Meyers v. Nebraska State Penitentiary

to acceptance” of a plea of guilty or no contest, Mena-Rivera’s
constitutional rights were not implicated. Given the facts of
this case, I believe the district court met the requirements of
the statute, and Mena-Rivera should not be entitled to with-
draw his plea of guilty. I would therefore affirm the decision
of the district court denying Mena-Rivera’s motion to withdraw
his guilty plea.
TimoThy meyers , appellanT, v. nebraska sTaTe
peniTenTiary of The nebraska D eparTmenT of
C orreCTional serviCes , anD C ommissioner of
labor of The sTaTe of nebraska , appellees.
791 N.W.2d 607
Filed December 17, 2010. 	No. S-10-267.
1. Employment Security: Judgments: Appeal and Error. In an appeal from the
Nebraska Appeal Tribunal to the district court regarding unemployment benefits,
the district court conducts the review de novo on the record, but on review by the
Court of Appeals or the Supreme Court, the judgment of the district court may be
reversed, vacated, or modified for errors appearing on the record.
2. Judgments: Appeal and Error. When reviewing a judgment for errors appearing
on the record, the inquiry is whether the decision conforms to law, is supported
by competent evidence, and is neither arbitrary, capricious, nor unreasonable.
3. Employment Security. Under Neb. Rev. Stat. § 48-628(2) (Cum. Supp. 2008), an
individual shall be disqualified for unemployment benefits for misconduct related
to his work.
4. Employment Security: Words and Phrases. Misconduct related to work is
defined as behavior which evidences (1) wanton and willful disregard of the
employer’s interests, (2) deliberate violation of rules, (3) disregard of standards of
behavior which the employer can rightfully expect from the employee, or (4) neg-
ligence which manifests culpability, wrongful intent, evil design, or intentional
and substantial disregard of the employer’s interests or of the employee’s duties
and obligations.
5. Employment Security. An employee’s actions do not rise to the level of miscon-
duct if the individual is merely unable to perform the duties of the job.
Appeal from the District Court for Lancaster County: roberT
r. oTTe, Judge. Reversed and remanded with directions.
Kevin Ruser and Patricia A. Knapp, of University of Nebraska
Civil Clinical Law Program, and Clint Cadwallader, Kurt
958 	280 NebRASKA RePoRTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:46 AM CST

Arganbright, Matthew Meyerle, and Joshua Wunderlich, Senior
Certified Law Students, for appellant.
John H. Albin, Special Assistant Attorney General, and Katie
baltensperger, Senior Certified Law Student, for appellees.
heaviCan, 	C.J., 	WrighT, 	C onnolly, 	gerrarD, 	sTephan,
mCC ormaCk , and miller-lerman, JJ.
mCC ormaCk , J.
NATURe oF CASe
Timothy Meyers filed a claim for unemployment insurance
benefits after termination from his employment as a correc-
tions officer at the Nebraska State Penitentiary of the Nebraska
Department of Correctional Services (State Penitentiary). The
issue in this case is whether Meyers’ repeated failures to follow
security procedures constituted misconduct in connection with
his work so as to disqualify him from receiving unemployment
benefits. because the record does not support the determina-
tion that Meyers’ actions amount to misconduct, we reverse the
decision of the district court.
bACKGRoUND
Meyers 	worked 	as 	a 	correctional 	officer 	at 	the 	State
Penitentiary from January 5, 2009, until his discharge on May
8, 2009. Meyers was hired on a 6-month probationary period
and was required to complete 6 weeks of training, including
on-the-job training where he was assigned to certain posts for 8
hours per week. At the conclusion of his training on each post,
Meyers signed a form indicating he understood the require-
ments of that post. Meyers also received a training manual,
which included administrative regulations and the code of
ethics, and an employee handbook. Meyers successfully com-
pleted his training. The appellees maintain that Meyers was
discharged for failing to follow procedures that govern State
Penitentiary security practices.
Throughout Meyers’ employment, supervisors raised con-
cerns regarding his ability to perform the functions of his job.
In a February 21, 2009, incident report, a supervisor noted
that Meyers had difficulty performing radio protocols, even
MeyeRS v. NebRASKA STATe PeNITeNTIARy 	959
Cite as 280 Neb. 958

