Bisch v. Las Vegas Metropolitan Police Department

129 Nev., Advance Opinion 3(0

IN THE SUPREME COURT OF THE STATE OF NEVADA

LAURIE BISCH, No. 58810

Appellant,

vs.

LAS VEGAS METROPOLITAN POLICE

DEPARTMENT, A LOCAL FILED

GOVERNMENT EMPLOYER; AND LAS MAY 3 0 2013

VEGAS POLICE PROTECTIVE

ASSOCIATION, INC.,

Respondents.

Appeal from a district court order denying a petition for

judicial review and denying declaratory and injunctive relief in an

employment matter. Eighth Judicial District Court, Clark County;

Jerome T. Tao, Judge.

Affirmed.

Law Office of Daniel Marks and Adam Levine and Daniel Marks,

Las Vegas,

for Appellant.

Marquis Aurbach Coffing and Nicholas D. Crosby and Micah S. Echols,

Las Vegas,

for Respondent Las Vegas Metropolitan Police Department.

Kathryn Werner Collins, Las Vegas,

for Respondent Las Vegas Police Protective Association, Inc.

BEFORE THE COURT EN BANC. 1

1 The Honorable Kristina Pickering, Chief Justice, voluntarily

recused herself from participation in the decision of this matter.

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OPINION

By the Court, PARRAGUIRRE, J.:

The Las Vegas Metropolitan Police Department (LVMPD)

initiated an internal investigation of appellant Laurie Bisch regarding

allegations of insurance fraud after Bisch's dog bit her daughter's 17-year-

old friend, and Bisch represented to medical staff that the girl was her

own daughter but did not use her employer-provided health insurance.

Bisch was not provided a police protective association (PPA)

representative during an internal investigation meeting because she had

retained a private attorney. At issue here is whether Bisch was entitled to

have PPA representation present during an internal investigation

meeting. We hold that she was not. NRS 289.080 did not impose a duty

on the PPA to provide representation to Bisch.

Although the charges of insurance fraud were ultimately

dropped, the LVMPD issued Bisch a formal written reprimand for a

violation of "[c]onduct unbecoming an employee" under LVMPD Civil

Service Rule 510.2(G)(1). Also at issue is whether Bisch's discipline was

based on overly broad criteria or was politically motivated. We conclude

that her discipline was proper because the discipline bore directly on her

fitness to perform her profession. Further, despite the fact that she

established a prima facie case of political motivation, substantial evidence

was presented to rebut the presumption of discrimination. We therefore

affirm the district court's decision.

FACTS

Bisch is a seasoned veteran of the LVMPD. In 2006, she ran

unsuccessfully for Clark County Sheriff, and it was well known that she

planned to run again in 2010.

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In 2008, while Bisch was off duty, her dog bit her daughter's

17-year-old friend. Bisch took the girl to an urgent care facility for

treatment. Unable to contact the girl's mother and concerned that the

urgent care would not provide treatment without a legal guardian present,

Bisch represented to the urgent care staff that the girl was actually her

own daughter, using both her daughter's name and birthday. Bisch paid

for the treatment with her own funds and did not use her employer-

provided health insurance.

Upon learning of the dog bite and ensuing medical treatment,

the girl's mother filed a complaint with the LVMPD, alleging that Bisch

had committed insurance fraud by misrepresenting the girl's identity to

the hospital.

This complaint generated an Internal Affairs (IA)

investigation into Bisch's conduct. Although the IA investigator confirmed

that Bisch had not used her insurance to pay for the treatment, IA

nonetheless scheduled an interview with Bisch. In preparation for this

interview, Bisch informed her PPA representative that she would bring

her private attorney to the interview, but requested that a PPA

representative also be present. Bisch's PPA representative responded

that, per the PPA bylaws, the PPA provided representation only when the

member did not procure his or her own attorney. The interview proceeded

without PPA representation.

Approximately one week later, the IA investigator determined

that Bisch had not committed insurance fraud but still inquired to both

the LVMPD and the district attorney's office as to whether Bisch had

violated any laws. After hearing a cursory description of Bisch's conduct

over the phone, a deputy district attorney informed the IA investigator

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that Bisch may have committed identity theft, a felony under NRS

205.463.

