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Busch v. Civil Service Comm'n

Court of Appeals of Nebraska

February 25, 2014


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[Copyrighted Material Omitted]

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Appeal from the District Court for Box Butte County: RANDALL L. LIPPSTREU, Judge.

Andrew W. Snyder, of Chaloupka, Holyoke, Snyder, Chaloupka, Longoria & Kishiyama, P.C., L.L.O., for appellant.

Howard P. Olsen, Jr., and John F. Simmons, of Simmons Olsen Law Firm, P.C., for appellee.

INBODY, Chief Judge, and MOORE and RIEDMANN, Judges.


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[21 Neb.App. 790] Riedmann, Judge.


The city manager of the City of Alliance (City) terminated the employment of Sean Busch, a police sergeant, following Busch's long-term absence from his job due to a non-work-related injury. The civil service

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commission (Commission) for the City upheld the termination, and Busch sought review by the district court for Box Butte County, which affirmed the Commission's decision. Busch appeals the termination, and [21 Neb.App. 791] the Commission cross-appeals the denial of its motion to tax certain costs to Busch. We affirm.


Busch began his employment as a patrol officer in January 1999. His employment record has largely been exemplary, and he was promoted to sergeant in 2008. His job duties required him to investigate crimes, make patrol stops, chase down suspects, operate heavy equipment, and shoot a weapon. There is a minimum lifting requirement of 100 pounds, and it takes 51/2 pounds of force to pull the trigger on the Glock semiautomatic weapon currently used by employees of the police department.

Busch began experiencing pain in his right hand in March 2012. It was initially believed he had fractured his hand, and on March 20, he was restricted to lifting no more than 2 pounds. Further investigation resulted in a diagnosis of a cyst in Busch's right wrist requiring surgery. A " Return to Work" form dated April 23, 2012, indicated that the 2-pound lifting restriction was still in effect until surgery scheduled for May 2, after which Busch would be unable to work for 2 to 6 weeks. By June, physicians permitted Busch to return to work with a restriction of lifting or carrying no more than 5 pounds. Busch requested light duty, and John Kiss, the City's police chief, recommended a light-duty position at full pay, but J.D. Cox, the City's manager, did not approve. Instead, Cox offered a light-duty office position in a different department to Busch at about half his normal pay, an offer that Busch declined.

Busch had exhausted his paid leave time in early May 2012 and was granted an additional 12 weeks' leave pursuant to the Family and Medical Leave Act of 1993, which leave was scheduled to expire on August 5, 2012. On July 24, Busch submitted a written request to Cox and Kiss for a minimum of 2 months' additional unpaid leave of absence. The following day, July 25, Busch obtained a release from his physician to return to work on August 1 with no restrictions. It is undisputed that Busch did not immediately inform Cox or Kiss of [21 Neb.App. 792] the July 25 appointment and the attendant release to return to work.

Unaware of Busch's medical appointment, Kiss submitted a memorandum to Cox on July 25, 2012, recommending that Busch's latest request for extended leave be denied. Kiss cited hardships to the police department caused by Busch's extended absence, noting that the department had been without a supervisor since March 2012 and that other officers had been performing his duties, resulting in overtime pay and " comp time." Kiss had a conversation with Busch on August 1 in which Busch told him that his next medical appointment was the following week, on August 8, and did not inform Kiss that, in fact, he had already had an appointment on July 25 and knew he had been released to return to work on August 1.

Meanwhile, having received no response to his request for additional unpaid leave, Busch visited Cox unannounced at Cox's office on August 3, 2012, in an agitated state, demanding to know if Cox planned to fire him. Cox told Busch that he planned to extend his leave until August 8, which he believed to be Busch's next medical appointment. Busch then admitted to Cox that he had actually seen his doctor on July 25--but he told Cox that his work restrictions remained in place. Surprised

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to learn that the appointment had already taken place, Cox inquired about the " Return to Work" form that was typically provided to the City following Busch's medical appointments. Busch responded that " it hadn't made its way over [there] yet," despite the fact that Busch was in possession of the form. Cox testified that he lost confidence in Busch following Busch's admission that his medical appointment had already taken place and Cox's subsequent discovery that no departments of the City had received a copy of the " Return to Work" form such as they had routinely received following past appointments.

Cox stated that this loss of confidence in Busch prompted him to request that Busch sign a release of his medical records so that Cox could determine why additional leave was needed. Busch refused to permit access to his medical records. The record contains a copy of Cox's August 3, 2012, e-mail to Busch sent after the impromptu meeting recounted above:

[21 Neb.App. 793] Dear [Busch],
You have asked for 30 days of extended leave pursuant [to] " 7.04 of City of Alliance Personnel Manual - Leave without Pay outside of [Family and Medical Leave Act] Provisions." In order to grant that request, I must show good cause and that the request is in the best interest of the City.
You have been off almost five months as the result of surgery to remove a cyst in your hand. I would be remiss in granting your request without an opportunity to review your medical records in hopes of understanding what has happened with your hand ...

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