City of North Las Vegas v. State Local Gov't Employee–mgmt. Relations Bd.

• Decision Date: 29 September 2011
• Docket Number: No. 54849.,54849.
• Citation: 127 Nev. Adv. Op. 57,261 P.3d 1071
• Parties: CITY OF NORTH LAS VEGAS and North Las Vegas Police Department, Appellants,v.The STATE of Nevada LOCAL GOVERNMENT EMPLOYEE–MANAGEMENT RELATIONS BOARD and Eric Spannbauer, Respondents.
• Court: Nevada Supreme Court

261 P.3d 1071

127 Nev. Adv. Op. 57

CITY OF NORTH LAS VEGAS and North Las Vegas Police Department, Appellants,

v.The STATE of Nevada LOCAL GOVERNMENT EMPLOYEE–MANAGEMENT RELATIONS BOARD and Eric Spannbauer, Respondents.

No. 54849.

Supreme Court of Nevada.

Sept. 29, 2011.

Nicholas G. Waskov, Acting City Attorney, L. Steven Demaree, Chief Deputy City Attorney, and Chris Davis, Deputy City Attorney, North Las Vegas, for Appellants.Catherine Cortez Masto, Attorney General, and Scott R. Davis, Deputy Attorney General, Carson City, for Respondent, State of Nevada Local Government Employee–Management Relations Board.Law Office of Daniel Marks and Adam Levine and Daniel Marks, Las Vegas, for Respondent Eric Spannbauer.Before the Court En Banc.

OPINION

By the Court, CHERRY, J.:

In this appeal from a district court order denying a petition for judicial review, we first consider the Employee–Management Relations Board's (EMRB) power to consider respondent Eric Spannbauer's NRS Chapter 288 claims involving prohibited labor practices by a local government employer. In doing so, we determine whether the six-month deadline for filing claims with the EMRB under NRS 288.110(4) is subject to equitable tolling. We conclude that, like the federal statute on which it was based and the limitations periods of other similar remedial statutes, NRS 288.110(4) is a statute of limitations subject to equitable tolling. Therefore, even when a local government employee files a complaint against the employer more than six months after the complained-of act occurred, the complaint might be timely based on the doctrine of equitable tolling. In the matter before us, we conclude that equitable tolling applied to allow the EMRB to hear Spannbauer's claims of NRS Chapter 288 violations because he was diligent in filing his claims after acquiring knowledge of such violations.

We next consider the merits of the EMRB's decision and, thus, whether there was substantial evidence to support the EMRB's findings that Spannbauer's employers, appellants the City of North Las Vegas and the North Las Vegas Police Department, impermissibly interfered with Spannbauer's right to a predisciplinary hearing and discriminated against Spannbauer on the basis of his gender. After carefully reviewing the record, we conclude that substantial evidence supports the EMRB's finding that the Department interfered with the right to a predisciplinary hearing and discriminated against Spannbauer on the basis of his gender. As such, we affirm the district court's order denying the City and the Department's petition for judicial review.

FACTS

Spannbauer was hired by the North Las Vegas Police Department as a police officer and placed on probationary status for the first 18 months of employment. While still a probationary employee, in 2005, Spannbauer conducted a traffic stop on a female driver for allegedly not coming to a complete stop at a red light. After the driver was unable to provide Spannbauer with proof of registration and insurance, Spannbauer followed her to her nearby residence to retrieve the documents. Thereafter, the driver's husband submitted a complaint to the Department, asserting that Spannbauer had made sexually inappropriate comments when he accompanied the driver to her residence to retrieve the registration and insurance documents. Consequently, the Department's Internal Affairs Division commenced an investigation. While the investigation was ongoing, Spannbauer's probationary period ended, apparently with no adverse consequences precluding him from being confirmed as a nonprobationary police officer. Once the investigation concluded, however, the Department charged Spannbauer with unprofessional conduct and unsatisfactory work performance and placed him on administrative leave.

