Pierce v. Douglas Cty. Civil Serv. Comm.

722 	275 NebRASkA RePORTS
nathan pieRce , appellant , v . the douglas county
civil seRvice coMMission and the county of
douglas , nebRaska , appellees .
748 N.W.2d 660
Filed May 16, 2008. 	No. S-07-252.
1. Administrative Law: Appeal and Error. In reviewing an administrative agency
decision on a petition in error, both the district court and the appellate court
review the decision to determine whether the agency acted within its jurisdiction
and whether sufficient, relevant evidence supports the decision of the agency.
2. Administrative Law: Evidence. The evidence is sufficient, as a matter of law,
if an administrative tribunal could reasonably find the facts as it did based on the
testimony and exhibits contained in the record before it.
3. Administrative Law. Administrative action must not be arbitrary or capricious.
4. Administrative Law: Appeal and Error. The reviewing court in an error pro-
ceeding is restricted to the record before the administrative agency and does not
reweigh evidence or make independent findings of fact.
5. Judgments: Jurisdiction: Appeal and Error. An appellate court determines juris-
dictional issues that do not involve factual disputes as a matter of law.
6. Judgments: Appeal and Error. On a question of law, an appellate court reaches a
conclusion independent of the court below.
7. Civil Service: Administrative Law: Final Orders: Breach of Contract: Appeal
and Error. Under Neb. Rev. Stat. § 23-2515 (Reissue 1997), an appeal from a
final order of the Civil Service Commission is a petition in error, not an original
breach of contract action against the county.
8. Civil Service: Administrative Law: Statutes. The Civil Service Commission is a
statutorily created tribunal that is required to act in a judicial manner when decid-
ing employee appeals.
9. Civil Service: Administrative Law: Appeal and Error. When the Civil Service
Commission acts in a judicial manner, a party adversely affected by its decision is
entitled to appeal to the district court through the petition in error statutes.
Appeal from the District Court for Douglas County: W.
R ussell 	boWie 	iii, 	Judge. 	Reversed 	and 	remanded 	with
directions.
Timothy S. Dowd, of Dowd, Howard & Corrigan, L.L.C., for
appellant.
Donald W. kleine, Douglas County Attorney, and bernard J.
Monbouquette for appellees.
heavican, 	C.J., 	WRight, 	connolly, 	geRRaRd, 	stephan,
M ccoRMack, and M illeR-leRMan, JJ.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:55 AM CST

connolly, J.
Nathan Pierce appeals from the district court’s order affirming
the decision of the Douglas County Civil Service Commission
(the Commission). The Commission affirmed Pierce’s termi-
nation of employment (termination) by the Douglas County
Public Properties Department (the Department). Initially, the
Department suspended Pierce for 3 days in 2001 for verbally
abusing another employee. This appeal stems from Pierce’s
alleged violation of a work restriction placed on him because of
his first offense. Pierce’s employment is governed by a collec-
tive bargaining agreement (CbA) between Douglas County (the
County) and the International Union of Operating engineers,
Local 571.
This appeal presents two main issues. The first is whether
the district court had jurisdiction over Pierce’s petition in error
that claimed the Department had breached the CbA. The second
is whether the evidence supports Pierce’s termination for com-
mitting a second offense of “[i]mmoral, indecent, disgraceful,
or inappropriate conduct,” as described in the Commission’s
personnel manual. We conclude that the district court did have
jurisdiction over Pierce’s claims that the Department breached
the CbA as far as those allegations were relevant to Pierce’s
termination. However, we need not reach the merits of Pierce’s
claims under the CbA. We conclude that the evidence shows
the Department did not consider Pierce’s alleged conduct to
be a serious violation of the Commission’s personnel manual,
warranting termination. We therefore reverse the district court’s
order affirming Pierce’s termination.
bACkgROUND
Although Pierce was a Department employee, his job duties
required him to do maintenance work throughout the Douglas
County Health Center (the Health Center). In June 2001, the
Department suspended Pierce for verbally abusing kimberly
Fisher Nahriri (Nahriri), a licensed practical nurse in the Health
Center’s assisted living unit. After Nahriri refused to take
Pierce’s blood pressure, Pierce became belligerent. He fright-
ened Nahriri by putting his arm on the back of her chair and
his other arm on her desk, so that he hemmed her into her
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workstation. The Department suspended Pierce for two offenses
under the Commission’s personnel manual: (1) fighting or caus-
ing a disturbance and (2) “[i]mmoral, indecent, disgraceful,
or inappropriate conduct” that may reasonably be expected to
affect the public’s confidence in county government.