The IA investigator concluded his investigation by generating

a report that recommended sustaining the initial complaint lodged against

Bisch on the ground that she had committed identity theft, which, as a

felony, was a terminable offense. Pursuant to LVMPD policy, the IA

investigator's report was sent to Sergeant Ken Romane for approval.

Having received mixed signals from his own supervisor regarding the

nature of the complaint against Bisch, Romane spoke with Bisch and the

IA investigator directly, and decided that he could not in good faith issue

any formal discipline to Bisch. Romane then contacted LVMPD's labor

relations office and stated that the report needed to be "pulled back" and

reconsidered, as he felt the identity theft charge was unsubstantiated.

A few months later, LVMPD informed Romane that the

complaint against Bisch would be sustained, but because Bisch could not

be found to have committed identity theft under NRS 205.463, the

complaint would be sustained for the lesser violation of LVMPD Civil

Service Rule 510.2(G)(1), which forbids "[c]onduct unbecoming an

employee."

Although Romane again sought permission to simply give

Bisch a verbal warning, his supervisor instructed him to give Bisch a

formal written reprimand—the lowest form of official discipline. Eighteen

months later, the written reprimand was removed from Bisch's employee

file as required by LVMPD policy.

Following the written reprimand in 2009, Bisch filed a

complaint with the Employee Management Relations Board (EMRB)

against both the PPA and LVMPD. Bisch alleged that the PPA had

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breached its duty of fair representation when it refused to represent her at

her IA interview. According to Bisch, the PPA's refusal was

discriminatory because it was politically motivated by its endorsement of a

different candidate for sheriff in the 2006 election. Bisch also contended

that NRS 289.080, which governs peace officers' rights during an

investigation, granted her the right to have two representatives of her

choosing at her IA interview and that the PPA's violation of this statute

constituted a separate breach of the duty of fair representation.

With regard to the LVMPD, Bisch contended that it had

implemented overly broad disciplinary criteria by disciplining her for off-

duty conduct that had no actual effect on her ability to perform her job.

Additionally, Bisch argued that her written reprimand was a politically

motivated attempt to thwart her 2010 campaign for sheriff. Following a

two-day hearing, the EMRB denied Bisch's claims in their entirety. The

district court likewise denied Bisch's subsequent petition for judicial

review, and this appeal followed. 2

DISCUSSION

In this appeal, we first address whether the current matter is

moot following the removal of the written reprimand from Bisch's

employee file. Concluding that it is not, we then address whether the

EMRB properly rejected Bisch's duty-of-fair-representation claim and

determine that NRS 289.080 does not impose a duty on Bisch's PPA to

2The district court also denied declarative and injunctive relief, but

since there are no arguments regarding these issues on appeal, we do not

address them here. Powell v. Liberty Mitt. Fire Ins. Co., 127 Nev. ,

11.3, 252 P.3d 668, 672 n.3 (2011) ("Issues not raised in an appellant's

opening brief are deemed waived.").

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provide a representative for an investigatory interview by her employer.

We then address whether the EMRB properly rejected Bisch's claim that

the discipline was politically motivated, concluding that the EMRB

applied the correct legal standard and relied on substantial evidence in

upholding LVMPD's written reprimand.

Standard of review

This court, like the district court, gives considerable deference

to rulings by the Employee Management Relations Board. City of N. Las

Vegas v. State, EMRB, 127 Nev. , , 261 P.3d 1071, 1076 (2011); see

also NRS 233B.135(3). This court reviews pure questions of law de novo

but will affirm the EMRB's decision concerning a question of fact if it is

supported by substantial evidence. City of Reno v. Reno Police Protective

Ass'n, 118 Nev. 889, 894, 59 P.3d 1212, 1216 (2002). Substantial evidence

is evidence that a reasonable person would accept as adequate to support

a conclusion. Id. at 899, 59 P.3d 1219. In determining whether

substantial evidence exists, this court is limited to the record as it was

presented before the EMRB. Id. If the decision lacks substantial

evidentiary support, the decision is unsustainable as being arbitrary or

capricious. Id.

