Christopherson v. Nebraska Dept. of Health & Human Servs. , 308 Neb. 610 ( 2021 )


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    04/29/2021 08:08 AM CDT
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    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    CHRISTOPHERSON v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
    Cite as 
    308 Neb. 610
    Thomas Christopherson, appellant, v. Nebraska
    Department of Health and Human Services,
    an agency of the State of Nebraska,
    et al., appellees.
    ___ N.W.2d ___
    Filed March 12, 2021.    No. S-20-361.
    1. Termination of Employment: Wages: Equity: Words and Phrases.
    Front pay as an equitable remedy in employment law is money awarded
    for lost compensation during the period between judgment and reinstate-
    ment or in lieu of reinstatement.
    2. Termination of Employment: Wages. Front pay is a disfavored remedy
    that may be awarded in lieu of reinstatement, but not in addition to it,
    where the circumstances make reinstatement impractical.
    3. ____: ____. The availability of front pay as a remedy presupposes that
    reinstatement is impractical or impossible due to circumstances not
    attributable to the plaintiff.
    4. ____: ____. Front pay is a remedy designed to make the employee
    whole. Front pay is designed to achieve precisely what reinstatement
    would achieve, were reinstatement feasible: to place the wronged
    employee in the same position he or she would be in if reinstatement
    were possible.
    5. ____: ____. Front pay makes up the difference between the earnings an
    employee would receive were the old employment to continue and the
    earnings expected in present and future employment.
    6. ____: ____. Factors supporting front pay as an appropriate substitute
    remedy to reinstatement include hostility and animosity between the
    parties such that reinstatement is rendered impractical or inappropriate.
    Appeal from the District Court for Lancaster County: Susan
    I. Strong, Judge. Affirmed.
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    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    CHRISTOPHERSON v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
    Cite as 
    308 Neb. 610
    Ryan M. Kunhart and Gretchen L. McGill, of Dvorak Law
    Group, L.L.C., for appellant.
    Douglas J. Peterson, Attorney General, and James A.
    Campbell, Solicitor General, for appellees.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Miller-Lerman, J.
    NATURE OF CASE
    The Nebraska Department of Health and Human Services
    (DHHS) terminated the employment of appellant Thomas
    Christopherson as a health program manager, after which
    Christopherson challenged the termination. He pursued the
    appropriate grievance proceedings and sought lost wages,
    including front pay, back pay, and lost benefits. DHHS ulti-
    mately withdrew the allegations against Christopherson.
    However, DHHS contested Christopherson’s claim for “front
    pay,” commonly viewed as money awarded in lieu of reinstate-
    ment of employment. Following a hearing, the State Personnel
    Board (Personnel Board) determined that an award of front
    pay was not appropriate. The Lancaster County District Court
    affirmed the Personnel Board’s decision. Christopherson
    appeals. Because reinstatement of employment was possible,
    we find no errors appearing on the record and affirm the order
    of the district court.
    STATEMENT OF FACTS
    Christopherson worked as a health program manager in
    DHHS’ Division of Public Health’s environmental health sec-
    tion from 1994 until 2018. In March 2018, Christopherson
    received a “Written Notice of Allegations” from his supervisor,
    Judy Martin, deputy director of community and environmental
    health for DHHS. Summarized, the written notice alleged:
    [1.] Christopherson appeared before a village board
    and urged the board to enter into a contract with his
    brother’s employer. [DHHS] claimed that by doing so,
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    CHRISTOPHERSON v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
    Cite as 
    308 Neb. 610
    Christopherson used his position with [DHHS] to benefit
    his brother’s company. . . .
    [2.] Christopherson authorized the purchase of unnec-
    essary items and then allowed private companies to keep
    them. . . . The amount involved exceeded $100,000. . . .
    [3.] Christopherson used money [from] a fund dedi-
    cated to licensing on services or products that were unre-
    lated to licensing. . . . [T]he sum of such expenditures
    was [over] $800,000 . . . .
    [4.] Christopherson failed to ensure that water-well
    inspections occurred and that violations were enforced.
    After Christopherson provided a written response to the allega-
    tions, the first allegation was withdrawn. His employment was
    ultimately terminated.
    Christopherson followed the appropriate agency-level griev-
    ance procedure under the Classified System Personnel Rules &
    Regulations. In his grievance, Christopherson sought lost wages,
    including front pay, back pay, and lost benefits. Christopherson
    did not seek to be reinstated. This grievance was denied, and
    Christopherson appealed to the Personnel Board.
