concurring in part and dissenting in part:
I concur in the judgment reinstating Sue Clements in her employment with the Airport Authority, but I disagree with the majority opinion’s denial of relief to Douglas Clements.
The record tells me that Douglas was probably unjustly terminated and that Director White and his overly-compliant board reorganized the entire Airport Authority just to get rid of Douglas because he was a threat to the status quo — he was a whistle-blower, who was calling attention to irregularities and illegalities on the part of the Airport Authority administration.
Douglas makes out a rather clear case of retaliatory discharge; but because the trial court refused to deal with this claim, I will direct my attention first to the more obvious and uncontestable reason why Douglas should be reinstated, and that is because a duly-constituted Grievance Panel heard Douglas’ grievance and properly decided that he was entitled to his keep his job under the so-called “reorganization” of the Airport Authority, which he claims was devised solely to get rid of him and other suspected whistle-blowers. After discussing Douglas’ right to employment by the “reorganized” Airport Authority; I will discuss the invalidity of the Airport Board’s unlawful decision to get rid of Douglas in retaliation for his being perceived as a “whistle-blower.”
I.
UPHOLDING THE GRIEVANCE PANEL
It must always be kept in mind that Douglas was not fired; he was laid-off in a reduction of force. He was not summarily terminated as an “at-will” employee, nor was he dismissed for cause. It is clear that Director White considered Douglas subject to termination only through appropriate “disciplinary action” or as an incident to a reduction in force. Director White made this clear to Douglas in his April 21, 1990, letter to Douglas in which he wrote that it “must be clearly understood that this reorganization and reduction of force, as it alfects your prior position is not a disciplinary action” (Emphasis added.) After the Grievance Panel reinstated Douglas, the Authority tried to characterize Douglas as an at-will employee subject to groundless, summary dismissal, but this position was taken in a last-minute, after-the-fact attempt by White and the Airport Authority Board to justify its decision to deny Douglas his right under the personnel manual to continue in his “prior position.”
Douglas successfully persuaded the Grievance Panel that under the terms of the reorganization crafted by White, Douglas was entitled to continued employment in a position comparable to his “prior position,” namely, the newly-named position of “Senior *729Engineer.” As recited in the Board’s Findings of Fact, “the three member [Grievance] panel issued its decision finding that the Authority violated its Personnel Policies and Procedures Manual when it failed to offer Douglas the position of Senior Engineer in lieu of laying him off.” The Grievance Panel made its holding in accordance with the Airport Authority’s official personnel policies and procedures, which disfavored job losses when lay-offs became necessary and which encouraged “readjustment of personnel through transfer, if qualified, to other open positions within the authority.” When the Authority changed the title of Douglas’ position to that of “Senior Engineer,” there was no one around who was more suited to fill the newly-named position than its former holder, Douglas Clements; and the official personnel policy of the Authority dictated that he continue his job under its new name. There was, of course, no way that supposed whistle-blower Douglas was going to be allowed to stay on the job; so, in violation of Airport Authority policy, he was refused continued employment with the Authority.
In the scramble to find an excuse for getting rid of Douglas, the Authority gave Douglas two different reasons for getting rid of him. In its review of the Grievance Panel, the Authority’s Findings of Fact recite that Douglas was “terminated on April 7, 1989 pursuant to a Plan of Reorganization and Reduction of Force.” If this were the real reason for Douglas’ termination, then, under Section 9 of the official personnel policies and procedures, he would be entitled to continue his employment under the new title of “Senior Engineer.” In the very same Findings of Fact, however, the Authority claimed also that Douglas was “an at-will employee” and that he could, therefore, be “terminated at the pleasure of the Executive Director.” The position of the Authority seems to be, then, that it laid-off Douglas as part of a reduction of force; but, if that does not work, the Executive Director had the right to fire him anyway because he was an at-will employee. I submit that the Authority cannot have it both ways: it either laid him off or it fired him. It is clear from the record that Douglas was not fired by the Executive Director as an at-will employee (The Authority did not assert this “at-will” argument until after Douglas’ lay-off) and that Douglas was in fact laid-off under the excuse that there was a necessary reduction of force. This being the case, Section 9 of the policy manual requires that he be given preference for the new Senior Engineer position. This is exactly what the Grievance Panel correctly ruled. I cannot imagine how the district court failed to see the obvious injustice inherent in the way that both the Executive Director and the rubber-stamp Board appears to have trampled on Douglas’ employment rights.