after the skills had been demonstrated and explained. Another
supervisor noted that Meyers “might not be suitable in the field
of corrections.” This observation was based on Meyers’ appar-
ent difficulty applying restraints and retaining information. In
addition, the incident reports contained in the record note that
although Meyers was able to complete his training, he had dif-
ficulty grasping information and needed extensive instruction.
The final report which recommended termination of Meyers’
employment stated that Meyers’ job performance had been
unsatisfactory, that he struggled to adapt to the correctional
environment, and that “Meyers’ attitude is more of a person
working in a library versus one working in a prison.”
The report recommending termination of Meyers’ employ-
ment identifies specific incidents where Meyers failed to prop-
erly carry out his duties. on February 26, 2009, Meyers was
assigned to a tower to supervise movement in the prisonyard.
During the hours of dark or inclement weather, an officer
assigned to this post is required to challenge any individual
observed walking across the yard to ensure that an inmate is
not attempting to escape or access unauthorized areas. The
prescribed protocol requires the officer to challenge the move-
ment by turning on a red light. If the person moving about the
yard is prison staff, that person must flash back with his or
her flashlight. The report states that Meyers admitted he saw a
person in the yard whom he did not challenge and that Meyers
explained that his failure to challenge that movement was a
result of poor lighting, shadows in the yard, and the fact that
he had been watching dog handlers and dogs and scanning the
area between other towers.
on April 2, 2009, Meyers was assigned to the visiting
room to supervise inmates and their visitors. His supervisor
reported that Meyers paid little attention to the operation of
the visiting room and instead devoted his time toward get-
ting a supervisor “to do [Field Training officer] modules.” A
supervisor did complete one module with Meyers, and Meyers
was thereafter informed that he was ill prepared for work and
more concerned about his personal needs than those of his
coworkers. After the April 2 shift, Meyers’ supervisor reported
960 	280 NebRASKA RePoRTS

that Meyers made the statement: “‘I see the predominant
number of mixed couples in here are black.’” His supervisor
reported that there were three mixed couples in the visiting
room at the time and that he found the statement both “alarm-
ing and dangerous.”
on April 27, 2009, Meyers was assigned to a housing unit.
Meyers was to work in the control center, from which the cell
and entrance doors of the housing unit are locked and unlocked
to control the movement of the inmates. each hour, inmates
are allowed to move freely between their cells and the hous-
ing unit for a 10-minute period. For the remainder of the hour,
inmates are not allowed to enter the housing unit or their cells
unless they have a specific reason to do so. The appellees testi-
fied that this protocol is in place for security reasons; if other
inmates gain access to those areas without staff observation,
they might be able to hide contraband, steal items, or assault
fellow inmates. outside of the 10-minute open period, protocol
requires an inmate to request access to the housing area or an
individual cell via an intercom system. In order to allow the
requested access, an officer must verify the inmate’s iden-
tity and cell assignment before allowing the inmate to enter.
each control center contains a picture of each inmate and the
inmate’s cell assignment.
During Meyers’ shift on April 27, 2009, on three separate
occasions, he violated the protocol described above. Meyers
opened the doors of cells that were unoccupied when the
inmates who were assigned to those cells were not in the hous-
ing unit. These violations were reported to a lieutenant, who
testified before the Nebraska Appeal Tribunal that Meyers
explained that the inmates would “yell and push him to open
room doors even if he was not certain if that inmate even lived
in that housing unit or was assigned to that room.”
Meyers received a termination letter which explained the
reasons for termination as follows:
you have failed to comprehend several essential job duties
such as application of restraints and radio operation.
. . . you failed to challenge movement on the external
yard while you were assigned to Tower 4.
MeyeRS v. NebRASKA STATe PeNITeNTIARy 	961
Cite as 280 Neb. 958