    At the Personnel Board hearing regarding the merits of
    Christopherson’s grievance, DHHS stated that it had agreed to
    withdraw the notice of discipline regarding the allegations from
    Christopherson’s personnel file, accept his request for resigna-
    tion or retirement, and issue him back pay through the date of
    the hearing. However, DHHS contested Christopherson’s claim
    to front pay, or future earnings. The parties proceeded solely
    on the issue of front pay. And the issue of Christopherson’s
    entitlement to front pay in lieu of reinstatement has emerged as
    the sole issue before us in this appeal.
    Christopherson testified that he did not request reinstate-
    ment in his grievance because of the severity of the allegations
    surrounding his termination. He testified that he brought his
    “best work to work” every day for 24 years and was recog-
    nized for his work with awards. According to Christopherson,
    he consistently maintained a good working relationship with
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    CHRISTOPHERSON v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
    Cite as 
    308 Neb. 610
    his coworkers and supervisors, including Martin. He consist­
    ently received good performance reviews from his super­visors.
    Although Martin had given Christopherson the written notice
    of allegations and was present at the meetings where he
    was disciplined, Christopherson testified that Martin had told
    him she “regretted that this is what she had to do.” In 2008,
    Christopherson won a “manager of the year” award at DHHS,
    and in 2017, the National Ground Water Association recog-
    nized his work.
    Christopherson testified that “to be terminated, in my mind,
    for doing my job, I did not feel I wanted to go back and work
    in that environment” and that “[i]t’s not practical.” He claimed
    that he was “damaged” and that there were “a lot of rumors
    that I’ve been made aware of, people in the industry, people
    in State government. My credibility has been hit pretty hard. I
    was named as a person in a newspaper article[.]”
    With regard to his job search following termination,
    Christopherson testified that he applied for over 20 different
    jobs in his field, but was unable to find other employment.
    He started his own consulting business on June 13, 2018. He
    earned less than $6,000 from his business during 2018 and the
    first half of 2019.
    Christopherson also submitted evidence of his previous
    rate of pay, raises, and the value of his benefits relating to
    his claim of front pay, which he contended should cover the 4
    fiscal years from his termination until his full retirement age
    in 2022.
    The Personnel Board unanimously adopted the hearing
    officer’s recommendation that the Personnel Board deny his
    claim for front pay. The hearing officer noted that his review
    of the Personnel Board decisions failed to find any case in
    which front pay had been awarded. With respect to the ques-
    tion of whether the Personnel Board had authority to award
    front pay, the hearing officer found that “[s]ufficient evidence
    and testimony was not presented so that a determination could
    be made as to whether or not the . . . Personnel Board has
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    CHRISTOPHERSON v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
    Cite as 
    308 Neb. 610
    authority to award front pay.” However, the hearing officer
    noted that traditional legal criteria for awarding front pay
    included, among other factors, situations where the employee
    could not be reinstated. The hearing officer found that even if
    front pay was a remedy authorized for this type of grievance,
    there was not sufficient evidence to indicate that front pay in
    lieu of reinstatement would be appropriate. The hearing offi-
    cer said:
    In this case reinstatement was possible. There was no
    showing of intense animosity between [Christopherson]
    and his supervisor. [Christopherson] had received an
    award from [DHHS] and had good performance eval­
    uations. [DHHS] had a number of other positions of the
    same classification as the one held by [Christopherson]
    and many of these positions reported to different super­
    visors, so there was a high probability that if the relation-
    ship with his former supervisor was significantly dam-
    aged, [Christopherson] could have been reinstated to work
    for another supervisor. In addition, this area is no longer
    under the supervision of [DHHS]; it has been moved to
    the Department of Environmental Quality.
    The hearing officer also found that Christopherson had not
    reasonably mitigated his damages, noting that Christopherson
    applied for a number of positions after his termination but
    ended his job search less than 2 months after he was termi-
    nated. The recommended order adopted by the Personnel Board
    found that front pay should not be ordered.
    Christopherson sought review of the unfavorable decision
    of the Personnel Board in the district court. The district court
    first determined the Personnel Board did not have the power
    to award front pay under its grant of authority from the
    Legislature. It reasoned that front pay is an equitable rem-
    edy and that the Legislature must explicitly confer equitable
    power on an administrative agency like the Personnel Board.