*730The majority opinion adopts the Airport Authority’s fall-back argument, position number two, that Douglas was an at-will employee who “served at the pleasure of White” and that, therefore he was not a civil service employee and not entitled to his rights under the reduction in force provisions of the employment manual. If White had really considered Douglas to be an at-will employee, all White had to do was fire Douglas and get on with it. White did not do this; instead, he went about contriving what appears to me to be an elaborate subterfuge for dismissing Douglas. White himself made it very clear to Douglas that he was not firing him, but that Douglas was, rather, the unfortunate victim of a reduction of force that was necessary “for a more efficient operation.”
Even if I were to agree with the majority that Douglas was subject to being fired at the pleasure of the executive director,1 the issue of whether Douglas was or was not an at-will employee was never brought up as a basis for dismissing him until this matter got to the stage where the Authority Board was reviewing the decisions of the Grievance Panel and of its executive director. It was not until September 7, 1989, five months after he had been laid-off for the supposed “reduction of force,” that the Authority raised the “at-will” issue and urged that Douglas could be “terminated at any time without cause.” As far as Douglas was concerned, up until the aforementioned Board action, he was acting under the assumption that the only issue to be resolved was whether he was entitled to be transferred to the Senior Engineer position, as decreed by the Grievance Panel. For the Authority to say, all of a sudden, that Douglas was not eligible to be considered for the Senior Engineer position because he supposedly was an at-will employee at the time that “prior position” had been eliminated, is so far out of touch with the earlier proceedings and so far out of touch with reality as to have serious due process implications. Douglas was not defending against summary at-will dismissal, he was defending against the Authority’s refusal to give him the Senior Engineer position that, under the personnel *731manual, he was entitled to. Further due process problems are presented by the fact that the Grievance Panel decision was nullified by a stroke of the pen of Director White, whose very decision the Grievance Panel was reviewing. It appears that when the Grievance Panel overturned White’s decision to refuse the position to Douglas, White simply nullified the Grievance Panel’s ruling. Ordinarily, decision-makers are not permitted to reverse the action of the appellate tribunal which is responsible for reviewing their decisions; and I find it to be quite extraordinary that White was able to nullify the Grievance Panel’s decision relating to his administrative ruling.
The contention that Douglas was an at-will employee rather than a civil service employee is a new one and one that Douglas was never given an opportunity to oppose. When Director White wrote to Douglas on April 21, 1989 (two weeks after Douglas was laid-off), he advised Douglas that the Authority would accommodate his request to pursue the grievance process in accordance with the Airport Authority Personnel Policies and Procedures Manual. Obviously White thought that Douglas was entitled to the review procedures set forth in the manual. When Douglas was hired, he was given the manual and other documents which established his civil service status; and even if his abolished position were considered to be management-related, rights and obligations of managers are provided for in the manual.
There is testimony in the record from the Authority’s former chief of human resources that all Authority personnel were part of the classified system and that the manual was designed to apply to all non-contract employees, including managers and supervisors. I would note further that the Grievance Panel made an express finding of fact that the Personnel and Procedures Manual granted civil service status to Douglas. I see no question relating to Douglas’ civil service status, nor to his right to be appointed to the “new” job classification. I see no reason why the decision of the Grievance Panel should not be upheld.
II.
“RETALIATORY LAY-OFF”
Douglas raised two issues in the grievance proceedings, the first being that his layoff amounted to a retaliatory discharge and secondly that Authority’s refusal to “rehire” him violated the Authority’s Policy and Procedures Manual. The grievance panel issued a unanimous decision holding that the Authority violated its own Personnel Policy and Procedures Manual when it failed to offer Douglas the position of Senior Engineer in lieu of permanent layoff. The Grievance Panel decreed that Douglas was entitled under the manual to be appointed as Senior Engineer; and the *732Panel, given its ruling that Douglas was entitled to continue in his newly-entitled position, implicitly decided that it was unnecessary to rule on Douglas’ other claim, that of retaliatory dismissal. As I see it, even if the district court had been justified in refusing to uphold the Grievance Panel’s decision, the district court still should have considered the retaliatory nature of Douglas’ termination and should have granted judicial review on the basis of the groundless and arbitrary nature of the Authority’s retaliatory termination of an employee who claimed that he was refused employment solely because he had reported “financial wrongdoing” on the part of agents of the Authority. The trial court declined to consider the arbitrary and retaliatory nature of Douglas’ termination just because this issue “was not addressed by the Board of Trustees’ decision, and thus, [was] not an issue properly before this Court at this time.” (In other words, because the trustees declined to deal with these unpleasant matters, the court would not consider them either.)