. . . you failed to control inmate movement in a
housing unit by allowing unoccupied room doors to
be unsecured.
After his employment was terminated, Meyers applied to reopen
an established benefits claim. An adjudicator determined that
Meyers’ employment was not terminated for misconduct, and
the State Penitentiary appealed that determination on June
19, 2009.
A notice of appeal filed was mailed to Meyers on June 19,
2009, stating that he would be advised of the date and time
of his hearing within approximately 15 to 25 business days.
Meyers was a member of the U.S. Naval Reserve and, from
July 17 to August 1, was deployed overseas for reserve training
duty. on July 27, Meyers was mailed the notice of hearing set-
ting forth the date, time, and manner of the hearing. The hear-
ing was scheduled for August 10. Notice was received when
Meyers returned home; however, he did not read the notice
until after the hearing had occurred. Meyers therefore did not
participate in the hearing.
The appeal tribunal found that Meyers was discharged for
misconduct in connection with his work. on appeal, the dis-
trict court affirmed this finding and, quoting Bristol v. Hanlon,1
concluded that Meyers’ actions constituted misconduct “in that
they evinced a ‘deliberate, willful or wanton disregard of an
employer’s interest . . . or carelessness or negligence of such
a degree or recurrence as to manifest culpability . . . .’” The
court also found that Meyers was not entitled to relief under
the Servicemembers Civil Relief Act2 because the decision of
the appeal tribunal was not a default judgment and Meyers did
not have a meritorious defense to the action as required under
the act.3 Meyers appeals.
1 Bristol v. Hanlon, 210 Neb. 37, 312 N.W.2d 694 (1981), overruled on
other grounds, Heimsoth v. Kellwood Co., 211 Neb. 167, 318 N.W.2d 1
(1982).
2 50 U.S.C. app. § 501 et seq. (2006 & Supp. II 2008).
3 See id., § 521(g).
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ASSIGNMeNTS oF eRRoR
Meyers assigns that the district court erred in (1) affirming
the appeal tribunal’s decision that Meyers had been fired from
his job due to misconduct and (2) determining that Meyers
was not entitled to relief under the Servicemembers Civil
Relief Act.
STANDARD oF RevIeW
[1,2] In an appeal from the appeal tribunal to the district
court regarding unemployment benefits, the district court con-
ducts the review de novo on the record, but on review by the
Court of Appeals or the Supreme Court, the judgment of the
district court may be reversed, vacated, or modified for errors
appearing on the record. When reviewing a judgment for errors
appearing on the record, the inquiry is whether the decision
conforms to law, is supported by competent evidence, and is
neither arbitrary, capricious, nor unreasonable.4
ANALySIS
[3,4] Under Neb. Rev. Stat. § 48-628(2) (Cum. Supp. 2008),
an individual shall be disqualified for unemployment benefits
for misconduct related to his work. We have previously defined
misconduct as behavior which evidences (1) wanton and will-
ful disregard of the employer’s interests, (2) deliberate viola-
tion of rules, (3) disregard of standards of behavior which the
employer can rightfully expect from the employee, or (4) negli-
gence which manifests culpability, wrongful intent, evil design,
or intentional and substantial disregard of the employer’s inter-
ests or of the employee’s duties and obligations.5
[5] Meyers argues that he was discharged not for miscon-
duct, but, rather, for his inability to perform job duties. An
employee’s actions do not rise to the level of misconduct if the
individual is merely unable to perform the duties of the job.6
4 NEBCO, Inc. v. Murphy, ante p. 145, 784 N.W.2d 447 (2010).
5 Id. See, also, Douglas Cty. Sch. Dist. 001 v. Dutcher, 254 Neb. 317, 576
N.W.2d 469 (1998); Smith v. Sorensen, 222 Neb. 599, 386 N.W.2d 5
(1986).
6 See Perkins v. Equal Opportunity Comm., 234 Neb. 359, 451 N.W.2d 91
(1990).
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Cite as 280 Neb. 958

However, deliberate indifference to the standards of behavior
that an employer has a right to expect is misconduct.7 In reli-
ance on Bristol v. Hanlon,8 the appellees assert, and the district
court concluded, that Meyers’ failure to (1) follow security
procedures when admitting inmates to the housing unit without
proper authorization, (2) observe the inmates and their visitors
in the visiting area, and (3) follow security procedures and
challenge unknown persons walking in the prison yard after
dark evidenced a deliberate, willful, or wanton disregard of
an employer’s interest or carelessness or negligence of such a
degree or recurrence as to manifest culpability.
In support of this argument, the appellees assert that Meyers’
actions show a complete disregard of his employer’s inter-
est because Meyers deliberately failed to observe important
safety rules. Meyers was thoroughly trained on the expected
protocol, his violations were multiple instances over a period
of time, and Meyers was often reminded of the correct proce-
dure following these violations. Specifically, during the final
incident that led to the termination of Meyers’ employment,
Meyers violated the same rule three times even after being
reminded of the proper protocol after each preceding instance.
The appellees argue that this shows deliberate disregard of the
employer’s interest in maintaining a safe prison facility or,
in the alternative, that Meyers’ actions amount to negligence
which manifests culpability.
We find the district court’s reliance on Bristol to be mis-
placed. In that case, the claimant worked for a slaughterhouse
and was trained to remove the hides of beef carcasses. The
claimant damaged hides by making improper cuts; he conceded
that the cuts were improper. but, when warned by another
employee to stop making such cuts, he responded by shout-
ing obscenities and continuing to make the cuts in the same
fashion as he had prior to the warnings. The claimant was fired
for this conduct and was denied unemployment benefits on the
basis of misconduct. We affirmed the determination and found
7 See Bristol v. Hanlon, supra note 1.
8 Id.
964 	280 NebRASKA RePoRTS

