Oldfield v. Nebraska Machinery Co.

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/23/2017 09:14 AM CDT
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Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
OLDFIELD v. NEBRASKA MACHINERY CO.
Cite as 296 Neb. 469
David A. Oldfield, appellant,
v. Nebraska M achinery
Company, appellee.
___ N.W.2d ___
Filed April 21, 2017. No. S-16-526.
1. Summary Judgment: Appeal and Error. In reviewing a summary
judgment, an appellate court views the evidence in the light most
favorable to the party against whom the judgment was granted and
gives that party the benefit of all reasonable inferences deducible from
the evidence.
2. ____: ____. 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 the facts and that the moving party
is entitled to judgment as a matter of law.
3. Statutes: Judgments: Appeal and Error. The interpretation of statutes
and regulations presents questions of law. An appellate court indepen-
dently reviews questions of law decided by a lower court.
4. Termination of Employment. Unless constitutionally, statutorily, or
contractually prohibited, an employer, without incurring liability, may
terminate an at-will employee at any time with or without reason.
5. Summary Judgment. On a motion for summary judgment, the question
is not how a factual issue is to be decided, but whether any real issue of
material fact exists.
6. ____. Summary judgment is proper when the pleadings and evidence
admitted at the hearing disclose that there is no genuine issue as to any
material fact 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.
7. Fair Employment Practices: Discrimination. The ultimate issue in an
age discrimination case is whether age was a determining factor in the
employer’s decision to take the adverse employment action.
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OLDFIELD v. NEBRASKA MACHINERY CO.
Cite as 296 Neb. 469
8. Discrimination: Summary Judgment: Evidence. To survive sum-
mary judgment in a discrimination case, the nonmoving party must do
more than simply create a factual dispute as to the issue of pretext; he
or she must offer sufficient evidence for a reasonable trier of fact to
infer discrimination.
9. Employer and Employee: Discrimination: Proof. A plaintiff may
show discriminatory animus, among other ways, by showing that the
employer (1) failed to follow its own policies, (2) treated similarly situ-
ated employees in a disparate manner, or (3) shifted its explanation of
the employment decision.
10. Fair Employment Practices: Civil Rights: Employer and Employee.
An employee is protected by the Nebraska Fair Employment Practice
Act from employer retaliation for his or her opposition to an act of the
employer only when the employee reasonably and in good faith believes
the act to be unlawful. In order for such a belief to be reasonable, the act
believed to be unlawful must either in fact be unlawful or at least be of
a type that is unlawful.
11. Termination of Employment: Public Policy: Damages. Under the
public policy exception to the at-will employment doctrine, an employee
can claim damages for wrongful discharge when the motivation for the
firing contravenes public policy.
12. Termination of Employment: Public Policy. The public policy excep-
tion to the at-will employment doctrine is restricted to cases when a
clear mandate of public policy has been violated, and it should be lim-
ited to manageable and clear standards.
13. ____: ____. In determining whether a clear mandate of public policy is
violated, courts should inquire whether the employer’s conduct contra-
venes the letter or purpose of a constitutional, statutory, or regulatory
provision or scheme.
Appeal from the District Court for Lancaster County:
A ndrew R. Jacobsen, Judge. Affirmed.
Robert F. Bartle, of Bartle & Geier Law Firm, for appellant.
Margaret C. Hershiser and David A. Yudelson, of Koley
Jessen, P.C., L.L.O., for appellee.
H eavican, C.J., Wright, Cassel, Stacy, K elch, and
Funke, JJ.
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OLDFIELD v. NEBRASKA MACHINERY CO.
Cite as 296 Neb. 469
K elch, J.
I. NATURE OF CASE
David A. Oldfield filed a wrongful termination claim against
Nebraska Machinery Company (NMC), alleging that his dis-
charge was in violation of Nebraska’s Age Discrimination
in Employment Act (ADEA),1 in violation of the whistle-
blower retaliation provisions of the Nebraska Fair Employment
Practice Act (FEPA),2 and in violation of public policy. Based
on the undisputed evidence of Oldfield’s performance issues
and the limited evidence offered by Oldfield, we affirm the
district court’s granting of summary judgment in favor of NMC
and against Oldfield on all claims.
II. FACTS
This matter arises from Oldfield’s termination from NMC
after 38 years of employment. In his amended complaint,
Oldfield seeks damages against NMC for wrongful discharge
in violation of (1) the ADEA, (2) the FEPA, and (3) pub-
lic policy.
After filing an answer, NMC moved for summary judgment,
and a hearing was set. At the hearing, depositions of Oldfield
and Oldfield’s superior, Dwight McDermott, were received into
evidence, along with the exhibits used in those depositions.
After the hearing, the district court granted summary judgment
in favor of NMC.
Because summary judgment requires the court to view the
facts in the light most favorable to the nonmoving party, we
set forth the facts presented by Oldfield in his complaint and
deposition first before reviewing those presented by NMC.
1. Facts Presented By Oldfield
At all relevant times, Oldfield held an “at-will” position as
a heavy equipment service manager at one of NMC’s locations
1
See Neb. Rev. Stat. §§ 48-1001 to 48-1010 (Reissue 2010).
2
See Neb. Rev. Stat. §§ 48-1101 to 48-1125 (Reissue 2010 & Cum. Supp.
2016).
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OLDFIELD v. NEBRASKA MACHINERY CO.