Bisch's appeal is not moot

Prior to oral argument, LVMPD notified this court that the

issue of removing the written reprimand is potentially moot, as LVMPD

policy requires the removal of written reprimands from employee files 18

months after the employee signs the adjudication. LVMPD represented to

this court that the 18-month period had passed and that the reprimand is

no longer included in Bisch's employee file.

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In Nevada, "[a] moot case is one which seeks to determine an

abstract question which does not rest upon existing facts or rights."

NCAA v. Univ. of Nev., 97 Nev. 56, 58, 624 P.2d 10, 11 (1981). "Cases

presenting real controversies at the time of their institution may become

moot by the happening of subsequent events." Id. Even if this issue is

now moot, we may still consider this case as a matter of widespread

importance capable of repetition, yet evading review. Personhood Nev. v.

Bristol, 126 Nev. „ 245 P.3d 572, 574 (2010). If so, then Bisch must

demonstrate that (1) the duration of the challenged action is relatively

short, (2) there is a likelihood that a similar issue will arise in the future,

and (3) the matter is important. Id.

Despite the apparent removal of the discipline from Bisch's

employee file, the alleged political motivation of the reprimand and the

potential effect it could have on Bisch's political ambitions demonstrate

that an actual controversy still exists. We therefore decline INMPD's

request to dismiss this appeal as moot.

The EMRB properly rejected Bisch's duty-of-fair-representation claim

In challenging the EMRB's rejection of her duty-of-fair-

representation claim, Bisch contends that the PPA breached its duty by

declining to have a PPA representative appear on her behalf at the IA

interview even though NRS 289.080(1) grants her the right to have two

representatives present. We reject this argument.

Bisch contends that the PPA breached its duty of fair

representation to her by refusing to provide her with a PPA representative

of her choosing at her IA interview. As detailed above, in discussing her

upcoming IA interview with her PPA representative, Bisch indicated that

she would be retaining private counsel for the interview but requested

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that a PPA representative also appear on her behalf. At that time, Bisch

was informed that, per PPA policy, if she was represented at the interview

by private counsel, a PPA representative would not appear on her behalf.

Bisch maintains that the PPA's policy of not providing a

representative to appear on behalf of an officer who has retained counsel

and the application of this policy to her in this instance constitute a

violation of the representation rights provided to peace officers under NRS

289.080(1). Bisch contends that NRS 289.080 unambiguously granted her

a right to have two representatives of her choosing at her interview, and

that her union's refusal to provide her with a second representative

constituted a violation of this statute. Therefore, according to Bisch, the

union's violation of the statute constituted a breach of its duty of fair

representation.

NRS 289.080(1) provides:

[A] peace officer who is the subject of an investigation. . . may

upon request have two representatives of the peace officer's

choosing present with the peace officer during any phase of an

interrogation or hearing relating to the investigation,

including, without limitation, a lawyer, a representative of a

labor union or another peace officer.

(Emphasis added.) The PPA argues that the district court correctly

concluded that the plain language of the statute does not create any

affirmative duty on the union to provide a second representative at the

interview, rather, it only provides a right of two representatives. The

district court then looked at the broader statutory scheme to determine

that the statute only provides a right of representation in regards to the

employer, and does not impose any duties on the police union.

The interpretation of NRS 289.080 regarding any duties it

imposes on PPAs is an issue of first impression in Nevada. This court

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reviews questions of law, such as statutory interpretation, de novo.

Nyberg v. Nev. Indus. Comm'n, 100 Nev. 322, 324, 683 P.2d 3, 4 (1984). In

doing so, we apply the plain meaning of the statute and give the words

their ordinary meaning where the statute is plain and unambiguous.

Cromer v. Wilson, 126 Nev. „ 225 P.3d 788, 790 (2010). Where the

statute is ambiguous, we look beyond the plain language of the statute to

determine its meaning. Id. In order to give effect to the Legislature's

intent, we have a duty to consider the statute within the broader statutory

scheme "harmoniously with one another in accordance with the general

purpose of those statutes." S. Nev. Homebuilders Ass'n v. Clark Cnty., 121

Nev. 446, 449, 117 P.3d 171, 173 (2005) (quoting Washington v. State, 117

Nev. 735, 739, 30 P.3d 1134, 1136 (2001)).