    It further noted that the Personnel Board’s regulations “do not
    provide for front pay” and that it had not ordered front pay in
    past cases.
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    308 Nebraska Reports
    CHRISTOPHERSON v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
    Cite as 
    308 Neb. 610
    The district court next found that even if the Personnel
    Board could award front pay, Christopherson was not entitled
    to it, because reinstatement of employment was possible. The
    district court noted:
    Christopherson testified that he always had a good work-
    ing relationship with his coworkers and supervisors. . . .
    In fact, the supervisor who signed the notices of allega-
    tion and discipline told Christopherson that she regret-
    ted having to do so. . . . Christopherson argues that the
    nature of the allegations themselves showed that [DHHS]
    was extremely hostile towards him. But the record does
    not show that the allegations actually created a hostile
    environment for Christopherson. While he referred to
    “rumors,” the evidence does not reveal how widely the
    charges were disseminated.
    The court explained that “apart from the allegations them-
    selves, there is little evidence that anyone in [DHHS]
    bore Christopherson ill will.” The district court found that
    Christopherson “might have been able to step back into his old
    role” and determined he did not carry his burden of proving
    that reinstatement was not feasible and that he was therefore
    entitled to front pay in lieu thereof. The district court affirmed
    the Personnel Board’s decision.
    ASSIGNMENTS OF ERROR
    Christopherson assigns, summarized and restated, that
    the district court erred when it found that (1) the Personnel
    Board did not have the power to award front pay and (2)
    Christopherson did not carry his burden to show that reinstate-
    ment was not feasible and that he was entitled to front pay.
    STANDARDS OF REVIEW
    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. 
    Neb. Rev. Stat. § 84-918
    (3)
    (Reissue 2014). When reviewing an order of a district court
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    CHRISTOPHERSON v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
    Cite as 
    308 Neb. 610
    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 nei-
    ther arbitrary, capricious, nor unreasonable. Abay, L.L.C. v.
    Nebraska Liquor Control Comm., 
    303 Neb. 214
    , 
    927 N.W.2d 780
     (2019). An appellate court, in reviewing a district court’s
    judgment for errors appearing on the record, will not substitute
    its factual findings for those of the district court where com-
    petent evidence supports those findings. 
    Id.
     The meaning and
    interpretation of statutes and regulations present questions of
    law which an appellate court decides independently of the deci-
    sion made by the court below. 
    Id.
    ANALYSIS
    Christopherson claims that the district court erred when
    it found that the Personnel Board lacked authority to grant
    the equitable relief of front pay. Christopherson specifically
    claims the district court erred when it found that he could be
    reinstated and that therefore, the Personnel Board properly
    denied his claim for front pay. We find no error by the dis-
    trict court.
    Front Pay.
    [1-5] Front pay as an equitable remedy in employment law
    has been described by the U.S. Supreme Court as “money
    awarded for lost compensation during the period between
    judgment and reinstatement or in lieu of reinstatement.”
    Pollard v. E. I. du Pont de Nemours & Co., 
    532 U.S. 843
    , 846,
    
    121 S. Ct. 1946
    , 
    150 L. Ed. 2d 62
     (2001). Courts have charac-
    terized front pay as a substitute for reinstatement. See Sellers
    v. Mineta, 
    358 F.3d 1058
    , 1063 (8th Cir. 2004) (“[f]ront pay is
    a disfavored remedy that may be awarded in lieu of reinstate-
    ment, but not in addition to it, where the circumstances make
    reinstatement impractical”). The availability of front pay as
    a remedy “presupposes that reinstatement is impractical or
    impossible due to circumstances not attributable to the plain-
    tiff.” 
    Id. at 1064
    . Like reinstatement, front pay is a remedy
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    Cite as 
    308 Neb. 610
    designed to make the employee whole. Pollard v. E. I. du Pont
    de Nemours & Co., 
    supra.
     As one court explained, “front pay
    is designed to achieve precisely what reinstatement would
    achieve, were reinstatement feasible: to place the wronged
    employee in the same position he or she would be in” if rein-
    statement were possible. Kempfer v. Automated Finishing,
    Inc., 
    211 Wis. 2d 100
    , 127, 
    564 N.W.2d 692
    , 703 (1997).
    Front pay “makes up the difference between the earnings an
    employee would receive were the old employment to continue
    and the earnings expected in present and future employment.”
    
    Id.
