 715 P.2d at 1323. The EMRB then determined that the
LVMPD produced enough evidence to satisfy its burden regarding its
nondiscriminatory justification. Specifically, the EMRB's decision
provides that the complaint against Bisch was initiated by a third party
(the mother of the child bitten by Bisch's dog), rather than the LVMPD. It
also indicates that the IA investigator properly investigated and dropped
the insurance fraud allegation once it became apparent that Bisch did not
commit insurance fraud. The EMRB further found that it was not until
this phase of the investigation when the IA investigator confirmed that
Bisch misrepresented the identity of the child. The IA investigator then
contacted a deputy district attorney, who advised the LVMPD that Bisch
may have committed felony identity theft. Based on that advice, the IA
investigation initially concluded that Bisch had committed identity theft, a
terminable offense. Upon establishing that no such felony occurred, the
LVMPD limited its conclusions only to the violation of Civil Service Rule
510.2(G)(1). Ample evidence in the record supports the conclusion that
this violation actually did occur. Thus, substantial evidence supports the
EMRB's conclusion that the LVMPD established a nondiscriminatory
reason for discipline and the burden shifted back to Bisch. See Reno Police
Protective Ass'n, 102 Nev. at 101-02, 715 P.2d at 1323.
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17
Bisch contends that this evidence has little to no bearing on
whether her written reprimand was the result of a politically motivated
investigation, and that the IA investigator should have closed the
investigation after determining that no insurance fraud occurred.
However, Bisch's evidence supporting an inference of discrimination is
speculative, as she provides no factual basis short of one investigator's
reference to the investigation as a "tower caper." There is no evidence on
record that LVMPD officials actually directed the complaint to be given
special attention besides this secondhand assertion, and Bisch does not
provide evidence that continuing the investigation was contrary to any IA
policy. Furthermore, the facts supporting the discipline itself are not in
question. Accordingly, the EMRB was correct to conclude that Bisch did
not satisfy her burden to show that the LVMPD's stated reasons for
discipline were merely pretextual.
As this court has previously stated, we review an
administrative decision for substantial evidence and will not reweigh
evidence or witness credibility, nor will we substitute our judgment for the
administrative judge's. Nellis Motors v. State, Dep't of Motor Vehicles, 124
Nev. 1263, 1269-70, 197 P.3d 1061, 1066 (2008). Accordingly, we are
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unwilling to reverse a decision where the disciplined behavior actually
occurred and the evidence of political motivation is speculative. We
therefore conclude that the EMRB decision was supported by substantial
evidence. City of Reno v. Reno Police Protective Ass'n, 118 Nev. 889, 894,
59 P.3d 1212, 1216 (2002).
Accordingly, we affirm the judgment of the district court in
upholding the decision of the EMRB.
Parraguirre
Gibbons
J.
Hardesty
D -01/xt /46 , J.
Douglas
Saitta
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