After his suspension for this incident, the County’s assistant
personnel director issued a written directive imposing work
restrictions on Pierce. The personnel directive ordered Pierce to
have no contact with Nahriri. In addition, the directive required
Pierce to request accompaniment by a coworker or manage-
ment representative if he worked in Nahriri’s unit. It further
stated that Pierce’s presence in Nahriri’s unit without another
Department employee would violate the directive.
Later, in November 2001, the Commission affirmed the
Department’s suspension of Pierce. In its order, the Commission
strongly recommended that management of both the Health
Center and the Department take further steps. It recommended
management neither allow Pierce in or near any area in which
Nahriri worked nor allow him to approach her, speak to her,
or observe her. The Commission’s order, unlike the personnel
directive, did not address whether Pierce could be in Nahriri’s
unit if accompanied by a coworker.
The record fails to show whether the personnel director, the
Health Center, or the Department ever issued any further writ-
ten directives following the Commission’s recommendations.
Thus, the record reflects an inconsistency. The Commission’s
recommendations effectively barred Pierce from being in an
area where Nahriri worked, while the personnel directive
allowed Pierce to be in Nahriri’s work unit if accompanied by
a coworker.
In September 2002, after a predisciplinary hearing, the
Department terminated Pierce’s employment for violating the
Commission’s 2001 order. Although the Department alleged
two separate violations, it terminated Pierce’s employment for a
violation that occurred on August 6, 2002. At the Commission’s
hearing regarding the termination, the evidence of the August
6 violation showed that Pierce had walked through the assisted
living unit in front of the nurses’ station where Nahriri worked.
While Nahriri was on duty, Pierce stopped to clean up some

ice he spilled in front of the nurses’ station. The Department
accused Pierce of committing a second offense of “[i]mmoral,
indecent, disgraceful, or inappropriate conduct.” The punish-
ment for a second offense was termination.
The August 6, 2002, alleged violation stemmed from an inci-
dent report written by Nahriri. In the report, Nahriri stated that
she had observed Pierce walking through the assisted living area
on August 6 and on three to four other occasions since June.
She did not state whether a coworker had accompanied Pierce.
Nahriri did not attend the predisciplinary hearing or testify at
the evidentiary hearing before the Commission. Nahriri had
also alleged that on August 29, Pierce looked at her through a
window while she was in a courtyard. The Department included
this allegation in its notice of disciplinary charges as a second
incident supporting the charge. Yet, the Commission neither
discussed nor relied on the August 29 allegation in upholding
Pierce’s termination.
In its notice of disciplinary charges, the Department did
not accuse Pierce of being in Nahriri’s unit unescorted or of
violating the personnel directive. Instead, the notice stated
that Pierce was near Nahriri’s work area on August 6, 2002,
violating the Commission’s 2001 order. The notice stated that
the 2001 order prohibited him from being in or near any area
where Nahriri worked. but the evidence before the Commission
showed that the Department disciplined Pierce for being in
Nahriri’s work unit unaccompanied. The Department’s assistant
director, Marvin Olson, drafted the notice of charges. And he
jointly decided with the Department’s director, Al Hogan, to
terminate Pierce’s employment. before the Commission, Olson
testified that the Department terminated Pierce’s employment
for violating the Commission’s 2001 order by being in the
vicinity of Nahriri unescorted on August 6.
At the public hearing before the Commission, the evidence
also showed that the Department and Health Center administra-
tors disagreed on the type of work restrictions imposed by the
Commission’s 2001 order. The Health Center’s administrator
testified that Hogan told Pierce he must stay out of the assisted
living unit and stay away from Nahriri. Hogan did not testify.
In contrast, Olson testified that Pierce was instructed not to go
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726 	275 NebRASkA RePORTS
into the assisted living unit unescorted. He also stated that the
Department made exceptions to the Commission’s 2001 order
to allow Pierce near Nahriri if someone escorted him. Olson
specifically stated that “[i]n order to abide by the Civil Service
guidelines, in order to remain efficient with the manpower that
we had, we came to agree that . . . Pierce if he had to be in the
vicinity of . . . Nahriri that he should do so in the presence of
another engineer.”
The record reflects other examples of misunderstandings about
the work restrictions imposed because of the Commission’s
2001 recommendations. For example, in August 2002, the per-
sonnel director wrote in a memorandum that he believed Nahriri
understood Pierce could “be on the unit if accompanied by
another engineer.” In contrast, the nursing director testified that
she believed the Commission’s order was controlling. She did
not know until just before the public hearing in March 2004
that the personnel director had written that Pierce could work in
Nahriri’s unit if accompanied.
