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Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

CHRISTOPHERSON v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.

Cite as 308 Neb. 610

Thomas Christopherson, appellant, v. Nebraska 

Department of Health and Human Services, 

an agency of the State of Nebraska, 

et al., appellees.

___ N.W.2d ___

Filed March 12, 2021. No. S-20-361.

1. Termination of Employment: Wages: Equity: Words and Phrases.

Front pay as an equitable remedy in employment law is money awarded 

for lost compensation during the period between judgment and reinstatement or in lieu of reinstatement.

2. Termination of Employment: Wages. Front pay is a disfavored remedy 

that may be awarded in lieu of reinstatement, but not in addition to it, 

where the circumstances make reinstatement impractical.

3. ____: ____. The availability of front pay as a remedy presupposes that 

reinstatement is impractical or impossible due to circumstances not 

attributable to the plaintiff.

4. ____: ____. Front pay is a remedy designed to make the employee 

whole. Front pay is designed to achieve precisely what reinstatement 

would achieve, were reinstatement feasible: to place the wronged 

employee in the same position he or she would be in if reinstatement 

were possible.

5. ____: ____. Front pay makes up the difference between the earnings an 

employee would receive were the old employment to continue and the 

earnings expected in present and future employment.

6. ____: ____. Factors supporting front pay as an appropriate substitute 

remedy to reinstatement include hostility and animosity between the 

parties such that reinstatement is rendered impractical or inappropriate.

Appeal from the District Court for Lancaster County: Susan 

I. Strong, Judge. Affirmed.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

03/19/2021 12:08 AM CDT
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Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

CHRISTOPHERSON v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.

Cite as 308 Neb. 610

Ryan M. Kunhart and Gretchen L. McGill, of Dvorak Law 

Group, L.L.C., for appellant.

Douglas J. Peterson, Attorney General, and James A. 

Campbell, Solicitor General, for appellees.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Miller-Lerman, J.

NATURE OF CASE

The Nebraska Department of Health and Human Services 

(DHHS) terminated the employment of appellant Thomas 

Christopherson as a health program manager, after which 

Christopherson challenged the termination. He pursued the 

appropriate grievance proceedings and sought lost wages, 

including front pay, back pay, and lost benefits. DHHS ultimately withdrew the allegations against Christopherson. 

However, DHHS contested Christopherson’s claim for “front 

pay,” commonly viewed as money awarded in lieu of reinstatement of employment. Following a hearing, the State Personnel 

Board (Personnel Board) determined that an award of front 

pay was not appropriate. The Lancaster County District Court 

affirmed the Personnel Board’s decision. Christopherson 

appeals. Because reinstatement of employment was possible, 

we find no errors appearing on the record and affirm the order 

of the district court.

STATEMENT OF FACTS

Christopherson worked as a health program manager in 

DHHS’ Division of Public Health’s environmental health section from 1994 until 2018. In March 2018, Christopherson 

received a “Written Notice of Allegations” from his supervisor, 

Judy Martin, deputy director of community and environmental 

health for DHHS. Summarized, the written notice alleged:

[1.] Christopherson appeared before a village board 

and urged the board to enter into a contract with his 

brother’s employer. [DHHS] claimed that by doing so, 
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Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

CHRISTOPHERSON v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.

Cite as 308 Neb. 610

Christopherson used his position with [DHHS] to benefit 

his brother’s company. . . .

[2.] Christopherson authorized the purchase of unnecessary items and then allowed private companies to keep 

them. . . . The amount involved exceeded $100,000. . . .

[3.] Christopherson used money [from] a fund dedicated to licensing on services or products that were unrelated to licensing. . . . [T]he sum of such expenditures 

was [over] $800,000 . . . .

[4.] Christopherson failed to ensure that water-well 

inspections occurred and that violations were enforced.

After Christopherson provided a written response to the allegations, the first allegation was withdrawn. His employment was 

ultimately terminated.

Christopherson followed the appropriate agency-level grievance procedure under the Classified System Personnel Rules & 

Regulations. In his grievance, Christopherson sought lost wages, 

including front pay, back pay, and lost benefits. Christopherson 

did not seek to be reinstated. This grievance was denied, and 

Christopherson appealed to the Personnel Board.