Cite as 296 Neb. 469
in Lincoln, Nebraska. During his deposition, Oldfield admitted
to having disagreements with his supervisors and not meeting
NMC’s expectations in certain respects.
(a) Disagreement About
Flat-Rate Pricing
In June 2011, the day before Oldfield was to go on vacation,
Oldfield’s direct supervisor, Brandon Zobel, called Oldfield
into his office to discuss NMC’s transition to “flat-rated”
pricing, i.e., setting a standard price on doing a certain job.
Because Zobel did not have a history in repairs, Zobel asked
Oldfield’s opinion. Oldfield “tr[ied] to explain to [Zobel] how
certain jobs, the way he wanted to do it, couldn’t be flat rated.”
Zobel disagreed, and the discussion became heated. Oldfield
then asked Zobel if he should come back after his vacation.
Zobel responded, “‘That’s up to you,’” and Oldfield left.
While Oldfield was on vacation, Kevin Brown, NMC’s vice
president of services and parts, called Oldfield to make sure
he was coming back. Brown told Oldfield that he had been
doing a great job and wanted to make sure that Oldfield stayed
with NMC.
On June 17, 2011, after Oldfield came back from vacation,
he met with Brown to discuss some of the problems that he
and Zobel were having together. Then Brown met with Zobel
to discuss the problems. Later that day, Zobel arranged a
meeting between himself and Oldfield with Brown present. At
Oldfield’s deposition, Oldfield was given an agenda for that
meeting, which reminded him of what was discussed: the issue
of the flat-rate jobs, a new process for invoicing work orders,
and the hiring of two additional technicians.
They also discussed agenda items, including “Uniform
Attire” and “Shop and Office Cleanliness.” Oldfield testified
that he had problems with NMC’s uniform company getting
pants that fit him and did not drag on the ground. Although
Oldfield had been wearing his uniform shirt, he had not been
wearing the uniform pants. Instead, he had been wearing
jeans. Another NMC employee had a similar problem finding
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OLDFIELD v. NEBRASKA MACHINERY CO.
Cite as 296 Neb. 469
a uniform that fit, but McDermott (Zobel’s superior) told her
not to worry about it. Additionally, the shop that Oldfield
managed “wasn’t as clean as [Zobel] thought it should be.”
Brown did not say anything during the meeting.
(b) Shop Cleanliness
In December 2011, Zobel wrote an email to Oldfield and
four other employees, asking them to “work hard to get
some ‘deep cleaning’ done over the next couple of weeks by
December 31st.” Cleanliness was important to NMC because
NMC was a dealer of Caterpillar heavy equipment. Caterpillar
has a contamination control policy and would inspect NMC to
make sure it was compliant. Oldfield testified that he did not
think Zobel’s email meant that his shop needed to be com-
pletely compliant with Caterpillar’s audit standards by January
1, 2012.
On January 18, 2012, NMC conducted a surprise mock con-
tamination control audit. Thereafter, Zobel wrote an email to
Oldfield, attaching a list of items that came up during the mock
audit. The email stated, in relevant part:
Your department has made some big improvements over
the last few weeks with cleaning the shop. I am very
happy about that, but I am disappointed that it wasn’t
done before January 1st, like I had stated several times
during the last several months. That being said, let’s move
forward and get the items on the attached sheet fixed
immediately.
Three weeks later, Zobel emailed Oldfield, asking, “How are
these items coming along?” According to Oldfield, most of
the items had been completed at that point, but there were still
some items that needed to be done.
(c) Monthly Meetings
In October 2011, Zobel wrote an email to Oldfield and two
other employees, requesting that they hold monthly meetings
with their respective departments. In February 2012, Zobel
emailed Oldfield requesting that Oldfield cover “at least a
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OLDFIELD v. NEBRASKA MACHINERY CO.
Cite as 296 Neb. 469
handful of items” at the beginning of the next monthly meet-
ing. Zobel also wrote, “I was upset by your comment/attitude
about the meetings being a waste of time, ‘that you [would]
rather have them working.’” After Oldfield received the email,
he talked to Zobel and told him that he never said the meetings
were a waste of time and that he was “joking” when he said
that he would rather have his employees working.
(d) Oldfield’s Performance Appraisal
In May 2012, using NMC’s performance appraisal form,
Zobel assessed Oldfield’s performance for 2011 and 2012.
The form listed seven different categories: (1) “Managing
Others,” (2) “Budgetary Controls,” (3) “Managing Self,”
(4) “Organizational Relationships,” (5) “Problem Solving,”
(6) “Performance Standards,” and (7) “Safety and Health.”
Oldfield met or exceeded expectations on 8 of the 10 cat-
egories; he was “Below Requirements” on “Managing Self”
and “Organizational Relationships.” Under each subsection
and at the end of the appraisal, there were boxes for Zobel to
make comments.
Zobel rated Oldfield as meeting expectations for “Managing
Others” and commented, “[Oldfield] is exceptional at getting
the most out of his employees. He keeps everybody busy, all
of the time. [Oldfield] can do a better job about communicat-
ing information to his employees, executing company policies,
and promoting teamwork.”
Oldfield exceeded expectations for “Budgetary Controls,”
and Zobel commented, “Historically, [Oldfield] has always
been a top performer when it comes to hitting budget and sales
numbers. He spends very little and generates a lot of revenue.”