Here, the statute does not expressly impose any affirmative

duties, but only provides the employee the right to have two

representatives of his or her choosing present at an interrogation, which

would necessarily prevent the employer from barring the employee from

having two representatives. Because the statute does not impose any duty

for any entity to provide a representative, we are unable, therefore, to

conclude from the plain language of the statute that NRS 289.080

supports Bisch's arguments. 3

3 Bischalso cites N.L.R.B. v. J. Weingarten, Inc., 420 U.S. 251 (1975),

for the proposition that a union member has a "right" to have a union

representative present during an employer interrogation., The Weingarten

Court held only that an employer may not force an employee to participate

in an interrogation without a union representative. 420 U.S. at 262. It

made no mention of the union's duties to the employee/member in such a

situation.

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Though we reject Bisch's argument that the statute imposes a

duty on the PPA on its face, looking to the broader statutory scheme

provides further illumination. NRS 289.080 is part of NRS Chapter 289's

"Peace Officer Bill of Rights." See Ruiz v. City of N. Las Vegas, 127 Nev.

255 P.3d 216, 218 (2011) (indicating that the Peace Officer Bill of

Rights is codified at NRS 289.010-.120). In Nevada and other states with

such statutes, law enforcement bills of rights afford peace officers certain

procedural protections when dealing with their employer in an adversarial

setting. For example, NRS 289.120 provides: "Any peace officer aggrieved

by an action of the employer of the peace officer in violation of this chapter

may, after exhausting any applicable. . . administrative remedies, apply

to the district court for judicial relief." NRS 289.120 provides judicial

review for violations of this chapter by employers and indicates that the

duties of NRS Chapter 289 are only imposed on employers, not PPAs.

We conclude, therefore, that the protection provided by NRS

289.080 is only in regard to Bisch's employer. Because nothing in NRS

289.080 or the rest of the Peace Officer Bill of Rights governs a PPA's

responsibility toward its members, the EMRB correctly concluded that

NRS 289.080 did not impose an additional duty of fair representation on

the PPA.

The EMRB properly upheld LVMPD's written reprimand of Bisch

After the IA investigation concluded, Bisch was issued a

written reprimand for violating Civil Service Rule 510.2(G)(1) by

committing misconduct outside of her official duties. She challenged this

discipline before the EMRB in an effort to force the LVMPD to remove the

written reprimand from her employee file. Bisch contended that removal

was required because improper criteria had been used in issuing the

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discipline under Civil Service Rule 510.2(G)(1) and because she had been

improperly punished for political reasons. The EMRB rejected these

arguments, and the district court similarly declined to grant judicial

review. On appeal, Bisch reiterates these arguments in support of her

position that the written reprimand should have been removed. For the

following reasons, we conclude that the EMRB properly upheld the

LVMPD's written reprimand.

The conduct for which Bisch was disciplined was sufficiently related

to the performance of her duties as a peace officer

Bisch argues that the LVMPD disciplined her for off-duty

conduct, which she argues is an unconstitutional application of arbitrary

discipline criteria. The regulation under which Bisch was disciplined,

Civil Service Rule 510.2(G)(1), provides a basis for discipline as follows:

The term "misconduct" shall mean not only

improper action by an employee in his official

capacity, but also any conduct by an employee

unconnected with his official duties, [(1)] tending

to bring the Department into public discredit

which [(2)] tends to affect the employee's ability to

perform his duties efficiently. . . .

The LVMPD counters that the application of the disciplinary criteria was

appropriate and supported by substantial evidence. We find Bisch's

arguments to be without merit.

