 |
 |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|
|
|
|
DeBose v. State12/19/2003
NATURE OF CASE
Denise DeBose and James McCullough (collectively the appellants) filed this employment discrimination action against the State of Nebraska. The district court for Lancaster County determined that the action was not filed within the applicable statute of limitations and dismissed the action. On appeal, the Nebraska Court of Appeals determined that the appellants did not file a timely appeal and dismissed the appeal for lack of jurisdiction. We granted the appellants' petition for further review. We conclude that the appellants timely appealed from the district court's order and remand the cause for further proceedings.
BACKGROUND
The appellants filed this action against the State on January 28, 1999. Their amended petition alleged that they were each employed as investigators with the Nebraska Equal Opportunity Commission and were each diagnosed with depression. For their first cause of action, the appellants alleged that they were each terminated from their employment on the basis of their depression-DeBose on March 16, 1995, and McCullough on May 30, 1995. For their second cause of action, they alleged that on March 14, 1995, they were each refused reasonable accommodation for their depression. The appellants alleged that their causes of action arose under the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (2000); the Nebraska Fair Employment Practice Act, Neb. Rev. Stat. § 48-1101 et seq. (Reissue 1998); § 504 of the Rehabilitation Act of 1973, codified at 29 U.S.C. § 794 (1994); and the public policy of Nebraska.
The State demurred to the petition, arguing that the court lacked jurisdiction. On September 13, 2001, the district court sustained the demurrer and dismissed the appellants' amended petition. The court, citing Adkins v. Burlington Northern Santa Fe RR. Co., 260 Neb. 156, 615 N.W.2d 469 (2000), found that § 48-1118(2) provided the applicable statute of limitations and that the appellants failed to file their petition within that 300-day statute of limitations.
On September 17, 2001, the appellants filed a "Plaintiff[s'] Motion for New Trial and Reconsideration." It stated in full:
COME NOW the Plaintiffs, and request the Court to review its decision to dismiss the Plaintiffs' entire Amended Petition. For good cause, Plaintiffs state that the first cause of action is brought under § 504 of the Rehabilitation Act. The Defendants have stated their only objection to that claim is that the Plaintiffs didn't allege that the State receives federal funds. This can be easily remedied by amendment, because those are indeed the facts. Moreover, the 300 day filing time limits do not apply to the public policy of this State.
On October 12, 2001, the district court overruled the appellants' motion. The appellants filed a notice of appeal and deposited the statutory docket fee on October 26.
In an unpublished opinion, the Court of Appeals dismissed the appeal for lack of jurisdiction.
DeBose v. State, No. A-01-1188, 2003 WL 21057283 (Neb. App. May 13, 2003) (not designated for permanent publication). The Court of Appeals found that the appellants' motion, which asked the district court only to review its decision to dismiss, was a motion for reconsideration that did not terminate the 30-day appeal period. Thus, the Court of Appeals determined that the appellants failed to file a timely appeal under Neb. Rev. Stat. § 25-1912(3) (Cum. Supp. 2002).
ASSIGNMENTS OF ERROR
In their petition for further review, the appellants contend that the Court of Appeals erred in finding that their appeal was untimely filed.
STANDARD OF R
Page 1 2 3 Nebraska Employee Leasing Services
Employee Leasing Services
|
| |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|