Pierce did not deny encountering Nahriri on August 6, 2002.
In fact, he reported the incident to the temporary nursing direc-
tor right after it occurred. but he also reported to her that
someone was accompanying him when he encountered Nahriri.
Pierce similarly testified before the Commission that a teen-
age summer helper was accompanying him to do maintenance
work in the assisted living unit when he accidentally spilled ice
by the nursing station. He stated that he left the area when a
housekeeper told him she would finish cleaning up the ice. He
stated that he did not speak or make any gestures to Nahriri.
Pierce testified that his supervisor had authorized the summer
helper to work with him in the building. Neither the supervi-
sor nor the summer worker testified, but a coworker verified
that the Department had assigned a summer helper to work
with Pierce.
The housekeeper who cleaned up the ice, Vera Hill, con-
firmed that Pierce immediately left the area without speaking
or making gestures to Nahriri. Hill was not asked and did
not specifically state whether Pierce was accompanied by a
coworker during this incident. before Pierce’s termination, Hill
had also prepared a written statement for the Department at her

supervisor’s request. The Commission admitted this statement
at the hearing. In her statement, Hill said that while Nahriri was
on duty, she had seen Pierce unaccompanied in the assisted liv-
ing unit several times in the summer of 2002 and at least once
in August. but she did not state that she had seen him in the
unit unaccompanied on August 6, 2002, or when he spilled ice
in front of the nurses’ station.
The Commission found “conflicting testimony as to whether
or not . . . Pierce was accompanied into the area in which he
was required to have an escort.” but it concluded that Pierce
had failed to meet his burden of proving he was accompanied
on August 6, 2002, because he did not present corroborating
testimony. It therefore found that “Pierce violated the [2001]
recommendation of the Commission and the work conditions
of . . . Pierce as set forth by the County.”
Pierce had also presented evidence at the Commission hear-
ing to show that the Department and personnel director had
violated the grievance procedures under the CbA. but other than
to note that Pierce had raised these violations, the Commission
did not address them.
Pierce filed a petition in error in the district court. In its
order, the court rejected Pierce’s claims that the County failed
to produce sufficient evidence to support his termination. It
also rejected his claim that the Commission had impermissi-
bly shifted the burden of proof to him. It recognized that the
“Commission’s sole finding was that Pierce failed to provide
corroborating evidence that he was accompanied by another
employee when he was in . . . Nahriri’s work area, violating
the earlier recommendation (sanction), of the Commission.” In
addressing the burden of proof, the district court relied on this
court’s decision in Caniglia v. City of Omaha.1 It concluded that
Pierce had the “burden to show that good cause did not exist for
his discharge from employment.”
The court noted that Hill had reported in her written state-
ment seeing Pierce in the assisted living unit unaccompanied
several times in 2002, including one occasion in August. based
on this statement and the Commission’s belief that Pierce was
1 Caniglia v. City of Omaha, 210 Neb. 404, 315 N.W.2d 241 (1982).
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728 	275 NebRASkA RePORTS
not credible, the court concluded that the evidence was suffi-
cient to show Pierce’s actions on August 6, 2002, violated the
Commission’s 2001 order. It further concluded the County had
shown Pierce committed the offense of “[i]mmoral, indecent,
disgraceful, or inappropriate conduct.”
Further, the court determined that the August 6, 2002, viola-
tion occurred within 1 year of November 1, 2001, when the
Commission affirmed Pierce’s suspension for the first violation.
Thus, the court concluded the Department had not violated
the CbA by charging Pierce with a second offense past the
1-year limit for using an offense for further disciplinary action.
but the court determined that it did not have jurisdiction to
decide Pierce’s remaining claims that the County had breached
the CbA. It concluded Pierce’s compliance with the county
claims statute2 was a prerequisite to its exercising jurisdiction.
Pierce appeals.
ASSIgNMeNTS OF eRROR
Pierce assigns, restated, that the district court’s order uphold-
ing the Commission’s decision to terminate his employment
was arbitrary and capricious, unreasonable, and unsupported
by the facts and law for the following reasons: (1) There was
no competent evidence that Pierce engaged in any misconduct
on August 6, 2002; (2) the County did not initiate a disciplin-
ary action within 10 working days of the incident on August
6 as required by the CbA; (3) the personnel director failed to
respond within 10 days to Pierce’s grievance as required by the
CbA; (4) under the CbA, prior disciplinary offenses cannot be
considered if they occurred more than 1 year before the incident
for which the disciplinary action is being brought; and (5) the
Commission did not render its decision within 5 calendar days
of the hearing as required by the CbA.
