Goolsby v. Anderson, S-94-1027

• Decision Date: 14 June 1996
• Docket Number: No. S-94-1027,S-94-1027
• Parties: , 71 Fair Empl.Prac.Cas. (BNA) 933 Kathy GOOLSBY, Appellant, v. Pat ANDERSON and Albertson's, Inc., Appellees.
• Court: Nebraska Supreme Court

Page 153

549 N.W.2d 153

250 Neb. 306, 71 Fair Empl.Prac.Cas. (BNA) 933

Kathy GOOLSBY, Appellant, v. Pat ANDERSON and Albertson's, Inc., Appellees.

No. S-94-1027.

Supreme Court of Nebraska.

June 14, 1996.

Syllabus by the Court

1. Judgments: Jurisdiction. A jurisdictional question does not involve a factual dispute and is resolved as a matter of law.

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

3. Statutes: Appeal and Error. Statutory interpretation is a matter of law in connection with which an appellate court has an obligation to reach an independent, correct conclusion irrespective of the determination made by the court below.

4. Statutes. In construing a statute, a court must look to the statute's purpose and give to the statute a reasonable construction which best achieves that purpose, rather than a construction which would defeat it.

5. Statutes: Legislature: Intent: Appeal and Error. In discerning the meaning of a statute, an appellate court determines and gives effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense.

6. Statutes: Appeal and Error. In construing a statute, an appellate court will, if possible, try to avoid a construction which would lead to absurd, unconscionable, or unjust results.

7. Statutes: Legislature: Intent. To ascertain the intent of the Legislature, a court may examine the legislative history of the act in question.

8. Appeal and Error. Errors assigned but not argued will not be addressed.

9. Fair Employment Practices: Actions. A plaintiff is not precluded from bringing a private cause of action for alleged violations under the Nebraska Fair Employment Practice Act.

Thomas F. Dowd, of Dowd & Dowd, Omaha, for appellant.

Mark M. Schorr, Lincoln, and Soren S. Jensen, Omaha, of Erickson & Sederstrom, P.C., for appellees.

WHITE, C.J., and FAHRNBRUCH, LANPHIER, WRIGHT, CONNOLLY, and GERRARD, JJ.

PER CURIAM.

Plaintiff-appellant, Kathy Goolsby, brought this action for alleged sexual harassment she had experienced in connection with her employment at an Albertson's supermarket. In her second amended petition, she alleged five causes of action for recovery. The district court sustained demurrers to the first, third, and fourth causes of action, which pertain to civil rights violations under the Nebraska Constitution and under the Nebraska Fair Employment Practice Act, Neb.Rev.Stat. § 48-1101 et seq. (Reissue 1988). The court subsequently dismissed these causes of action. Goolsby's second and fifth causes of action have been disposed of, and Goolsby's second amended petition has been dismissed by the district court. Goolsby now specifically appeals the district court's order dismissing the first, third, and fourth causes of action pertaining to her civil rights claims.

Goolsby assigns the following errors: (1) The district court erred in dismissing the cause of action premised on Neb. Const. art. I, § 1, and (2) the district court erred in ruling that it lacked subject matter jurisdiction under Neb.Rev.Stat. § 20-148 (Reissue 1991) to hear her causes of action pertaining to the alleged violations of the Nebraska Fair Employment Practice Act.

Goolsby filed suit in the district court seeking damages from the defendants-appellees Pat Anderson and Albertson's, Inc., for allegedly subjecting her to "sexual harassment and a sexually polluted work environment." Goolsby filed her claim under § 20-148, which allows a person to sue a person or a company for a deprivation of rights secured by Nebraska laws.

In her original petition, Goolsby alleged that the appellees deprived Goolsby of her civil rights in the private workplace that are protected by the state Constitution and the Nebraska Fair Employment Practice Act. Specifically, Goolsby alleged that she was deprived of her rights guaranteed by Neb. Const. art. I, § 1. She also alleged violations of §§ 48-1104 and 48-1114. Goolsby also alleged intentional infliction of emotional distress as a cause of action. In response, the appellees filed a demurrer alleging that Goolsby failed to state a cause of action.

The district court sustained the appellees' demurrer. In its order, the district court found that the exclusive remedy for Goolsby's Nebraska Fair Employment Practice Act claims was through the statutory scheme set out in the act. The court stated that under the act, a claim like Goolsby's must be first investigated by the Nebraska Equal Opportunity Commission (NEOC) and then be ruled on by an administrative judge.