     Thus, in a grievance proceeding, front pay substitutes for
    reinstatement, because it remedies future economic losses
    flowing from the employee’s termination. 
    Id.
     Front pay works
    in conjunction with recovery of past wage loss through a back
    pay award and ensures that the wronged employee is made
    whole. 
    Id.
    Front Pay as a Remedy Under
    the Personnel Rules.
    Christopherson first contends that the district court erred
    when it found that the Personnel Board did not have the power
    to award front pay. He argues that since the Personnel Board
    utilizes other equitable remedies such as reinstatement, and
    because reinstatement and front pay are alternative remedies,
    see Sellers v. Mineta, 
    supra,
     it logically follows that the
    Personnel Board would also possess the power to award front
    pay as an alternative to reinstatement.
    Below, we set forth the statutes pertaining to the Personnel
    Board from which Christopherson claims front pay could be
    impliedly authorized. 
    Neb. Rev. Stat. § 81-1318
     (Reissue 2014)
    provides for the creation of a State Personnel Board, describes
    how its members should be appointed and confirmed, and also
    references 
    Neb. Rev. Stat. § 81-1318.01
     (Reissue 2014) as the
    statute where the board’s “powers” are enumerated. Section
    81-1318 states in part:
    The board may delegate to a group of three or
    more members any or all of the powers which it may
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    exercise. The board shall be authorized to designate and
    delegate its powers under section 81-1318.01 to hearing
    officers to conduct grievance appeal hearings and recom-
    mend a decision to the board for final action. A vacancy
    in the board shall not impair the right of the remaining
    members to exercise all the powers of the board, and
    three members of the board shall at all times constitute a
    quorum of the board.
    (Emphasis supplied.)
    Section 81-1318.01, to which reference is made in § 81-1318,
    provides:
    The State Personnel Board shall ensure the fair and
    equitable administration of the State Personnel System by:
    (1) Operating as prescribed by rules and regulations
    adopted and promulgated by the personnel division of the
    Department of Administrative Services;
    (2) Reviewing and approving, by majority vote, rules
    and regulations adopted and promulgated by the person-
    nel division;
    (3) Determining the grievability of issues or doing
    so through the designation of a board member. Issues
    determined to be not grievable shall be subject to sum-
    mary dismissal;
    (4) Adjudicating grievance appeals and rendering final
    binding decisions;
    (5) Rendering decisions consistent with the rules and
    regulations adopted and promulgated by the person-
    nel division;
    (6) Reviewing and providing counsel regarding any
    matter affecting the State Personnel System; and
    (7) Performing the actions required pursuant to the
    State Government Effectiveness Act.
    We note and the parties acknowledge that the Classified
    System Personnel Rules & Regulations do not enumerate
    the remedies available to the Personnel Board in a grievance
    proceeding such as the one giving rise to this case. We agree
    with the parties that the record shows that certain equitable
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    remedies have been awarded in the past. But the failure to
    adopt “rules and regulations” upon which to equitably “ren-
    der decisions” per § 81-1318.01(5) frustrates our analysis.
    Without such regulatory guidance, Christopherson asks this
    court to identify one of the “powers” of the Personnel Board
    to which reference is made in § 81-1318 as the authority to
    order front pay and to find that the district court erred as a
    matter of law when it declined to find that the equitable rem-
    edy of front pay was available. Because of our disposition as
    outlined below in which we agree with the district court that
    reinstatement is feasible, we need not resolve the issue of
    whether the authority to grant front pay is one of the “pow-
    ers” to which reference is made in § 81-1318 and included in
    the “equitable administration” of the system by the Personnel
    Board in § 81-1318.01.
    Christopherson’s Reinstatement.
    Other courts have held that front pay is available only when
    the employee cannot be reinstated. See Sellers v. Mineta, 
    358 F.3d 1058
     (8th Cir. 2004). Although Christopherson contends
    there was sufficient hostility and animosity with his former
    employment such that reinstatement would be impossible, the
    district court found that Christopherson could be reinstated. We
    find no error by the district court.
    [6] The jurisprudence recognizes that factors supporting
    front pay as an appropriate substitute remedy include hostil-
    ity and animosity between the parties such that reinstate-
    ment is rendered impractical or inappropriate. See Standley
    v. Chilhowee R-IV School Dist., 
    5 F.3d 319
     (8th Cir. 1993).