that the claimant damaged the hides intentionally; that he had
been fully trained, having worked for the company for 3 years;
and that his actions were due to his unhappiness about doing
a particular job.9 Bristol is distinguishable from the present
case. The record indicates that Meyers struggled to adapt to
the correctional environment and that supervisors expressed
concerns that he was not suited for the field of corrections. It
was also noted that Meyers had difficulty grasping basic con-
cepts and retaining information, even for short periods of time.
Aside from the appellees’ assertions, there is no evidence that
Meyers’ failures were the result of deliberate indifference or
were so careless or negligent as to manifest culpability.
The present case is similar to Borbas v. Virginia Employment
Com’n,10 in which the virginia Court of Appeals reversed a
determination that a prison security guard had been discharged
for misconduct after breaching security policies on three occa-
sions. Though all three of the breaches concerned the security
of the prison facilities, the court noted that behavior that is
involuntary or unintentional or results from simple negligence
warrants dismissal, but not disqualification from benefits. The
court also found no evidence that the guard, despite her exten-
sive training, ever performed well, so the breaches were not
a result of a decline in her performance. The court concluded
that her actions were negligent at most and did not rise
to misconduct.
Under the definition of “misconduct” developed in our case
law, misconduct generally involves intentional actions as indi-
cated by the phrases “‘wanton and willful disregard of the
employer’s interests,’” “‘deliberate violation of rules,’” and
“‘disregard of standards of behavior.’”11 Misconduct may also
involve negligence on the part of the employee, but only when
it “manifests culpability, wrongful intent, evil design, or inten-
tional and substantial disregard of the employer’s interests or
9 Id.
10 Borbas v. Virginia Employment Com’n, 17 va. App. 720, 440 S.e.2d 630
(1994).
11 NEBCO, Inc. v. Murphy, supra note 4, ante at 154, 784 N.W.2d at 455
(quoting Douglas Cty. Sch. Dist. 001 v. Dutcher, supra note 5).
MeyeRS v. NebRASKA STATe PeNITeNTIARy 	965
Cite as 280 Neb. 958

of the employee’s duties and obligations.”12 Poor judgment,
inability to cope with situations, and occasional incidents of
nondeliberate failure to precisely follow established rules and
procedures do not constitute the kind of willful and deliberate
misconduct that will disqualify an employee from receiving
unemployment benefits as provided by law.
Meyers’ apparent inability to perform the functions of his
job most likely warrants dismissal. This is especially the case
under the circumstances of Meyers’ employment, as he was
still a probationary employee at the time his employment was
terminated. Meyers was employed as a corrections officer for
only 4 months. Similar acts committed by a seasoned employee
might prove misconduct by amounting to evidence of a deliber-
ate violation of the rules or disregard of the employer’s inter-
est. In the present case, however, we conclude that the record
does not contain competent evidence to support a finding that
Meyers’ violations of protocol rise to the level of misconduct
as we have defined it. because this conclusion is dispositive,
we need not address Meyers’ other assignment of error.
CoNCLUSIoN
The record supports a finding that Meyers’ actions consti-
tuted, at most, negligence. They did not constitute the mis-
conduct necessary to justify a denial of benefits. Accordingly,
we reverse the judgment of the district court and direct it to
remand the matter to the appeal tribunal with directions to
enter an award consistent with this opinion.
reverseD anD remanDeD WiTh DireCTions.
12 Douglas Cty. Sch. Dist. 001 v. Dutcher, supra note 5, 254 Neb. at 321, 576
N.W.2d at 472.
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