Trackwell v. Nebraska Dept. of Administrative Services, A-97-1171

Decision Date23 March 1999
Docket NumberNo. A-97-1171,A-97-1171
Citation8 Neb.App. 233,591 N.W.2d 95
PartiesJudith TRACKWELL, appellant, v. NEBRASKA DEPARTMENT OF ADMINISTRATIVE SERVICES and the State of Nebraska, appellees.
CourtNebraska Court of Appeals

Syllabus by the Court

1. Administrative Law: Final Orders: Appeal and Error. A 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. When reviewing a question of law, an appellate court reaches a conclusion independent of the lower court's ruling.

4. Administrative Law: Final Orders: Courts: Appeal and Error. In reviewing final administrative orders under the Administrative Procedure Act, the district court functions not as a trial court but as an intermediate court of appeals.

5. Administrative Law: Appeal and Error. Pursuant to the Administrative Procedure Act, district courts are required to conduct a true de novo review of agency determinations.

6. Administrative Law: Appeal and Error. In a judicial review pursuant to the Administrative Procedure Act, a district court is not required to give deference to the findings of fact by an agency hearing officer and to the decision of the director of the department.

Dalton W. Tietjen, of Tietjen, Simon & Boyle, Omaha, for appellant.

Don Stenberg, Attorney General, and Terri M. Weeks, Lincoln, for appellees.

IRWIN, Chief Judge, and HANNON and SIEVERS, Judges.

IRWIN, Chief Judge.

I. INTRODUCTION

Judith Trackwell appeals the judgment of the district court for Lancaster County affirming the decision of the Nebraska State Personnel Board (Board), which, in turn, upheld the decision of the Nebraska Department of Administrative Services (DAS) to terminate the employment of Trackwell. Trackwell claims on appeal to this court that the district court erred in assigning to her the burden of proof, in determining that DAS' decision to terminate her employment was made in good faith and for just cause, and in determining that progressive discipline need not be followed. For the reasons stated below, we reverse, and remand with directions.

II. FACTUAL BACKGROUND

Trackwell was employed by DAS from 1988 to 1994 as a "Security Guard II." On October 31, 1994, Trackwell was terminated from her employment for unsatisfactory performance of her duties. The two incidents forming the basis for the termination of her employment occurred October 11 and 25, 1994. The parties stipulated at trial that as a Security Guard II, Trackwell was part of the State of Nebraska Protective Service Bargaining Unit and covered by the 1993-95 labor contract between the State of Nebraska and the Nebraska Association of Public Employees, Local 61, of the American Federation of State, County and Municipal Employees. Article 10, § 1, of the above contract provides that the "[e]mployer shall not discipline an employee without just cause, recognizing and considering progressive discipline."

We generally describe Trackwell's duties and the incidents that formed the basis for the termination of her employment. The record shows that prior to an accident in 1993, Trackwell worked in the State Office Building and did a driving patrol of various other buildings. In 1993, Trackwell was injured in a job-related automobile accident. When she returned to work 6 months later, she was reassigned to work part time in the State Capitol in order to accommodate her physical condition. Her duties at the State Capitol included walking patrol, working in the tower of the building, and working in the security control center. Both October incidents occurred in the security control center.

The duties of a security officer working in the security control center include monitoring various state buildings through the use of electronic equipment such as radios, telephones, intercoms, alarm systems, video monitors, electronic door locks, and computers. Other duties include issuing keys to personnel and responding to the telephone. The record shows that Trackwell worked approximately 2 1/2 to 3 hours per shift in the security control center but for no more than 1 hour at a time.

On October 11, 1994, Trackwell was working in the security control center, and her supervisor, Frank Holland, was in the dressing room changing into his uniform. Holland heard a loud, audible beep while in the dressing room. When he entered the security control center, Holland saw a red light indicating a "zone expander" alarm. A zone expander alarm is a panic alarm that is set off in the security control center when a button is pushed in a particular office. The alarm consists of a loud, audible beep that continues until silenced and a red light. A tag is attached to the various lights on the zone expander alarm system indicating the office from where the alarm has been activated. According to standard operating procedure, a security officer is supposed to read the tag to learn the location of the alarm and dispatch someone to that office.

When Holland entered the security control center, he saw Trackwell sitting. When asked where the alarm was, Trackwell responded that the noise was coming from the computer disk drive under the desk. According to Trackwell, she was attempting to determine the nature of the alarm when Holland entered the room. Thereafter, Holland determined the location of the alarm and dispatched a person to that location.

On October 25, 1994, Trackwell and Holland were again working together in the security control center. At some point, Holland left to either lock doors or check windows. At 6:49 p.m., a fire alarm was triggered. The location of the fire was at the Department of Roads materials testing lab. When a fire alarm involves an external building, an audible alarm sounds in the security control center, which was described as being any where from a shrill whistle to a faint " 'bloop.' " In addition, a dot matrix light is activated on a printer in the security control center, and a fire alarm text message is printed providing the location of the alarm and the procedure to be followed. Standard operating procedure for a fire alarm is for the security guard to identify the location of the alarm, call the 911 emergency service, call the individuals on the appropriate call list, send a security officer to the location of the alarm, and send a report to the agency people involved.

