48-1120. Appeal; procedure; attorney's fees; failure to appeal; effect.

(1) Any party to a proceeding before the commission aggrieved by such decision and order and directly affected thereby may appeal the decision and order, and the appeal shall be in accordance with the Administrative Procedure Act.

(2) In any action or proceeding under the Nebraska Fair Employment Practice Act wherein an appeal is lodged in the district court, the court, in its discretion, may allow the prevailing party reasonable attorney's fees as part of the costs.

(3) If a respondent does not appeal an order, the commission may obtain a decree of the court for the enforcement of such order upon showing that respondent is subject to the commission's jurisdiction and resides or transacts business within the county in which the petition for enforcement is brought.

Source

Cross References

Annotations

1. Standard of review

2. Attorney's fees

3. Miscellaneous

1. Standard of review

On appeal to the district court from an order of the Nebraska Equal Opportunity Commission, the review is by trial de novo upon the record. On further appeal to the Supreme Court, the district court's findings will not be disturbed if they are supported by substantial evidence. Hinzman v. Richman Gordman, 219 Neb. 875, 367 N.W.2d 131 (1985).

On appeal of review by the district court of an order of the Nebraska Equal Opportunity Commission, the Supreme Court will not disturb the district court's findings if they are supported by substantial evidence. Zalkins Peerless Co. v. Nebraska Equal Opp. Comm., 217 Neb. 289, 348 N.W.2d 846 (1984).

On appeal to the district court from an order of the Nebraska Equal Opportunity Commission, the review is by trial de novo upon the record. Zalkins Peerless Co. v. Nebraska Equal Opp. Comm., 217 Neb. 289, 348 N.W.2d 846 (1984).

The standard of review to be applied in review by the district court and the Supreme Court of an order entered by the Nebraska Equal Opportunity Commission is whether the findings of the commission in support of such order are unreasonable or arbitrary or not supported by a preponderance of the evidence. The court shall affirm if the finding is supported by substantial evidence on the record. Nebraska P.P. Dist. v. Lacy, 215 Neb. 462, 339 N.W.2d 286 (1983).

On appeal to district court from an order of the Equal Opportunity Commission, review is de novo upon the record to determine whether the order was based upon substantial evidence. Farmer v. Richman Gordman Stores, Inc., 203 Neb. 222, 278 N.W.2d 332 (1979).

Upon an appeal to the district court from an order of the Equal Opportunity Commission, the district court review is de novo on the record. Snygg v. City of Scottsbluff Police Dept., 201 Neb. 16, 266 N.W.2d 76 (1978).

2. Attorney's fees

The plain meaning of subsection (6) of this section is to permit an award of attorney fees only where they were necessarily incurred in determining an issue over which the district court had jurisdiction. Nebraska Dept. of Correctional Servs. v. Carroll, 222 Neb. 307, 383 N.W.2d 740 (1986).

While awarding of attorney fees under this section is discretionary with the district court, absent special circumstances, the failure to award such fees is an abuse of discretion. Williams v. Goodyear Tire & Rubber Co., 219 Neb. 748, 366 N.W.2d 132 (1985).

Unless there are special circumstances a prevailing plaintiff, under the Nebraska Fair Employment Practice Act, should be awarded a reasonable attorney fee for all stages of the proceedings. In any action or proceeding under the Nebraska Fair Employment Practice Act, the district court, in its discretion, may allow the prevailing party a reasonable attorney fee. Airport Inn v. Nebraska Equal Opp. Comm., 217 Neb. 852, 353 N.W.2d 727 (1984).

This section does not provide for an attorney fee for services provided in appeals taken from the district court. Northern States Beef v. Stennis, 2 Neb. App. 340, 509 N.W.2d 656 (1993).

3. Miscellaneous

This section requires the filing of a petition and a certified copy of the transcript of proceedings before the Nebraska Equal Opportunity Commission within 30 days from the date of the NEOC's final order in order to confer jurisdiction on the district court. Transcon Lines, Inc., v. O'Neal, 230 Neb. 31, 429 N.W.2d 718 (1988).

There has been no entry of the order of the Nebraska Equal Opportunity Commission until the date that written evidence of that order has been prepared, authoritatively signed, and placed of record in the public files of such commission. Lincoln Co. Sheriff's Office v. Horne, 221 Neb. 867, 381 N.W.2d 159 (1986).

Substantial compliance with this section will be adequate to meet the requirements thereof. Held facts of this case constituted substantial compliance. Ranger Division v. Bayne, 214 Neb. 251, 333 N.W.2d 891 (1983).

Appeal in proceedings under this act are governed by specific provision herein for manner and scope of appeal, rather than the appeal provisions of the Administrative Procedure Act, sections 84-901 to 84-919. Duffy v. Physicians Mut. Ins. Co., 191 Neb. 233, 214 N.W.2d 471 (1974).

Since award of back pay by commission would be equivalent to similar award in federal court and appeal is provided for, state administrative remedy is adequate. Gilliam v. City of Omaha, 331 F.Supp. 4 (D. Neb. 1971).