STEVEN WALKER and THE ) DOCKET \ \) ~ PAGE 3~ UNIVERSITY OF NEBRASKA AT ) OMAHA CHAPTER OF THE ) AMERICAN ASSOCIATION OF ) UNIVERSITY PROFESSORS, )

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1 IN THE DISTRICT COURT OF DOUGLAS COUNTY, NEBRASKA STEVEN WALKER and THE DOCKET \ \ ~ PAGE 3~ UNIVERSITY OF NEBRASKA AT OMAHA CHAPTER OF THE AMERICAN ASSOCIATION OF UNIVERSITY PROFESSORS, Plaintiff, v. THE BOARD OF REGENTS OF THE PETITION UNIVERSITY OF NEBRASKA, Defendant. JOHN M. FRIEND OCT Assigned to JuogetTh& COME NOW the Plaintiffs and, for their Petition against the Defendant, state and allege as follows: 1. Plaintiff Steven Walker is a resident of Omaha, Douglas County, Nebraska; Plaintiff University of Nebraska at Omaha Chapter of the American Association of University Professors [AA UP] is a labor union operating as the certified bargaining agent for certain employees of the University of Nebraska at Omaha. At all times relevant hereto, Plaintiff Steven Walker was a member of the bargaining unit represented by AAUP. The Defendant Board of Regents of the University of Nebraska is the governing body of the University of Nebraska system, including the University of Nebraska at Omaha. 2. At all times relevant hereto, the parties were covered by a negotiated Collective Bargaining Agreement between Plaintiff AAUP and Defendant for the period June 1, 2007 through June 30, The Collective Bargaining Agreement between the parties contains section , which reads as follows:

2 Special Appointments Special Appointments shall be made in the case of (1 temporary appointments; (2 appointments beyond retirement; (3 appointments to the job titles of Assistant Instructor, Lecturer, Senior Research Fellow, Senior Research Associate, Research Associate, Research Assistant, Senior Community Service Fellow, Senior Community Service Associate, Director of the Center for Public Affairs Research, Counselor, Advisor, and Director ofintemational Programs; (4 appointments to job title preceded by the designation "visiting"; and (5 appointments supported by funds other than the state-aided program budget. A Special Appointment will automatically expire in the time stated in the appointment to the position or in the written contract. If no time is stated in the appointment to the position or in the written contract, and the Unit Member has held the position for fewer than (6 consecutive years, the appointment may be terminated by either party giving the other at least ninety (90 days written notice of the date of termination. For those Unit Members who have held the appointment for six (6 consecutive years or more, the University shall give the Unit Member at least twelve (12 months written notice of termination. For purposes of consideration for tenure, a Unit Member's service while holding a Special Appointment shall be considered to be full-time service only to the extent agreed to in writing by the Board or its designee and the Unit Member in advance of the effective starting date of the Special Appointment. 4. Plaintiff Walker began full-time employment with Defendant on a Special Appointment as Instructor in the Communications - Broadcasting department for academic year , at a salary of $31,000. He continued to hold a Special Appointment for the next eight academic years, through , with pay increases each year. He held the title Instructor through academic year During academic year , following evaluation by the School of Communication, he was promoted to Lecturer, the position that he held that year, earning a salary of $40,670, and he also held that title during academic year , earning a salary of$42, Upon Mr. Walker's promotion to Lecturer in , he received a contractual promotion stipend of $2,000. This promotion stipend was pursuant to section of the contract, which read as follows: 2