Oldfield fell below NMC’s requirements for “Managing
Self.” Zobel commented:
[Oldfield] does his job well in terms of meeting dead-
lines / responding to his larger customers. However,
it may take several days for him to respond (some-
times no response) to internal emails and/or phone
calls. [Oldfield] has been resistant in the past regarding
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OLDFIELD v. NEBRASKA MACHINERY CO.
Cite as 296 Neb. 469
priorities and organizational changes. Examples include;
[flat-rate] jobs, monthly employee meetings, [shop clean-
liness], technician training, service writer, wearing his
uniform, etc.
Zobel rated Oldfield as exceeding expectations for
“Organizational Relationships” and commented, “[Oldfield]
does not always execute directives, regardless of personal
likes/dislikes. Examples include (same as above) . . . . It is
evident that [Oldfield] dislikes speaking orally in groups and
avoids it whenever possible. Small to mid-sized customers are
not always responded to in a timely manner.” In his deposition,
Oldfield disputed that small and midsized customers were not
responded to in a timely manner. Oldfield explained that “a
lot” of small and midsized customers were very happy with the
service, but some were upset about the cost.
Oldfield was rated as exceeding expectations for “Problem
Solving.” Zobel commented: “[Oldfield] solves many problems
each and every week. He has a tremendous amount of experi-
ence and job knowledge that helps him solve problems quickly
and effectively. An opportunity for [Oldfield] would be to par-
ticipate more in group discussions and provide solutions along
with the issues.”
Zobel rated Oldfield as exceeding expectations for
“Performance Standards” and commented:
[Oldfield] does give feedback to his employees, and
he has been improving on giving positive feedback along
with the negative. I believe that [Oldfield’s] company
best flat variance numbers as well as being a top pro-
ducer show that he is able to get the most out of his tech-
nicians through daily feedback. My only concern is that
he needs to familiarize and train other technicians at key
customer sites . . . .
Oldfield met expectations for “Safety and Health,” and
Zobel commented: “For the most part, work is performed
safely. More can be done to enforce safety glasses, smoking
areas, and seat-belts. However, the number of injuries for
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OLDFIELD v. NEBRASKA MACHINERY CO.
Cite as 296 Neb. 469
Lincoln’s heavy equipment department have been fewer over
the past 6 months, which is a definite improvement.”
In a section entitled “Manager’s Overall Performance
Comments,” Zobel wrote:
There is no denying that [Oldfield] produces strong
financial numbers and takes care of his larger customers.
He works hard to get the most out of his people and is
able to take care of a large volume of work each week. His
technical problem-solving skills are top notch. [Oldfield]
has a hard time adapting to change and follow-through
with directives, regardless of personal preference. More
improvement is needed in the area of follow-through with
internal and external customers. Employee communica-
tion and team building needs to improve as well.
Oldfield agreed that he could improve his communication
with internal customers (other NMC departments), but dis-
agreed that he was deficient in communicating with exter-
nal customers.
Under a section entitled “Did employee meet goals/
perform­ance objectives from the previous review period? Why
or why not?,” Zobel wrote:
Partially. Financially, [Oldfield] hit it out of the park
by finishing $784,348 above budget and $830,347 better
than 2010. Last labor to invoice improved dramatically
from 13.56 days in May 2011 to as low as 1.64 days
in November 2011. This was an impressive improve-
ment. However, [Oldfield] can be very difficult to work
with at times due to his resistance to change and slow/
non-existent follow-up at times. [Flat-rate] jobs perform­
ance in Lincoln for 2011 was the lowest store at 17.07%.
This improved later in the year and into 2012, but prog-
ress was still limited for much of 2011. Monthly meet-
ings were few, infrequent, and too short. Contamination
control was not made a priority for most of the year;
progress required several reminders, emails, and nudges
from upper management.
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OLDFIELD v. NEBRASKA MACHINERY CO.
Cite as 296 Neb. 469
Oldfield explained that Lincoln’s flat-rate jobs performance
was the lowest store out of NMC’s three stores because other
stores had smaller equipment that they worked with, so it was
easier to apply a flat rate to those jobs. Oldfield testified that
he looked at each job to see if flat-rate pricing could be done
and that he had been trying to do more.
(e) Monski Replaces Zobel
In spring 2012, Zobel accepted another position and NMC
hired David Monski to replace him as Oldfield’s supervi-
sor. Before Monski arrived, Brown and McDermott invited
Oldfield to lunch. According to Oldfield, Brown and
McDermott thanked Oldfield for a job he had done and men-
tioned that Monski was coming to Lincoln. During this meet-
ing, McDermott told Oldfield that if Monski did not work or
had problems in Lincoln that they would think that there was
a problem with the Lincoln store. Oldfield testified that he did
not know what McDermott meant by that. Oldfield testified
that he could not recall Brown or McDermott saying any-
thing about how either of them expected Oldfield to get along
with Monski.
(f) Failure to Conduct Appraisals
At the beginning of each year, Oldfield and other depart-
ment managers were to conduct appraisals of subordinate
employees and those employees were to conduct self-­
appraisals. Oldfield testified that most of the years, he com-
pleted the appraisals, but that there were some years when not
all were completed.
At some point in 2011, McDermott conducted an audit
appraisal. After learning the number of incomplete apprais-
als, McDermott talked to Oldfield outside his office, telling
him that the number was unacceptable and that they needed to
do better.
