Clements v. Airport Authority of Washoe County

896 P.2d 458, 111 Nev. 717, 1995 Nev. LEXIS 71

Opinions

OPINION

By the Court,

Rose, J.:

Appellants Douglas Clements (Douglas) and Susan Clements (Susan) were employed by the respondent Airport Authority of Washoe County (AAWC). Susan and Douglas were terminated by the Executive Director of the AAWC following reorganization of the AAWC, and the AAWC Board of Trustees (the Board) sustained these terminations. Because Susan was a civil servant protected by the provisions of the AAWC civil service plan, she should have been transferred to another position in lieu of termination, in accordance with plan provisions. Douglas, however, was not a civil servant and was properly terminated.

FACTS

In 1986, Susan was hired by the AAWC Property Management Department (Properties). At the time she was terminated, Susan held the position within Properties of Advertising/Marketing Specialist. Douglas was hired as AAWC Chief of Planning, Engineering, and Maintenance (PEM) in December, 1985.

On April 6, 1989, the Board approved a reorganization plan submitted to it by its Executive Director, Robert White (White). White became the Executive Director of the AAWC in November, 1988, following the resignation of the predecessor Executive Director after allegations of misconduct. .Shortly after White became the Executive Director, he commenced planning the reorganization of the AAWC “to create an efficient operation.” The reorganization, as passed by the Board, involved the termination of both Susan and Douglas. White personally chose Susan as the employee in her department to be laid off, and the reorganization plan, developed by White, specifically targeted Douglas’s position as Chief of PEM for termination.

Douglas and Susan each filed a grievance protesting their termination, and separate grievance hearings were held for both Douglas and Susan before three-member grievance panels. The grievance panels unanimously found that the AAWC violated its own Personnel Policies and Procedures Manual (the Manual), setting forth the AAWC civil service plan, by wrongfully terminating Douglas and Susan, and that Douglas and Susan should have been offered positions within the AAWC in lieu of termination.

White, claiming power of review over the grievance panels’ decisions under Manual section 7.ID, unilaterally reversed the decision of both panels, finding that he properly terminated Susan and Douglas. White concluded that the grievance panels’ decisions were not compatible with personnel policies, to wit: (1) that Douglas, as a department head, was an at-will employee, unprotected by the provisions of the Manual, and (2) that Susan was a professional employee, also unprotected by the provisions of the Manual.

The Board, which may review the decision of a grievance panel or the Executive Director, and whose decision is the final and binding agency decision, affirmed White’s decision. As to Douglas, the Board determined that White had jurisdiction to render his decision, that Douglas was an at-will employee, and that White did not err in reversing the decision of the grievance panel. As to Susan, the Board determined that she was a professional employee, and that she was therefore not entitled to the protections of the Manual, and that White did not err in reversing the decision of the grievance panel.

Douglas and Susan apparently claimed before the grievance panel that their terminations were the result of exercising their lawful rights to report improper activity. However, both grievance panels determined that it was not the proper forum to make this determination. The findings of fact, conclusions of law, and decision of the Board give no indication that the issue of retaliatory firing was considered, except a very general determination that Douglas and Susan were provided with due process in their terminations.

Douglas and Susan filed a complaint styled as a petition for judicial review in the district court asking that the decisions of the Board be reviewed because they were clearly erroneous, arbitrary, and capricious, represented an excess of authority, and were an abuse of discretion. There was no cause of action for retaliatory firing or claim that Douglas and Susan were termi nated because of exercising their right of free speech in reporting improper activity. The Clements’ brief to the district court did claim that the reorganization was a subterfuge to get rid of Douglas and Susan because they had reported improprieties of a prior Executive Director. However, no amendment to the complaint was requested by the Clements to assert retaliatory firing or termination in violation of Nevada’s public policy. Accordingly, the district court determined that substantial evidence and the policy and procedures manual supported the Board’s terminations of Douglas and Susan, and the court specifically addressed the claim of retaliatory firings.

Petitioners argue that their discharge was in retaliation of their coming forward and offering information concerning improprieties by the previous Director. This is an issue not addressed in the Board of Trustees’ decision and, thus, not an issue properly before this Court at this time.

