Petersen v. Nebraska Dep't of Health & Human Servs.

Decision Date08 November 2011
Docket NumberNo. A–10–975.,A–10–975.
PartiesJames PETERSEN, appellant, v. NEBRASKA DEPARTMENT OF HEALTH AND HUMAN SERVICES et al., appellees.
CourtNebraska Court of Appeals

19 Neb.App. 314
805 N.W.2d 667

James PETERSEN, appellant,
v.
NEBRASKA DEPARTMENT OF HEALTH AND HUMAN SERVICES et al., appellees.

No. A–10–975.

Court of Appeals of Nebraska.

Nov. 8, 2011.


[805 N.W.2d 668]

Syllabus by the Court

[19 Neb.App. 314] 1. Administrative Law: Judgments: Appeal and Error. A judgment or final order rendered by a district court in a judicial review pursuant to the Administrative [19 Neb.App. 315] Procedure Act may be reversed, vacated, or modified by an appellate court for errors appearing on the record.

2. Administrative Law: Judgments: 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: Evidence: Words and Phrases: Appeal and Error. An appellate court will not substitute its factual findings for those of the district court where competent evidence supports those findings. Competent evidence means evidence that tends to establish the fact in issue.

4. Judgments: Appeal and Error. Whether a decision conforms to law is by definition a question of law, in connection with which an appellate court reaches a conclusion independent of that reached by the lower court.

5. Termination of Employment: Words and Phrases. “Just cause” for dismissal is that which a reasonable employer, acting in good faith, would regard as good and sufficient reason for terminating the services of an employee, as distinguished from an arbitrary whim or caprice.

6. Appeal and Error. An appellate court is not obligated to engage in an analysis which is not needed to adjudicate the controversy before it.

James L. Haszard, of McHenry, Haszard, Roth & Hupp, P.C., L.L.O., Lincoln, for appellant.

Jon Bruning, Attorney General, and John L. Jelkin for appellees.

INBODY, Chief Judge, and SIEVERS and MOORE, Judges.

INBODY, Chief Judge.

INTRODUCTION

James Petersen appeals from the Lancaster County District Court's order affirming Petersen's termination from his employment with the Nebraska Department of Health and Human Services (DHHS). For the following reasons, we affirm.

STATEMENT OF FACTS
Background.

Petersen had been employed with DCS for approximately 28 years and was a

[805 N.W.2d 669]

member of the Nebraska Association of [19 Neb.App. 316] Public Employees Local 61 of the American Federation of State, County and Municipal Employees (NAPE). Petersen worked at the Lincoln Regional Center (LRC) as a mental health security specialist II. Through his employment, Petersen was responsible for providing direct care to LRC patients in the forensics or security program, which included mental health board commitments with serious and persistent mental illnesses, court-ordered referrals, criminal defendants found not guilty by reason of insanity, and sexual offenders. On January 7, 2009, a tour of an LRC building was being given to a Nebraska State Patrol SWAT team. At approximately 2:30 p.m., one of the visiting SWAT team members stepped into the stairwell of the building to receive a cellular telephone call. Petersen, who had just arrived for work, passed the member in the stairwell, during which time the member detected the odor of burnt marijuana. LRC personnel were informed, and Petersen was assessed by the director of nursing and allowed to return to work. Shortly thereafter, Petersen was suspended, and on February 12, Petersen was terminated from his employment with DHHS.

The notice of termination indicated that Petersen had violated the NAPE labor contract by violating the “Code of Conduct for Nebraska Government,” in addition to violating several subsections of article 10.2 of the labor contract, the DHHS drug testing policy, and the LRC facility/program work rules and standards.

Procedural History.

In accordance with the employee grievance procedure, Petersen immediately filed a grievance of his termination with the DHHS human resources manager. Petersen argued that said discipline was excessive and in violation of the labor contract. The manager determined that Petersen worked directly with patients in a locked unit for sex offenders at LRC and found that Petersen used marijuana prior to his shift, which increased the potential risk of harm to patients and coworkers in the unit. The manager recommended that Petersen's grievance be denied, which recommendation was adopted by the agency director.

[19 Neb.App. 317] Petersen then filed an appeal to the State Personnel Board. A “mini-hearing” was held with the administrator of the employee relations division, after which the administrator found that progressive discipline had not been employed and that the discipline of termination was more severe than the situation warranted. The administrator recommended that Petersen's grievance be sustained and that his discipline be modified to suspension without pay from the date of termination to July 1, 2009.