3 Promotion Increases: All eligible Unit Members who receive a promotion in faculty rank effective either July 1, 2007 or August 20, 2007, shall on said date, receive the following promotion increase: Promotion to Professor Promotion to Associate Professor Promotion to Assistant Professor Promotion to Lecturer (after six consecutive years as Instructor $4250 $3,000 $2,200 $2, Plaintiff Walker participated in an annual Performance Evaluation in the spring of 2009 and received notification of his salary at the end of March, On May 13,2009, a meeting was held between Plaintiff Walker and Dean Gail Baker McCarty. During this meeting, Plaintiff Walker was informed that his services would no longer be needed by Defendant and he would not be employed during the academic year. 8. Plaintiff Walker did not receive the 12-month written notice of termination required by section of the Collective Bargaining Agreement. This failure to provide the required notice constitutes a breach of the Collective Bargaining Agreement. 9. Plaintiff Walker filed a timely grievance at Step One of the contractual grievance procedure, which was dated July 9, 2009, regarding the breach of the Collective Bargaining Agreement. 10. Plaintiff Walker received a Step One response to his grievance by means of a letter dated August 10, 2009 from Terry IIynes, Ph.D., Senior Vice Chancellor. The letter denied Plaintiff Walker's grievance. 11. By means of a document dated September 4, 2009, Plaintiff Walker timely advanced his grievance to Step 2 of the contractual grievance procedure. Mr. Walker sought the remedy of reinstatement to his Lecturer position for the academic year. 3

4 12. On November 23, 2009, an evidentiary hearing regarding the Step 2 grievance was held before mutually agreed-upon designated hearing officer Harvey A. Nathan. 13. Hearing Officer Nathan issued a written decision in favor of Plaintiff Walker dated February 3,2010. Mr. Nathan found that the Defendant had breached the Collective Bargaining Agreement when it failed to provide the 12-month notice required in section He found that the Defendant should pay Mr. Walker the salary that he would have earned as lecturer during the academic year at the rate that Mr. Walker received in Pursuant to the grievance procedure, the Defendant Board of Regents considered Plaintiff Walker's grievance and Mr. Nathan's recommended decision. By decision dated March 3, 2010, the Board of Regents rejected Mr. Nathan's recommended decision and denied the grievance. Mr. Walker's participation in the grievance procedure constituted any required exhaustion of administrative remedies. 15. The actions of Defendant Board of Regents in failing to provide the notice required in section of the Collective Bargaining Agreement constitute a breach of the Collective Bargaining Agreement between the parties resulting in a denial of Plaintiff Walker's rights to employment and compensation or alternatively, timely notice of termination of employment, under the terms of the agreement. WHEREFORE, Plaintiffs pray for judgment against the Defendant in the amount of $42,143.00, plus the annual increase which he would have received for , plus attorney fees, court costs and interest as allowed by law. THE UNIVERSITY OF NEBRASKA CHAPTER OF THE AMERICAN ASSOCIA non OF UNIVERSITY PROFESSORS and STEVEN WALKER, Plaintiffs, 4

5 Ry: Dalto~ w. Tietjen #18119 of TIETJEN, SIMON & BOYLE 1023 Lincoln Mall, Suite 202 Lincoln, NE ( ]437 Attorney for Plaintiffs 1tfo(B~ io/ii.f!lo /\/\U P/Walkerpetition 5

6 IN THE DISTRICT COURT OF DOUGLAS COUNTY, NEB~IV... tvt. "Hft.fu STEVEN WALKER and THE DOCKET 1112 PAGE 33:4VOV (. "Ii UNIVERSITY OF NEBRASKA AT -l2010 OMAHACHA~EROFTHE THE AMERICAN ASSOCIATION OF UNIVERISTY PROFESSORS. ANSWER TO COMPLAINT Plain tiff, vs. THE BOARD OF REGENTS OF THE UNIVERSITY OF NEBRASKA, Defendant. COMES NOW the Defendant, The Board of Regents of the University of Nebraska, by and through its attorneys, Cline Williams Wright Johnson and Oldfather, L.L.P., and for its Answer to the Plaintiffs' Petition [sic], admits, denies, states and allege as follows: l. Defendant admits the allegations contained in paragraph 1 of Plaintiffs' Complaint. 2. In response to paragraph 2 of Plaintiffs' Complaint, Defendant admits that the University of Nebraska at Omaha Chapter of the American Association of University Professors ("AAUP" and Board of Regents of the University of Nebraska ("Board" were parties to a Collective Bargaining Agreement in effect for the period July 1, 2007 through June 30, 2009 ("2007 CBA". Defendant affirmatively states that the AAUP and the Board were parties to a subsequent Collective Bargaining Agreement in effect for the period July 1, 2009 through June 30, 2011 ("2009 CBA" which governed the { }

