Father Flanagan's Boys' Home v. Agnew

• Citation: 256 Neb. 394,590 N.W.2d 688
• Decision Date: 12 March 1999
• Docket Number: No. S-97-1176,S-97-1176
• Parties: , 79 Fair Empl.Prac.Cas. (BNA) 1574 FATHER FLANAGAN'S BOYS' HOME, appellee, v. Kenneth P. AGNEW, appellant.
• Court: Supreme Court of Nebraska

Page 688

590 N.W.2d 688

256 Neb. 394, 79 Fair Empl.Prac.Cas. (BNA) 1574

FATHER FLANAGAN'S BOYS' HOME, appellee, v. Kenneth P. AGNEW, appellant.

No. S-97-1176.

Supreme Court of Nebraska.

March 12, 1999.

Syllabus by the Court

1. Administrative Law: Final Orders: Appeal and Error. A judgment or final order rendered by a district court in a judicial review pursuant to the Administrative Procedure Act may be reversed, vacated, or modified by an appellate court for errors appearing on the record.

2. Administrative Law: Final Orders: Appeal and Error. When reviewing an order of a district court under the Administrative Procedure Act for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable.

3. Judgments: Appeal and Error. An appellate court, in reviewing a district court judgment for errors appearing on the record, will not substitute its factual findings for those of the district court where competent evidence supports those findings.

4. Judgments: Appeal and Error. When reviewing a question of law, an appellate court reaches a conclusion independent of the lower court's decision.

5. Fair Employment Practices: Civil Rights. The Nebraska Fair Employment Practice Act is patterned after part of the federal Civil Rights Act of 1964, and it is appropriate to look to federal court decisions construing similar and parent federal legislation in interpreting the act.

6. Evidence: Proof: Words and Phrases. Direct evidence is evidence which, if believed, proves existence of fact in issue without any inference or presumption.

John L. Apker and Christopher D. Curzon, of Dwyer, Smith, Grimm, Gardner, Pohren, Lazer & Rogers, Omaha, for appellant.

Sam Jensen, of Erickson & Sederstrom, P.C., Omaha, for appellee.

HENDRY, C.J., WRIGHT, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

MILLER-LERMAN, J.

NATURE OF CASE

On October 14, 1997, the district court for Douglas County reversed the finding of the Nebraska Equal Opportunity Commission (NEOC) that Kenneth P. Agnew had been unlawfully discharged by Father Flanagan's Boys' Home (Boys Town) on the basis of his gender. Agnew appeals. We affirm the decision of the district court.

STATEMENT OF FACTS

Agnew began working for Boys Town in 1980, when he and his wife were hired as family teachers. Family teachers are married couples who live in homes on the Boys Town campus with children admitted to Boys Town. One family teacher couple is assigned to each residence, along with an assistant family teacher who supports the couple on a non-live-in basis. Residences are grouped in "communities," overseen by a community director. Each community director is assisted by two assistant directors, to whom specific homes within the community are assigned. The assistant directors' responsibilities include guiding the family teacher couples and the assistants through the daily operations of the homes and the raising and training of the children. Boys Town develops an individualized treatment plan for every child under its care, which plan addresses the training, social skills, and care needed by the child. Assistant directors are responsible for knowing and monitoring the plans for all children under their supervision. As part of their duties, assistant directors meet weekly with the family teacher couples they supervise to discuss issues concerning the homes, including each resident's treatment plan.

At the time of the administrative hearing in this case, Boys Town had seven residential communities. Initially, only boys were admitted to Boys Town. Later, girls were allowed to become residents. The children are divided into single-sex communities. At the time of the hearing, Boys Town Communities III, VI, and VII were all-girl communities.

In 1985, Agnew was promoted to senior assistant director of continuing care. In 1989, Agnew was promoted again, this time to the position of assistant director of Community VII, an all-girl community. Agnew continued to hold this position until his termination of employment. When Agnew first began working as the assistant director of Community VII, the community director was Mark Jones, a man. Later, Rita Borgstadt, a woman, became the director for Community VII. Agnew received satisfactory performance reviews while an assistant director. It was undisputed that but for the specific incident which preceded Agnew's termination from employment, he had not been at risk of being discharged.

In June 1994, a 17-year-old female, A.M., was a resident of Community VII, under the supervision of Gary Stessman and Brenda Stessman, her family teacher couple. At the time, A.M. was 8 1/2 months pregnant. Part of A.M.'s treatment plan included medical care relative to her pregnancy and the anticipated birth of her child. During their weekly meetings, the Stessmans and Agnew would discuss A.M.'s medical condition and care.

