Knapp v. Ruser

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/13/2017 12:10 AM CDT
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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
KNAPP v. RUSER
Cite as 297 Neb. 639
Patricia A. K napp, appellant, v. K evin Ruser,
in his official capacity, and the University
of Nebraska Board of R egents, appellees.
___ N.W.2d ___
Filed September 1, 2017. No. S-16-785.
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 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.
2. ____: ____. 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. Motions for New Trial: Appeal and Error. An appellate court reviews
a denial of a motion for new trial or, in the alternative, to alter or amend
the judgment, for an abuse of discretion.
4. Fair Employment Practices: Statutes: Federal Acts. The Nebraska
Fair Employment Practice Act, Neb. Rev. Stat. §§ 48-1101 through
48-1126 (Reissue 2010), is patterned after federal title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e (2012), and therefore, it is appro-
priate to look to federal court decisions construing Title VII for guidance
with respect to the Nebraska act.
5. Fair Employment Practices: Discrimination: Proof. A prima facie
case of gender discrimination requires the plaintiff to prove that he or
she (1) is a member of a protected class, (2) was qualified to perform
the job, (3) suffered an adverse employment action, and (4) was treated
differently from similarly situated persons of the opposite sex.
6. ____: ____: ____. The test to determine whether employees are simi-
larly situated to warrant a comparison to a plaintiff is a rigorous one and
the plaintiff has the burden of demonstrating that there were individuals
similarly situated in all relevant aspects to the plaintiff by a preponder-
ance of the evidence.
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KNAPP v. RUSER
Cite as 297 Neb. 639
7. Fair Employment Practices: Statutes: Federal Acts. Because Neb.
Rev. Stat. § 48-1221(1) (Reissue 2010) is patterned after the federal
Equal Pay Act, 29 U.S.C. § 206(d) (2012), it is appropriate to look to
federal court decisions construing 29 U.S.C. § 206(d) for guidance with
respect to § 48-1221(1).
8. Claims: Fair Employment Practices: Discrimination: Wages: Proof.
When bringing a claim of wage discrimination based on sex under Neb.
Rev. Stat. § 48-1221(1) (Reissue 2010), a plaintiff must first establish
a prima facie case by showing by a preponderance of the evidence
that (1) the plaintiff was paid less than a person of the opposite sex
employed in the same establishment; (2) for equal work on jobs requir-
ing equal skill, effort, and responsibility; (3) which were performed
under similar working conditions. If a plaintiff establishes a prima
facie case of wage discrimination based on sex, the burden then shifts
to the defendant to prove one of the affirmative defenses set forth in
§ 48-1221(1).
9. Fair Employment Practices: Proof. A plaintiff must establish a prima
facie case of retaliation under Neb. Rev. Stat. § 48-1114 (Reissue 2010)
by showing (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 conduct and the adverse action.
10. ____: ____. To satisfy the adverse employment action requirement in
a retaliation claim, a plaintiff must show that a reasonable employee
would have found the challenged action materially adverse. This, in turn,
requires a showing that the employment action might have dissuaded a
reasonable worker from reporting the alleged unlawful practice. To meet
this burden, a plaintiff must demonstrate that the employment action
was material, not trivial, and that it resulted in some concrete injury
or harm.
11. Claims: Fair Employment Practices: Public Policy: Damages. Under
the public policy exception to the at-will employment doctrine, an
employee may claim damages for wrongful discharge when the moti-
vation for the firing contravenes public policy. The public policy
exception is restricted to cases when a clear mandate of public policy
has been violated, and it should be limited to manageable and clear
standards. 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:
Horacio J. Wheelock, Judge. Affirmed.
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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
KNAPP v. RUSER
Cite as 297 Neb. 639
Brandon B. Hanson, of Hanson Law Offices, for appellant.
John C. Wiltse, of University of Nebraska, and David R.
Buntain, of Cline, Williams, Wright, Johnson & Oldfather,
L.L.P., for appellees.
Heavican, C.J., Wright, Miller-Lerman, Cassel, K elch,
and Funke, JJ.
Miller-Lerman, J.
I. NATURE OF CASE
Patricia A. Knapp filed an action against Kevin Ruser, in his
official capacity, and the Board of Regents of the University
of Nebraska in which she asserted claims of discriminatory
wage and employment practices based on her sex as well as
claims of employment retaliation. Knapp’s claims arose from
alleged occurrences while she was a supervising attorney for
the civil clinical law program at the University of Nebraska
College of Law. Knapp appeals the orders of the district
court for Lancaster County in which the court sustained the
defendants’ motion for summary judgment and overruled her
motion to alter or amend the judgment. We affirm the district
court’s orders.
