DEPT. OF HEALTH AND HUMAN SERV. v. Weekley

741 N.W.2d 658, 274 Neb. 516
CourtNebraska Supreme Court
DecidedNovember 30, 2007
DocketS-06-292
StatusPublished
Cited by47 cases

This text of 741 N.W.2d 658 (DEPT. OF HEALTH AND HUMAN SERV. v. Weekley) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
DEPT. OF HEALTH AND HUMAN SERV. v. Weekley, 741 N.W.2d 658, 274 Neb. 516 (Neb. 2007).

Opinion

741 N.W.2d 658 (2007)
274 Neb. 516

NEBRASKA DEPARTMENT OF HEALTH AND HUMAN SERVICES, appellee,
v.
Paula WEEKLEY, appellant.

No. S-06-292.

Supreme Court of Nebraska.

November 30, 2007.

*659 Lynnette Z. Boyle, of Tietjen, Simon & Boyle, Lincoln, for appellant.

Jon Bruning, Attorney General, and Frederick J. Coffman for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

GERRARD, J.

Paula Weekley, a former employee of the Nebraska Department of Health and Human Services (DHHS), appeals from the order of the district court for Dodge County affirming DHHS' decision to terminate her employment. On appeal, Weekley argues that pursuant to Neb.Rev. Stat. § 84-917(2)(a) (Reissue 1999), the district court for Dodge County did not have jurisdiction over this appeal. We conclude that DHHS' petition was not filed in compliance with § 84-917(2)(a), and as a result, the district court for Dodge County did not have jurisdiction.

FACTS

Weekley was a protection and safety worker for DHHS and was assigned to perform case work for Adult Protective Services (APS). APS workers assist elderly and vulnerable adults in potentially neglectful or abusive settings and serve as resources for citizens who need assistance in caring for elderly and vulnerable adults.

On Friday, September 6, 2002, APS received a telephone call from a nurse at the Fremont Area Medical Center who was concerned about the care an elderly woman was receiving at the woman's home. On September 9, the case was assigned to Weekley. Weekley was on annual leave at the time, but returned to her office on Tuesday, September 10.

Upon returning to work on September 10, 2002, Weekley reviewed her telephone messages, intake forms, and other documents that had accumulated on her desk during her absence. Among the documents she reviewed was the intake report pertaining to the elderly woman. Under DHHS regulations, Weekley was to make face-to-face contact with the subject of the report within 5 days. But Weekley was unable to locate her and never made face-to-face contact. On September 23, a fire broke out at the elderly woman's home, resulting in her death.

On October 21, 2002, Weekley received a "Written Notice of Allegations," relating to the handling of the case and informing Weekley that if the allegations were substantiated, she would be subject to disciplinary action. On January 2, 2003, the protection and safety administrator issued a "Written Notice of Discipline" terminating Weekley's employment. The protection and safety administrator testified that the decision was based on the current information related to the handling of the elderly woman's base and Weekley's previous conduct that had resulted in disciplinary *660 actions. Weekley filed a grievance with DHHS. The agency director reviewed Weekley's case and affirmed the protection and safety administrator's decision to terminate Weekley's employment.

Weekley appealed the agency director's decision through the administrator of the Department of Administrative Services (DAS). Pursuant to the grievance procedures in Weekley's labor contract, a "mini hearing" was held before the designee of the employee relations administrator of the DAS in Lincoln, Lancaster County, Nebraska. The relevant provisions of the labor contract relating to the "mini hearing" process are as follows:

4.10.2 MINI HEARING PROCESS. When an appeal has been submitted to the Administrator of the DAS Employee Relations Division, and before a hearing officer/arbitrator is appointed, the Administrator of the DAS Employee Relations Division or his/her designee may confer with the Union representative, or grievant, if the grievant chooses not to be represented by [the Nebraska Association of Public Employees/American Federation of State, County and Municipal Employees] or any other representative, and the Agency representative to discuss and attempt to informally resolve the grievance. In cases where the grievant is not represented by the union, a union representative may attend the hearing and observe. . . . This conference (mini-hearing) shall be informal and the rules of evidence shall not apply. All exhibits that the Agency or Grievant want the Administrator of the DAS Employee Relations Division/Designee to consider must be received by the DAS Employee Relations Division and the opposing party a minimum of three days before the mini-hearing. . . . Neither party may be represented by anyone licensed (active or inactive) to practice law in the State of Nebraska at this conference.
4.10.3 The Administrator of the DAS Employee Relations Division or his/her designee may request a conference with the parties to discuss resolution of the grievance and shall have the authority to interview witnesses or require documents and other items to be produced prior to the conference. . . . However, the intent of the parties is that the matter be considered at this step in an informal manner and be resolved as expeditiously as possible.
4.10.4 After the conference and a review of the grievance and other documents submitted by the parties, the Administrator of the DAS Employee Relations Division or his/her designee shall issue a written decision to the parties to reverse, modify or uphold the answer made by the Agency Head at Step 2. This decision shall be issued within 20 workdays of the conference and shall include a description of the events giving rise to the grievance and the rationale upon which the decision is made. If a written decision is not rendered within 20 workdays, either party may request the grievance be heard before the hearing officer/arbitrator, as appropriate. This decision shall not constitute a part of the appeal record if the matter is heard by an arbitrator or a hearing officer.
4.10.5 If either party is not satisfied with the decision made by the Administrator of the DAS Employee Relations Division or his/her designee, that party shall give notice that the appeal be heard by a hearing officer/arbitrator . . . by filing a notice with the Administrator of the DAS Employee Relations Division in the office of the Employee Relations Division within 7 workdays of receipt of the decision from the Administrator of *661 the DAS Employee Relations Division or his/her designee.
4.10.6 If notice is not received within the prescribed time frames, the decision of the Administrator of the DAS Employee Relations Division or his/her designee shall be considered final.

In accordance with these provisions, the appointed designee of the DAS employee relations administrator conducted the "mini hearing" in Lancaster County. At the "mini hearing," each party called one witness, submitted exhibits, and presented oral arguments. Following the "mini hearing," the appointed designee issued a written decision setting forth findings of fact, conclusions of law, and affirming DHHS' decision to terminate Weekley's employment.

Weekley appealed this decision to the State Personnel Board. A hearing officer was appointed, and a hearing was conducted in Dodge County, Nebraska. At the hearing, both parties were given the opportunity to present new or different testimony and exhibits, examine and cross-examine witnesses, and offer argument in support of their position.

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Cite This Page — Counsel Stack

Bluebook (online)
741 N.W.2d 658, 274 Neb. 516, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dept-of-health-and-human-serv-v-weekley-neb-2007.