At the Personnel Board hearing regarding the merits of 

Christopherson’s grievance, DHHS stated that it had agreed to 

withdraw the notice of discipline regarding the allegations from 

Christopherson’s personnel file, accept his request for resignation or retirement, and issue him back pay through the date of 

the hearing. However, DHHS contested Christopherson’s claim 

to front pay, or future earnings. The parties proceeded solely 

on the issue of front pay. And the issue of Christopherson’s 

entitlement to front pay in lieu of reinstatement has emerged as 

the sole issue before us in this appeal.

Christopherson testified that he did not request reinstatement in his grievance because of the severity of the allegations 

surrounding his termination. He testified that he brought his 

“best work to work” every day for 24 years and was recognized for his work with awards. According to Christopherson, 

he consistently maintained a good working relationship with 
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308 Nebraska Reports

CHRISTOPHERSON v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.

Cite as 308 Neb. 610

his coworkers and supervisors, including Martin. He consistently received good performance reviews from his supervisors. 

Although Martin had given Christopherson the written notice 

of allegations and was present at the meetings where he 

was disciplined, Christopherson testified that Martin had told 

him she “regretted that this is what she had to do.” In 2008, 

Christopherson won a “manager of the year” award at DHHS, 

and in 2017, the National Ground Water Association recognized his work.

Christopherson testified that “to be terminated, in my mind, 

for doing my job, I did not feel I wanted to go back and work 

in that environment” and that “[i]t’s not practical.” He claimed 

that he was “damaged” and that there were “a lot of rumors 

that I’ve been made aware of, people in the industry, people 

in State government. My credibility has been hit pretty hard. I 

was named as a person in a newspaper article[.]”

With regard to his job search following termination, 

Christopherson testified that he applied for over 20 different 

jobs in his field, but was unable to find other employment. 

He started his own consulting business on June 13, 2018. He 

earned less than $6,000 from his business during 2018 and the 

first half of 2019.

Christopherson also submitted evidence of his previous 

rate of pay, raises, and the value of his benefits relating to 

his claim of front pay, which he contended should cover the 4 

fiscal years from his termination until his full retirement age 

in 2022.

The Personnel Board unanimously adopted the hearing 

officer’s recommendation that the Personnel Board deny his 

claim for front pay. The hearing officer noted that his review 

of the Personnel Board decisions failed to find any case in 

which front pay had been awarded. With respect to the question of whether the Personnel Board had authority to award 

front pay, the hearing officer found that “[s]ufficient evidence 

and testimony was not presented so that a determination could 

be made as to whether or not the . . . Personnel Board has 
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308 Nebraska Reports

CHRISTOPHERSON v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.

Cite as 308 Neb. 610

authority to award front pay.” However, the hearing officer 

noted that traditional legal criteria for awarding front pay 

included, among other factors, situations where the employee 

could not be reinstated. The hearing officer found that even if 

front pay was a remedy authorized for this type of grievance, 

there was not sufficient evidence to indicate that front pay in 

lieu of reinstatement would be appropriate. The hearing officer said:

In this case reinstatement was possible. There was no 

showing of intense animosity between [Christopherson] 

and his supervisor. [Christopherson] had received an 

award from [DHHS] and had good performance evaluations. [DHHS] had a number of other positions of the 

same classification as the one held by [Christopherson] 

and many of these positions reported to different supervisors, so there was a high probability that if the relationship with his former supervisor was significantly damaged, [Christopherson] could have been reinstated to work 

for another supervisor. In addition, this area is no longer 

under the supervision of [DHHS]; it has been moved to 

the Department of Environmental Quality.

The hearing officer also found that Christopherson had not 

reasonably mitigated his damages, noting that Christopherson 

applied for a number of positions after his termination but 

ended his job search less than 2 months after he was terminated. The recommended order adopted by the Personnel Board 

found that front pay should not be ordered.

Christopherson sought review of the unfavorable decision 

of the Personnel Board in the district court. The district court 

first determined the Personnel Board did not have the power 

to award front pay under its grant of authority from the 

Legislature. It reasoned that front pay is an equitable remedy and that the Legislature must explicitly confer equitable 

power on an administrative agency like the Personnel Board. 

It further noted that the Personnel Board’s regulations “do not 

provide for front pay” and that it had not ordered front pay in 

past cases.
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Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

CHRISTOPHERSON v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.