Bisch cites Stevens v. Hocker for the proposition that discipline

criteria that punishes an employee for off-duty conduct is arbitrary and

capricious unless the improper conduct bears directly on the fitness of the

employee to perform his or her profession. 91 Nev. 392, 394, 536 P.2d 88,

89-90 (1975). In Stevens, an off-duty prison guard was arrested for

disorderly conduct after drunkenly yelling at his wife. Id. at 393, 536 P.2d

at 89. Despite having never been convicted of a crime, the guard was

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discharged from his job based on a rule that forbade "conduct detrimental

to the good of the institution." Id. at 393-94, 536 P.2d at 89-90 (citation

omitted). This court reversed the discipline, concluding that the language

of the rule was "so illusive as to embrace an almost unlimited area of

conduct." Id. at 394-95, 536 P.2d at 90. While the court recognized that it

had previously upheld the imposition of discipline for violation of equally

amorphous rules prohibiting "unprofessional conduct," the Stevens court

reasoned that in those cases, "the conduct in issue bore directly upon

fitness to perform the profession involved." Id. (citing Moore v. Board of

Trustees, 88 Nev. 207, 495 P.2d 605 (1972); Meinhold v. Clark Cnty. Sch.

Dist., 89 Nev. 56, 506 P.2d 420 (1973)). Applying this rule, the Stevens

court concluded that "[appellant's] off-duty transgression. . . had [no]

bearing at all upon his performance as an employee of the Nevada State

Prison," and therefore it reversed the prison guard's termination. Id. at

395, 536 P.2d at 90.

Bisch is incorrect that Stevens renders the discipline for her

off-duty conduct improper. Like in Stevens, the language of Civil Service

Rule 510.2 is relatively broad in terms of the types of conduct that may be

disciplined. However, like the court in Stevens, we do not consider such

language unconstitutionally vague where the disciplinary criterion is

applied to conduct that directly bears upon an employee's fitness to

perform the profession. Our next step, then, is to determine whether the

conduct here bears directly upon Bisch's fitness to perform her profession.

A police officer's job is to uphold the law, and the act of lying to the urgent

care staff in order to circumvent a perceived parental-consent law could

plausibly bear directly upon Bisch's fitness to be an officer. Unlike the

conduct of the prison guard in Stevens, Bisch's untruthfulness could be

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used to impeach her credibility if she were called as a witness to testify at

a trial. Accordingly, protecting the integrity of the police department is a

legitimate basis for imposing discipline. A number of other jurisdictions

have upheld similar discipline "where the position requires high morals,

control, and discipline and the off-duty conduct is in violation of specific

employment policies." Utah Dep't of Corr. v. Despain, 824 P.2d 439, 446

(Utah Ct. App. 1991). 4 Thus, we conclude that the disciplined conduct

bore directly on her fitness to be an officer. 5

4Despain cites a number of similar cases in other states. 824 P.2d at

446 n.16 (citing Wilson v. Swing, 463 F. Supp. 555, 564 (M.D.N.C. 1978)

(affirming the discharge of a police officer for engaging in an extramarital

affair with another police officer because the termination "was clearly

designed to further the Department's interest in its morale, discipline,

effectiveness and reputation in the community"); Puzick v. City of Colo.

Springs, 680 P.2d 1283, 1286 (Colo. App. 1983) (affirming suspension of an

off-duty police officer for sexual misconduct because such conduct "has the

effect of impairing the operation or efficiency of the department" or may

bring "the department into disrepute"); Millsap v. Cedar Rapids Civil

Serv. Comm'n, 249 N.W.2d 679, 686 (Iowa 1977) (affirming suspension of

an off-duty police officer for intoxication and unbecoming conduct because

"[i]t is well established that the image presented by police personnel to the

general public is vitally important to the police mission")). We further

note that Despain and the cases it cites deal with termination and

suspension, whereas here the discipline was a written reprimand, a lesser

level of discipline.

5 Bisch also argues that the LVMPD unilaterally changed its

discipline criteria outside of the collective bargaining process by

disciplining her for conduct that did not actually bring the LVMPD into

public discredit or actually affect her ability to perform her duties. We

reject this argument, as Bisch did not present evidence that the LVMPD

ever changed the regulation outside of the collective bargaining process,

and the regulation does not require Bisch to actually bring the LVMPD

into public discredit or affect her ability to perform, only that her conduct

tended to do both of these things.