DHHS appealed the administrator's determination, and on September 2, 2009, a hearing was held. At the hearing, the compliance specialist at LRC testified that on January 7, 2009, he was giving a tour to members of the Nebraska State Patrol SWAT team when a member indicated to him that an individual, identified as Petersen, smelled of burnt marijuana as he passed him in the stairwell. The compliance specialist indicated that he wrote a report and submitted it to Scott Rasmussen, the LRC human resources manager.

Rasmussen testified that once he was made aware of the SWAT team member's observations, he contacted Debbie Roberts, the director of nursing, and instructed her to assess Petersen for anything unusual. After such assessment, Petersen and Roberts met with Rasmussen at around 4 p.m. that same day. Rasmussen testified that several individuals were involved in the meeting, during which he discussed with Petersen the SWAT team

[805 N.W.2d 670]

member's observations and further advised Petersen that he needed to submit to a drug test. Rasmussen testified that at the meeting, Petersen admitted to smoking marijuana at around noon and was again asked to submit to a drug test. Rasmussen testified that he asked Petersen to submit to a drug test approximately four times. Rasmussen indicated that Petersen refused each request, explaining that a test was not necessary because he had already admitted to smoking marijuana. Rasmussen directed another employee to drive Petersen home, which request was also denied by Petersen. Rasmussen explained that LRC's policy was to consider a refusal to submit to drug testing as a positive test and that Petersen was placed under investigatory suspension.

[19 Neb.App. 318] The administrative services major with the Nebraska State Patrol testified that through his employment, he had received significant training on drug evaluation and classification for purposes of determining whether or not an individual was impaired or under the influence. He testified that he had reviewed Petersen's file and that, in his opinion, at 2:30 or 2:45 p.m., when Petersen arrived for work, he still would have been under the influence of marijuana that had been smoked at noon that same day.

Roberts, the director of nursing, testified that because there are various types of patients residing at LRC, employees are required to be aware at all times. On one occasion several years prior, a physician was killed by a patient, and there are documented cases of other violent outbreaks by patients. Roberts testified that Petersen's main responsibility as a security specialist was to provide direct patient care: specifically, to maintain the psychiatric care for each patient in accordance with their individualized treatment plan.

Roberts testified that on January 7, 2009, Petersen worked “the 3:00 to 11:00” p.m. shift in the convicted sex offender program. Roberts became aware of some concerns regarding Petersen when it was reported to her by a compliance specialist that Petersen smelled of marijuana. Roberts testified that she did not have any specialized training in the detection of impairment but met with Petersen at around 3:30 p.m. to assess the situation. Roberts did not detect the smell of marijuana on Petersen and did not see any outward signs of impairment. Roberts directed Petersen to return to work and, at the request of Rasmussen, later brought Petersen to the administration building for further discussion. Roberts explained that Petersen was directed to take a drug test and refused.

Roberts explained that she had reviewed Petersen's evaluations dating back to 1989, which revealed generally good-quality evaluations. Roberts testified that Petersen used a significant amount of sick leave and leave without pay and that he needed improvement with attendance and punctuality. Generally, Petersen's evaluations encouraged him to become more involved in ward routines. In both 1997 and 1998, [19 Neb.App. 319] Petersen utilized 280 hours of sick leave and was described as having difficulty adapting to change. Special evaluations were made in 2001 and 2007, for tardiness and increased use of sick leave. Roberts testified that there were also consistent indications in his evaluations that he had good working relationships with patients and...

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3 cases
  • Sickler v. Kirby, A–10–965.
    • United States
    • Court of Appeals of Nebraska
    • November 8, 2011
    ...279 Neb. 187, 777 N.W.2d 545 (2010), Steve and Cathy were “third parties” to whom the defendants owed a duty of reasonable care. When we [19 Neb.App. 314] view Garland's expert testimony in the light most favorable to Steve and Cathy, whether the defendants met that standard of care is a ge......
  • Graham v. City of Neb., A-14-990.
    • United States
    • Court of Appeals of Nebraska
    • January 5, 2016
    ...29, 767 N.W.2d 104 (2009). See, also, Stejskal v. Dept. of Admin. Servs., 266 Neb. 346, 655 N.W.2d 576 (2003); Petersen v. Neb. HHS, 19 Neb. App. 314, 805 N.W.2d 667 (2011). The Nebraska Supreme Court, in the context of police officer discipline, noted that the word "cause" has been defined......
  • Essman v. Neb. Dep't of Health & Human Servs., A-13-840.
    • United States
    • Court of Appeals of Nebraska
    • November 10, 2014
    ...facility caused by the plaintiff's violation of the Department rule. Finally, in Petersen v. Nebraska Dept. of Health & Human Servs., 19 Neb. App. 314, 805 N.W.2d 667 (2011), the plaintiff admitted that he had smoked marijuana prior to beginning his shift and was terminated because his offe......

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