Geffre v. N.D. Dep't of Health

Decision Date22 March 2011
Docket NumberNo. 20100110.,20100110.
Citation795 N.W.2d 681,2011 ND 45
PartiesRaymond J. GEFFRE, Appellant and Cross–Appelleev.NORTH DAKOTA DEPARTMENT OF HEALTH, Appellee and Cross–Appellant.
CourtNorth Dakota Supreme Court

OPINION TEXT STARTS HERE

Deborah Joan Carpenter, Bismarck, N.D., for appellant and cross-appellee.Kirsten Renata Franzen, Assistant Attorney General, North Dakota Office of Attorney General, Bismarck, N.D., for appellee and cross-appellant.KAPSNER, Justice.

[¶ 1] Raymond J. Geffre appeals from a judgment affirming an administrative decision upholding the Department of Health's termination of his employment for cause. The Department cross-appeals from the district court's denial of its motion to dismiss Geffre's appeal and the court's award to Geffre of $1,289.79 in attorney fees incurred for responding to the Department's motion. We conclude that the district court did not err in refusing to dismiss Geffre's appeal, that the court did not abuse its discretion in awarding Geffre attorney fees, and that the administrative law judge's findings are supported by a preponderance of the evidence and those findings support the conclusions of law. We affirm the judgment as modified.

I

[¶ 2] The Department hired Geffre for the position of fire and life safety surveyor in December 2000. The position entailed surveying basic health care facilities, hospitals, long-term care facilities, ambulatory surgery centers, and intermediate care facilities for compliance with the Life Safety Code. In April 2004, Geffre received a pre-action notice informing him that the Department was considering disciplinary action against him for failing to follow departmental policy in accurately reporting hours worked, claiming payment for hours not worked, and working non-standard work days. After receiving a satisfactory response from Geffre, the Department took no further action.

[¶ 3] Geffre was issued another pre-action notice by the Department in February 2005. This notice informed Geffre the Department was considering terminating his employment for “your continuing performance problems” in the form of “your apparent disregard of your inappropriate use of Department time, your untruthfulness, [and] your failure to follow the policy and directive ... for working a non-standard workday.” After his employment was terminated, Geffre filed an internal grievance which was reviewed by the State Health Officer. Although noting Geffre's actions provided “adequate grounds for dismissal,” the State Health Officer reinstated Geffre's employment. The State Health Officer said to Geffre in a letter that he had “decided to provide you one last opportunity to appropriately follow policies and procedures,” and further informed him:

Your supervisor will outline specifically what is expected of you in terms of performance standards and professional behavior. Your performance will be monitored closely. It is my sincere hope that you recognize the seriousness of your actions and take corrective action to prevent any recurrence.

Upon his reinstatement, Geffre was presented with a work plan to monitor his work time and periodic performance reviews were scheduled. Geffre signed the document, agreeing with the contents of the work plan and stating he would abide by those conditions of employment as well as any state, Department, section and division policies, procedures and guidelines.

[¶ 4] Under the work plan, Geffre was required to log in and log out with an electronic key card when working in the Bismarck office. In September 2005, Geffre failed to comply with a Department directive when he parked in an unauthorized area on the Capitol grounds. Geffre's supervisor met with Geffre in September 2005 to discuss his performance surveys. The supervisor pointed out that safety citations made by a federal surveyor in “look behind” surveys revealed Geffre did not cite the same problems found by the federal surveyor. In addition, Geffre had a lower rate of citations than the Department's other two fire and life safety surveyors. In October 2005, it was discovered Geffre had been inaccurately recording his work time on some travel vouchers and claimed meal reimbursements he was not entitled to receive. After meeting with supervisors to discuss the work plan and the progress on his job performance, Geffre failed to consistently comply with the requirement to card in and card out, which made it difficult for the Department to evaluate the accuracy of his attendance and expense reports. Geffre was issued a written warning and a modified work plan was implemented addressing his job performance issues. Geffre continued to identify and cite fewer deficiencies than the other surveyors, and he did not provide required monthly reports or consistently card in and card out of work.

[¶ 5] Geffre's need to improve his rate of citations, which was about one-half the rate of the other surveyors, became an ongoing performance issue in his performance reviews and in his work plan. In August 2007, Geffre smoked a cigarette in a State Fleet vehicle, contrary to policy. In September 2007, Geffre was issued another pre-action notice that termination of his employment was being considered by the Department. Geffre submitted a written response admitting parking in an unauthorized area on the Capitol grounds and smoking in a state vehicle, but stated, “for the past approximately 30 months, I have been routinely subjected to different standards, different treatment, and a different level of scrutiny than other Health Department employees. The allegations contained in the Notice are the direct result of those different standards, that different treatment, and different level of scrutiny.” Geffre also said, “As a Fire Safety Surveyor, I've tried to use common sense in citing serious violations, not incidental, inconsequential trivialities. I believe that the Department's constituents have understood and appreciated my approach.” The Department terminated Geffre's employment.