Pierce further assigns that (1) the district court erred in
concluding that it did not have jurisdiction under § 23-135 to
decide his breach of contract claim and (2) the district court
erred in failing to conclude that the Commission’s decision
2 See Neb. Rev. Stat. § 23-135 (Cum. Supp. 2002).

violated Pierce’s due process right to be free from double jeop-
ardy by disciplining him twice for the same conduct.
STANDARD OF ReVIeW
[1-4] In reviewing an administrative agency decision on a
petition in error, both the district court and the appellate court
review the decision to determine whether the agency acted
within its jurisdiction and whether sufficient, relevant evidence
supports the decision of the agency.3 The evidence is sufficient,
as a matter of law, if an administrative tribunal could reason-
ably find the facts as it did based on the testimony and exhibits
contained in the record before it.4 In addition, the administra-
tive action must not be arbitrary or capricious.5 The reviewing
court in an error proceeding is restricted to the record before the
administrative agency and does not reweigh evidence or make
independent findings of fact.6
[5,6] We determine jurisdictional issues that do not involve
factual disputes as a matter of law.7 On a question of law, we
reach a conclusion independent of the court below.8
ANALYSIS
J uRisdiction
The County argues that the district court correctly determined
it lacked jurisdiction to decide issues related to the Department’s
breach of the CbA. Relying on Jackson v. County of Douglas,9
3 See Hickey v. Civil Serv. Comm. of Douglas Cty., 274 Neb. 554, 741 N.W.2d
649 (2007).
4 See, Barnett v. City of Scottsbluff, 268 Neb. 555, 684 N.W.2d 553 (2004);
Geringer v. City of Omaha, 237 Neb. 928, 468 N.W.2d 372 (1991).
5 See, Hickey, supra note 3; Hammann v. City of Omaha, 227 Neb. 285, 417
N.W.2d 323 (1987).
6 Cox v. Civil Serv. Comm. of Douglas Cty., 259 Neb. 1013, 614 N.W.2d 273
(2000).
7 See Douglas Cty. Bd. of Comrs. v. Civil Serv. Comm., 263 Neb. 544, 641
N.W.2d 55 (2002).
8 See id.
9 Jackson v. County of Douglas, 223 Neb. 65, 388 N.W.2d 64 (1986).
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730 	275 NebRASkA RePORTS
it contends that a claim for breach of a collective bargaining
agreement against a county is subject to § 23-135.
Section 23-135 is the county claims statute. It provides, in
relevant part, that “[a]ll claims against a county shall be filed
with the county clerk within ninety days from the time when
any materials or labor, which form the basis of the claims,
have been furnished or performed . . . .” We discussed the
county claims statute in Jackson. There, the county required
some employees to show up for their shift 15 minutes early to
exchange information with employees on the previous shift. but
the county never paid them for this time. In their petition, the
employees alleged the county had violated provisions of their
labor agreement and the Commission’s rules. We concluded that
their claim was an action at law for the payment of services
arising out of a contractual relationship. because the employ-
ees did not comply with the county claims statute, we held that
the district court properly dismissed their petition for lack of
jurisdiction. Jackson, however, is not controlling here. We see
a critical distinction.
[7] In Jackson, the employees were not appealing from a
final order of the Commission, nor does the Commission have
statutory authority to hear appeals that are unrelated to disci-
plinary actions.10 In contrast, in appeals from the Commission’s
final orders, the appeal “shall be in the manner provided in
sections 25-1901 to 25-1908.”11 That is, under § 23-2515, an
appeal from a final order of the Commission is a petition in
error, not—as in Jackson—an original breach of contract action
against the county. Neb. Rev. Stat. § 25-1901 (Cum. Supp.
2006) provides that a “judgment rendered or final order made
by any tribunal, board, or officer exercising judicial functions
and inferior in jurisdiction to the district court may be reversed,
vacated, or modified by the district court.” And unlike a direct
breach of contract action against the County, the County is on
full notice of a breach of contract claim arising out of a labor
agreement when the employee has complied with the County’s
agreed-upon procedures for asserting the claim.