13

Substantial evidence supports the EMRB's conclusion that Bisch was

not disciplined for political reasons

NRS 288.270(1)(f) provides that discrimination against an

employee by a local government employer or the employer's designated

representative for "political or personal reasons or affiliations" constitutes

a prohibited practice. On appeal, Bisch maintains that the EMRB should

have ordered that her written reprimand be stricken from her employee

file because the LVMPD improperly disciplined her for political reasons in

violation of that statute. In particular, Bisch contends that she received

this written reprimand not as the result of a by-the-book IA investigation,

but because the LVMPD wanted to use the reprimand against her in her

upcoming run for sheriff. The LVMPD counters that the EMRB decision

to uphold the reprimand was proper because Bisch failed to supply

sufficient evidence of political motivation, she provided no evidence that

the sheriff was involved in the disciplinary investigation, and the EMRB

determined that the investigation was initiated following a complaint by

the dog-bite victim's mother, not at the behest of the sheriff or any of the

sheriffs subordinates.

In Reno Police Protective Ass'n v. City of Reno, 102 Nev. 98,

715 P.2d 1321 (1986), this court adopted the framework used in

adjudicating federal prohibited-labor-practice claims under the National

Labor Relations Act for use in resolving state prohibited-labor-practice

claims against employers brought under NRS 288.270. Specifically, this

court concluded that

[am n aggrieved employee must make a prima fade

showing sufficient to support the inference that

protected conduct was a motivating factor in the

employer's decision. Once this is established,

the burden of proof shifts to the employer to

14

demonstrate by a preponderance of the evidence

that the same action would have taken place even

in the absence of the protected conduct. The

aggrieved employee may then offer evidence that

the employer's proffered "legitimate" explanation

is pretextual and thereby conclusively restore the

inference of unlawful motivation.

Reno Police Protective Ass'n, 102 Nev. at 101-02, 715 P.2d at 1323 (citing

N.L.R.B. v. Transp. Mgmt. Corp., 462 U.S. 393, 403 (1983), abrogated by

Director, OWCP v. Greenwich Collieries, 512 U.S. 267, 276-78 (1994);

N.L.R.B. v. United Sanitation Serv., 737 F.2d 936, 939 (11th Cir. 1984)).

This court adopted this test, referred to as the Transportation

Management test, prior to the U.S. Supreme Court's modification of that

test in Greenwich Collieries. Under the revised federal framework, it is

not enough for the employee to simply put forth evidence that is capable of

being believed; rather, this evidence must actually be believed by the fact-

finder. Greenwich Collieries, 512 U.S. at 276-78. Only upon meeting this

burden of persuasion does the burden of proof shift to the employer. Id.

We find this revised framework persuasive and adopt the federal burden

of persuasion for the plaintiff to establish a prima facie case of

discrimination in order to shift the burden to the employer.

It appears that the EMRB applied the Reno Police Protective

Ass'n standard, which is the pre-Greenwich Collieries standard and

required Bisch to only satisfy the burden of production. Bisch argues that

the EMRB applied the incorrect frameworks in McDonnell Douglas Corp.

v. Green, 411 U.S. 792, 802 (1973), and Padilla-Garcia v. Guillermo

Rodriguez, 212 F.3d 69, 77-78 (1st Cir. 2000), in determining her

employment discrimination case. While the EMRB's order does not clearly

state which burden of proof was applied, Bisch's argument overstates the

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ambiguity in the EMRB's analysis. Despite citing the Padilla-Garcia test,

the EMRB also cited and properly applied the Reno Police Protective Ass'n

analysis. Thus, contrary to Bisch's assertions, the EMRB did apply the

Reno Police Protective Ass'n analysis (albeit not as modified in Greenwich

Collieries—which only serves to change her burden of proof to a burden of

persuasion). Further, even if the EMRB did not apply the heightened

standard of persuasion, there is substantial evidence to support a

determination that the burden of persuasion was satisfied. We therefore

proceed to examine how the EMRB applied the Reno Police Protective

Association/Greenwich Collieries test.