Although the fire alarm was triggered at 6:49 p.m., Trackwell did not notice the fire alarm until approximately 7:05 p.m. At that time, she saw the printed alarm message when performing a quarterly-hour check of the printers. She then attempted to call a person named "Bill Brolliar." According to Holland, Brolliar was an inappropriate person to call. At this point, Trackwell apparently was not aware that the alarm and printed message constituted a fire alarm. Holland then returned and looked at the fire alarm printout. The printout read: "DOR MTL-FIRE/A4-ALM ALARM FIRE ALARM--A4 BSMT MATERIAL TEST LAB ANNEX--CALL 911."

After Holland told Trackwell that it was a fire alarm and that she needed to call 911 Trackwell called 911. Without identifying herself or where she worked, she began to read the abbreviated fire alarm printout to the 911 operator. Through questions asked by the 911 operator and information given to her by Holland, Trackwell provided the appropriate information to the 911 operator. According to Holland, he then had to instruct Trackwell on how to make the necessary calls using the appropriate call list. Trackwell subsequently prepared an abbreviated incident report, which did not comport with standard operating procedure.

III. PROCEDURAL HISTORY

On October 31, 1994, Trackwell was dismissed from her employment due to unsatisfactory performance of her duties. Prior to dismissal, Trackwell was given written notice of the basis for the termination, an explanation of DAS' evidence, and an opportunity to present her side of the story. In dismissing Trackwell from her employment, DAS found that on October 25 at 6:49 p.m., Trackwell had failed to respond to a fire alarm at the Department of Roads material testing lab annex basement according to written policies and procedures and that on October 11, Trackwell failed to respond adequately to a zone expander alarm.

Trackwell filed a grievance challenging the termination of her employment. After her grievance was denied, Trackwell appealed to the Board. A hearing was conducted by a hearing officer on September 6, 1996. The record shows that DAS presented evidence first and bore the burden of proof. Numerous witnesses, including Trackwell, testified. After hearing the evidence, the hearing officer recommended to the Board that DAS' disciplinary action be upheld. The hearing officer concluded that DAS had proved by a preponderance of the evidence that on October 25, 1994, Trackwell unsatisfactorily performed her duties in responding to a fire alarm, despite appropriate training, in that she failed to read the printed message associated with the alarm, misunderstood the nature of the alarm, failed to follow the proper call list, failed to immediately contact 911, failed to properly communicate the necessary information to the 911 operator, and failed to prepare a proper report. The Board adopted the recommendation of the hearing officer. Thereafter, Trackwell timely filed a petition for review in the district court.

We note that the district court determined that Trackwell had the "burden of proving by a preponderance of the evidence that the agency's action was not taken in...

To continue reading

Request your trial
6 cases
  • Tush v. NEBRASKA DEPT. OF HEALTH
    • United States
    • Nebraska Court of Appeals
    • 16 Noviembre 2004
    ...to the findings of fact by the agency hearing officer and to the decision of the director of Department." Trackwell v. Nebraska Dept. of Admin. Servs., 8 Neb.App. 233, 240, (1999), quoting Slack Nsg. Home v. Dept. of Soc. Servs., 247 Neb. 452, 528 N.W.2d 285 (1995).... There is no presumpti......
  • Yenney v. Nebraska Dept. of Motor Vehicles
    • United States
    • Nebraska Court of Appeals
    • 20 Marzo 2007
    ...the APA may be reversed, vacated, or modified by an appellate court for errors appearing on the record. Trackwell v. Nebraska Dept. of Admin. Servs., 8 Neb.App. 233, 591 N.W.2d 95 (1999). See Neb.Rev.Stat. § 84-918(3) (Reissue 1999). When reviewing an order of a district court under the APA......
  • Chrysler Corp. v. Jim Earp Chrysler-Plymouth
    • United States
    • Nebraska Court of Appeals
    • 9 Noviembre 1999
    ...but as an intermediate court of appeals. Wolgamott v. Abramson, 253 Neb. 350, 570 N.W.2d 818 (1997); Trackwell v. Nebraska Dept. of Admin. Servs., 8 Neb.App. 233, 591 N.W.2d 95 (1999). On petitions for further review filed on or after July 1, 1989, the district court's review is conducted d......
  • Searcey v. NEB. DEPT. OF MOTOR VEHICLES
    • United States
    • Nebraska Court of Appeals
    • 27 Abril 2004
    ...by an appellate court for errors appearing on the record. Neb.Rev.Stat. § 84-918(3) (Reissue 1999); Trackwell v. Nebraska Dept. of Admin. Servs., 8 Neb. App. 233, 591 N.W.2d 95 (1999). When reviewing an order of a district court under the APA for errors appearing on the record, the inquiry ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT