Baker-Heser v. State , 309 Neb. 979 ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/22/2021 08:09 AM CDT
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BAKER-HESER v. STATE
Cite as 309 Neb. 979Natalie Baker-Heser, M.D., and Stacey
Werth-Sweeney, appellants, v. State of
Nebraska and Nebraska Department
of Health and Human
Services, appellees.
___ N.W.2d ___
Filed August 13, 2021. No. S-20-758.
1. Summary Judgment: Appeal and Error. An appellate court will
affirm a lower court’s grant of summary judgment if the pleadings and
admitted evidence show that there is no genuine issue as to any mate-
rial facts or as to the ultimate inferences that may be drawn from those
facts and that the moving party is entitled to judgment as a matter of
law. An appellate court reviews the district court’s grant of summary
judgment de novo, viewing the record in the light most favorable to
the nonmoving party and drawing all reasonable inferences in that
party’s favor.
2. Rules of Evidence: Hearsay: Appeal and Error. Apart from rul-
ings under the residual hearsay exception, an appellate court reviews
for clear error the factual findings underpinning a trial court’s hear-
say ruling and reviews de novo the court’s ultimate determination to
admit evidence over a hearsay objection or exclude evidence on hear-
say grounds.
3. Motions to Dismiss: Pleadings: Appeal and Error. A district court’s
grant of a motion to dismiss on the pleadings is reviewed de novo,
accepting the allegations in the complaint as true and drawing all rea-
sonable inferences in favor of the nonmoving party.
4. Statutes: Appeal and Error. Statutory interpretation presents a question
of law, for which an appellate court is obligated to reach an independent
conclusion irrespective of the decision made by the court below.
5. Fair Employment Practices: Proof. In order to show retaliation under
the Nebraska Fair Employment Practice Act, a plaintiff must establish
(1) he or she engaged in protected conduct, (2) he or she was subjected
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Cite as 309 Neb. 979to an adverse employment action, and (3) there was a causal connection
between the protected conduct and the adverse action.
6. Fair Employment Practices: Words and Phrases. The “practice” in
Neb. Rev. Stat. § 48-1114(1)(c) (Cum. Supp. 2020) refers to an unlawful
practice of the employer.
7. Fair Employment Practices: Statutes. The Nebraska Fair Employment
Practice Act is not a general “bad acts” statute.
8. Fair Employment Practices. The evil addressed by Neb. Rev. Stat.
§ 48-1114(1)(c) (Cum. Supp. 2020) is the exploitation of an ­employer’s
power over an employee when used to coerce the employee to endorse,
through participation or acquiescence, the unlawful acts of the employer.
9. ____. Neb. Rev. Stat. § 48-1114(1)(c) (Cum. Supp. 2020) does not
protect an employee’s opposition to the unlawful activities of fel-
low employees.
10. Statutes: Judicial Construction: Legislature: Intent: Presumptions.
Where a statute has been judicially construed and that construction has
not evoked an amendment, it will be presumed that the Legislature has
acquiesced in the court’s determination of the Legislature’s intent.
11. Fair Employment Practices. To present a prima facie claim under the
Nebraska Fair Employment Practice Act, the employee must show either
his or her opposition to an unlawful practice of the employer or the
employee’s refusal to honor an employer’s demand that the employee do
an unlawful act.
12. Appeal and Error. To be considered by an appellate court, the party
asserting the alleged error must both specifically assign and specifically
argue it in the party’s initial brief.
13. Rules of Evidence: Hearsay: Proof. Hearsay is defined as a statement,
other than one made by the declarant while testifying at the trial or hear-
ing, offered in evidence to prove the truth of the matter asserted.
14. Hearsay. An out-of-court statement is not hearsay if the proponent
offers it for a purpose other than proving the truth of the matter
asserted.
15. ____. A statement is not hearsay if the proponent offers it to show its
impact on the listener and the listener’s knowledge, belief, response,
or state of mind after hearing the statement is relevant to an issue in
the case.
16. Statutes: Immunity: Waiver. Statutes purporting to waive the State’s
protection of sovereign immunity are strictly construed in favor of the
sovereign and against waiver.
17. ____: ____: ____. A waiver of sovereign immunity is found only
where stated by the most express language of a statute or by such
overwhelming implication from the text as will allow no other reason-
able construction.
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Cite as 309 Neb. 97918. Immunity: Waiver. Nothing about allowing a private right of action is
an express or implied waiver of the State’s sovereign immunity.
19. ____: ____. The sovereign must prevail if there is any doubt as to
whether immunity has been waived.
20. Appeal and Error. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and controversy
before it.
Appeal from the District Court for Lancaster County: Robert
R. Otte, Judge. Affirmed.
David A. Domina, of Domina Law Group, P.C., L.L.O., for
appellants.
Heidi A. Guttau, of Baird Holm, L.L.P., for appellees.
Heavican, C.J., Cassel, Stacy, Funke, Papik, and
Freudenberg, JJ., and Welch, Judge.
Cassel, J.
INTRODUCTION
Two employees of a state hospital highlighted deficient
recordkeeping by hospital psychiatrists. Following an investiga-
tion, the Nebraska Department of Health and Human Services
(DHHS) fired the two employees. These former employees sued
DHHS, alleging violations of the Nebraska Fair Employment
Practice Act (NFEPA) 1 and the Health Care Facility Licensure
Act (HCFLA). 2 The district court dismissed the HCFLA claims
on sovereign immunity grounds and granted DHHS’ motion for
summary judgment on the NFEPA claims. Because the former
employees did not show that they complained about an unlaw-
ful practice of DHHS and because the State did not waive its
sovereign immunity for claims under the HCFLA, we affirm
the district court’s judgment.
1
Neb. Rev. Stat. §§ 48-1101 to 48-1125 (Reissue 2010 & Cum. Supp.
2020).
2
Neb. Rev. Stat. §§ 71-401 to 71-476 (Reissue 2018 & Cum. Supp. 2020).
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Cite as 309 Neb. 979BACKGROUND
Lincoln Regional Center
DHHS operates the Lincoln Regional Center (LRC). The
LRC is a state hospital. 3 Because many psychiatrists will not
work at state hospitals, the LRC has difficulty recruiting psy-
chiatrists. The LRC is licensed under an administrative regula-
tion 4 and is obligated to meet requirements specified in state 5
and federal 6 regulations. Requirements include having medical
staff bylaws 7 and maintaining medical records. 8
Key Employees and Events
Stacey Werth-Sweeney (Sweeney) began employment at the
LRC in 1989. Following a number of promotions, she became
the facility operating officer in 2010. In that capacity, Sweeney’s
job duties included working with department heads to ensure
policies and procedures were current, to ensure staff were
trained, to lead quality improvement, and to oversee crises. She
tracked any documentation delinquency and reported it to the
medical director each month.
In 2015, the LRC rehired a psychiatrist, whom we will refer
to as “Psychiatrist 1.” The LRC knew that he had a long his-
tory of being delinquent in his medical recordkeeping. Psychia­
trist 1 is Indian.
In February 2016, the LRC hired another psychiatrist, whom
we will refer to as “Psychiatrist 2.” When hired, Psychia­
trist 2 had a private practice in Illinois and the medical direc-
tor allowed him to continue his private practice for 1 year. In
2018, Psychiatrist 2’s private practice remained open, resulting
3
See Neb. Rev. Stat. § 83-305 (Reissue 2014).
4
See 175 Neb. Admin. Code, ch. 9, § 004.01 (2006).
5
See 175 Neb. Admin. Code, ch. 9.
6
See 42 C.F.R. §§ 482.60 to 482.62 (2019).
7
See 175 Neb. Admin. Code, ch. 9, § 006.
8
Id., § 006.07.
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Cite as 309 Neb. 979in his absence every other Monday and Tuesday. Psychiatrist 2
is Iranian.
In January 2017, Psychiatrist 2 received a written warning
due to his failure to adhere to LRC’s bylaws and agency values.
Two months later, he filed a charge of discrimination against
DHHS, alleging whistleblower retaliation for complaints he
had made beginning in February 2016. In November 2017,
Sweeney emailed a complaint about Psychiatrist 2’s abusive
behavior to the director of the division of behavioral health
with DHHS and to Bo Botelho, DHHS’ chief operating officer
and general counsel. In December 2017, a psychologist emailed
a complaint to Botelho and DHHS’ director of human resources
regarding unprofessional behavior by Psychiatrist 2.
On March 12, 2018, Natalie Baker-Heser, M.D. (Baker),
became the LRC’s medical director. Her job duties included
providing leadership to medical staff at the LRC and promot-
ing a sense of teamwork. Baker supervised six psychiatrists.
Three of those six psychiatrists, including Psychiatrist 1 and
Psychiatrist 2, were not current with patient documentation.
The LRC’s medical staff bylaws authorized the medical direc-
tor to initiate investigations and to summarily suspend a prac-
titioner when the practitioner’s conduct threatened the life of
a patient. And as a physician, Baker had a mandatory report-
ing obligation. 9
In April 2018, Baker, along with the facilities director and
a human resources partner, met with Psychiatrist 1 to discuss
his more than 200 delinquent records (mostly patient contact
notes and progress notes) and how they could assist him in
becoming current. Approximately 5 weeks after becoming the
medical director, Baker began recommending the employment
termination of Psychiatrist 1 and Psychiatrist 2 (collectively
the Psychiatrists). She observed numerous violations of medi-
cal recordkeeping requirements by them. Baker believed that
9
See 172 Neb. Admin. Code, ch. 5, § 003 (2020).
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BAKER-HESER v. STATE
Cite as 309 Neb. 979the entire patient population cared for by Psychiatrist 2 was
at risk and that noncompliance with laws and regulations
involving patient safety put the LRC’s accreditation at risk.
According to Baker, LRC policies contain time requirements
for completion of progress notes and assessments.
Investigation
In mid-April 2018, Grant Dugdale, an attorney, joined
DHHS. He reported to Botelho. Dugdale had practiced law
for over 30 years and had significant experience conducting
workplace investigations. Soon after Dugdale started, Botelho
asked him to advise Baker on issues related to Psychiatrist 2.
Dugdale described being in a “counseling role” with Baker in
which he was trying “to figure out what was going on, what
her concerns were, how to address those concerns.” Shortly
after Dugdale did that, Botelho instructed him to conduct a
“‘top to bottom’” investigation of the LRC. Botelho issued
an oral directive that DHHS was putting all employment-
related decisions and terminations on hold at the LRC pending
completion of Dugdale’s investigation. DHHS put disciplinary
actions on hold during the investigation because it wanted to
ensure that there were legitimate, nondiscriminatory reasons
for terminating the Psychiatrists’ employment.
Dugdale completed his investigation within 1 month. As
part of his investigation, he prepared interview summaries of
the employees with whom he spoke. He learned from Sweeney
that she had concerns regarding Psychiatrist 1’s history of
being late with patient documentation and that she had a his-
tory of conflict with Psychiatrist 2. The director of nursing told
Dugdale that she believed Sweeney overstepped her bounds
and interfered with nursing decisions. Dugdale learned from
Baker that she wanted to immediately suspend Psychiatrist 1
due to his late documentation and that she wanted to termi-
nate Psychiatrist 2’s employment due to concerns about his
delinquent patient documentation, his absence to attend to
his private practice in Illinois, and his hostility toward others.
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Cite as 309 Neb. 979Dugdale concluded that the LRC was in dire need of leader-
ship changes.
Dugdale recommended terminating Baker’s and Sweeney’s
employment. He claimed that Baker failed to talk with the
Psychiatrists about her concerns with their performance in any
meaningful way before recommending their firings and that
Baker’s actions could expose DHHS to liability for discrimi-
nation claims. Dugdale noted Sweeney’s history of interfering
with or making clinical medical decisions, retaliating against
individuals, and forcing employees to leave the LRC. On June
12, 2018, DHHS fired Baker and Sweeney. DHHS terminated
the employment of the Psychiatrists 4 to 5 months later.
Lawsuit
Baker and Sweeney (collectively the former employees)
sued the State and DHHS (collectively DHHS) and requested a
jury trial. The complaint alleged that DHHS retaliated against
the former employees for “[r]efusing to conceal, and report-
ing violations of, and attempting to enforce, patient-protection
laws” in their respective positions. According to the complaint,
DHHS thwarted them from completing necessary administra-
tive actions to protect patients and personnel from wrong-
ful acts.
The former employees alleged that they observed and
reported instances in which the Psychiatrists did not complete
vital records such as reports and competency examinations
and failed to complete psychiatric admission assessments and
discharge summary reports on a timely basis. They claimed
that the Psychiatrists’ failure to abide by medical recordkeep-
ing requirements placed patients in danger, inhibited effective
care, violated patients’ rights, delayed court proceedings which
depended on timely and complete psychiatric records, endan-
gered the community, placed the LRC’s continued accredita-
tion at risk, and undermined the LRC’s mission and goals. The
former employees alleged that DHHS prevented investigation,
discipline, or remedial action against the Psychiatrists. They
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Cite as 309 Neb. 979asserted that DHHS’ active attempts to conceal or permit defi-
cient recordkeeping constituted an unlawful practice.
The former employees also alleged that they repeatedly
reported to DHHS numerous complaints of harassment, intimi-
dation, and abuse by Psychiatrist 2 made by several female
DHHS employees. However, they later abandoned this claim in
the district court.
The complaint asserted that the terminations were contrary
to § 48-1114, to § 71-445, and to public policy. The former
employees demanded “trial by jury on all issues so triable.”
With regard to § 48-1114, the former employees alleged that
their actions and reports related to the Psychiatrists’ unlaw-
ful practices—i.e., failure to comply with federal and state
regulatory requirements concerning creation and maintenance
of medical records—constituted protected activity. Pertinent
to § 71-445, they alleged that DHHS’ motivation for terminat-
ing their employment was their opposition to the Psychiatrists’
violation of the regulatory scheme set forth in statutes and
regulations. 10
Motions to Dismiss Claim and
Strike Jury Demand
DHHS filed a motion to dismiss two of the claims for each
former employee and to strike the jury demand. DHHS alleged
that the wrongful discharge in violation of public policy claims
should be dismissed due to noncompliance with the State Tort
Claims Act and that the HCFLA claims should be dismissed
because the State had not waived sovereign immunity for such
claims. There is no dispute that DHHS never received any
notices from the former employees under the State Tort Claims
Act. DHHS further alleged that the former employees were not
entitled to a jury trial and that the demand should be stricken.
The former employees thereafter moved to dismiss without
prejudice their claims that the terminations were contrary to
public policy.
10
See, § 71-401 et seq.; 175 Neb. Admin. Code, ch. 9.
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Cite as 309 Neb. 979The court sustained the motions. Thus, it dismissed the for-
mer employees’ claims based on public policy and the HCFLA.
It also struck the demand for a trial by jury.
Motion for Summary Judgment and Ruling
DHHS moved for summary judgment, and the court entered
an order sustaining the motion and dismissing the retalia-
tion claims. With respect to the former employees’ objections
to witness statement summaries offered as exhibits on the
grounds that they were not affidavits and were hearsay, the
court stated that DHHS offered the witness interview sum-
maries “not for the truth of the matter asserted, but instead,
to show the listener’s (i.e., Mr. Dugdale’s) state of mind and
nonretaliatory basis for recommending [the former employ-
ees’] termination.”
The court determined that the former employees’ claims
were not cognizable under NFEPA because they were doing
what the law required them to do, i.e., report violations of
medical recordkeeping requirements. It reasoned that even if
the claims were cognizable, the former employees could not
establish all of the prima facie elements of retaliation because
the medical recordkeeping practices of the Psychiatrists did
not constitute unlawful actions within the meaning of NFEPA.
The court also determined that the former employees could
not establish the causal connection element, noting that they
were not terminated until approximately 2 months after
first complaining.
The former employees timely appealed, and we granted their
petition to bypass review by the Nebraska Court of Appeals. 11
ASSIGNMENTS OF ERROR
The former employees assign that the district court erred
in (1) entering summary judgment against them, (2) receiving
witness interview summaries as evidence over hearsay objec-
tions, (3) dismissing their claims for wrongful termination
11
See Neb. Rev. Stat. § 24-1106(2) (Cum. Supp. 2020).
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Cite as 309 Neb. 979in violation of § 71-445, and (4) striking their demand for a
jury trial.
STANDARD OF REVIEW
[1] An appellate court will affirm a lower court’s grant of
summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts
or as to the ultimate inferences that may be drawn from those
facts and that the moving party is entitled to judgment as a
matter of law. An appellate court reviews the district court’s
grant of summary judgment de novo, viewing the record in the
light most favorable to the nonmoving party and drawing all
reasonable inferences in that party’s favor. 12
[2] Apart from rulings under the residual hearsay exception,
an appellate court reviews for clear error the factual findings
underpinning a trial court’s hearsay ruling and reviews de novo
the court’s ultimate determination to admit evidence over a
hearsay objection or exclude evidence on hearsay grounds. 13
[3] A district court’s grant of a motion to dismiss on the
pleadings is reviewed de novo, accepting the allegations in
the complaint as true and drawing all reasonable inferences in
favor of the nonmoving party. 14
[4] Statutory interpretation presents a question of law,
for which an appellate court is obligated to reach an inde-
pendent conclusion irrespective of the decision made by the
court below. 15
ANALYSIS
Summary Judgment on NFEPA Claims
The former employees argue that the court erred in enter-
ing summary judgment against them on their NFEPA claims.
12
McCaulley v. C L Enters., ante p. 141, 959 N.W.2d 225 (2021).
13
Brown v. Morello, 308 Neb. 968, 957 N.W.2d 884 (2021).
14
Ryan v. Streck, Inc., ante p. 98, 958 N.W.2d 703 (2021).
15
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Cite as 309 Neb. 979They contend that their employment terminations were retalia-
tory. But DHHS counters that the retaliation claims fail as a
matter of law for a variety of reasons. We begin with discus-
sion of a retaliation claim under NFEPA.
[5] In order to show retaliation under NFEPA, a plaintiff
must establish (1) he or she engaged in protected conduct, (2)
he or she was subjected to an adverse employment action, and
(3) there was a causal connection between the protected con-
duct and the adverse action. 16 Having been terminated from
employment, the former employees undoubtedly suffered an
adverse employment action. The primary dispute is whether
they engaged in protected conduct.
As pertinent here, NFEPA makes it “an unlawful employ-
ment practice for an employer to discriminate against any of
his or her employees . . . because he or she . . . has opposed
any practice or refused to carry out any action unlawful under
federal law or the laws of this state.” 17 An action is “[u]nlaw-
ful under federal law or the laws of this state” if it is “contrary
to or in defiance of the law or disobeying or disregarding
the law.” 18
[6-9] In Wolfe v. Becton Dickinson & Co., 19 we addressed the
“practice” component of § 48-1114. We stated that it “refers to
an unlawful practice of the employer.” 20 We explained that
“[t]he statute’s purpose is not served by giving an extra layer
of protection from discharge to those employees who happen
to voice their opposition to any manner of unlawful activity.” 21
Although we recognized that it may be unfair to disadvan-
tage an employee for opposing unlawful activities unrelated
to employment, we emphasized that NFEPA is not a general
16
Haffke v. Signal 88, 306 Neb. 625, 947 N.W.2d 103 (2020).
17
§ 48-1114(1)(c).
18
§ 48-1102(15).
19
Wolfe v. Becton Dickinson & Co., 266 Neb. 53, 662 N.W.2d 599 (2003).
20
Id. at 57, 662 N.W.2d at 603.
21
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Cite as 309 Neb. 979“bad acts” statute. 22 We clarified that the evil addressed by
§ 48-1114(3)—now located at § 48-1114(1)(c)—is the exploi-
tation of an employer’s power over an employee when used
to coerce the employee to endorse, through participation or
acquiescence, the unlawful acts of the employer. 23 And we
observed that the legislative intent was “‘to provide some
protection for employees in the private sector who are asked
by their employer or labor union to do something that is
illegal.’” 24 Thus, we determined that NFEPA does not protect
an employee’s opposition to the unlawful activities of fel-
low employees. 25
Nine years after Wolfe, the Court of Appeals decided Bonn
v. City of Omaha 26 and applied our narrow interpretation of
§ 48-1114. In Bonn, the city fired its public safety auditor
after the auditor reported that members of the police depart-
ment acted with discrimination toward minority members of
the public. In finding no violation under § 48-1114, the Court
of Appeals reasoned that “[t]he practices being opposed must
be unlawful practices of the employer, here the City of Omaha,
and not unlawful actions by individuals or coemployees.” 27
[10] Nearly two decades have elapsed since we construed
§ 48-1114 in Wolfe, and the Legislature has not substantively
changed that language. Where a statute has been judicially
construed and that construction has not evoked an amend-
ment, it will be presumed that the Legislature has acquiesced
in the court’s determination of the Legislature’s intent. 28 The
22
Id. at 58, 662 N.W.2d at 603 (internal quotation marks omitted).
23
See Wolfe v. Becton Dickinson & Co., supra note 19.
24
Id. at 58, 662 N.W.2d at 604. See, also, Neb. Rev. Stat. § 48-1126 (Reissue
2010) (state agencies may be sued upon claims under NFEPA in same
manner as provided by such law for suits against other employers).
25
See Wolfe v. Becton Dickinson & Co., supra note 19.
26
Bonn v. City of Omaha, 19 Neb. App. 874, 814 N.W.2d 114 (2012).
27
Id. at 882, 814 N.W.2d at 121.
28
Rodriguez v. Lasting Hope Recovery Ctr., 308 Neb. 538, 955 N.W.2d 707(2021).
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Cite as 309 Neb. 979Legislature amended the statute once after the Wolfe and
Bonn decisions, but other than renumbering § 48-1114(3) to
§ 48-1114(1)(c), nothing in the amendment altered the con-
struction given by the appellate courts. 29 If the Legislature
wished to protect from retaliation an employee who opposed
a coworker’s unlawful actions, it could have done so. Because
it has not, we view our narrow interpretation of § 48-1114 in
Wolfe as having received legislative acquiescence.
The former employees identified their alleged protected
conduct in their complaint. They asserted that they engaged in
protected activity via their “actions and reports related to [the
Psychiatrists’] unlawful practices i.e., failure to comply with
federal and state regulatory requirements concerning creation
and maintenance of medical records.” The former employees
had a reasonable, good faith belief that the Psychiatrists were
not complying with laws regarding completion of records, i.e.,
that they were committing unlawful acts.
[11] The record shows that the former employees opposed
the Psychiatrists’ unlawful acts. But the Psychiatrists were not
the former employees’ “employer.” To present a prima facie
claim under NFEPA, the employee must show either his or
her opposition to an unlawful practice of the employer or the
employee’s refusal to honor an employer’s demand that the
employee do an unlawful act. 30 The former employees’ opposi-
tion to the Psychiatrists’ actions cannot support a prima facie
case of retaliation under § 48-1114(1)(c).
The complaint alleged that DHHS’ “active attempts to con-
ceal or permit” deficient recordkeeping constituted an unlaw-
ful practice. And the former employees claim in their brief
that they were fired for refusing “to go along with a cover
up.” 31 But we are not presented with a situation where DHHS
asked the former employees to perform an unlawful act. The
29
See 2019 Neb. Laws, L.B. 217.
30
See Wolfe v. Becton Dickinson & Co., supra note 19.
31
Brief for appellants at 17, 18.
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Cite as 309 Neb. 979evidence shows that Baker wished to take disciplinary action
against the Psychiatrists, but that a directive placed employ-
ment-related decisions on hold pending completion of Dugdale’s
investigation. Although Baker was not allowed to suspend
or fire the Psychiatrists prior to completion of the investiga-
tion, there is no evidence that she or Sweeney were instructed
to cease complaining about or reporting the Psychiatrists’
record deficiencies. The former employees’ complaints about
the Psychiatrists simply do not challenge any unlawful act by
DHHS as their employer. Because they opposed alleged unlaw-
ful actions by coemployees and not practices of DHHS, their
cause of action does not lie in NFEPA.
Moreover, the former employees cannot establish a causal
connection between their reports about the Psychiatrists and
their employment terminations. Part of Sweeney’s job duties
was to report late documentation, and there is no dispute
that DHHS was aware of the Psychiatrists’ recordkeeping
issues. Baker was hired in part in the hope that she could
help the Psychiatrists improve in that area. Instead, Baker,
within weeks of her hiring and while supported by Sweeney,
sought to have the Psychiatrists suspended or fired. The for-
mer employees would have us believe that they were fired in
retaliation for performing their job duties. Rather than showing
that the former employees were fired for retaliatory reasons,
the evidence shows that DHHS terminated their employment
due to concerns about their leadership abilities. Employment
discrimination laws have not vested in the Nebraska courts
the authority to sit as super personnel departments reviewing
the wisdom or fairness of the business judgments made by
employers, except to the extent that those judgments involve
intentional discrimination. 32 The general rule in Nebraska is
that unless constitutionally, statutorily, or contractually prohib-
ited, an employer, without incurring liability, may terminate an
32
See Haffke v. Signal 88, supra note 16.
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Cite as 309 Neb. 979at-will employee at any time with or without reason. 33 Because
the former employees were employed ­at-will, DHHS could
terminate their employment for any reason in the absence of a
motive that was retaliatory or that contravened public policy.
We conclude the former employees failed to establish a
prima facie case of retaliation. Accordingly, the district court
did not err in granting summary judgment in favor of DHHS
on the NFEPA causes of action.
Hearsay
In connection with the summary judgment proceeding, the
former employees raise a claim of evidentiary error. In the
district court, they objected that witness interview summaries
offered as evidence “are not affidavits, not admissible on sum-
mary judgment as statements . . . , and are hearsay.” The court
overruled the objections.
[12] The former employees’ brief alludes, but does not assign
error, to the summaries’ being improper materials to support or
oppose summary judgment. 34 To be considered by an appel-
late court, the party asserting the alleged error must both spe-
cifically assign and specifically argue it in the party’s initial
brief. 35 Even if error had been assigned to the form of the
exhibits, it would have exulted form over substance. Dugdale’s
affidavit, exhibit 49, specifically identified, authenticated, and
purported to attach the other exhibits which were not in the
form of affidavits. Because the exhibits were submitted as PDF
files, it may be a simple technical mistake that they were not
attached. While the better practice may have been to ensure the
attachment was accomplished, the former employees do not
explain how they were prejudiced by this procedure.
33
O’Brien v. Bellevue Public Schools, 289 Neb. 637, 856 N.W.2d 731(2014).
34
See Neb. Rev. Stat. § 25-1332(1) (Cum. Supp. 2020) (evidence receivable
on motion for summary judgment includes “depositions, answers to inter­
rogatories, admissions, stipulations, and affidavits”).
35
In re Interest of Victor L., ante p. 21, 958 N.W.2d 413 (2021).
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Cite as 309 Neb. 979In any event, they do assign error to and focus their argu-
ment on the receipt of the evidence over hearsay objections.
We turn our attention to that issue.
[13-15] Hearsay is defined as “a statement, other than one
made by the declarant while testifying at the trial or hearing,
offered in evidence to prove the truth of the matter asserted.” 36
By definition, an out-of-court statement is not hearsay if the
proponent offers it for a purpose other than proving the truth
of the matter asserted. 37 Thus, a statement is not hearsay if the
proponent offers it to show its impact on the listener and the
listener’s knowledge, belief, response, or state of mind after
hearing the statement is relevant to an issue in the case. 38
Federal and state courts have determined that internal docu-
ments of an employer related to employment decisions are
not hearsay. The Eighth Circuit has stated that in employment
discrimination cases, internal documents relied upon by the
employer in making an employment decision are not hearsay;
rather, such documents are relevant and admissible because
they help explain the employer’s conduct. 39 Other federal cir-
cuit courts have ruled similarly. 40 The New Jersey Supreme
Court held that “when an employer defends against a claim
that an employee’s discharge was the product of retaliation,
an investigative report prepared by the employer that purports
36
Neb. Evid. R. 801(3), Neb. Rev. Stat. § 27-801(3) (Cum. Supp. 2020).
37
State v. Poe, 292 Neb. 60, 870 N.W.2d 779 (2015).
38
Id.39
See Wolff v. Brown, 128 F.3d 682 (8th Cir. 1997). See, also, Hardie v.
Cotter and Co., 849 F.2d 1097 (8th Cir. 1988); Crimm v. Missouri Pacific
R. Co., 750 F.2d 703 (8th Cir. 1984).
40
See, e.g., Luckie v. Ameritech Corp., 389 F.3d 708 (7th Cir. 2004); Ryder
v. Westinghouse Elec. Corp., 128 F.3d 128 (3d Cir. 1997); Jones v. Los
Angeles Community College Dist., 702 F.2d 203 (9th Cir. 1983); Moore
v. Sears, Roebuck and Co., 683 F.2d 1321 (11th Cir. 1982); Zamora v.
Board of Educ. for Las Cruces Public Schools, 553 Fed. Appx. 786 (10th
Cir. 2014).
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Cite as 309 Neb. 979to demonstrate a non-retaliatory reason for the employee’s
termination is a non-hearsay statement.” 41 The Iowa Supreme
Court likewise determined that “internal documents relied upon
by an employer in making employment decisions in a discrimi-
nation case are generally not hearsay because they can be rele­
vant to explain the employer’s conduct.” 42
The district court determined that the exhibits were not hear-
say. It noted that the witness interview summaries were authen-
ticated by Dugdale’s affidavit and stated that the exhibits were
offered to show Dugdale’s state of mind and nonretaliatory
basis for recommending termination of the former employees’
employment. The court explained: “[T]he truth of the matter
asserted in each witness interview summary or investigative
report is not at issue or even relevant in this case. Rather, what
is relevant is whether [DHHS] investigated, interviewed wit-
nesses, and had a good faith belief in the grounds asserted at
the time of termination.”
We see no clear error in any of the court’s factual findings,
and on de novo review, we find no error in the admission of
these exhibits. Because the summaries were not offered to
prove the truth of the matter asserted, the district court properly
overruled the hearsay objections.
Wrongful Termination Under HCFLA
The former employees next argue that the court erred in
dismissing their claims for retaliation under the HCFLA after
determining that the State had not waived its sovereign immu-
nity. Section 71-445(1) of the HCFLA provides:
A health care facility or health care service shall not
discriminate or retaliate against a person . . . employed
at such facility . . . who has presented a complaint or
41
Carmona v. Resorts Int’l. Hotel, 189 N.J. 354, 359-60, 915 A.2d 518, 521
(2007).
42
McElroy v. State, 637 N.W.2d 488, 502 (Iowa 2001).
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Cite as 309 Neb. 979provided information to the administrator of such facil-
ity or service or [DHHS]. Such person may maintain an
action for any type of relief . . . permitted by law.
There is no dispute that the HCFLA applies to the LRC.
The dispute centers on whether § 71-445 waived the State’s
sovereign immunity. DHHS is a state agency, 43 and an action
against a state agency is an action against the State. 44 Our
constitution allows the State to be sued, but specifies that
“the Legislature shall provide by law in what manner and in
what courts suits shall be brought.” 45 Thus, we have long held
that no suit may be maintained against the State unless the
Legislature, by law, has so provided. 46
[16-18] It is well settled that statutes purporting to waive
the State’s protection of sovereign immunity are strictly con-
strued in favor of the sovereign and against waiver. 47 A waiver
of sovereign immunity is found only where stated by the most
express language of a statute or by such overwhelming impli-
cation from the text as will allow no other reasonable con-
struction. 48 For example, the State is subject to be sued under
NFEPA because a statute expressly provides that “[t]he state
and governmental agencies created by the state may be sued
upon claims arising under the [NFEPA] in the same manner
as provided by such law for suits against other employers.” 49
There is no similar express waiver of sovereign immunity
in the HCFLA. And we have declared that nothing about
43
See Neb. Rev. Stat. § 81-3111 (Reissue 2014).
44
See State ex rel. Rhiley v. Nebraska State Patrol, 301 Neb. 241, 917
N.W.2d 903 (2018).
45
Neb. Const. art. V, § 22.
46
See Edwards v. Douglas County, 308 Neb. 259, 953 N.W.2d 744 (2021).
47
See, id.; Burke v. Board of Trustees, 302 Neb. 494, 924 N.W.2d 304(2019).
48
Edwards v. Douglas County, supra note 46; Burke v. Board of Trustees,
supra note 47.
49
§ 48-1126.
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Cite as 309 Neb. 979allowing a private right of action is an express or implied
waiver of the State’s sovereign immunity. 50
We find helpful our analysis in Edwards v. Douglas County. 51
In Edwards, the plaintiff argued that Nebraska’s Emergency
Telephone Communications Systems Act 52 should be construed
as a waiver of sovereign immunity for claims alleging negli-
gence against any provider of 911 emergency dispatch services.
We recognized that the Political Subdivisions Tort Claims
Act 53 provided the exclusive means by which to maintain a
tort claim against a political subdivision and its employees
and that the Political Subdivisions Tort Claims Act made no
reference to any statute contained in the Emergency Telephone
Communications Systems Act.
Similar to the Political Subdivisions Tort Claims Act at
issue in Edwards, the Legislature in the State Tort Claims
Act 54 declares:
The State of Nebraska shall not be liable for the torts
of its officers, agents, or employees, and no suit shall
be maintained against the state, any state agency, or any
employee of the state on any tort claim except to the
extent, and only to the extent, provided by the State Tort
Claims Act. 55
Like the Political Subdivisions Tort Claims Act, the State
Tort Claims Act provides the “exclusive” means to maintain a
tort claim and suit against the State and its employees. 56 And
although the State Tort Claims Act expressly refers to and
50
State ex rel. Rhiley v. Nebraska State Patrol, supra note 44.
51
Edwards v. Douglas County, supra note 46.
52
Neb. Rev. Stat. §§ 86-420 to 86-441.01 (Reissue 2014).
53
Neb. Rev. Stat. §§ 13-901 to 13-928 (Reissue 2012 & Cum. Supp. 2020).
54
Neb. Rev. Stat. §§ 81-8,209 to 81-8,235 (Reissue 2014 & Cum. Supp.
2020).
55
§ 81-8,209.
56
See § 81-8,229.
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Cite as 309 Neb. 979incorporates statutes outside of the act, 57 it does not refer to
any statute contained within the HCFLA. Nor does the HCFLA
make reference to the State Tort Claims Act.
[19] The former employees contend that federal require-
ments for benefits coupled with the language of § 71-445
create an overwhelming implication from the text that the
State waived sovereign immunity. We are not persuaded. And
because the sovereign must prevail if there is any doubt as to
whether immunity has been waived, 58 we do not read § 71-445
as a waiver of sovereign immunity. Accordingly, the district
court did not err in dismissing the claims for retaliation under
the HCFLA based on the State’s sovereign immunity.
Right to Jury Trial
[20] Finally, the former employees challenge the striking of
their demand for a jury trial. An appellate court is not obligated
to engage in an analysis that is not necessary to adjudicate the
case and controversy before it. 59 Because we agree with the
court’s entry of summary judgment on the former employ-
ees’ NFEPA claims and its dismissal of their claims under
the HCFLA, no claims remain for trial. We need not resolve
this issue.
CONCLUSION
Because the former employees did not establish that they
engaged in protected activity, the district court properly entered
summary judgment against them on their NFEPA claims. The
court did not err in receiving witness interview summaries over
hearsay objections, because the summaries were not offered
to prove the truth of the matter asserted. And because the
State did not waive its sovereign immunity to suit under the
57
See, e.g., §§ 81-8,210, 81-8,212, 81-8,215.01, 81-8,219, 81-8,220,
81-8,225, and 81-8,227.
58
See Edwards v. Douglas County, supra note 46.
59
Seldin v. Estate of Silverman, 305 Neb. 185, 939 N.W.2d 768 (2020).
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Cite as 309 Neb. 979HCFLA, the court properly dismissed those claims. We affirm
the district court’s judgment.
Affirmed.
Miller-Lerman, J., not participating.
Welch, Judge, concurring.
Regarding that portion of the opinion analyzing the district
court’s grant of summary judgment on the former employees’
NFEPA claims, I concur with the result on the basis that the
former employees failed to establish a prima facie case of
retaliation because they failed to establish a causal connection
between their reports about the Psychiatrists and their employ-
ment terminations. I join the opinion of the court regarding the
other issues presented.