In 2012, Monski sent Oldfield several emails about the
appraisals. On April 19, Monski emailed Oldfield and another
employee, asking, “Do you have your techs self-appraisals
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OLDFIELD v. NEBRASKA MACHINERY CO.
Cite as 296 Neb. 469
back yet? Or more importantly have you had them complete
them yet?” On April 23, Monski emailed Oldfield, asking
him if he had received the self-appraisals back. Monski also
advised Oldfield that his appraisals of the employees were
supposed to have been turned in the prior Friday. A few min-
utes later, Oldfield responded that he was “waiting on 2.” On
May 15, Monski sent Oldfield an email advising Oldfield that
he needed to get his appraisals to Monski before “the 29th”
when Monski would be out of the office. Oldfield did not
meet the deadline.
Finally, on July 5, 2012, Monski issued Oldfield a written
warning for failure to meet the deadline to complete the per-
formance appraisals. This warning was issued after Oldfield
had been given three extensions. In the warning, Monski dis-
cussed McDermott’s audit of Oldfield’s performance apprais-
als and stated that the audit showed that from 2002 to 2011,
over 95 percent of Oldfield’s subordinates had not received a
formal appraisal or other written feedback. Oldfield could not
remember the number of appraisals he had not completed, but
he thought that 95 percent was too high and that the correct
percentage was closer to 50 percent. In the written warning,
Oldfield was given a final deadline by which to complete
the appraisals so as to avoid “further corrective action, up to
and including termination of employment.” Oldfield met the
final deadline.
Oldfield testified that he had gotten behind on appraisals
because the service writer, whose job was to take customer
calls and schedule employees for different jobs, did not do a
good job and eventually left the position. During the 4 months
that the service writer held the position, Oldfield helped him
take calls. Oldfield also said that NMC began requiring more
online reports in 2010, which took service managers extra time.
Oldfield testified that he was not sure if other NMC managers
were falling behind on their appraisals, but no other managers
had as many subordinates as Oldfield. At that time, Oldfield
had approximately 22 to 25 subordinates.
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OLDFIELD v. NEBRASKA MACHINERY CO.
Cite as 296 Neb. 469
(g) Railroad Service Manager Position
In the last week of September 2012, two NMC superiors
approached Oldfield about a railroad service manager position
in NMC’s railroad division. Although the plan was not ready to
be put into effect, Oldfield expressed interest.
(h) September Breakfast Meeting
On September 24, 2012, Monski held a “breakfast gather-
ing” with Oldfield’s subordinates; Oldfield was not invited.
After the gathering, Oldfield emailed Monski, asking how his
subordinates’ time for that meeting should be billed. Two min-
utes after that email was sent, Monski responded, “Just training
will work.” Oldfield directed his shop clerk to enter the time
for his subordinates who had been at the meeting. Oldfield tes-
tified that “[o]nce the shop clerk enters [the time,] that [is] the
number once and for all.” That number “goes into the payroll
system, and at the end of the month . . . the payroll checks
come out.”
On October 3, 2012, Monski sent Oldfield an email stating,
in relevant part:
I need to know why your field guy’s [sic] billed
more than 45 minutes for the “meeting” (breakfast) last
Monday. If they are calling it a meeting[,] I guess that
is fine[,] but the “meeting” started at 6:30 and was done
at the latest 7:10[,] so I expect an answer for this. I am
fine paying them for 45 minutes if you feel they must be
paid[,] but no more. Surely not 1.5 hours as some of them
have billed[,] which should have been caught by you or
[your shop clerk] when it was done. If they had nothing
to do I expect it to be charged to idle time or whatever
they actually were doing but not classroom as the “meet-
ing” was over.
Just a quick FYI in case it happens again, I have
bought breakfast for field guys and even lunch in the
field, in every location I have been in just because of
the job they do with NMC. That was partially the reason
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OLDFIELD v. NEBRASKA MACHINERY CO.
Cite as 296 Neb. 469
behind this[,] not an official meeting, going behind your
back, or any other reason other than to answer any ques-
tions they may have[,] as they have evidently been voic-
ing questions and opinions to fellow employees who are
bringing it to my attention. They all need to understand
if they have a problem or question with what I am doing
or what is going on[,] they need to come directly to
me versus discussing issues with fellow employees or
[customers]. This type of behavior cannot and will not
be tolerated. I am also still waiting to hear from you
which one spoke with [the customer] in regards to this
“meeting” which made it come off negative and need to
know today.
There are also other entries in the classroom training
work order that have 3 hours and some with overtime.
Unless driving to and from class there should be no over-
time associated with classroom training only an 8 hour
day. You need to [e]nsure your techs and [shop clerk] are
aware of this as well as monitoring this weekly so it is
caught prior to final invoicing.
Thanks
Eleven minutes later, Monski sent Oldfield another email, stat-
ing, in relevant part:
I am still waiting for an answer on the machine which
was worked on for H&S Plumbing regarding the good
will request.
You state you have no time but then continue to think
that by adding another manager to lighten your load is a
bad thing. I just do not understand.
You also need to [e]nsure you are staying on top of the
steam bay being cleaned up after it is used[,] as well as
the shop[,] daily not once a week.
After Oldfield received the email above, he went to talk to
Monski in person. Oldfield testified that Monski was upset
with Oldfield for paying the employees, because Monski did
not consider the breakfast gathering to be a meeting and
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OLDFIELD v. NEBRASKA MACHINERY CO.
