State settles wrongful termination suit

Wednesday, March 10, 2004 | 9:48 a.m.

CARSON CITY -- A former director of nursing for the state will receive a payment of $88,242 for wrongful termination in a case that one official said could have been settled without any cash award.

Jane Bengston, who worked at the Adolescent Treatment Center in Reno in the state Division of Child and Family Services, was fired in June 2003 on grounds she improperly disposed of drugs.

Bengston said she was fired because she testified in support of a fellow employee at an equal opportunity hearing. She said her superiors retaliated against her for her testimony. Her supervisor at the time was Robert Clark.

A state hearing officer ruled the division did not have cause for termination and ordered her reinstated.

The state Board of Examiners Tuesday approved an out-of-court settlement for $88,242. Solicitor General Jeff Parker and Deputy Attorney General Bonnie Brand said the state could have been hit with a $300,000 judgment if the case went to trial.

They recommended the settlement.

After the meeting, Dennis Mallory, a union representative for the State of Nevada Employees Association, which represented Bengston, said he presented an offer to the attorney general's office to settle the case.

Mallory said the proposal would allow Bengston to resign instead of being fired. The offer stipulated she would not seek any monetary damages and the state would not go after her nursing license.

Mallory said the offer was rejected. The state asked the Nevada Nursing Board to take disciplinary action against Bengston. The Nursing Board declined.

Mallory said this case could have been settled at the early stage without the state paying the $88,242. He said this points out the need for a collective bargaining law that would set up a procedure with arbitration to handle these types of cases. He said the proposed law would be "non-economic" and there would not be any bargaining for money and benefits.

Gov. Kenny Guinn, chairman of the examiners board, had another concern about the case. He said Clark did not do an annual evaluation of her performance for four years. He asked if Clark had been disciplined for failing to fulfill the duty.

There was no answer.

Guinn told the attorney general's office: "You go back and give them hell," referring to the state Division of Child and Family Service.

Secretary of State Dean Heller, also a board member, said the lack of evaluations was not "an isolated incident" in state government, but is widespread.

Evaluations, he said, are "critical" because these must be done before disciplinary actions can be taken.

If a supervisor fails to fill out an evaluation, then the performance of the employee is considered standard.