II. STATEMENT OF FACTS
Knapp commenced this action with a complaint filed in
the district court on July 11, 2014. In that complaint, Knapp
set forth eight claims for relief, some based on state law and
some based on federal law. In August, the defendants had
the action removed to the U.S. District Court for the District
of Nebraska. In November 2015, the federal court sustained
the defendants’ motion for summary judgment in part and
dismissed certain of Knapp’s claims, which were based on
federal law, with prejudice. The federal court remanded the
remaining claims, which were based on Nebraska state law,
to the district court for Lancaster County for further proceed-
ings. Knapp v. Ruser, 145 F. Supp. 3d 846 (D. Neb. 2015).
Upon remand to the state court, Knapp filed an amended
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KNAPP v. RUSER
Cite as 297 Neb. 639
complaint which mirrored the operative amended complaint
she had filed in the federal court. In the amended complaint,
she set forth 10 claims for relief. The federal court had dis-
missed the first through third, sixth, eighth, and tenth claims.
Also, it remanded the fourth, fifth, seventh, and ninth claims
for further proceedings in the state court. Accordingly, our
consideration on appeal is limited to the state district court’s
disposition of four claims identified in the operative complaint
as the fourth, fifth, seventh, and ninth claims.
1. Background/Facts
Knapp, an attorney, began working in the civil clinic as a
temporary half-time employee in the summer of 1999. At that
time, the director of clinical programs was on a sabbatical,
and Knapp was hired to cover the portion of his responsibili-
ties that concerned the civil clinic. After the director returned
from sabbatical and informed the college that he would be
leaving at the end of the fall semester, Knapp was hired as a
temporary half-time employee beginning in the spring 2000
semester. The understanding was that she would cover the
former director’s duties with respect to the civil clinic while
the law school considered its long-term strategic plan for the
clinical programs.
Knapp’s half-time employment in the civil clinic ended
in August 2004 after Ruser was named director of the clini-
cal programs and the law school hired Richard Moberly to
perform the duties Knapp had performed in the civil clinic.
In 2006, the law school again hired Knapp as a half-time
employee in the civil clinic after it determined that Moberly’s
half-time status was not sufficient to meet student needs.
While Knapp and Moberly split duties in the civil clinic,
Moberly held a full-time position which included additional
responsibilities such as teaching doctrinal classes, research,
and community service.
Knapp continued to work half-time in the civil clinic until
August 2011, when Moberly became an associate dean of the
law school and gave up his duties in the civil clinic. Knapp
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KNAPP v. RUSER
Cite as 297 Neb. 639
and Ruser agreed that Knapp’s employment as supervising
attorney in the civil clinic should go to full time. Knapp’s
position was classified as that of “Temporary Lecturer” and
was designated as a “‘Special Appointment.’” Knapp met
with the dean of the law school to discuss her full-time sal-
ary; the dean offered Knapp an annual salary of $80,000.
After Knapp told the dean that the salary was low, the dean
told Knapp that she would explore the possibility of increas-
ing the salary by seeking a designation for the position as a
“‘professor of practice.’” Knapp agreed to accept the salary
for the upcoming academic year based on what she believed
to be the dean’s “good-faith commitment” to find a way to
increase her salary. When Knapp told Ruser the salary she
had been offered, Ruser told her that the dean had “‘low-
balled’” her.
A year later, in August 2012, Ruser left a letter for Knapp
setting forth proposed terms and conditions for her employ-
ment in the upcoming academic year. The letter stated that
her salary would again be $80,000. Prior to receiving the
letter, Knapp had had no other communication with the law
school’s administration regarding her salary for the upcom-
ing year. The letter prompted Knapp to check the salaries of
others working in the clinical programs. She learned from the
University of Nebraska’s website that a male professor had
been hired in March 2012 to teach a business transactions
clinic at a salary of $106,000 per year. Knapp thereafter spoke
with Ruser regarding her salary, and she told him that after
seeing others’ salaries, she thought that the salary structure in
the clinical programs was “skewed” and that the clinics had a
“‘gender equity’ problem” that Ruser needed to address. Ruser
responded that he was “‘baffled’” by Knapp’s allegations of
discrimination and that the new male professor’s higher sal-
ary was justified by the fact that his position was a tenure
track position.