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thought that the employees should not have been paid. Oldfield
admitted that the employees were paid for their time.
Oldfield testified that Monski also let Oldfield’s shop clerk
know that he was not happy about the employees’ being paid
for the meeting. According to Oldfield, the shop clerk left her
job at NMC because Monski harassed her about this incident.
(i) Failure to Disclose Name of Employee
Who Violated NMC Policy
As stated in Monski’s email, an employee had spoken with a
customer about the September 2012 breakfast meeting, which
was against NMC company policy and a terminable offense.
Oldfield knew which employee it was, but refused to disclose
the employee’s identity to Monski, because Oldfield did not
want the employee to get fired.
Monski sent the emails above on a Wednesday. On the fol-
lowing Monday, Monski called Oldfield to his office. When
Oldfield arrived, McDermott was also there.
McDermott and Monski gave Oldfield a memorandum
advising him of the decision to terminate his employment. The
memorandum stated, in relevant part:
Despite receiving several warnings regarding our
behavioral expectations, you continue to behave well
beneath our established guidelines. More specifically, you
continue to behave insubordinately by failing to follow
the reasonable requests of your management team and by
failing to manage and support the company’s direction
with your team, clients and coworkers. As stated in the
Performance and Conduct Policy found within the NMC
Employee Handbook, “Insubordination, such as refusal
to do assigned work, inappropriate language or behavior
toward a supervisor/manager” can result in corrective
action, up to and including termination of employment.
Because you have not illustrated the willingness or abil-
ity to cure these matters we have made the decision to
terminate your employment.
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OLDFIELD v. NEBRASKA MACHINERY CO.
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After the memorandum was read through, Oldfield told
McDermott that he knew Monski had mentioned that he
was getting close to retirement age but that he did not
think he was talking this soon. Oldfield testified that neither
McDermott nor Monski responded to this comment, and the
meeting ended.
(j) Monski’s Comment About
Oldfield’s Retiring
Oldfield explained that he made the comment about retire-
ment in response to one comment Monski had made in a meet-
ing approximately 1 month prior. On September 17, 2012,
Monski stated that he “‘need[ed] to get someone trained to take
over for [Oldfield] because one of these days, [Oldfield was]
going to want to retire.’”
Oldfield testified that Monski’s comment seemed unusual
and that it was his experience that having a succession plan
within a department was not important to NMC. Oldfield testi-
fied that usually, if someone was going to retire from NMC,
then the person would tell upper management that they were
going to retire and then upper management would decide who
was going to take that person’s place.
Oldfield admitted that this comment is the sole basis for his
age discrimination claim.
2. Facts Presented by NMC
After Zobel accepted another position, McDermott and two
other NMC employees met with two or three salespeople to
discuss matters related to Oldfield. The salespeople expressed
concern that Oldfield was not adequately communicating with
customers, and Brown and McDermott decided to have a meet-
ing with Oldfield and took him to lunch.
Brown and McDermott talked to Oldfield about the con-
cerns that Zobel had with Oldfield and Oldfield’s “attitude
of, If it’s not my idea, I’m not behind it.” According to
McDermott, he told Oldfield, “you know, we’ve had problems
with the last branch manager. We’re going to bring another guy
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in here . . . and if we have the same problems with the new
guy, then we know that the problem was not with the previous
store manager.”
McDermott testified that nothing was put in Oldfield’s per-
sonnel file about the lunch meeting, because “as long as
[Oldfield] had been [at NMC], we wanted to give him every
opportunity to change his habits, come around to our way of
doing things . . . which was to no avail.” McDermott said that
Monski also reported problems.
McDermott testified that he was the one who made the deci-
sion to fire Oldfield. When asked if he relied upon Monski in
making that determination, McDermott responded, “Monski
had input, as well as the input that I’d received from . . .
Zobel, the input from the meeting with the sales[people];
but, ultimately, the decision to terminate [Oldfield’s employ-
ment] was mine.” However, McDermott also made statements
that suggested Monski was also responsible for the deci-
sion. For example, when McDermott was asked if a previous
safety violation had factored into his decision to terminate
Oldfield, McDermott responded, “Not with mine, personally,
no.” At one point, McDermott also stated that “we made the
determination that — I made the determination to terminate”
Oldfield’s employment.
In response to questions about why Oldfield’s employment
was terminated, McDermott stated, “It was an accumulation
of issues and the fact that it became evident that we were not
going to be able to work with . . . Oldfield to get him to the
point where we needed him.” As reasons for the termination,
McDermott cited Oldfield’s failure to provide Monski with
information, failure to communicate with customers, failure to
work with people within his department, failure to train new
employees, and failure to keep his shop clean, as well as “his
whole attitude of, It’s my way, if I don’t buy into it, I’m not
going to do it.”
As an example of failure to train new or student employees,
McDermott talked about a new employee who spent months
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just washing equipment because, according to Oldfield, “the
young kids, they weren’t any good.”
McDermott also said, “It was a bigger challenge getting
the Lincoln location to conform to the [cleanliness] policies
on an ongoing basis throughout the year [than] in the other
locations,” which he attributed to the “fact that . . . Oldfield
did not buy into [cleanliness]; so, therefore, it was not impor-
tant to him, and then it wouldn’t be important to his team.”
Oldfield had told McDermott that cleaning was a waste
of time.
