Vaccaro v. City of Omaha, A-96-1019
| Court | Court of Appeals of Nebraska |
| Writing for the Court | MILLER-LERMAN; IRWIN |
| Citation | 573 N.W.2d 798,6 Neb.App. 410 |
| Parties | Steve VACCARO et al., Appellees, v. CITY OF OMAHA, a municipal corporation, Appellant. |
| Docket Number | No. A-96-1019,A-96-1019 |
| Decision Date | 20 January 1998 |
Page 798
v.
CITY OF OMAHA, a municipal corporation, Appellant.
1. Injunction. An injunction is an extraordinary remedy and ordinarily should not be granted except in a clear case where there is actual and substantial injury. Such a remedy should not be granted unless the right is clear, the damage is irreparable, and the remedy at law is inadequate to prevent a failure of justice.
2. Jurisdiction: Appeal and Error. An appellate court has the power and the duty to determine whether it has jurisdiction over the matter before it.
3. Injunction. An injunction will not lie where there is an adequate remedy at law.
4. Administrative Law: Appeal and Error. One must generally exhaust any available administrative remedies before one can seek judicial review.
5. Administrative Law: Jurisdiction. Before a court may exercise jurisdiction of a case, the litigant must have exhausted available
Page 799
administrative remedies, absent exceptions or legislation to the contrary.Sheri E. Cotton for appellant.
Thomas F. Dowd, of Dowd & Dowd, Omaha, for appellees.
MILLER-LERMAN, C.J., and IRWIN and MUES, JJ.
[6 Neb.App. 411] IRWIN, Judge.
I. INTRODUCTION
Steve Vaccaro, Leland Drum, and Henry Brooks initiated proceedings in the district court for Douglas County on December 29, 1995. They sought an injunction requiring the City of Omaha (City) to promote them to the position of detention center supervisor. They alleged that the manner by which the City had filled three detention center supervisor positions was contrary to law. At trial, the plaintiffs changed the relief that they requested. They sought to have the selection process for the positions reopened and to have the hiring department, here the police division, conduct the interviews anew in accordance with the law. The district court granted this injunctive relief.
Following the denial of its motion for new trial, the City appealed the order of the district court directing it to "[reinterview] under guidelines dictated by the Personnel Department" all qualified candidates on the October 16, 1995, eligibility list for the three detention center supervisor positions. The court's order also directed that the interviewers should be the personnel director or "some one she appoints from her department" and "two police officers ... appointed by Chief Skinner." On appeal, the City contends that the plaintiffs lacked standing to bring the suit, that the plaintiffs did not prove the elements necessary for injunctive relief, that the district court's findings were not supported by the record, and that the district court's order did not comply with statutory requirements.
For the reasons stated below, we reverse, and dismiss.
II. FACTUAL BACKGROUND
Prior to January 1, 1996, Vaccaro, Drum, Ruth Herndon, Petra Young, and Laura Kinkaid each held the position of detention technician II in the Omaha Police Division's detention unit. Brooks was a detention technician I. In 1994, the police division decided to reorganize the management and nonmanagement personnel at the detention unit. Initially, the police division created three detention center supervisor positions as a middle-management level of personnel.
The Omaha Home Rule Charter of 1956, art. VI, § 6.01, provides that city employees are to be appointed with reference [6 Neb.App. 412] only to their merit and fitness for employment. The City's hiring process is divided into two parts: (1) the examination process, which is administered by the personnel department, by which the personnel department creates an eligibility list through the administration of an examination; and (2) the selection process, in which the hiring department determines whom it will hire from the eligibility list. Omaha Mun.Code, ch. 23, art. III, §§ 23-191 through 23-232, set forth in detail the requirements of and procedure for the examination process. The ordinances do not explicitly set forth a requirement for or a procedure to be followed during the selection process. The eligibility list provided to the hiring department by the personnel department states that the hiring department is required to interview the candidates on the list.
