Nebraska Dept. of Health & Human Servs. v. Williams

nebrASkA depArtment of heAlth And humAn S erviceS,
Appellee , v . eric W illiAmS, AppellAnt .
752 N.W.2d 163
Filed June 10, 2008. 	No. A-07-677.
1. Administrative Law: Judgments: Appeal and Error. 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.
2. ____: ____: ____. When reviewing an order of a district court 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 neither arbitrary, capricious, nor unreasonable.
3. Employer and Employee: Words and Phrases. “Just cause” for employee dis-
cipline is that which a reasonable employer, acting in good faith, would regard as
good and sufficient reason for formally disciplining an employee, as distinguished
from an arbitrary whim or caprice.
Appeal from the District Court for Lancaster County: kAren
b. floWerS, Judge. Affirmed.
Eric B. Brown and Ellen A. Deaver, of Atwood, Holsten &
Brown, P.C., L.L.O., for appellant.
Jon Bruning, Attorney General, and Vicki L. Adams for
appellee.
S ieverS, cArlSon, and moore, Judges.
moore, Judge.
INtRODUCtION
Eric Williams appeals the judgment of the district court for
Lancaster County, reversing the decision of the Nebraska State
Personnel Board (Board) and upholding the decision of the
Nebraska Department of Health and Human Services (DHHS)
to terminate the employment of Williams. Williams challenges
the district court’s findings regarding just cause to terminate
Williams’ employment and the failure to use progressive dis-
cipline. Finding no errors appearing on the record, we affirm the
decision of the district court.
Pursuant to the authority granted to this court under Neb. Ct.
R. of Prac. 11B(1) (rev. 2006), this case was ordered submitted
without oral argument.
NEBRASkA DEPt. OF HEALtH & HUMAN SERVS. v. WILLIAMS 	777
Cite as 16 Neb. App. 777
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:17 AM CST

BACkGROUND
Williams was employed with DHHS as a psychiatric tech-
nician in the adolescent unit at the Lincoln Regional Center
(LRC). Williams had been employed in that capacity for approx-
imately 10 months before the incident at issue, and his perform-
ance evaluations had been positive, with no prior disciplinary
actions. Williams’ duties consisted of, among other things,
checking the patients on a regular basis. On December 6, 2004,
Williams, along with coworker Ian kerkemeyer, was working
in the boys’ ward on the 3 to 11 p.m. shift. At the beginning
of their shifts, kerkemeyer and Williams were informed that
three patients, including S.B. and D.P., may have been planning
to attempt to overpower staff and take facility keys in order
to escape. Consequently, these patients were placed on “run
precaution” status, meaning they were considered to be a risk
of escape. LRC policy requires that “run precaution” patients
be checked at 10-minute intervals, as opposed to the regular
30-minute intervals.
At approximately 8:15 p.m. on December 6, 2004, kerkemeyer
left the LRC campus to take his 45-minute break. Upon his
return, kerkemeyer was called to assist on the girls’ ward due to
an uncontrollable patient, returned to the boys’ ward at approxi-
mately 9:50 p.m., and was again called away to attend to other
business. Williams claims that while kerkemeyer was gone,
Williams completed the room checks between 8 and 10:10 p.m.,
but he was unable to record the checks because kerkemeyer
took the checklist. the record shows that from approximately
10:10 until 11 p.m., Williams was involved in a conversation
with one of the nurses and failed to check any of the rooms dur-
ing that time. At 11 p.m., Williams began checking the patients’
rooms. Williams first checked on S.B. and found him present
in his room. As Williams checked the other rooms, S.B. left
his room and asked Williams’ permission to use the bathroom.
Williams walked with S.B. to the bathroom, unlocked the door,
and then resumed checking the other rooms. At approximately
11:05 p.m., kerkemeyer returned to the boys’ ward with another
employee scheduled for the next shift. kerkemeyer and the
other employee began performing the room checks for the shift
778 	16 NEBRASkA APPELLAtE REPORtS