The district court specifically stated, "A private cause of action exclusive of the remedies found in 48-1101 et seq. are not contemplated by the statutes of the state of Nebraska read in pari materia." The district court concluded that it would not have jurisdiction until Goolsby exhausted her administrative remedies and appealed an order of an administrative judge rendered pursuant to § 48-1101 et seq. The court granted Goolsby 2 weeks to amend her petition.

Goolsby filed an amended petition, to which the appellees filed a demurrer. Goolsby, however, filed a second amended petition prior to the court's consideration of this demurrer. Goolsby's first cause of action in her second amended petition again alleged that she was deprived of her rights guaranteed by Neb. Const. art. I, § 1. Goolsby's second cause of action alleged intentional infliction of emotional distress.

Goolsby's third cause of action alleged that the appellees had deprived her of "her rights, privileges and immunities to be free from sexual harassment and discrimination as secured by the laws of the State of Nebraska, specifically Neb.Rev.Stat. § 48-1104." Goolsby's fourth cause of action alleged that Albertson's constructive transfer of Goolsby "constitutes retaliation in violation of Neb.Rev.Stat. § 48-1114." Goolsby's fifth cause of action alleged that the appellees breached the employment contract.

In response, the appellees filed a demurrer contending that the district court did not have subject matter jurisdiction and that the petition failed to state a cause of action.

The district court issued an order again sustaining the demurrers as to the first, third, and fourth causes of action. Goolsby stood on her petition, and the court dismissed her first, third, and fourth causes of action. The court, however, overruled the demurrer as to Goolsby's second and fifth causes of action.

Goolsby appealed the district court's order to the Nebraska Court of Appeals. The Court of Appeals dismissed the appeal, concluding that it lacked jurisdiction for the reason that there had not yet been a final disposition of all causes of action pled by Goolsby. Goolsby v. Anderson, 3 NCA 750, 1993 WL 173844 (1993).

Goolsby has dismissed without prejudice the second cause of action. The district court, after presentation of evidence in a jury trial on the fifth cause of action, dismissed the same. Goolsby has not appealed the order dismissing her fifth cause of action. Rather, Goolsby only appeals the district court's order dismissing her first, third, and fourth causes of action.

Regarding this court's standard of review, a jurisdictional question does not involve a factual dispute and is resolved as a matter of law. Dittrich v. Nebraska Dept. of Corr. Servs., 248 Neb. 818, 539 N.W.2d 432 (1995). When reviewing a question of law, an appellate court reaches a conclusion independent of the lower court's ruling. Whitten v. Malcolm, 249 Neb. 48, 541 N.W.2d 45 (1995).

Statutory interpretation is a matter of law in connection with which an appellate court has an obligation to reach an independent, correct conclusion irrespective of the determination made by the court below. In re Estate of Soule, 248 Neb. 878, 540 N.W.2d 118 (1995).

In construing a statute, a court must look to the statute's purpose and give to the statute a reasonable construction which best achieves that purpose, rather than a construction which would defeat it. Solar Motors v. First Nat. Bank of Chadron, 249 Neb. 758, 545 N.W.2d 714 (1996).

In discerning the meaning of a statute, an appellate court determines and gives effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense. In re Interest of Todd T., 249 Neb. 738, 545 N.W.2d 711 (1996). In addition, this court will, if possible, try to avoid a construction which would lead to absurd, unconscionable, or unjust results. Nichols v. Busse, 243 Neb. 811, 503 N.W.2d 173 (1993).

Moreover, to ascertain the intent of the Legislature, a court may examine the legislative history of the act in question. Omaha Pub. Power Dist. v. Nebraska Dept. of Revenue, 248 Neb. 518, 537 N.W.2d 312 (1995); Georgetowne Ltd. Part. v. Geotechnical Servs., 230 Neb. 22, 430 N.W.2d 34 (1988).

Goolsby's first assignment of error concerning a violation under art. I, § 1, of the state Constitution was not discussed in her brief. Errors assigned but not argued will not be addressed. Jirkovsky v. Jirkovsky, 247 Neb. 141, 525 N.W.2d 615 (1995). Therefore, we will not address this assignment of error.

We must next determine whether § 20-148, when reading the statutes of this state in pari materia, allows a claimant to bring a private cause of action in state court for violations under the Nebraska Fair Employment Practice Act before exhausting the available administrative remedies under the act. Section 20-148 provides:

Any person or company ... except any political subdivision, who subjects or causes to be subjected any citizen of this state ... to the deprivation of any rights, privileges, or immunities secured by the United States Constitution or the Constitution and laws of the State of Nebraska, shall be liable to such injured person in a civil action...