McDermott also said that Oldfield was against putting a
service writer in the Lincoln location and that he believed the
service writer did not succeed because Oldfield did not want
him to succeed.
McDermott stated that the “breakfast gathering” issue did
not factor into his decision to terminate Oldfield’s employment.
When asked how many warnings Oldfield received,
McDermott stated that he could not recall the exact number
but that there was “a pattern of many of them.” He explained,
“There would have been warnings like the ones I gave him
about [shop cleanliness], the ones . . . Brown and I gave him
when we had the [lunch] meeting. [Zobel and Monski] had
communicated back and forth with him.”
Oldfield was replaced by two employees. McDermott testi-
fied that one of them was “probably in his forties” and that the
other was in his “late thirties.” McDermott was 56 years old at
the time of the deposition and still working for NMC.
3. Summary Judgment Granted
After a hearing, the district court granted summary judg-
ment in favor of NMC and against Oldfield. The district court
determined that, even in the light most favorable to Oldfield,
the evidence failed to raise an inference that NMC’s prof-
fered reasons for Oldfield’s termination of employment were
merely a pretext for discrimination or retaliation. The dis-
trict court also determined that Oldfield’s claim of wrongful
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termination in violation of public policy was duplicative of
his age discrimination and retaliation claims.
III. ASSIGNMENTS OF ERROR
Oldfield alleges that the district court erred in (1) concluding
that Oldfield had not presented sufficient evidence to establish
a prima facie case for discrimination and retaliation, (2) con-
cluding that NMC offered legitimate reasons for terminating
Oldfield’s employment, (3) concluding that Oldfield had not
presented sufficient evidence of pretext to counter NMC’s
legitimate nondiscriminatory reasons for his claims of termina-
tion due to both age and retaliation, and (4) not giving Oldfield
the benefit of every reasonable inference based on the evidence
presented in a summary judgment proceeding.
IV. STANDARD OF REVIEW
[1] In reviewing a summary judgment, an appellate court
views the evidence in the light most favorable to the party
against whom the judgment was granted and gives that party
the benefit of all reasonable inferences deducible from the
evidence.3
[2] 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 the facts and
that the moving party is entitled to judgment as a matter of law.4
[3] The interpretation of statutes and regulations presents
questions of law. We independently review questions of law
decided by a lower court.5
V. ANALYSIS
[4] Unless constitutionally, statutorily, or contractually
prohibited, an employer, without incurring liability, may
3
Coffey v. Planet Group, 287 Neb. 834, 845 N.W.2d 255 (2014).
4
Id.
5
Id.
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terminate an at-will employee at any time with or without rea-
son.6 However, we have recognized a public policy exception
to the at-will employment doctrine.7 As noted above, Oldfield
alleged in his amended complaint that NMC’s decision to
terminate his employment violated the ADEA, the FELA, and
public policy. On appeal, he claims that the district court erred
in granting summary judgment in favor of NMC.
[5,6] On a motion for summary judgment, the question is
not how a factual issue is to be decided, but whether any real
issue of material fact exists.8 Summary judgment is proper
when the pleadings and evidence admitted at the hearing dis-
close that there is no genuine issue as to any material fact 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.9
We note that both parties, as well as the district court,
have analyzed the age discrimination claim and the retaliation
claim using the three-part burden-shifting framework from
McDonnell Douglas Corp. v. Green.10 The McDonnell Douglas
Corp. framework is a procedural device of order of proof and
production, designed to force an employer to reveal informa-
tion that is available only to the employer, i.e., any unstated
reasons for the adverse employment action, as well as any dis-
cretionary factors underlying its decision.11
But, although the burden of production shifts between
the plaintiff and the employer, the plaintiff retains the ulti-
mate burden of persuasion,12 and the ultimate question is
6
Id.
7
See id.
8
Melick v. Schmidt, 251 Neb. 372, 557 N.W.2d 645 (1997).
9
Strode v. City of Ashland, 295 Neb. 44, 886 N.W.2d 293 (2016).
10
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L.
Ed. 2d 668 (1973).
11
Hartley v. Metropolitan Util. Dist., 294 Neb. 870, 885 N.W.2d 675 (2016).
12
Id.
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d­ iscrimination or retaliation vel non.13 Thus, in our review
of this summary judgment action, we focus on the ultimate
question of whether NMC violated the ADEA, the FELA, or
public policy and determine whether the moving party, NMC,
satisfied its burden to prove that no genuine issue of mate-
rial fact exists and whether it produced sufficient evidence
to demonstrate that NMC is entitled to judgment as a matter
of law.14 In other words, we consider whether NMC satisfied
its burden to show that there is no evidence or reasonable
inference that NMC violated the ADEA, the FELA, or pub-
lic policy.
1. ADEA
The ADEA makes it unlawful for an employer to discharge
or discriminate against any individual because of such indi-
vidual’s age, unless the reasonable demands of the position
require an age distinction.15 The Nebraska ADEA is patterned
after the federal Age Discrimination in Employment Act of
1967,16 so, in construing the Nebraska ADEA, it is appropriate
to look to federal decisions interpreting the federal act.17
[7] The ultimate issue in an age discrimination case is
whether age was a determining factor in the employer’s deci-
sion to take the adverse employment action.18 NMC sought
to prove that age was not a determining factor in Oldfield’s
termination of employment by setting forth evidence of its
legitimate and nondiscriminatory reasons for the termination,
13
See, St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 113 S. Ct. 2742,
125 L. Ed. 2d 407 (1993); Billingsley v. BFM Liquor Mgmt., 264 Neb.
56, 70, 645 N.W.2d 791, 803 (2002) (“[t]he ultimate issue is whether
age was a determining factor in the employer’s decision” to take adverse
employment action).