change and learned that S.B. was not in his room. A short time
later, S.B. was located under a table in D.P.’s room.
Williams and kerkemeyer were placed on investigatory sus-
pension with pay. On February 7, 2005, DHHS terminated
Williams’ employment. Williams filed a grievance with the
agency director and the Department of Administrative Services
employee relations administrator. Both of Williams’ grievances
were denied. Williams appealed to the Board. Following a hear-
ing, the Board concluded that Williams should be reinstated.
DHHS appealed this decision to the district court. the district
court reversed the Board’s decision, concluding that DHHS
did have good cause to terminate Williams’ employment. the
district court also found that the governing labor agreement
did not require imposition of a sanction less than termination.
Williams appeals.
ASSIGNMENtS OF ERROR
Williams argues that (1) the district court’s finding that just
cause existed to support Williams’ termination is not supported
by competent evidence in the record, does not conform to the
law, and is arbitrary and unreasonable; (2) the district court’s
finding of fact that Williams did not complete the required
room checks from 8:15 until 10 p.m. is not supported by the
record and is erroneous; and (3) the district court erred as a
matter of law in holding that DHHS need not employ progres-
sive discipline under the governing labor contract.
StANDARD OF REVIEW
[1,2] 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. Holmes v. State, 275 Neb. 211,
745 N.W.2d 578 (2008). When reviewing an order of a district
court under the Administrative Procedure Act for errors appear-
ing on the record, the inquiry is whether the decision conforms
to the law, is supported by competent evidence, and is neither
arbitrary, capricious, nor unreasonable. Holmes v. State, supra.
NEBRASkA DEPt. OF HEALtH & HUMAN SERVS. v. WILLIAMS 	779
Cite as 16 Neb. App. 777

ANALYSIS
Was There Just Cause to Discipline Williams?
Williams is a member of the Nebraska Association of Public
Employees Local 61 of the American Federation of State,
County and Municipal Employees (NAPE). His termination of
employment is governed by section 10.1 of the labor agree-
ment between NAPE and the State, which provides in pertinent
part: “the Employer shall not discipline an employee without
just cause, recognizing and employing progressive discipline.
When imposing progressive discipline, the nature and severity
of the infraction shall be considered along with the history of
discipline and performance contained in the employee’s per-
sonnel file.” Williams argues that there was no just cause to
discipline him.
[3] “Just cause” for employee discipline is that which a rea-
sonable employer, acting in good faith, would regard as good
and sufficient reason for formally disciplining an employee,
as distinguished from an arbitrary whim or caprice. Stejskal v.
Department of Admin. Servs., 266 Neb. 346, 665 N.W.2d 576
(2003). the Supreme Court has applied the same standard to
findings regarding “good cause” for dismissal. Id. the district
court in this case found that for nearly an hour, Williams failed
to carry out an important aspect of his job. this finding is
clearly supported by the record because the evidence showed
that Williams admittedly failed to check the “run precaution”
patients every 10 minutes from approximately 10:10 until 11
p.m., as required by LRC policy. the district court found that
the foregoing gave DHHS cause to discipline Williams, a finding
which conforms to the law, is supported by competent evidence,
and is neither arbitrary, capricious, nor unreasonable.
Because this aspect of the job related directly to the safety
and security of S.B., the other patients on the unit, and the
public, the district court also found that good cause existed to
terminate Williams’ employment. Williams argues that the dis-
trict court disregarded the fact that “absolutely no harm came to
the patients under Williams’ care.” Brief for appellant at 20. the
district court did, in fact, consider the lack of harm, but found
that “[t]he nature and severity of the infraction is not measured
by the harm that resulted but, rather, the risk associated with it,”
780 	16 NEBRASkA APPELLAtE REPORtS

