Mickelson v. Workforce Safety and Insurance, 2012 ND 164

Heier, a deputy warden, was accused of inappropriately grabbing Rahn at a nonwork event on April 18, 2009 and allegedly threatening she would lose her job if she reported it.
The Department notified Heier of potential disciplinary action on May 6–7, 2009, culminating in a 1-day suspension without pay for the April 18 incident.
In August–September 2009, the Department expanded review, uncovering additional issues and ultimately terminating Heier for sexual harassment after a separate investigation.
Heier filed an internal grievance, which was denied, and then appealed to Human Resources Management Services; an ALJ heard the appeal in 2010 and affirmed the termination.
A recording problem at the original hearing led to remand and a recreated record in 2011, after which the ALJ again adopted the prior decision.
The North Dakota Supreme Court reversed, concluding Heier was unlawfully disciplined multiple times for one instance of misconduct, ordering reinstatement and backpay.

Issue	Plaintiff's Argument	Defendant's Argument	Held
May Heier be disciplined twice for one incident?	Heier argues multiple punishments for the same misconduct are unauthorized.	The Department contends separate actions were for distinct misconduct aspects.	No; cannot discipline twice for the same misconduct.
Is the August–September 2009 punishment for threats separate from the April 2009 touching?	Punishments were for the same conduct; the threats were encompassed by the initial discipline.	Different bases (touching vs. threats) justify separate discipline.	Punishments were for separate bases; However, the court still finds overall disciplinary actions improper as to multiple punishments for the same incident.
Did the Department have statutory authority to revoke pay increase as a separate discipline?	Denial of the pay increase constitutes a further punishment for the April 2009 incident.	Pay increase denial was not punishment for the misconduct but a performance-based decision tied to legislation.	Denial of the pay raise was not a disciplinary action for the April 2009 incident.
Was the record permissible after the remand and recreation of testimony?	Recreated record was insufficient to replace lost evidence and proper procedure.	Record recreation complied with due process and Masset guidance.	Record recreation permissible; no abuse of discretion.

State, Dep’t of Transp. v. State, Career Serv. Comm’n, 366 So.2d 473 (Fla. Dist. Ct. App. 1979) (public employee cannot be disciplined multiple times for one incident)
Rochon v. Rodriguez, 689 N.E.2d 288 (Ill. App. Ct. 1997) (double punishment principle applied in public employment)
Messina v. City of Chicago, 495 N.E.2d 1228 (Ill. App. Ct. 1986) (double punishment for same misconduct disfavored)
Hall v. Iowa Merit Emp’t Comm’n, 380 N.W.2d 710 (Iowa 1986) (no multiple discipline for single misconduct)
Lundy v. Univ. of New Orleans, 728 So.2d 927 (La. Ct. App. 1999) (limits on sequential disciplinary actions)
James v. Sewerage and Water Bd. of New Orleans, 505 So.2d 119 (La. Ct. App. 1987) (disciplinary actions constrained by single-incident doctrine)
Department of Pub. Safety, Office of State Police v. Rigby, 401 So.2d 1017 (La. Ct. App. 1981) (discipline for one misconduct cannot be compounded)
Hamlett v. Division of Mental Health, La. Health & Human Res. Admin., 325 So.2d 696 (La. Ct. App. 1976) (limits on multiple disciplinary actions)
Ladnier v. City of Biloxi, 749 So.2d 139 (Miss. Ct. App. 1999) (multi-step discipline for single misconduct disfavored)
Siler v. City of Harrisburg, 422 A.2d 704 (Pa. Commw. Ct. 1980) (one offense, one discipline principle)
In re Appeal of Ditko, 123 A.2d 718 (Pa. 1956) (historical support for single-discipline rule)