Knickmeyer v. State ex rel. Eighth Judicial Dist. Court

• Decision Date: 16 November 2017
• Docket Number: No. 71372,71372
• Parties: Thomas KNICKMEYER, Appellant, v. The STATE of Nevada, EX. REL. EIGHTH JUDICIAL DISTRICT COURT, Respondent.
• Court: Nevada Court of Appeals

408 P.3d 161

Thomas KNICKMEYER, Appellant,

v.The STATE of Nevada, EX. REL. EIGHTH JUDICIAL DISTRICT COURT, Respondent.

No. 71372

Court of Appeals of Nevada.

FILED NOVEMBER 16, 2017

Kirk T. Kennedy, Las Vegas, for Appellant.

Adam Paul Laxalt, Attorney General, Clark G. Leslie, Chief Deputy Attorney General, Carson City; D. Randall Gilmer, Senior Deputy District Attorney, Las Vegas, for Respondent.

BEFORE TAO and GIBBONS, JJ.¹

OPINION

By the Court, TAO, J.:

The principal legal question addressed in this appeal is whether certain provisions of NRS Chapter 289 (namely, NRS 289.040, 289.057 and 289.060 ), intended to provide job-related protections to peace officers employed by law enforcement agencies, apply to bailiffs and marshals employed by the Eighth Judicial District Court. We conclude that judicial marshals are "peace officers" within the meaning of those statutes, but the Eighth Judicial District Court is not a "law enforcement agency" as statutorily defined. Accordingly, the provisions at issue do not apply to Knickmeyer, and we affirm the district court's denial of his petition to set aside the arbitration award in this case.

FACTUAL AND PROCEDURAL HISTORY

The Eighth Judicial District Court (EJDC) employed Thomas Knickmeyer first as a bailiff, and then later as an administrative marshal. Knickmeyer's employment was governed by the terms of a written Memorandum of Understanding (MOU) between the Clark County Marshal's Union and the EJDC which stipulated that adverse employment actions, including possible termination, were to be resolved through a series of administrative proceedings, eventually culminating in a binding arbitration hearing if necessary.

The EJDC sought to terminate Knickmeyer's employment after co-workers reported several incidents of insubordination, vulgar language, and unprofessional behavior. The allegations included reports that Knickmeyer used foul language in the presence of a co-worker, publicly referred to an attorney who had complained about him as a "bitch," and retaliated against her by ordering that her purse be searched and re-scanned even after being told it contained no suspicious items. He also openly used an obscenity to refer to a superior officer. In seeking termination, the EJDC noted that Knickmeyer had previously been subject to lesser disciplinary actions in 1997, 2003, and 2013.

During the various administrative proceedings below, every hearing officer agreed that termination was appropriate and warranted. Knickmeyer appealed each step as outlined in the MOU, ultimately seeking arbitration. The arbitrator upheld the EJDC's decision to terminate Knickmeyer, finding that a preponderance of the evidence demonstrated that Knickmeyer committed the infractions in question and that termination was an appropriate response. The arbitrator's decision specifically noted that his conclusion was based only upon the immediate incidents at stake and not upon the previous complaints from 1997, 2003, or 2013.

Knickmeyer petitioned the district court to set aside the arbitrator's decision, arguing that the EJDC violated his statutory rights under NRS Chapter 289 by improperly disclosing and relying upon his prior disciplinary history as justification for termination in this case. The district court denied the petition, and Knickmeyer appeals, repeating the same arguments made to the district court.

ANALYSIS

This court reviews a district court decision to confirm an arbitration award de novo. Thomas v. City of N. Las Vegas, 122 Nev. 82, 97, 127 P.3d 1057, 1067 (2006). But the scope of the district court's review of an arbitration award (and, consequently, our own de novo review of the district court's decision) is extremely limited, and is "nothing like the scope of an appellate court's review of a trial court's decision." Health Plan of Nev., Inc. v. Rainbow Med., LLC, 120 Nev. 689, 695, 100 P.3d 172, 176 (2004). "A reviewing court should not concern itself with the ‘correctness' of an arbitration award and thus does not review the merits of the dispute." Bohlmann v. Printz, 120 Nev. 543, 547, 96 P.3d 1155, 1158 (2004) (quoting Thompson v. Tega–Rand Int'l. , 740 F.2d 762, 763 (9th Cir. 1984) ), overruled on other grounds by Bass–Davis v. Davis , 122 Nev. 442, 452 n.32, 134 P.3d 103, 109 n.32 (2006).