The majority mentions that Douglas has a tort action based on retaliatory discharge pending in the federal court. I cannot imagine what this fact has to do with the present action. In the present state action, Douglas is merely maintaining that White’s refusal to appoint him as Senior Engineer was improperly motivated and based on White’s fear of Douglas as a whistle-blower. If this allegation is true, it reveals a startling abuse of official power by White and by the Authority Board of Trustees. If Douglas’ claim is valid, then he has been the victim of intolerable oppression and was certainly entitled to be appointed as Senior Engineer. For the public benefit as well as Douglas’ benefit this matter should be thoroughly litigated in the trial court. The other dissenting justice, Justice Shearing, appears to see this point quite clearly.
The trial court has refused to hear Douglas’ retaliation claim, namely, that the elimination of his job was “in retaliation of [his] coming forward and offering information concerning improprieties” (“inappropriate use of state and federal funds”) engaged in by Airport Authority officials. In his brief, Douglas argues that the decisions of White and the Authority Board were arbitrary and capricious and in violation of his rights to due process of law. If Douglas has been deprived of his livelihood in the manner that he claims, then the Airport Authority was acting “[i]n violation of constitutional [and] statutory provisions” and “in excess of the statutory authority of the agency.” NRS 223.135(3)(a), (b) and (f). If what Douglas claims is true, he is entitled to reinstatement independent of the order of reinstatement given to him by the Grievance Panel. It is sad indeed that no one will hear his plaint.
The trial court dismissed the “retaliatory lay-off” claim because it was not “addressed in the Board of Trustees’ decision.” The trial court is correct that the Board of Trustees did not *733deal directly with the question of whether the Board had allowed the Airport Authority to be reorganized just to replace three “whistle-blowers.” If I had been on the Authority Board, I suspect that I too would have been reluctant to deal with this very troublesome question; but I would not have expected to have been able to frustrate all judicial review of these charges simply by my refusing to consider them at the Board level.
I can understand how the trial court might not want to deal, in an administrative review, with contested matters of fact and with the collateral, de novo nature of Douglas’ attack on the power of the Airport Authority to refuse to continue his employment for reasons of revenge and retaliation. This matter is, after all, a petition for judicial review, the statutory analogue of the common law writ of certiorari; and ordinarily matters dehors the record will not be entertained in such proceedings. But, we should ask ourselves, should this adjective consideration prevent Douglas from having any judicial inquiry into what he sees as the true reason for his losing his job? Where else can Douglas turn to redress his right not to lose his job simply because he tried to do the right thing?
In the case of State v. Lundgren Pacific Const. Co., Inc., 603 P.2d 889 (Wash. 1979), a highway contractor filed suit against the Department of Highways following a contractual dispute proceeding. The contractor sought judicial relief on the ground that it had been denied due process. The trial court refused to hear the de novo due process claim. The Supreme Court of Washington remanded to the trial court, ruling that “[i]f upon remand the trial court finds that the procedures of the Department of Highways failed to conform to the requirements of due process, either by their very nature or the manner in which these particular claims were handled, it will be necessary to furnish Lundgren with a fair hearing.” Id. at 896.
I say that it is necessary, as in Lundgren, to furnish Douglas with a fair hearing on his due process claims. So far, he has had no one who will listen to the claimed atrocities that he insists caused him to be deprived of his livelihood. I would reverse the summary judgment and remand this case to the trial court for a trial de novo on Douglas’ claim that he lost his job solely because he was seen by his superiors as a “whistle-blower.” To do less than this is injustice in the extreme.
There are, as stated, two grounds for reversing the denial of Douglas’ claims that he has been improperly denied employment. I would reverse on both grounds.
The sole basis for the Authority’s claim that Douglas served at the pleasure of the director is that he was, before his job was abolished, a “department head.” The term “department head” is not defined in the manual, and Douglas was not given any opportunity to challenge the contention that he was, as a department head, an at-will employee. If it made any difference to the outcome of this case, I would argue that Robert Esperance, Director of Operations, was the head of the department in which Douglas was employed; however I do not see that it makes any difference whether Douglas was a department head or not. Whatever he was, he was not dismissed as an at-will employee; his job was eliminated, and he was entitled under Section 9 of the manual to be transferred to the new “Senior Engineer” position, which clearly was not a “department head.”