Cite as 308 Neb. 610

The district court next found that even if the Personnel 

Board could award front pay, Christopherson was not entitled 

to it, because reinstatement of employment was possible. The 

district court noted:

Christopherson testified that he always had a good working relationship with his coworkers and supervisors. . . . 

In fact, the supervisor who signed the notices of allegation and discipline told Christopherson that she regretted having to do so. . . . Christopherson argues that the 

nature of the allegations themselves showed that [DHHS] 

was extremely hostile towards him. But the record does 

not show that the allegations actually created a hostile 

environment for Christopherson. While he referred to 

“rumors,” the evidence does not reveal how widely the 

charges were disseminated.

The court explained that “apart from the allegations themselves, there is little evidence that anyone in [DHHS] 

bore Christopherson ill will.” The district court found that 

Christopherson “might have been able to step back into his old 

role” and determined he did not carry his burden of proving 

that reinstatement was not feasible and that he was therefore 

entitled to front pay in lieu thereof. The district court affirmed 

the Personnel Board’s decision.

ASSIGNMENTS OF ERROR

Christopherson assigns, summarized and restated, that 

the district court erred when it found that (1) the Personnel 

Board did not have the power to award front pay and (2) 

Christopherson did not carry his burden to show that reinstatement was not feasible and that he was entitled to front pay.

STANDARDS OF REVIEW

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. Neb. Rev. Stat. § 84-918(3) 

(Reissue 2014). When reviewing an order of a district court 
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308 Nebraska Reports

CHRISTOPHERSON v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.

Cite as 308 Neb. 610

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. Abay, L.L.C. v. 

Nebraska Liquor Control Comm., 303 Neb. 214, 927 N.W.2d 

780 (2019). An appellate court, in reviewing a district court’s 

judgment for errors appearing on the record, will not substitute 

its factual findings for those of the district court where competent evidence supports those findings. Id. The meaning and 

interpretation of statutes and regulations present questions of 

law which an appellate court decides independently of the decision made by the court below. Id.

ANALYSIS

Christopherson claims that the district court erred when 

it found that the Personnel Board lacked authority to grant 

the equitable relief of front pay. Christopherson specifically 

claims the district court erred when it found that he could be 

reinstated and that therefore, the Personnel Board properly 

denied his claim for front pay. We find no error by the district court.

Front Pay.

[1-5] Front pay as an equitable remedy in employment law 

has been described by the U.S. Supreme Court as “money 

awarded for lost compensation during the period between 

judgment and reinstatement or in lieu of reinstatement.”

Pollard v. E. I. du Pont de Nemours & Co., 532 U.S. 843, 846, 

121 S. Ct. 1946, 150 L. Ed. 2d 62 (2001). Courts have characterized front pay as a substitute for reinstatement. See Sellers 

v. Mineta, 358 F.3d 1058, 1063 (8th Cir. 2004) (“[f]ront pay is 

a disfavored remedy that may be awarded in lieu of reinstatement, but not in addition to it, where the circumstances make 

reinstatement impractical”). The availability of front pay as 

a remedy “presupposes that reinstatement is impractical or 

impossible due to circumstances not attributable to the plaintiff.” Id. at 1064. Like reinstatement, front pay is a remedy 
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Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

CHRISTOPHERSON v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.

Cite as 308 Neb. 610

designed to make the employee whole. Pollard v. E. I. du Pont 

de Nemours & Co., supra. As one court explained, “front pay 

is designed to achieve precisely what reinstatement would 

achieve, were reinstatement feasible: to place the wronged 

employee in the same position he or she would be in” if reinstatement were possible. Kempfer v. Automated Finishing, 

Inc., 211 Wis. 2d 100, 127, 564 N.W.2d 692, 703 (1997). 

Front pay “makes up the difference between the earnings an 

employee would receive were the old employment to continue 

and the earnings expected in present and future employment.” 

Id. Thus, in a grievance proceeding, front pay substitutes for 

reinstatement, because it remedies future economic losses 

flowing from the employee’s termination. Id. Front pay works 

in conjunction with recovery of past wage loss through a back 

pay award and ensures that the wronged employee is made 

whole. Id.

Front Pay as a Remedy Under 

the Personnel Rules.