Here, the EMRB first determined that Bisch had provided

evidence sufficient to establish a prima facie case that her discipline was

politically motivated. The EMRB noted that it was widely known

throughout the LVMPD that Bisch had run for sheriff in 2006 and was

planning to run again in 2010. Further, the EMRB noted that Romane,

the supervisor assigned to administer the discipline, testified that when

he asked the IA investigator about the report, the investigator told him it

was a "tower caper" 6 and that his attempts to give Bisch a verbal warning

6 Both Bisch and LVMPD agree that a tower caper is a complaint

that high-ranking officials pay particular attention to. According to

LVMPD, the term refers to any complaint in which a crime has potentially

been committed and gets put on a list so that the head of IA can stay

apprised of the investigation into the complaint. Bisch asserts that this

term refers to an investigation overseen by the high-ranking officers for

political purposes. The district court noted, however, that Bisch provided

"no citations to any testimony or evidence in the record supporting this

broad and considerably more inflammatory characterization."

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were repeatedly met with resistance by those higher in the chain of

command. Thus, although the parties contest the meaning of the phrase

"tower caper," the EMRB determined that Bisch established a prima facie

case of discrimination.

Because Bisch established a prima facie case, the EMRB

correctly concluded that the burden then shifted to the LVMPD to rebut

the presumption of discrimination. See Reno Police Protective Ass'n, 102

Nev. at 101-02, 715 P.2d at 1323. The EMRB then determined that the

LVMPD produced enough evidence to satisfy its burden regarding its

nondiscriminatory justification. Specifically, the EMRB's decision

provides that the complaint against Bisch was initiated by a third party

(the mother of the child bitten by Bisch's dog), rather than the LVMPD. It

also indicates that the IA investigator properly investigated and dropped

the insurance fraud allegation once it became apparent that Bisch did not

commit insurance fraud. The EMRB further found that it was not until

this phase of the investigation when the IA investigator confirmed that

Bisch misrepresented the identity of the child. The IA investigator then

contacted a deputy district attorney, who advised the LVMPD that Bisch

may have committed felony identity theft. Based on that advice, the IA

investigation initially concluded that Bisch had committed identity theft, a

terminable offense. Upon establishing that no such felony occurred, the

LVMPD limited its conclusions only to the violation of Civil Service Rule

510.2(G)(1). Ample evidence in the record supports the conclusion that

this violation actually did occur. Thus, substantial evidence supports the

EMRB's conclusion that the LVMPD established a nondiscriminatory

reason for discipline and the burden shifted back to Bisch. See Reno Police

Protective Ass'n, 102 Nev. at 101-02, 715 P.2d at 1323.

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Bisch contends that this evidence has little to no bearing on

whether her written reprimand was the result of a politically motivated

investigation, and that the IA investigator should have closed the

investigation after determining that no insurance fraud occurred.

However, Bisch's evidence supporting an inference of discrimination is

speculative, as she provides no factual basis short of one investigator's

reference to the investigation as a "tower caper." There is no evidence on

record that LVMPD officials actually directed the complaint to be given

special attention besides this secondhand assertion, and Bisch does not

provide evidence that continuing the investigation was contrary to any IA

policy. Furthermore, the facts supporting the discipline itself are not in

question. Accordingly, the EMRB was correct to conclude that Bisch did

not satisfy her burden to show that the LVMPD's stated reasons for

discipline were merely pretextual.

As this court has previously stated, we review an

administrative decision for substantial evidence and will not reweigh

evidence or witness credibility, nor will we substitute our judgment for the

administrative judge's. Nellis Motors v. State, Dep't of Motor Vehicles, 124

Nev. 1263, 1269-70, 197 P.3d 1061, 1066 (2008). Accordingly, we are

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unwilling to reverse a decision where the disciplined behavior actually

occurred and the evidence of political motivation is speculative. We

therefore conclude that the EMRB decision was supported by substantial

evidence. City of Reno v. Reno Police Protective Ass'n, 118 Nev. 889, 894,

59 P.3d 1212, 1216 (2002).

Accordingly, we affirm the judgment of the district court in

upholding the decision of the EMRB.

Parraguirre

Gibbons

J.

Hardesty

D -01/xt /46 , J.

Douglas

Saitta

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