10 See Douglas Cty. Bd. of Comrs., supra note 7.
11 Neb. Rev. Stat. § 23-2515 (Reissue 1997).

[8,9] We have held that the Commission is a statutorily cre-
ated tribunal that is required to act in a judicial manner when
deciding employee appeals.12 When the Commission acts in
a judicial manner, a party adversely affected by its decision
is entitled to appeal to the district court through the petition
in error statutes.13 Thus, the court erred in concluding that it
lacked jurisdiction over Pierce’s claims that the Department
violated the CbA as far as those claims were related to his
termination. As stated, however, we do not reach the merits of
these claims.
eMployee ’ s buRden of pRoof undeR C aniglia is Q uestionable
Pierce contends that the Commission’s decision to terminate
his employment was arbitrary and capricious because it was
unsupported by competent evidence. The County counters that
the district court properly relied on Caniglia.14 The County
argues that in an appeal from a disciplinary action, this court
puts the burden of persuasion on the employee. It argues that
under Caniglia, the Commission correctly found that Pierce had
failed to prove someone accompanied him and that his presence
in Nahriri’s unit was excused.
In Caniglia, we discussed an employee’s burden of proof in
appealing a disciplinary action to a city’s personnel board. We
stated that the employee had the “burden to show that good
cause for her dismissal did not exist.”15 Caniglia, however, is an
anomaly in our case law. In no other case has this court placed
the burden on the employee to prove good cause did not exist
in a disciplinary action.
Notably, Caniglia was decided before Cleveland Board of
Education v. Loudermill.16 Neb. Rev. Stat § 23-2510 (Reissue
1997) does provide that county employees may “appeal” a
disciplinary order to the Commission. but when an employee
12 See Douglas Cty. Bd. of Comrs., supra note 7.
13 Id.
14 Caniglia, supra note 1.
15 Id. at 407, 315 N.W.2d at 243.
16 Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S. Ct. 1487,
84 L. ed. 2d 494 (1985).
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732 	275 NebRASkA RePORTS
has a protected property interest in continued employment,
the Commission’s public hearing17 is usually the postdepriva-
tion hearing. That hearing satisfies due process requirements
under Loudermill. because the evidentiary hearing before the
reviewing tribunal or agency is de novo, many courts hold that
the employing authority bears the burden of proving that the
employee engaged in the conduct on which the authority based
its disciplinary charge.18
but we decline to decide the continued vitality of Caniglia.
Assuming arguendo that the County proved Pierce was in
Nahriri’s unit unaccompanied, we nonetheless reverse. We con-
clude that the County has failed to show Pierce’s mere violation
of a work restriction, without any other showing of misconduct,
warranted termination as a second offense of “[i]mmoral, inde-
cent, disgraceful, or inappropriate conduct.”
the R ecoRd does not suppoRt the depaRtMent ’ s
alleged second offense of iMMoRal , indecent ,
disgRaceful , oR inappRopRiate conduct
In addition to contending that the County failed to prove
he was unaccompanied, Pierce contends the evidence fails
to show that he engaged in “[i]mmoral, indecent, disgrace-
ful, or inappropriate conduct.” Obviously, Pierce’s conduct did
not rise to the level of immoral, indecent, or disgraceful. The
question is whether it constituted “inappropriate conduct.” We
agree that the term “inappropriate conduct,” standing alone,
could be broad enough to encompass any improper conduct by
an employee. In this case, however, we decline to interpret it
that broadly. The record clearly shows the Department did not
consider Pierce’s conduct on August 6, 2002, to be a serious
offense warranting termination.
First, as Pierce argues, the CbA required the Department to
initiate a disciplinary action within 10 days from the time his
17 See Neb. Rev. Stat. § 23-2511 (Reissue 1997).
18 See, e.g., Cal. Correctional Peace v. State Person., 10 Cal. 4th 1133, 899
P.2d 79, 43 Cal. Rptr. 2d 693 (1995); Department of Institutions v. Kinchen,
886 P.2d 700 (Colo. 1994); Thompson v. New Orleans Dept., 844 So. 2d
940 (La. App. 2003); Thurmond v. Steele, 159 W. Va. 630, 225 S.e.2d 210
(1976).

supervisor learned of the incident. That was not done. Nahriri
wrote in her August 6, 2002, incident report that she had con-
tacted the personnel director and Pierce’s supervisor on that
same morning. However, the Department took no disciplinary
action in response to Nahriri’s allegation until August 26—20
days later.
Second, the supervisor’s disciplinary action on August 26,
2002, was an oral reprimand, an informal disciplinary action.