Christopherson first contends that the district court erred 

when it found that the Personnel Board did not have the power 

to award front pay. He argues that since the Personnel Board 

utilizes other equitable remedies such as reinstatement, and 

because reinstatement and front pay are alternative remedies, 

see Sellers v. Mineta, supra, it logically follows that the 

Personnel Board would also possess the power to award front 

pay as an alternative to reinstatement.

Below, we set forth the statutes pertaining to the Personnel 

Board from which Christopherson claims front pay could be 

impliedly authorized. Neb. Rev. Stat. § 81-1318 (Reissue 2014) 

provides for the creation of a State Personnel Board, describes 

how its members should be appointed and confirmed, and also 

references Neb. Rev. Stat. § 81-1318.01 (Reissue 2014) as the 

statute where the board’s “powers” are enumerated. Section 

81-1318 states in part:

The board may delegate to a group of three or 

more members any or all of the powers which it may 
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CHRISTOPHERSON v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.

Cite as 308 Neb. 610

exercise. The board shall be authorized to designate and 

delegate its powers under section 81-1318.01 to hearing 

officers to conduct grievance appeal hearings and recommend a decision to the board for final action. A vacancy 

in the board shall not impair the right of the remaining 

members to exercise all the powers of the board, and 

three members of the board shall at all times constitute a 

quorum of the board.

(Emphasis supplied.)

Section 81-1318.01, to which reference is made in § 81-1318, 

provides:

The State Personnel Board shall ensure the fair and 

equitable administration of the State Personnel System by:

(1) Operating as prescribed by rules and regulations 

adopted and promulgated by the personnel division of the 

Department of Administrative Services;

(2) Reviewing and approving, by majority vote, rules 

and regulations adopted and promulgated by the personnel division;

(3) Determining the grievability of issues or doing 

so through the designation of a board member. Issues 

determined to be not grievable shall be subject to summary dismissal;

(4) Adjudicating grievance appeals and rendering final 

binding decisions;

(5) Rendering decisions consistent with the rules and 

regulations adopted and promulgated by the personnel division;

(6) Reviewing and providing counsel regarding any 

matter affecting the State Personnel System; and

(7) Performing the actions required pursuant to the 

State Government Effectiveness Act.

We note and the parties acknowledge that the Classified 

System Personnel Rules & Regulations do not enumerate 

the remedies available to the Personnel Board in a grievance 

proceeding such as the one giving rise to this case. We agree 

with the parties that the record shows that certain equitable 
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CHRISTOPHERSON v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.

Cite as 308 Neb. 610

remedies have been awarded in the past. But the failure to 

adopt “rules and regulations” upon which to equitably “render decisions” per § 81-1318.01(5) frustrates our analysis. 

Without such regulatory guidance, Christopherson asks this 

court to identify one of the “powers” of the Personnel Board 

to which reference is made in § 81-1318 as the authority to 

order front pay and to find that the district court erred as a 

matter of law when it declined to find that the equitable remedy of front pay was available. Because of our disposition as 

outlined below in which we agree with the district court that 

reinstatement is feasible, we need not resolve the issue of 

whether the authority to grant front pay is one of the “powers” to which reference is made in § 81-1318 and included in 

the “equitable administration” of the system by the Personnel 

Board in § 81-1318.01.

Christopherson’s Reinstatement.

Other courts have held that front pay is available only when 

the employee cannot be reinstated. See Sellers v. Mineta, 358 

F.3d 1058 (8th Cir. 2004). Although Christopherson contends 

there was sufficient hostility and animosity with his former 

employment such that reinstatement would be impossible, the 

district court found that Christopherson could be reinstated. We 

find no error by the district court.

[6] The jurisprudence recognizes that factors supporting 

front pay as an appropriate substitute remedy include hostility and animosity between the parties such that reinstatement is rendered impractical or inappropriate. See Standley 

v. Chilhowee R-IV School Dist., 5 F.3d 319 (8th Cir. 1993). 

Such hostility must make an amicable and productive work 

relationship impossible. See Cox v. Dubuque Bank & Trust 

Co., 163 F.3d 492 (8th Cir. 1998). In its decision, the district 

court offered examples of cases involving acts of extreme 

or excessive hostility, such as social media posts about the 

employee, managers attempting to “blackball” the employee in 

the industry, intimidation and harassment, repeated instances 

of harassment, and humiliation and threats that the manager 
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CHRISTOPHERSON v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.