    Such hostility must make an amicable and productive work
    relationship impossible. See Cox v. Dubuque Bank & Trust
    Co., 
    163 F.3d 492
     (8th Cir. 1998). In its decision, the district
    court offered examples of cases involving acts of extreme
    or excessive hostility, such as social media posts about the
    employee, managers attempting to “blackball” the employee in
    the industry, intimidation and harassment, repeated instances
    of harassment, and humiliation and threats that the manager
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    would find other ways to fire the employee. See, e.g., Hunter
    v. Town of Mocksville, North Carolina, 
    897 F.3d 538
     (4th Cir.
    2018); Palasota v. Haggar Clothing Co., 
    499 F.3d 474
     (5th
    Cir. 2007); Hammond v. Northland Counseling Center, Inc.,
    
    218 F.3d 886
     (8th Cir. 2000); Standley v. Chilhowee R-IV
    School Dist., 
    supra;
     Spulak v. K Mart Corp., 
    894 F.2d 1150
    (10th Cir. 1990), abrogated on other grounds, Hazen Paper
    Co. v. Biggins, 
    507 U.S. 604
    , 
    113 S. Ct. 1701
    , 
    123 L. Ed. 2d 338
     (1983). A review of the case law indicates that front pay
    is often found in discrimination cases, where a hostile work
    environment leading to illegal discrimination could not easily
    be remedied with an order of reinstatement. For example, in
    the disability case of Mathieu v. Gopher News Co., 
    273 F.3d 769
     (8th Cir. 2001), the court found that the employee would
    face additional disputes about reasonable accommodations and
    would continue to be overseen by the person responsible for
    the discriminatory decisions if reinstated. Such an ongoing
    relationship was sufficient evidence of hostility to award front
    pay. 
    Id.
    In this case, the findings of the hearing officer as later
    endorsed by the district court as to why reinstatement was pos-
    sible were stated as follows:
    The only traditional criteria that [Christopherson] met
    for receiving front pay was that he was nearing retire-
    ment. He met none of the other criteria. There was a high
    probability that he could be successfully reinstated to a
    position with [DHHS]. There was no showing that the
    work conditions were too antagonistic for him to return.
    There was no showing that [DHHS] had a long history of
    resisting attempts to correct any discrimination or other
    human resources deficiencies in the way it treated its
    employees. In addition, [Christopherson] had a duty to
    mitigate. His mitigation efforts were insufficient in that
    he failed to seek comparable employment after June 21,
    2018, and he did not seek reinstatement.
    In our view, the foregoing findings were supported
    by the record. The record shows that unlike the repeated
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    CHRISTOPHERSON v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
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    harassment and hostility typically supporting awards of
    front pay, Christopherson’s relationship with his managers
    and employer remained relatively professional despite the
    serious nature of the allegations from which this appeal
    arises. Christopherson testified that he consistently had a
    good working relationship with his coworkers and super­
    visors. Martin, Christopherson’s supervisor, had told him she
    “regretted” having to proceed with the discipline and ter-
    mination. Christopherson testified that he had 24 years of
    bringing his “best work” to DHHS and received favorable
    performance reviews and awards. The record does not show
    that the allegations and rumors actually created a hostile
    environment for Christopherson. According to the record,
    many available positions under different supervisors exist at
    the classification previously held by Christopherson, show-
    ing that Christopherson, if reinstated, could obtain compa-
    rable compensation and responsibility. As the hearing officer
    noted, the area in which Christopherson worked is no longer
    under the supervision of DHHS and has been moved to the
    Department of Environmental Quality, further distancing him
    from past management. The record supports a finding that
    Christopherson did not carry his burden to show that reinstate-
    ment was not feasible. Thus, he was not entitled to the alterna-
    tive relief of front pay.
    CONCLUSION
    The decision of the district court which affirmed the
    Personnel Board’s decision to deny Christopherson’s claim for
    front pay following his termination from DHHS is supported
    by competent evidence and is neither arbitrary, capricious,
    nor unreasonable. Accordingly, we affirm the order of the dis-
    trict court.
    Affirmed.
    Cassel, J., concurring.
    I do not understand anything in this court’s opinion to
    express or foreshadow an opinion on whether front pay is
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    authorized by either the statutes or the regulations applicable
    to the Personnel Board in grievance proceedings. Nor do I
    understand this court’s holding—that sufficient evidence in the
    record supported the district court’s finding that Christopherson
    did not prove reinstatement was not feasible—to imply that
    with different proof, front pay would have been available. With
    that understanding, I join the court’s opinion.