14
See Melick v. Schmidt, supra note 8.
15
§ 48-1004(1).
16
See 29 U.S.C. §§ 621 to 634 (2012 & Supp. II 2014).
17
See Billingsley v. BFM Liquor Mgmt., supra note 13.
18
Id.
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namely that Oldfield was having performance issues and was
not getting along with his supervisor.
The material facts are not in dispute. Although Oldfield’s
testimony put certain performance issues and behavioral issues
in dispute, Oldfield admitted to a plethora of other issues that
NMC had with Oldfield. He admitted, among other things,
that during the last few years of his employment, he argued
with his supervisor about new policies and procedures, he
failed to conform with NMC’s uniform policy, he failed to
make his shop’s appearance comply with upper management’s
expectations, he did not hold monthly meetings as often as
instructed, he needed to improve on communicating with
internal customers, he did not complete at least 50 percent
of performance appraisals for his subordinates from 2002 to
2011, and he refused to comply with his supervisor’s direct
orders to disclose the name of an employee who had violated
company policy.
[8] Oldfield argues that in light of Monski’s comment about
Oldfield’s retirement, NMC’s motivation in terminating his
employment is still in dispute. However, to survive summary
judgment, Oldfield “must do more than simply create a factual
dispute as to the issue of pretext; he must offer sufficient evi-
dence for a reasonable trier of fact to infer discrimination.”19
Even viewing the evidence in the light most favorable to
Oldfield, we conclude that no reasonable trier of fact could
infer that NMC discriminated against him on the basis of
his age.
Oldfield admitted in his deposition testimony that the sole
basis for his age discrimination claim was a single comment
of Monski’s that he “‘need[ed] to get someone trained to take
over for [Oldfield] because one of these days, [Oldfield was]
going to want to retire.’” But, one isolated comment about
retirement is not enough to demonstrate pretext for purposes
19
See Mathews v. Trilogy Communications, Inc., 143 F.3d 1160, 1165 (8th
Cir. 1998).
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of age discrimination.20 Although “retirement inquiries can
sometimes be so unnecessary and excessive as to constitute
evidence of discriminatory harassment,”21 such was not the
case here, where Monski made only a single comment.
[9] Instead, there was simply no evidence of discrimina-
tory animus. A plaintiff may show discriminatory animus by
showing that the proffered reason for the adverse employment
action was pretext for discrimination.22 The plaintiff may do so,
among other ways, by showing that the employer (1) failed to
follow its own policies, (2) treated similarly situated employ-
ees in a disparate manner, or (3) shifted its explanation of the
employment decision.23
Oldfield claims that he showed NMC failed to follow its
own policies when it did not formally document all warnings
to Oldfield. However, a review of an exhibit which Oldfield
agreed was NMC’s company manual shows that NMC did
not require itself to document every warning. In fact, the
manual states:
[A]ll of [NMC’s] employees are considered to be “at-
will” and may be terminated at any time, with or with-
out cause or advance notice. As further detailed below,
disciplinary action may include any one or combination
of the following steps — verbal warning, written warn-
ing, suspension with or without pay or termination of
employment. Depending on the severity of the problem
and the number of occurrences, [NMC] reserves the
right to immediately terminate an employee, even upon
a first offense.
Next, Oldfield claims that he showed that NMC “treated
similarly-situated employees in a disparate manner” by hiring
20
See, Ziegler v. Beverly Enterprises-Minnesota, Inc., 133 F.3d 671 (8th Cir.
1998); Barket v. Nextira One, 72 Fed. Appx. 508 (8th Cir. 2003).
21
See Montgomery v. John Deere & Co., 169 F.3d 556, 560 (8th Cir. 1999).
22
Hartley v. Metropolitan Util. Dist., supra note 11.
23
Gibson v. American Greetings Corp., 670 F.3d 844 (8th Cir. 2012).
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“two considerably younger men to assume [Oldfield’s] prior
position.”24 However, the only evidence of the employees’
ages was McDermott’s testimony that one was in his “late thir-
ties” and the other was “probably in his forties.” Moreover, to
be similarly situated, the two employees would have to have
performance issues similar to Oldfield. There was no evidence
that these employees had performance issues.
Oldfield also claims that he showed pretext because NMC
allegedly shifted its explanation for the employment decision.
In support of his argument, Oldfield points to McDermott’s
testimony, which he says “illustrate[s] that there was no spe-
cific incident” that led to Oldfield’s termination of employ-
ment.25 However, the fact that Oldfield was terminated for “an
accumulation of issues,” rather than just one, does not mean
that NMC has shifted its explanation. Instead, McDermott’s
testimony was consistent and matches the memorandum that
Oldfield received, which explained that the reason he was
terminated was because of insubordination and perform­
ance issues.
In sum, based on the undisputed evidence of Oldfield’s per-
formance issues, we conclude that no reasonable trier of fact
could infer from one isolated statement that NMC terminated
his employment for discriminatory reasons.
