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New Mexico Regulation & Licensing Department v. Lujan3/17/1999
rvisor has a duty to inform employees if their job performance is deficient. There are steps that supervisors must take in informing employees if their job performance is deficient. Those four steps are: (1) verbal warning; (2) written reprimand; (3) suspension or demotion; and (4) dismissal. For the warning to be adequate however, the employer must identify the violation involved and the consequences of the violation. See Chicharello v. Employment Sec. Div., 1996-NMSC-077, 5, 122 N.M. 635, 930 P.2d 170 (1996).
{17} The Department argues that, even if progressive discipline was not followed, it still had just cause to terminate Employee's position. The Department asserts that the State Personnel Board Rules do not require progressive discipline in order for there to be just cause for dismissal. We agree. Just cause occurs when an employee engages in behavior that is inconsistent with the employee's position. See State Personnel Board Rules 17.3 (March 26, 1994). Just cause can include misconduct, incompetency or insubordination. See id.
{18} The temporary hearing officer made a Conclusion of law that Employee was not afforded progressive discipline as required by the State Personnel Board Rules. The temporary hearing officer also found that there was no just cause to terminate Employee. Again, we review these Conclusions to determine whether they were arbitrary, capricious or an abuse of discretion, not supported by substantial evidence, or not in accordance with the law. See Perkins, 106 N.M. at 654, 748 P.2d at 27; NMSA 1978, ยง 10-9-18(G) (1998).
{19} The temporary hearing officer in the present case took evidence and considered it in light of the law. He made numerous findings of fact and Conclusions of law that were, save for two Conclusions, adopted by the SPB. The temporary hearing officer correctly concluded that the State Personnel Board Rules require progressive discipline prior to dismissing an employee unless the employee is dismissed for just cause. See State Personnel Board Rule 17.1(B); cf. Kazensky v. City of Merced, 76 Cal. Rptr. 2d 356, 374 (Ct. App. 1998) ("We would have no difficulty finding an abuse of discretion if there were a clear City policy calling for the application of progressive discipline . . . and the City had then failed to follow that policy."). Although the temporary hearing officer made findings that Employee engaged in demeaning and disrespectful behavior, he did not find that the efforts to investigate for sexual harassment problems or to educate on sexual harassment were specifically targeted at Employee. In fact, he found that these efforts were directed to all of the employees at NMREC. Additionally, the temporary hearing officer found that Employee's "personnel file contains no evidence of serious disciplinary problems" and that there was "no evidence of progressive discipline." Also, there were no efforts by the new superintendent to inform Employee that his job performance was deficient or what the consequences of his behavior would be. See Chicharello, 1996-NMSC-077, 7; State ex rel. Hughes, 113 N.M. at 215, 824 P.2d at 355; Regulation and Licensing Department Employee Handbook, Discipline Policy. Further, the temporary hearing officer determined that Employee's misconduct while disrespectful and demeaning, did not rise to the level that would support dismissal for just cause.
{20} The State Personnel Board Rules and employee handbook has attributes of an employee contract. See McTigue v. Personnel Bd. of Chicago, 701 N.E.2d 135, 143 (Ill. App. Ct. 1998); Garcia v. Middle Rio Grande Conservancy Dist., 121 N.M. 728, 731, 918 P.2d 7, 10 (1996); Forrester v. Parker, 93 N.M. 781, 782, 606 P.2d 191, 192 (1980
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