Cite as 308 Neb. 610

would find other ways to fire the employee. See, e.g., Hunter 

v. Town of Mocksville, North Carolina, 897 F.3d 538 (4th Cir. 

2018); Palasota v. Haggar Clothing Co., 499 F.3d 474 (5th 

Cir. 2007); Hammond v. Northland Counseling Center, Inc., 

218 F.3d 886 (8th Cir. 2000); Standley v. Chilhowee R-IV 

School Dist., supra; Spulak v. K Mart Corp., 894 F.2d 1150 

(10th Cir. 1990), abrogated on other grounds, Hazen Paper 

Co. v. Biggins, 507 U.S. 604, 113 S. Ct. 1701, 123 L. Ed. 2d 

338 (1983). A review of the case law indicates that front pay 

is often found in discrimination cases, where a hostile work 

environment leading to illegal discrimination could not easily 

be remedied with an order of reinstatement. For example, in 

the disability case of Mathieu v. Gopher News Co., 273 F.3d 

769 (8th Cir. 2001), the court found that the employee would 

face additional disputes about reasonable accommodations and 

would continue to be overseen by the person responsible for 

the discriminatory decisions if reinstated. Such an ongoing 

relationship was sufficient evidence of hostility to award front 

pay. Id.

In this case, the findings of the hearing officer as later 

endorsed by the district court as to why reinstatement was possible were stated as follows:

The only traditional criteria that [Christopherson] met 

for receiving front pay was that he was nearing retirement. He met none of the other criteria. There was a high 

probability that he could be successfully reinstated to a 

position with [DHHS]. There was no showing that the 

work conditions were too antagonistic for him to return. 

There was no showing that [DHHS] had a long history of 

resisting attempts to correct any discrimination or other 

human resources deficiencies in the way it treated its 

employees. In addition, [Christopherson] had a duty to 

mitigate. His mitigation efforts were insufficient in that 

he failed to seek comparable employment after June 21, 

2018, and he did not seek reinstatement.

In our view, the foregoing findings were supported 

by the record. The record shows that unlike the repeated 
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Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

CHRISTOPHERSON v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.

Cite as 308 Neb. 610

harassment and hostility typically supporting awards of 

front pay, Christopherson’s relationship with his managers 

and employer remained relatively professional despite the 

serious nature of the allegations from which this appeal 

arises. Christopherson testified that he consistently had a 

good working relationship with his coworkers and supervisors. Martin, Christopherson’s supervisor, had told him she 

“regretted” having to proceed with the discipline and termination. Christopherson testified that he had 24 years of 

bringing his “best work” to DHHS and received favorable 

performance reviews and awards. The record does not show 

that the allegations and rumors actually created a hostile 

environment for Christopherson. According to the record, 

many available positions under different supervisors exist at 

the classification previously held by Christopherson, showing that Christopherson, if reinstated, could obtain comparable compensation and responsibility. As the hearing officer 

noted, the area in which Christopherson worked is no longer 

under the supervision of DHHS and has been moved to the 

Department of Environmental Quality, further distancing him 

from past management. The record supports a finding that 

Christopherson did not carry his burden to show that reinstatement was not feasible. Thus, he was not entitled to the alternative relief of front pay.

CONCLUSION

The decision of the district court which affirmed the 

Personnel Board’s decision to deny Christopherson’s claim for 

front pay following his termination from DHHS is supported 

by competent evidence and is neither arbitrary, capricious, 

nor unreasonable. Accordingly, we affirm the order of the district court.

Affirmed.

Cassel, J., concurring.

I do not understand anything in this court’s opinion to 

express or foreshadow an opinion on whether front pay is 
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CHRISTOPHERSON v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.

Cite as 308 Neb. 610

authorized by either the statutes or the regulations applicable 

to the Personnel Board in grievance proceedings. Nor do I 

understand this court’s holding—that sufficient evidence in the 

record supported the district court’s finding that Christopherson 

did not prove reinstatement was not feasible—to imply that 

with different proof, front pay would have been available. With 

that understanding, I join the court’s opinion.