2. FEPA
[10] Both federal law and the FEPA make it unlawful for
an employer to discriminate against its employee on the basis
of the employee’s opposition to an unlawful employment
practice.26 We have said that “[a]n employee is protected by
FEPA from employer retaliation for his or her opposition to
an act of the employer only when the employee reasonably
24
Brief for appellant at 8, 16.
25
Id. at 17.
26
See, 42 U.S.C. § 2000e-3(a) (2012); § 48-1114.
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and in good faith believes the act to be unlawful.”27 In order
for such a belief to be reasonable, the act believed to be unlaw-
ful must either in fact be unlawful or at least be of a type that
is unlawful.28
After reviewing the pleadings and the evidence presented,
we conclude that NMC did not engage in an unlawful practice;
that Oldfield could not have reasonably believed that NMC was
engaging in an unlawful practice; and that even if Oldfield had
established that he reasonably believed the act to be unlawful,
he failed to show that his termination was causally connected
to his alleged reporting of an unlawful practice.
As noted by the district court, “[t]he crux of Oldfield’s claim
is that he was terminated after reporting alleged violations
of the federal Fair Labor Standards Act with respect to non-
payment of wages to his subordinates for their time spent at a
breakfast meeting with NMC manager . . . Monski.” However,
Oldfield admits that the employees were actually paid for that
meeting, so clearly, there is no evidence that NMC engaged in
an unlawful practice.
And Oldfield could not have reasonably believed that NMC
was engaged in an unlawful practice. After the breakfast meet-
ing, Oldfield sent Monski an email asking how the time should
be recorded and Monski responded, “Just training will work.”
Oldfield then instructed his shop clerk to enter the time for his
subordinates. Oldfield admitted that once the shop clerk enters
the number of hours for the subordinates into the payroll sys-
tem, then that is the number of hours for which the subordi-
nates will be paid. Accordingly, the evidence shows that the
subordinates were lawfully paid and Oldfield could not have
reasonably believed that they were not.
Moreover, the evidence does not reflect a causal connec-
tion between Oldfield’s alleged reporting of an unlawful
27
Wolfe v. Becton Dickinson & Co., 266 Neb. 53, 61, 662 N.W.2d 599, 605
(2003).
28
Id.
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practice and his termination of employment. Oldfield alleges
that in addition to the evidence of pretext, which we rejected
above, his evidence of temporal proximity (approximately 3
weeks) shows that there was a nexus. However, generally, a
temporal connection between the protected conduct and the
adverse employment action by itself is not enough to pre­sent
a genuine factual issue on retaliation.29 This is especially true
where, as here, the evidence shows that the employer was
concerned about a problem before the alleged protected con-
duct occurred.30 Here, Oldfield admits that prior to his alleged
protected conduct, he had, among other things, argued with his
supervisor about new policies and procedures, failed to make
his shop’s appearance comply with upper management’s expec-
tations, failed to hold monthly meetings, failed to sufficiently
communicate with internal customers, and failed to complete at
least 50 percent of performance appraisals for his subordinates
from 2002 to 2011.
In light of this evidence, and the fact that Oldfield’s act of
insubordination (failing to disclose the name of the employee
who violated company policy) was within 2 days of his ter-
mination, we conclude that no rational jury could find that
Oldfield’s termination was a result of retaliation. Therefore, the
district court properly granted summary judgment in favor of
NMC with respect to the retaliation claim.
3. Public Policy
[11-13] Under the public policy exception to the at-will
employment doctrine, an employee can claim damages for
29
Hervey v. County of Koochiching, 527 F.3d 711 (8th Cir. 2008) (quoting
Kiel v. Select Artificials, Inc., 169 F.3d 1131 (8th Cir. 1999)).
30
See id. (quoting Smith v. Allen Health Systems, Inc., 302 F.3d 827 (8th
Cir. 2002), and citing Slattery v. Swiss Reinsurance America Corp., 248
F.3d 87, 95 (2d Cir. 2001) (“[w]here timing is the only basis for a claim of
retaliation, and gradual adverse job actions began well before the plaintiff
had ever engaged in any protected activity, an inference of retaliation does
not arise”)).
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wrongful discharge when the motivation for the firing contra-
venes public policy.31 The public policy exception is restricted
to cases when a clear mandate of public policy has been vio-
lated, and it should be limited to manageable and clear stan-
dards.32 In determining whether a clear mandate of public pol-
icy is violated, courts should inquire whether the employer’s
conduct contravenes the letter or purpose of a constitutional,
statutory, or regulatory provision or scheme.33
In Oldfield’s amended complaint, he alleges that his ter-
mination of employment violated Nebraska common law
and Nebraska public policy “against employers discharging
employees from such a tenured position for unjustifiable rea-
sons.” But the “unjustifiable reasons” proffered by Oldfield
are the same as his statutory reasons, i.e., that his termination
of employment was a result of discrimination on the basis of
his age and also retaliation for reporting an allegedly unlawful
activity. In this respect, Oldfield’s claim is duplicative of his
ADEA and FELA claims, which we have already addressed
and found to be meritless. Therefore, the district court properly
granted summary judgment in favor of NMC with respect to
Oldfield’s public policy claim.
VI. CONCLUSION
For the foregoing reasons, we conclude that Oldfield’s
assignments of error are without merit. We therefore affirm the
judgment of the district court, granting summary judgment in
favor of NMC and against Oldfield.
A ffirmed.
Miller-Lerman, J., not participating.
31
Coffey v. Planet Group, supra note 3.
32
Id.
33
Id.