citing to Nebraska Dept. of Correctional Servs. v. Hansen, 238
Neb. 233, 470 N.W.2d 170 (1991). In Hansen, the termination
of employment of a correctional officer who fell asleep while
alone on duty at a penitentiary was found not to be arbitrary
or capricious. Just as the Department of Correctional Services
had a reasonable expectation that a security guard would remain
awake while on duty, DHHS had a reasonable expectation in
this case that Williams would perform the required room checks
at the required intervals. See, also, Percival v. Department of
Correctional Servs., 233 Neb. 508, 446 N.W.2d 211 (1989)
(actual harm not required to impose discipline; employee’s
violation of department rule, thereby compromising security, is
sufficient for disciplinary action).
Williams also argues that his termination of employment was
arbitrary because kerkemeyer, with whom Williams should be
compared, did not receive the same discipline. Williams cites to
case law involving unlawful employment discrimination, which
is not applicable in this case. In any event, there is evidence in
the record to show that kerkemeyer’s absence from the ward on
the evening in question was for legitimate purposes and that he
did not neglect any of his duties.
the district court’s finding of good cause for termination
conforms to the law, is supported by competent evidence, and is
neither arbitrary, capricious, nor unreasonable.
Was Finding of Fact That Williams Did Not Complete Room
Checks From 8:15 Until 10 p.m. Supported by Record?
In its order, the district court also noted the following:
Not only did Williams fail to do the required checks
between 10:10 p.m. and 11:00 p.m., it appears that he
failed to do any of the checks between 8:15 p.m. when
kerkemeyer took his dinner break and sometime before
10:00 p.m. when he returned from assisting staff in the
girl’s Unit.
the record is somewhat unclear regarding whether the rooms
were checked between 8:15 and 10 p.m., although Williams
testified that he performed the required room checks during
this time, but did not complete the required paperwork because
kerkemeyer had the checklist in his possession. Even if the
NEBRASkA DEPt. OF HEALtH & HUMAN SERVS. v. WILLIAMS 	781
Cite as 16 Neb. App. 777

district court’s finding regarding what occurred between 8:15
and 10 p.m. was not supported by the evidence, this finding
was not material to the district court’s ultimate conclusion of
good cause for termination, because the district court focused
primarily on the lack of room checks between 10 and 11 p.m.
this assignment of error is without merit.
Did District Court Err as Matter of Law in Holding That
DHHS Need Not Employ Progressive Discipline?
Williams argues that the district court erred in finding that
DHHS was not required to “recognize and employ” progres-
sive discipline in this case. the district court did not make this
specific finding; rather, the district court found that “section
10.1 of the Labor Agreement does not require the imposition
of a sanction less than termination in all cases.” We agree. the
plain language of section 10.1 requires an employer to recog-
nize and employ progressive discipline. the section goes on to
state, “When employing progressive discipline, the nature and
severity of the infraction shall be considered along with the his-
tory of discipline and performance contained in the employee’s
personnel file.” (Emphasis supplied.) Nowhere in the contract
does it state that an employer cannot choose the discipline of
termination without first imposing lesser forms of discipline.
Rather, section 10.1 recognizes that the nature and severity of
the infraction may be such as to require immediate termination
of employment.
Williams 	recognizes 	that 	while 	DHHS 	could 	terminate
Williams’ employment despite his lack of infractions or disci-
pline noted in his file, the “offense would have to be exception-
ally egregious.” Brief for appellant at 27. the specific language
of the contract imposes no such requirements on the employer.
As quoted above, the specific language of the labor contract
indicates that the level of progressive discipline to be imposed
will depend on the nature and severity of the infraction.
there is competent evidence to support the district court’s
conclusion that the nature and severity of the infraction in this
case supported the termination of Williams’ employment rather
than a lesser sanction.
782 	16 NEBRASkA APPELLAtE REPORtS

CONCLUSION
the district court’s finding that good cause existed to ter-
minate Williams’ employment, rather than impose a lesser
sanction, was supported by competent evidence and was not
arbitrary, capricious, nor unreasonable.
A ffirmed .
NEBRASkA DEPt. OF HEALtH & HUMAN SERVS. v. WILLIAMS 	783
Cite as 16 Neb. App. 777