At the request of the police division made September 30, 1994, the personnel department developed a job classification for the position of detention center supervisor, posted a notice of examination, gave an examination, created a list of eligible names, and forwarded this list, which was dated February 7, 1995, to the police division. Frederick Power, the detention unit manager, selected three of the candidates and hired them. These three male hirees are not parties to this lawsuit. Power did not conduct any interviews prior to these hirings. As a result of these three hirings, Herndon, Young, Kinkaid, and another female candidate filed charges with the Nebraska Equal Opportunity
Page 800
Commission claiming that they were discriminated against because of their gender.In 1995, the police division decided to eliminate the detention technician II positions and to create three more detention center supervisors. On September 27, 1995, Power requested that the personnel department submit candidates for the three additional detention center supervisor positions. The February 7, 1995, eligibility list created for the three original detention center supervisor positions, mentioned above, was still in effect. From this list, a new eligibility list dated October 16, 1995, was created, which contained 10 names, including the names of Herndon, Young, and Kinkaid. Brenda Smith, who was deputy chief of the administrative services bureau of the police division, and Detention Manager Power interviewed the candidates. In [6 Neb.App. 413] preparation for the interviews, Smith and Power prepared questions and a benchmark for scoring each question. The three candidates with the highest scores were to be hired. Herndon, Young, and Kinkaid scored the highest and were hired as detention center supervisors.
Due to the hiring of Herndon, Young, and Kinkaid to the detention center supervisor positions and the elimination of the detention technician II positions, Vaccaro is now training to be a crime lab technician and has taken a pay cut, Brooks has remained a detention technician, and Drum is employed by the City as a painter.
III. ASSIGNMENTS OF ERROR
We summarize the errors which the City assigns and argues as follows: (1) The plaintiffs lacked standing to bring this lawsuit; (2) the plaintiffs failed to prove irreparable harm, as required for injunctive relief; (3) the district court's findings and decision are not supported by the evidence; and (4) the district court's order of June 17, 1996, does not comply with the...
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Armstrong v. Clarkson Coll., S-16-717.
...expenditures disproportionate to the loss sought to be avoided or which are beyond his financial means").48 See Vaccaro v. City of Omaha, 6 Neb.App. 410, 573 N.W.2d 798 (1998), affirmed 254 Neb. 800, 579 N.W.2d 535.49 See Vaccaro v. City of Omaha , supra note 48, 254 Neb. 800, 579 N.W.2d 53......
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Daubman v. CBS Real Estate Co., A-96-734
...agreement cannot be interpreted as an act in the interests of the agent simply because the agent will receive a commission upon closing. [6 Neb.App. 410] The evidence would not support the finding that Engelbert placed her interests and the Pedersens' interests above those of the Daubmans' ......
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Vaccaro v. City of Omaha, S-96-1019
...under the city's ordinances, and consequently reversed the district court's decree and dismissed the action. Vaccaro v. City of Omaha, 6 Neb.App. 410, 573 N.W.2d 798 (1998). The plaintiffs thereupon successfully sought further review by this court, challenging the Court of Appeals' determin......
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Parent v. City of Bellevue Civil Service, A-08-630.
...administrative remedies before appealing to the district court, the doctrine of exhaustion of remedies, see Vaccaro v. City of Omaha, 6 Neb.App. 410, 573 N.W.2d 798 (1998), did not prevent the district court from obtaining The City's alleged breach of the collective bargaining agreement did......
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Armstrong v. Clarkson Coll., S-16-717.
...expenditures disproportionate to the loss sought to be avoided or which are beyond his financial means").48 See Vaccaro v. City of Omaha, 6 Neb.App. 410, 573 N.W.2d 798 (1998), affirmed 254 Neb. 800, 579 N.W.2d 535.49 See Vaccaro v. City of Omaha , supra note 48, 254 Neb. 800, 579 N.W.2d 53......
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Daubman v. CBS Real Estate Co., A-96-734
...agreement cannot be interpreted as an act in the interests of the agent simply because the agent will receive a commission upon closing. [6 Neb.App. 410] The evidence would not support the finding that Engelbert placed her interests and the Pedersens' interests above those of the Daubmans' ......
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Vaccaro v. City of Omaha, S-96-1019
...under the city's ordinances, and consequently reversed the district court's decree and dismissed the action. Vaccaro v. City of Omaha, 6 Neb.App. 410, 573 N.W.2d 798 (1998). The plaintiffs thereupon successfully sought further review by this court, challenging the Court of Appeals' determin......
-
Parent v. City of Bellevue Civil Service, A-08-630.
...administrative remedies before appealing to the district court, the doctrine of exhaustion of remedies, see Vaccaro v. City of Omaha, 6 Neb.App. 410, 573 N.W.2d 798 (1998), did not prevent the district court from obtaining The City's alleged breach of the collective bargaining agreement did......