The record before the district court also contained Douglas and Susan’s complaint in the United States District Court filed April 12, 1991. In this pleading, the Clements claim that jurisdiction of the court rested on 28 U.S.C. § 1331 (1988) and reiterated their claim of retaliatory discharge. The complaint specifically noted that the grievance panel declined to rule on the issue of retaliatory discharge because it was beyond the scope and authority of the grievance panel. The Clements then went on to claim that their termination violated the United States Constitution and Nevada law, that the termination was without cause and breached the implied covenant of good faith and fair dealing, that the termination constituted a violation of Nevada’s public policy because it was a retaliatory discharge, and that they suffered the infliction of emotional distress.

Standard of Review

This court’s role in reviewing an administrative decision is identical to that of the district court: to review the evidence presented to the agency in order to determine whether the agency’s decision was arbitrary or capricious and was thus an abuse of the agency’s discretion. Titanium Metals Corp. v. Clark County, 99 Nev. 397, 399, 663 P.2d 355, 357 (1983); see NRS 233B.135¹; State Envtl. Comm’n v. John Lawrence Nev., 108 , 834 P.2d 408, 410 (1992). “Administrative agencies may receive and weigh evidence and a reviewing court may not substitute its judgment on questions of fact.” Southwest Gas v. Woods, 108 Nev. 11, 15, 823 P.2d 288, 290 (1992) (citations omitted). On questions of fact, this court is limited to determining whether substantial evidence exists in the record to support the administrative agency’s decision. See SIIS v. Swinney, 103 Nev. 17, 20, 731 P.2d 359, 361 (1987). Although a reviewing court may decide pure legal questions without deference to an agency determination, an agency’s conclusions of law which are closely related to the agency’s view of the facts are entitled to deference and should not be disturbed if they are supported by substantial evidence. SIIS v. Khweiss, 108 Nev. 123, 126, 825 P.2d 218, 220 (1992). Substantial evidence is “ ‘that quantity and quality of evidence which a reasonable [person] could accept as adequate to support a conclusion.’” State, Emp. Security v. Hilton Hotels, 102 Nev. 606, 608 n.1, 729 P.2d 497, 498 n.1 (1986) (quoting Robertson Transp. Co. v. P.S.C., 159 N.W.2d 636, 638 (Wis. 1968)).

The dissent of Justice Shearing states that only those determinations that are specifically within the administrative agency’s ken or expertise are entitled to deferential review. While we have no major quarrel with this observation, we note that no such distinction is made in NRS 233B.135 or in our prior case law. Further, we believe that decisions involving the intricacies of an agency’s operation and procedures are entitled to some deference by this court. However, given the issues and record on appeal in this case, we would reach the same result without giving any deference to the Board.

AAWC Creation and the Manual

The AAWC was created by the Legislature in 1977, under Chapter 474 of the 1977 Statutes of Nevada (the Act), as a quasi- municipal corporation. 1977 Nev. Stat., ch. 474, § 4 at 969. Section 29 of the Act authorized the AAWC to adopt its own civil service plan to be administered by the AAWC Board. 1977 Nev. Stat., ch. 474, § 29 at 975. The Manual sets forth the civil service system as adopted by the AAWC. Therefore, any protections provided to AAWC employees by the Manual apply only to those employees covered by the Manual, i.e., those employees within the civil service system.

In addition to being excluded from the civil service system by the express provisions of the Manual, an employee may also be excluded from the civil service system by the provisions of section 29 of the Act. Under section 29(13), “persons employed to render professional, scientific, technical or expert service, [and] persons providing services of a temporary or exceptional character” are mandatorily exempt from the AAWC civil service plan. 1985 Nev. Stat., ch. 494, § 3 at 1513. Those included within the AAWC civil service plan may be entitled to protection from termination by Manual section 9.2, which states:

When necessary to reduce the number of employees in any job classification, it is the policy of the Airport Authority whenever possible to attempt to minimize lay-offs by readjustment of personnel through transfer, if qualified, to other open positions within the Authority. It is further policy that whenever lay-offs are necessary, temporary and probationary employees in that job classification shall be laid off before permanent employees. Permanent employees shall be laid off in inverse order of their length of service by job classification.

Douglas’s Claims

Douglas contends that he was included within the AAWC civil service plan, and that he was therefore entitled to protection from termination by section 9.2 of the Manual. The reorganization plan called for the termination of the Chief of PEM position and the creation of a corresponding Senior Engineer position. The job duties of the Senior Engineer were to be either identical to or scaled down from those of the Chief of PEM, with the only new requirement being that the Senior Engineer must be a registered engineer, which Douglas was. Douglas asserts that, under section 9.2 of the Manual, he was entitled to a transfer to the Senior Engineer position in lieu of termination.

Section 2.4(0) of the Manual provides, “The Associate Director, department heads and Executive Secretaries are hired by and serve at the pleasure of the Executive Director.” As the Chief of PEM, Douglas was a department head and served at the will of the Executive Director. As such, by the terms of the civil service plan as set forth in the Manual, Douglas was not entitled to the job protections afforded to regular civil service employees under the Manual, such as job reassignments. Instead, Douglas served at the pleasure of White and he may not now complain of his termination by White. Since Manual section 2.4(0) excluded Douglas from the civil service system, Douglas had no right to be transferred to the Senior Engineer position when his previous position was eliminated.

The dissent of Justice Springer reaches a contrary conclusion. The dissent focuses on an issue not properly before this court on appeal, i.e., a potential claim against the AAWC for retaliatory termination. The grievance panel, however, refused to consider any issues relating to retaliatory dismissal, as did the Board in reversing the panel’s decisions. Indeed, it may have been improper for the grievance panel to attempt the resolution of any controversy other than one involving the interpretation of provisions of the civil service system. Issues of retaliatory dismissal were also not addressed by the district court because they were not pled. The sole issue before the grievance panel, the Board, and the district court was whether the AAWC violated the AAWC’s Manual in terminating Douglas without offering to transfer him to another position within the AAWC. Whether Douglas’s termination was wrongful for any other reason is beyond the scope of our review because the issue was not specifically pleaded in the complaint filed in state district court or litigated by the parties. Cf. Idaho Resources v. Freeport-McMoran Gold, 110 Nev. 459, 874 P.2d 742 (1994). Even Douglas’s counsel on appeal acknowledges that issues of retaliatory dismissal are not before this court on this appeal.

The issue of retaliatory firing was specifically contained in the federal district court complaint, and the record supports the state district court’s determination that the retaliatory firing issue was not properly before it. It is clear from the record that Douglas and Susan elected to litigate the retaliatory firing issue in the federal court system.

Douglas’s counsel on appeal also does not assert that Douglas was not a department head, and in fact, his counsel implicitly acknowledges that Douglas was a department head. Douglas has therefore not demonstrated to this court that there is any disputed issue of fact as to whether he was a department head, and the dissent’s reliance on Douglas’s status as a department head as a disputed issue of fact is misplaced.

Susan’s Claims

Susan also contends that, under section 9.2 of the Manual, she should not have been terminated. As with Douglas, whether Susan was protected by the provisions of the Manual depends, in part, on whether she fell within the civil service system. On review, the Board determined that Susan was a professional employee, and that she was therefore excluded from the civil service plan and from the protections of the Manual by section 29(13) of the Act. The district court also found Susan to be a professional employee, and thereby excluded from the civil service system.

Although evidence was presented at the grievance hearing indicating Susan was considered by AAWC personnel to be a professional employee, we are not bound by any administrative or bureaucratic label affixed by the AAWC. Instead, we must examine section 29(13) to determine whether a person in Susan’s position was meant by the Legislature to be included within the definition of one who provides professional services.

We conclude that Susan was not a professional employee within the meaning of section 29(13).² She had no special skills which she brought to the job. She moved into the Properties department from her position as a secretary. She did not have a college degree, a special license, or any formal certification. If she were considered to have been employed to render “professional, scientific, technical or expert service[s],” then every mid-level employee of the AAWC would be exempt from the civil service system, as Susan had absolutely no special or professional skills. NRS 89.020(4) defines “professional service” as “any type of personal service which may legally be performed only pursuant to a license, certificate of registration or other legal authorization.” This definition seems consistent with section 29(13), which groups professional services with such other specialized skills as scientific, technical, or expert services. We conclude that section 29(13) was intended to exclude from the civil service system persons acting more as consultants than regular employees, and that Susan in no way fit within the civil service exemption in section 29(13). Therefore, the civil service protections encompassed within the Manual apply to Susan.

Since we conclude that Susan fell within the civil service system, we must determine whether section 9.2 of the Manual entitled her to an interdepartmental transfer in lieu of termination. Susan contends that, under section 9.2 of the Manual, she could not be terminated prior to a probationary employee in Properties, who also had less seniority. The AAWC asserts that section 9.2 does not apply here because Susan’s classification within Properties was one step below the other three employees in the department. Since section 9.2 only provides for termination in inverse order of seniority within a job classification and for initial termination of probationary employees within a job classification, the AAWC argues that Susan was not entitled to have anybody terminated before herself. The Board concluded that Susan’s position in Properties was of a different classification than the other three Properties positions, and it stated, “Even if civil service rules apply, [Susan] Clements’ job classification was eliminated, thus giving her no ‘bumping rights’ under the layoff procedure in section 9.2 of the Manual.” The district court reached the same conclusion.