Rather, when a contractual agreement mandates that disputes be resolved through binding arbitration, courts give considerable deference to the arbitrator's decision. Judicial review is limited to inquiring only whether a petitioner has proven, clearly and convincingly, that one of the following is true: the arbitrator's actions were arbitrary, capricious, or unsupported by the agreement; the arbitrator manifestly disregarded the law; or one of the specific statutory grounds set forth in NRS 38.241(1) was met. Clark Cty. Educ. Ass'n v. Clark Cty. Sch . Dist. , 122 Nev. 337, 341, 131 P.3d 5, 8 (2006) ; Health Plan of Nev., 120 Nev. at 695, 100 P.3d at 176.

In this appeal, Knickmeyer asserts that the EJDC violated his due process rights by failing to comply with certain provisions of NRS Chapter 289 relating to discovery. He also contends that the arbitrator manifestly disregarded relevant law and exceeded his authority by determining that Knickmeyer's conduct violated standards not articulated within the MOU and by failing to make required findings of reasonableness.²

NRS Chapter 289

Knickmeyer first argues that his statutory rights under NRS Chapter 289 were violated because he was not provided with discovery relating to three prior disciplinary incidents (from 1997, 2003, and 2013) that were used against him during the arbitration, in violation of the requirements of NRS 289.040, NRS 289.057, and NRS 289.060.

As an initial observation, however, Knickmeyer waived this objection by failing to ever request any such discovery below or object to any failure to receive it to the arbitrator. See Carrigan v. Comm'n on Ethics, 129 Nev. 894, 905 n.6, 313 P.3d 880, 887 n.6 (2013) ("Arguments not raised before the appropriate administrative tribunal and in the district court normally cannot be raised for the first time on appeal."). Moreover, the arbitrator expressly stated that he was not relying upon the prior incidents in reaching his decision and that the instant incident alone provided sufficient grounds for termination. Consequently, any discovery relating to those incidents is entirely irrelevant to the case at hand. See NRCP 61 ("The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties."); see also Cook v. Sunrise Hosp. & Med. Ctr., LLC, 124 Nev. 997, 1006, 194 P.3d 1214, 1219 (2008) ("[W]hat is clear from our caselaw is that prejudice must be established in order to reverse a district court judgment; it is not presumed and is established by providing record evidence showing that, but for the error, a different result might have been reached.").

To overcome these defects, Knickmeyer argues on appeal that, under NRS Chapter 289, all discovery relating to prior disciplinary actions must automatically be provided whether any party individually requests it or not, and whether or not the arbitrator ultimately ended up relying upon it in his final decision. Knickmeyer's argument hinges on two contentions: first, that the statutes in question apply to him as a judicial marshal employed by the EJDC and, second, if they do apply, that they were violated by the EJDC in this case despite his never having requested discovery or objected to its absence. Both contentions must be true for Knickmeyer to win this appeal; if either fails, then we must decide the issue against him.

NRS Chapter 289 grants certain procedural protections to "peace officers" whenever adverse employment actions are initiated against them by their employers. See NRS 289.010(3). See generally Bisch v . Las Vegas Metro. Police Dep't, 129 Nev. 328, 336–37, 302 P.3d 1108, 1114 (2013). Judicial marshals are specifically identified as peace officers in NRS 289.150(4). Knickmeyer thus argues that all of the protections of NRS Chapter 289 must apply to him. Knickmeyer is partially correct in that judicial marshals are "peace officers" covered by the statute and therefore certain sections of NRS Chapter 289 indisputably apply to judicial marshals such as him.

This, however, doesn't quite resolve the question at hand. Peace officer or not, portions of Chapter 289 apply only to petitioners who are employed by a "law enforcement agency." See, e.g., NRS 289.020(1) ("A law enforcement agency shall not use punitive action ...."); NRS 289.025 ("the home address of a peace officer and any photograph in the possession of a law enforcement agency are not public information"). Other portions of this chapter do not contain this limitation. See, e.g., NRS 289.810(1) ("A peace officer shall not use a choke hold on any other person"); NRS 289.820(1) ("A peace officer shall not engage in racial profiling"). We must presume that the inclusion or omission of these words from different parts of the statute was purposeful. See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 170 (2012) ("[A] material variation in terms suggests a variation in meaning."). Consequently, the plainest and most obvious meaning of Chapter 289 is that many portions of it apply broadly to any peace officer employed by any entity, but other portions apply in a more limited way only to peace officers employed by a "law enforcement agency."

The statutes that Knickmeyer alleges that the EJDC violated in this case are NRS 289.040, NRS 289.057, and NRS 289.060,³ which set forth procedures that must be employed before a peace officer can be subjected to adverse employment action. NRS 289.040 prohibits law enforcement agencies from inserting unfavorable comments into the peace officer's administrative file unless certain requirements are met. NRS 289.057 governs how a law...