In the later months of her pregnancy, A.M. had been experiencing "Braxton Hicks contractions." Part of Brenda Stessman's responsibilities included attending Lamaze classes with A.M. and teaching her to deal with the Braxton Hicks contractions. Due to her youth and inexperience, these contractions scared A.M., often causing her to panic and cry out in response to the contractions. The record shows that in May 1994, while watching Boys Town graduation ceremonies, A.M. tripped as she was walking up an aisle and began experiencing a series of contractions. According to Brenda Stessman,

She was going up the aisle to take some pictures, and she tripped and fell in the aisle. And the scare it must have been caused her to have one of those Braxton-Hicks contractions, and she--it scared her, and she panicked a little bit.

And so they called the rescue unit to come, and they just looked at her for a while, had her sit in the cruiser. They didn't take her to the hospital, but she sat in the ambulance for a little while, and they just monitored her vital signs, and she was fine.

There was some evidence at the hearing that A.M.'s response to the Braxton Hicks contractions may have been, in part, an effort to gain attention.

During her residency at Boys Town, A.M. was assigned to assist Ann Wickenhauser, Boys Town's greenhouse manager. Wickenhauser oversaw Boys Town's greenhouses, gardens, fountains, and flowerbeds. She supervised Boys Town children as they performed various gardening duties. On June 2, 1994, a group of students under Wickenhauser's supervision, including A.M., was cleaning portions of Dowd Chapel on the Boys Town campus. According to Wickenhauser's testimony, while supervising the cleaning duties, she found A.M. lying on her side in the back of the chapel, crying and complaining that she had cramps. Wickenhauser tried to contact the Stessmans, and when she was unable to reach them, she paged Agnew, who was in a residence across the street from the chapel.

When Agnew called Wickenhauser, she explained the situation. According to Wickenhauser, Agnew responded that A.M. was using the incident to get attention and that Wickenhauser should just explain to A.M. that everything would be fine. Wickenhauser also stated that Agnew said A.M. "had gotten herself into a mess and--and a fix and she was going to have to expect some kind of pain--some kind of pain with it in response to the Braxton-Hicks, and he said, you know, that was part of it."

Wickenhauser testified she returned to A.M. and explained to her that she would be fine and that she was probably having Braxton Hicks contractions. Wickenhauser testified at the hearing that when A.M. continued to moan, she asked A.M. if she was going to be all right.

And I said, "Are you going to be okay?" And she said, "I don't think so."

And so I went back in, and we had a whole bunch of kids by that time that were around because the other church had finished their tasks. And so I went back, and I called, and I said, "We need to get her picked up." And [Agnew] said, "That's"--[sic] he was just across the street.

"Go ahead and have her walk across the street." And I said--I left, and I said okay and left and told one of my staff to go get the truck because we were going to go and just deliver her. [Agnew] had given me directions where it was, and it wasn't very far.

We were just going to deliver her to the house. Well, by the time I went to get her out of the pew, and by the time we got her out of the pew, she had collapsed. And so I sent all my kids away and ran back, called [Agnew] and said, "I'm calling the squad," kind of pretty much hung up on him and called the squad.

Upon hearing that the rescue squad had been called, Agnew walked across the street to the chapel. Agnew testified he talked to A.M., who advised Agnew that the pain was a little bit different than it had been previously. The rescue squad evaluated A.M. and decided to take her to the hospital.

Agnew overheard the rescue squad personnel comment that they were planning to take A.M. to Methodist Hospital. Agnew recalled a prior directive from Fr. Val Peter, the director of Boys Town, that Boys Town residents should not be taken to Methodist Hospital, but, rather, should go to St. Joseph Hospital. Agnew contacted Father Peter and informed him of the situation. Father Peter wanted to know what A.M.'s treatment plan was, namely, who was her treating physician and at what hospital she was scheduled for treatment. Agnew did not know and instructed the rescue squad to call the Boys Town clinic to get the information. The clinic reported A.M.'s treating physician was a Dr. Grush and that A.M. should go to St. Joseph Hospital. In a statement taken as part of the investigation following the incident, which statement was admitted into evidence, Agnew admitted that the information did not "sound right but [he] didn't know."

Agnew was soon paged by Borgstadt, the director for Community VII, who wanted to know what...