[¶ 6] Geffre appealed his termination to Human Resource Management Services (“HRMS”). Following an administrative hearing, the administrative law judge (“ALJ”) upheld the Department's decision. The ALJ found the Department had cause to terminate Geffre's employment and Geffre had failed to show he was subjected to reprisal. Geffre appealed the decision to district court and served the notice of appeal and specifications of error on the State Health Officer, the Department's attorney, and the Attorney General. The Department moved to dismiss Geffre's appeal because he had failed to serve HRMS. The district court denied the motion, ordered the Department to prepare the record on appeal, and awarded Geffre $1,289.79 for attorney fees incurred in responding to the motion. The court affirmed the administrative decision upholding the Department's termination of Geffre's employment. These appeals followed.

II

[¶ 7] In its cross-appeal, the Department argues the district court erred in refusing to dismiss Geffre's appeal and in awarding Geffre attorney fees incurred in responding to the motion to dismiss.

A

[¶ 8] The Department argues Geffre's appeal should have been dismissed because Geffre failed to properly perfect the appeal. The Department contends Geffre was required to serve the notice of appeal and specifications of error on HRMS to properly perfect the appeal.

[¶ 9] An appellant must meet the statutory requirements for perfecting an administrative appeal for a district court to obtain subject matter jurisdiction over the appeal. North Dakota Dep't of Human Services v. Ryan, 2003 ND 196, ¶ 20, 672 N.W.2d 649. Appeals taken under the Administrative Agencies Practice Act are governed by N.D.C.C. § 28–32–42(4), which provides in relevant part:

An appeal shall be taken by serving a notice of appeal and specifications of error specifying the grounds on which the appeal is taken, upon the administrative agency concerned, upon the attorney general or an assistant attorney general, and upon all the parties to the proceeding before the administrative agency, and by filing the notice of appeal and specifications of error together with proof of service of the notice of appeal, and the undertaking required by this section, with the clerk of the district court to which the appeal is taken.

[¶ 10] In Ryan, 2003 ND 196, ¶ 21, 672 N.W.2d 649, this Court held the failure of an employee to serve a notice of cross-appeal on HRMS, which at that time was named the Central Personnel Division, and on the ALJ did not deprive the district court of jurisdiction over an employee's cross-appeal. The Department of Human Services served the employee's counsel and the Central Personnel Division with its notice of appeal, but the employee only served the Department of Human Services and the assistant attorney general representing the Department with his notice of cross-appeal, and did not serve the Central Personnel Division or the ALJ. Id. at ¶ 19. We noted that under N.D.C.C. § 28–32–42(4), a notice of appeal must be served upon “the administrative agency concerned, upon the attorney general or an assistant attorney general, and upon all the parties to the proceeding before the administrative agency.” Ryan, at ¶ 20. To determine whether the Central Personnel Division or the ALJ were either the “administrative agency concerned” or parties to the proceeding,” we relied on N.D.C.C. § 54–44.3–12.2, which at the time provided that [a]n appeal to the district court from the determination of the administrative hearing officer must be filed according to chapter 28–32, but neither the division nor the office of administrative hearings may be named as a party to the appeal under chapter 28–32 unless an employee of one of those two agencies is involved in the grievance.” Ryan, at ¶ 20. Because the Central Personnel Division and the ALJ were not parties to the appeal,” and the Department of Human Services was the ‘administrative agency concerned’ in the sense that...

To continue reading

Request your trial
5 cases
  • Collection Ctr. Inc. v. Bydal
    • United States
    • North Dakota Supreme Court
    • March 22, 2011
  • Ouradnik v. Henke
    • United States
    • North Dakota Supreme Court
    • February 12, 2020
    ...for perfecting an administrative appeal for a district court to obtain subject matter jurisdiction over the appeal. Geffre v. North Dakota Dep't of Health , 2011 ND 45, ¶ 9, 795 N.W.2d 681. We are mindful that an appeal from an administrative agency to the district court invokes that court’......
  • Daniels v. Ziegler
    • United States
    • North Dakota Supreme Court
    • August 29, 2013
    ...for perfecting an administrative appeal for a district court to obtain subject matter jurisdiction over the appeal. Geffre v. North Dakota Dep't of Health, 2011 ND 45, ¶ 9, 795 N.W.2d 681. We are mindful that an appeal from an administrative agency to the district court invokes that court's......
  • Meier v. N. Dakota Dep't of Human Servs.
    • United States
    • North Dakota Supreme Court
    • July 12, 2012
    ...for perfecting an administrative appeal for a district court to obtain subject matter jurisdiction over the appeal. Geffre v. North Dakota Dep't of Health, 2011 ND 45, ¶ 9, 795 N.W.2d 681. We are mindful that an appeal from an administrative agency to the district court invokes that court's......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT