McEwen v. Neb. State Coll. Sys.
| Citation | 936 N.W.2d 786,27 Neb.App. 896 |
| Decision Date | 17 December 2019 |
| Docket Number | No. A-17-638.,A-17-638. |
| Parties | Dr. Robert MCEWEN, appellant, v. NEBRASKA STATE COLLEGE SYSTEM, appellee. |
| Court | Court of Appeals of Nebraska |
Howard P. Olsen, Jr., and Adam A. Hoesing, of Simmons Olsen Law Firm, P.C., Scottsbluff, for appellant.
George E. Martin III and Leigh Campbell Joyce, of Baird Holm, L.L.P., Omaha, for appellee.
Dr. Robert McEwen appeals the decision of the district court for Dawes County which overruled his petition in error challenging the termination of his employment. On appeal, he alleges that the court’s decision was erroneous because the Nebraska State College System (NSCS) failed to comply with a contractually required provision prior to terminating his employment. Finding no merit to this argument, we affirm.
McEwen was a tenured professor at Chadron State College (CSC). He and NSCS were members of the State College Education Association, which was a party to a collective bargaining agreement (the CBA) effective from July 1, 2015, through June 30, 2017. Under the CBA, faculty members, tenured and nontenured, may be dismissed for just cause. Section 17.3 of the CBA provided,
In the fall of 2015, one of McEwen’s students filed a formal complaint against McEwen with CSC’s administration alleging discrimination. The associate vice president of human resources at CSC, Anne DeMersseman, began an investigation into the complaint. In October, Dr. Charles Snare, the vice president for academic affairs at CSC, and Dr. James Margetts, a dean at CSC who oversaw McEwen, authored a letter to McEwen outlining the concerns raised in the complaint and subsequent investigation. A meeting concerning the complaint was held on October 30, and McEwen, Snare, Margetts, and DeMersseman attended, as well as an auditor for McEwen due to his hearing difficulties. Snare, Margetts, and DeMersseman discussed the matter after the meeting and decided to recommend dismissal of McEwen.
A second meeting was held on November 10, 2015. McEwen, Snare, and Margetts attended the meeting, which was held in Margetts’ office. Margetts requested Snare’s presence as a witness, but Snare did not speak at all during the meeting. Margetts informed McEwen that he was recommending McEwen’s dismissal and offered him the opportunity to resign rather than be subject to dismissal. Upon the advice of his union representative, McEwen declined to comment, and at the end of the meeting, which lasted approximately 5 minutes, Margetts provided McEwen a copy of the letter recommending his dismissal.
Subsequently, the president of CSC sent written notice of the recommendation to McEwen. Pursuant to procedure set forth by the CBA, McEwen requested a hearing before an advisory committee. Prior to the hearing, McEwen filed a motion for reinstatement and dismissal of recommendation of dismissal. The motion alleged, in part, that CSC had not complied with the requirements of section 17.3 of the CBA. The advisory committee denied the motion. The audio-recorded hearing took place in February 2016; evidence was presented, witnesses testified, and the recording was transcribed. At the conclusion of the hearing, McEwen renewed his motion. The motion was again denied. The advisory committee unanimously found that just cause for McEwen’s dismissal existed and recommended the termination of his employment.
The president of CSC sent to McEwen a written letter dated March 16, 2016, in which he affirmed the findings and recommendations of the advisory committee and discharged McEwen’s employment. McEwen then made a written request to NSCS’ chancellor requesting a hearing before NSCS’ board of trustees. In a response letter, the chancellor denied McEwen’s request for a hearing, thereby finalizing the discharge.
On May 17, 2016, McEwen filed a petition in error in the district court. He alleged that he had been wrongfully terminated from his position as a tenured professor at CSC. As relevant to this appeal, he asserted that NSCS failed to follow the procedure set forth in section 17.3 of the CBA. Specifically, he claimed that section 17.3 mandated a "private" meeting between McEwen and Margetts and that because Snare was also present at the November 10, 2015, meeting, it did not satisfy section 17.3’s requirements.
The district court disagreed, finding that the November 10, 2015, meeting satisfied the requirements of section 17.3. The court found that the term "private" required some restriction to participation in and observance of the occurrence, and it found that that standard was satisfied when the November 10 meeting took place in a private office, behind " ‘closed doors,’ " and with no verbatim record kept. The court erroneously found that an auditor for McEwen was present at the meeting in addition to McEwen, Snare, and Margetts, but noted that neither the auditor nor Snare actively participated in the meeting. The court therefore overruled McEwen’s petition in error.
McEwen filed a motion for new trial or, in the alternative, an order to vacate the judgment. In its order denying the motion, the district court recognized that it had made a factual error in its prior order in that an auditor was not present at the November 10, 2015, meeting. However, the court concluded that this factual error did not mandate a vacation of its previous order; thus, it denied McEwen’s motion to vacate. The motion for new trial was also denied.
McEwen then filed a notice of appeal. This court summarily dismissed the appeal for lack of jurisdiction, finding that McEwen’s motion for new trial did not toll the time to file a notice of appeal and that McEwen’s notice of appeal was not timely filed. On petition for further review, the Nebraska Supreme Court, overruling prior precedent, determined that Neb. Rev. Stat. § 25-1329 (Reissue 2016) applies to a judgment of a district court acting as an intermediate appellate court. See McEwen v. Nebraska State College Sys. , 303 Neb. 552, 931 N.W.2d 120 (2019). Consequently, it concluded that McEwen’s alternative motion to vacate qualified as a motion to alter or amend a judgment; therefore, his notice of appeal was timely. Id. Accordingly, the Supreme Court reversed the summary dismissal of the appeal and remanded the cause to this court for further proceedings. Id. We now proceed to address the merits of the appeal.
McEwen assigns, consolidated and restated, that the district court erred in overruling his petition in error because NSCS failed to meet the requirements of section 17.3 of the CBA.
We independently review questions of law decided by a lower court. Timberlake v. Douglas County , 291 Neb. 387, 865 N.W.2d 788 (2015). The interpretation of a contract and whether the contract is ambiguous are questions of law. Id.
McEwen alleges that NSCS failed to follow section 17.3 of the CBA, which requires that the Dean "meet privately" with him to discuss the recommendation for dismissal. McEwen argues that the term "privately" mandates a "one-on-one" meeting between him and Margetts and that he never received his private meeting prior to his dismissal, because Snare was present at the November 10, 2015, meeting. See brief for appellant at 22. NSCS claims that McEwen’s definition of the term "privately" is too narrow and that rather than limiting the number of attendants at the meeting, the term requires a " ‘non-public’ " or " ‘off-the-record’ " meeting. See brief for appellee at 13. Thus, the issue before us is the meaning of the term "privately" as used in section 17.3.
In interpreting a contract, a court must first determine, as a matter of law, whether the contract is ambiguous. Gibbons Ranches v. Bailey , 289 Neb. 949, 857 N.W.2d 808 (2015). A contract is ambiguous when a word, phrase, or provision in the contract has, or is susceptible of, at least two reasonable but conflicting interpretations or meanings. Id. When the terms of a contract are clear, a court may not resort to rules of construction, and the terms are to be accorded their plain and ordinary meaning as an ordinary or reasonable person would understand them. Id. The fact that the parties have suggested opposing meanings of a disputed instrument does not necessarily compel the conclusion that the instrument is ambiguous. Id.
Although the parties have suggested conflicting interpretations in the present case, neither party suggests that the contract is ambiguous, and we find that it is not. As such, we give the term "privately" its plain and ordinary meaning.
The Supreme Court has often turned to dictionaries to ascertain a word’s plain and ordinary meaning. See State v. Gilliam , 292 Neb. 770, 874...
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