7 gnevance procedure utilized by Plaintiffs. Defendant denies the remammg allegations contained in paragraph 3 of 3. Defendant admits that the Plaintiffs have accurately quoted from Section of the 2007 CBA. 4. Defendant admits that Plaintiff Walker ("Walker" received a Special Appointment as an Instructor for the academic year, and that Walker received a Special Appointment as a Lecturer for the academic year at an annual salary of $42, Defendant denies the remaining allegations contained in paragraph 4 of 5. Defendant admits that the Plaintiffs have accurately quoted from Section of the 2007 CBA. Defendant denies the remaining allegations contained in paragraph 5 of 6. Defendant denies the allegations contained in paragraph 6 of 7. Defendant admits that on or about May 13, 2009, Walker met with the Dean of the College of Communication, Fine Arts and Media. Defendant denies the remaining allegations contained in paragraph 7 of Plaintiffs' Complaint. 8. Defendant denies the allegations contained in paragraph 8 of 9. Defendant admits that Walker filed a Step One Grievance Form dated July 9, 2009, alleging a violation of the 2007 CBA. Defendant denies the remaining allegations contained in paragraph 9 of { }

8 10. Defendant admits the allegations contained in paragraph 10 of 11. Defendant admits that Walker filed a Step Two Grievance Form dated September 4, 2009, seeking reinstatement to a Lecturer position for the academic year. Defendant denies the remaining allegations contained in paragraph 11 of 12. Defendant admits the allegations contained in paragraph 12 of 13. Defendant admits that the Hearing Officer issued a recommendation on February 3, The recommendation speaks for itself. Defendant denies the remaining allegations contained in paragraph 13 of 14. Defendant admits that the Board, through its designee, by a decision dated March 3, 2010, did not accept the recommendation of the Hearing Officer. Defendant denies the remaining allegations contained in paragraph 14 of 15. Defendant denies the allegations contained in paragraph 15 of 16. All allegations in Plaintiff's Complaint not specifically admitted or denied herein are denied, except those which constitute an admission against Plaintiff's interests. { }

9 AFFIRMATIVE DEFENSES 17. By way of further answer, Defendant affirmatively alleges that Plaintiffs' Complaint fails to state a claim upon which relief can be granted. 18. By way of further answer, Defendant affirmatively alleges that the gnevance procedure established by the 2009 CBA provides the sole and exclusive method for resolving grievances of unit members concerning administration of the agreement and that the Plaintiffs elected to be bound by this sole and exclusive method. 19. By way of further answer, Defendant affirmatively alleges that Plaintiffs lack standing to assert their claim. 20. By way of further answer, Defendant affirmatively alleges that Plaintiffs' claim is barred by the applicable limitations period. 21. By way of further Answer, Defendant affirmatively alleges that Plaintiffs have waived the claim contained in the Complaint. 22. By way of further answer, Defendant affirmatively alleges that Plaintiff Walker has failed to exercise reasonable diligence to mitigate alleged damages, if any. WHEREFORE, Defendant prays for an Order dismissing the Plaintiffs' Complaint, an award of attorney's fees for the cost of defending this action, and for such other and further relief as the Court may deem just and equitable. { }

10 THE BOARD OF REGENTS OF THE UNIVERSITY OF NEBRASKA, Defendant By: ~~~~ J~ ~itt:# CLINE WILLIAMSWRIGHT JOHNSON & OLDFATHER, L.L.P South 103 rd Street, Ste. 600 Omaha, NE Phone: ( Fax: ( j hewi tt@clinewilliams.com CERTIFICATE OF SERVICE The undersigned here by certifies that a true and correct copy of the Foregoing Answer to Complaint was served upon counsel for Plaintiff, Dalton Tietjen, TIETJEN, SIMON & BOYLE,1023 Lincoln Mall, Suite 202, Lincoln, NE 68508, by U.S. Mail, postage pre-paid, on the 22 nd day of November, Jo { }