Prior to the reorganization, Properties maintained four staff positions: two Property Management Analysts, a Property Acquisition Specialist, and Susan’s position of Advertising/Marketing Specialist. The reorganization left Properties with three staff positions under a single job description of Property Administrator, which encompassed the duties of the former positions under the titles “Property Administrator,” “Property Administrator/ Advertising,” and “Property Administrator/Acquisition.” The functions of the Properties department did not change with the reorganization. The issue becomes whether all four positions in the Properties department prior to reorganization were in the same AAWC job classification, or whether Susan’s position as Advertising/ Marketing Specialist was of a different classification than the other three positions.

Manual section 1.11 states, in pertinent part:

Position classification is a process of identifying and describing the different kinds of work being performed in an organization and allocating jobs into classes based on similar or like duties, responsibilities and qualification requirements.

Evidence was received at Susan’s grievance hearing that the written duties, responsibilities, and qualifications of the four Properties positions, including Susan’s, were similar, and that Susan was capable of performing most if not all of the duties in the property management area. The same pay scale was also used for all four Properties positions. The Chief of Properties, Susan’s immediate supervisor, testified that the Property Management Analyst and the Advertising/Marketing Specialist were within the same job classification. Furthermore, while the AAWC argued that the Advertising/Marketing Specialist position was separate and distinct from the rest of Properties, Susan was being cross-trained to perform all of the duties within the Properties department.

Evidence was also received at the grievance hearing that, following reorganization, Susan was qualified to be a Property Administrator, and that 99.9 percent of the work formerly done by Susan was done within the new Properties department. The fact that the newly created position of Property Administrator was meant to encompass all four of the previous Properties positions in a single job also indicates that Susan’s position was not significantly different from the others.

In sum, there was not substantial evidence to support the Board’s determination that Susan’s job classification was different from that of the other three employees in Properties. On the contrary, the evidence suggests that all the positions within the Properties department were of the same job classification. Accordingly, pursuant to Manual section 9.2, the probationary employee with less seniority should have been terminated prior to Susan, and Susan should have been offered one of the newly created Property Administrator positions. We reach the same conclusion concerning Susan’s claim of retaliatory firing as we did with Douglas’s similar assertion and conclude that it is without merit.

CONCLUSION

The Board did not err in sustaining the AAWC’s termination of Douglas, but the Board erred in sustaining the AAWC’s termination of Susan. We have carefully considered all other contentions on appeal; and we conclude that they either lack merit or need not be further addressed in light of our disposition.

Accordingly, we affirm that portion of the district court’s order denying judicial review as to Douglas and upholding the Board’s decision sustaining Douglas’s termination. We reverse that portion of the district court’s order denying judicial review as to Susan and upholding the Board’s decision sustaining Susan’s termination; and we remand this case to the district court with instructions to direct the Board to reinstate Susan and afford her all rights accorded by the Manual, in particular those rights under Manual section 9.2.

Steffen, C. J., and Young, J., concur.

Footnotes

1

NRS 233B.135 provides that judicial review of a final agency decision must be confined to the record and the burden of proof is on the party challenging the agency decision. NRS 233B. 135(1), (2). NRS 233B. 135(3) provides:

3. The court shall not substitute its judgment for that of the agency as to the weight of evidence on a question of fact. The court may remand or affirm the final decision or set it aside in whole or in part if substantial rights of the petitioner have been prejudiced because the final decision of the agency is:

(a) In violation of constitutional or statutory provisions;

(b) In excess of the statutory authority of the agency;

(c) Made upon unlawful procedure;

(d) Affected by other error of law;

(e) Clearly erroneous in view of the reliable, probative and substantial evidence on the whole record; or

(f) Arbitrary or capricious or characterized by abuse of discretion.

2

The AAWC admitted before this court that it applies certain provisions of the Manual to those it considers to be “professional” employees. The AAWC’s definition of a “professional” employee must therefore differ from that of section 29(13), which, by statute, excludes “professional” employees from the provisions of the Manual.