The Commission’s personnel manual provides: “Where correc-
tive action can be accomplished through . . . oral reprimands or
warnings, formal disciplinary action should not be taken.” by
giving Pierce an oral reprimand, the Department signaled that
the violation did not justify formal disciplinary action.
Third, Pierce’s alleged unaccompanied presence in Nahriri’s
unit 	would 	have 	violated 	the 	personnel 	directive 	and 	the
Department’s oral directives after the Commission’s 2001 order.
Although Hill testified that she did not perceive Pierce’s con-
duct as threatening in any way, his alleged conduct unquestion-
ably fell within less serious categories of offenses under the
Commission’s personnel manual. Yet, the Department took no
action consistent with the lesser offenses.
Those lesser offenses included “[f]ailure to observe written
. . . orders prescribed by competent authority . . . where safety of
persons or property is not endangered thereby.” The punishment
for an employee’s first failure to observe a written order is an
official written reprimand. Unlike an oral reprimand, a written
reprimand is a formal disciplinary action.
Similarly, the Department could have charged him with
insubordination, i.e., refusal to obey orders. The punishment for
a first insubordination offense is an official written reprimand to
a 1-day suspension. but the Department did not issue a written
reprimand for either offense. Thus, although Pierce’s alleged
violation of a written order constituted two lesser offenses, the
Department apparently did not consider Pierce’s conduct to rise
even to this level.
We cannot judge an offense of “inappropriate conduct” in
a vacuum, detached from the consequences for the offense.
The Commission’s personnel manual shows that this offense
is reserved for conduct that minimally warrants a 1- to 10-day
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734 	275 NebRASkA RePORTS
suspension for a minor first offense or termination for a major
first offense or for any second offense. Clearly, “inappropriate
conduct” was not intended to include less serious offenses under
the personnel manual. but the record shows the Department did
not consider Pierce’s alleged conduct on August 6, 2002, to be
insubordination or a failure to observe a written order. In fact, it
never considered the August 6 conduct, standing alone, serious
enough to warrant any formal disciplinary action. Therefore, its
decision to charge Pierce with a second offense of “[i]mmoral,
indecent, disgraceful, or inappropriate conduct” can only be
explained by Nahriri’s second allegation on August 29.
The Department issued its notice of disciplinary charges on
September 9, 2002, over 1 month after Pierce’s alleged miscon-
duct on August 6. As noted, on August 29, Nahriri alleged that
Pierce had looked at her through a window while she was eating
lunch in the courtyard. In its notice of disciplinary charges, the
Department included this second incident to bolster its allega-
tion that Pierce’s August 6 conduct now constituted a serious
offense warranting termination. but Pierce was not restricted
from the courtyard, and at the Commission’s hearing, he denied
the allegation that he had looked at Nahriri; Nahriri did not tes-
tify. The Commission did not discuss the August 29 allegation
in its order and based its decision solely on Pierce’s failure to
prove that someone had accompanied him on August 6. Thus,
we do not consider the second allegation.
both the Department’s delay in responding to Nahriri’s first
allegation and the low level of its disciplinary response show that
it did not consider Pierce’s alleged conduct on August 6, 2002,
to be a serious offense warranting termination. Pierce did not
speak or make any gestures to Nahriri, nor did he do anything
intimidating or offensive. Hill corroborated his testimony that he
immediately left the area after she told him she would clean up
the ice. Under these circumstances, we conclude that even if the
Department proved Pierce engaged in the conduct of which he
was accused, it was not an offense warranting termination.
CONCLUSION
We conclude that the district court erred in refusing to
review Pierce’s claims that the Department violated grievance

procedures under the CbA in terminating his employment. In
a petition in error appeal from the Commission, the district
court has jurisdiction to determine contract issues related to
disciplinary actions; the petitioner is not required to file a claim
with the county under § 23-135.
Regarding Pierce’s claims of insufficient evidence, we con-
clude that the evidence fails to show that the Department
considered Pierce’s alleged conduct on August 6, 2002, to be
a serious violation of the personnel manual, warranting termina-
tion. The Department’s decision to charge Pierce with a second
offense of “[i]mmoral, indecent, disgraceful, or inappropriate
conduct” was apparently motivated by a second allegation of
misconduct that played no role in the Commission’s decision to
uphold Pierce’s termination. The district court therefore erred
in affirming Pierce’s termination based on his alleged conduct
on August 6. Accordingly, we reverse the district court’s judg-
ment, which affirmed the decision of the Commission to uphold
Pierce’s termination. We remand the cause with directions to
the district court to remand the case to the Commission to
vacate its order.
R eveRsed and ReManded With diRections .
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