Although Spannbauer initially was assigned a union representative, before the internal affairs investigation concluded, the representative was removed by Dave Smith, President of the North Las Vegas Police Department Association. Spannbauer was not assigned a new representative, but Mark Paresi, Chief of Police for the Department, told Smith that the Department had the option of treating Spannbauer as a probationary employee, and Smith told Spannbauer that the Department might treat him as a probationary employee. Smith also told Spannbauer that Paresi believed that it was in Spannbauer's best interest to resign, as no other law enforcement agency could look at Spannbauer's file in regard to future employment. Then, Smith advised Spannbauer that he could either resign or proceed with a predisciplinary hearing as a probationary employee. The Department prepared a letter of agreement for Spannbauer to sign. On November 7, 2005, Spannbauer resigned, signing the letter of agreement, in which he agreed that he would neither sue nor make any other claims against the City or the Department in consideration for the internal affairs investigation being closed.

Approximately five months later, on April 5, 2006, Spannbauer learned that, around the same time that he had faced disciplinary charges, a female probationary employee of the Department also had been charged with unprofessional misconduct, albeit while off duty, and had been disciplined for the misconduct after the probationary period was over. The female employee received a two-week suspension without pay. The Department did not consider treating the female employee as a probationary employee, nor did it give her the option to resign.¹

Approximately two months after learning of the female employee's charges and discipline, on June 1, 2006, Spannbauer filed a complaint with the EMRB against the Association, the City, and the Department, alleging multiple prohibited practices in violation of NRS Chapter 288, including gender discrimination. Although NRS 288.110(4) provides that the EMRB may not consider complaints filed more than six months after the complained-of incident, the EMRB asserted jurisdiction over Spannbauer's claims based upon the doctrine of equitable tolling, apparently concluding that Spannbauer did not know and could not have known about any violation of his rights until he learned of the different treatment received by the female employee. An evidentiary hearing was conducted over six days between October 22, 2007, and February 11, 2008.

During the hearing, Smith, the Association president, acknowledged that Spannbauer was a confirmed, nonprobationary employee at the time the disciplinary charges were brought against him. However, Smith stated that Paresi, the Department chief, had asserted that Spannbauer nevertheless could be considered a probationary employee for purposes of discipline, since Spannbauer was a probationary employee when the incident occurred. Also during the hearing, Spannbauer testified that Smith told him that he was going to be treated as a probationary employee and that existing caselaw supported him being treated as a probationary employee. Spannbauer also testified that Smith, based on Paresi's assertions, told him that his law enforcement career would be over if he did not resign, and that the Association would not represent him if it he was treated as a probationary employee. Further, Spannbauer testified that he reluctantly signed the letter of agreement based on Smith's opinions. Spannbauer testified that he was not advised about his rights under the collective bargaining agreement between the Association and the City, he was not provided with all of the internal affairs records in order to properly defend himself, he was never advised that he could challenge his probationary status or file a grievance, and neither Smith nor his prior representative filed a grievance regarding policy violations during the internal affairs investigation interviews of other officers. Paresi did not testify at the EMRB hearing.

Initially, the EMRB found that Spannbauer's complaint was filed in a timely manner because Spannbauer did not know and could not have known about a violation of his rights until he learned of the different treatment received by the female employee. The EMRB also found that the City and the Department had committed prohibited labor practices, and that the Association had breached its duty of fair representation. Specifically, the EMRB found, among other things, that: (1) Spannbauer was a local government employee as defined in NRS 288.050, (2) there was no verification of whether caselaw existed supporting the City and the Department treating Spannbauer as a probationary employee, (3) no evidence was presented that Spannbauer's probationary period was extended, (4) the City and Department did not fully investigate this matter, (5) the Department's internal investigation was conducted contrary to its policy, (6) Spannbauer resigned based upon the misinformation conveyed to him concerning his probationary status with the Department, and (7) the City and the Department had improperly treated Spannbauer and the female employee differently in violation of NRS 288.270. The EMRB ordered that the City, Department, and Association refrain from prohibited labor practices and reinstated Spannbauer to his prior position of paid administrative leave pending a predisciplinary hearing.

The City and the Department petitioned the district court for judicial review. The district court denied the petition, finding that the EMRB's decision was supported by substantial evidence and was neither arbitrary nor capricious. The City, on behalf of itself and the Department, filed this appeal.²

DISCUSSION

Standard of review

This court, like the district court, gives considerable deference to the EMRB's rulings. Truckee Meadows v. Int'l Fire Fighters, 109 Nev. 367, 369, 849 P.2d 343, 345 (1993); see also NRS 233B.135(3)(e), (f). “ ‘Unless the board should act arbitrarily, unreasonably or capriciously beyond administrative boundaries the courts must give credence to the findings of the board. An...