Knapp alleged that the conversation became heated and
that afterward, Ruser’s behavior and demeanor toward her
changed. Knapp alleged that Ruser acted more hostile and
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KNAPP v. RUSER
Cite as 297 Neb. 639
that he stopped adequately communicating with her. Knapp
also observed that Ruser appeared to be neglecting his own
duties in the clinic, including supervision of students and
cases. After adopting a child in the spring semester, Ruser
went to half time, and Knapp alleged that he “disengaged
even further” from the clinic, with the result being that the
clinic “was not fulfilling its ethical obligations to its clients
or to its students.”
In April 2013, Knapp learned that Ruser would be receiving
a lifetime achievement award from the law school. Although
other members of the clinic’s staff had known of the award
for several weeks and had been invited to sit at Ruser’s table
at the award ceremony, Ruser had not mentioned the award
to Knapp. This incident prompted Knapp to conclude that her
relationship with Ruser “was so badly damaged that it had
become impossible for them to work together as law partners
in a way that would meet their ethical obligations to their cli-
ents and to their students.”
Knapp decided to leave her job at the clinic, but a coworker
encouraged her to speak with the dean about what was happen-
ing in the clinic. Knapp met with the dean and informed her of
several problems that she perceived in the clinic. Knapp told
the dean that problems had existed for women in the clinical
program since the early 1980’s, when Knapp was a student
at the college. Knapp informed the dean of various concerns
she had regarding Ruser’s management of the clinical pro-
grams, focusing on “the environment created for women in
the clinical programs over the years” by Ruser and his male
associates. Knapp alleged that after listening to Knapp’s con-
cerns, the dean “did not offer to help in any way but wished
[Knapp] well.” Knapp’s employment in the clinic ended on
May 31, 2013.
2. Federal District Court’s
Disposition of Claims
The federal district court concluded that because of sover-
eign immunity, it lacked jurisdiction to hear four of Knapp’s
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Nebraska Supreme Court A dvance Sheets
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KNAPP v. RUSER
Cite as 297 Neb. 639
claims: the fourth, fifth, seventh, and ninth. Those four claims
were based on state law, and the federal court found that the
state statutory schemes underlying the claims were not “suf-
ficiently explicit to effect a waiver of sovereign immunity to
suit in federal court.” Knapp v. Ruser, 145 F. Supp. 3d 846, 855
(D. Neb. 2015). The federal court therefore remanded the four
claims for further proceedings in the state district court.
The federal court determined that the six remaining claims—
the first through third, sixth, eighth, and tenth—were asserted
under federal law and that Congress had abrogated states’ sov-
ereign immunity for those claims. The court stated that five of
the claims arose under title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e (2012) (Title VII), and that the remain-
ing claim arose under the Equal Pay Act, 29 U.S.C. § 206(d)
(2012) (EPA). The federal district court considered the six
claims. It found merit to the defendants’ motion for summary
judgment and dismissed the six claims.
The federal court stated that Knapp’s first claim was fash-
ioned as a claim of disparate impact under Title VII. The court
determined that Knapp’s disparate impact claim failed because
she had not alleged any facially neutral employment policy
that had a disparate impact on a protected class and instead
had alleged a practice that was not facially neutral. The court
characterized Knapp’s allegations as an allegation of dispar­
ate treatment rather than disparate impact and concluded that
Knapp had not pled a prima facie case for disparate impact.
The court therefore dismissed Knapp’s first claim.
The federal court next considered Knapp’s second, sixth,
and eighth claims, which were fashioned as claims of dis-
parate treatment and discrimination (the second and eighth
claims, respectively) under Title VII and a claim of wage
discrimination under the EPA (the sixth claim). The court
set forth the requirements of a prima facie claim of disparate
treatment or discrimination under Title VII and stated that a
prima facie claim of wage discrimination under the EPA was
sufficiently similar to examine the claims together. The court
stated that in order to prevail on each of these claims, Knapp
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KNAPP v. RUSER
Cite as 297 Neb. 639
needed to identify similarly situated males who were treated
differently from her. Construing the facts in a light most favor-
able to Knapp, the court determined that her claims failed
because “she [had] not shown any similarly situated male
comparators who were treated differently.” Knapp, 145 F.
Supp. 3d at 858. The court stated that by Knapp’s own admis-
sion, the males to whom she compared herself performed
work or held duties that differed substantially from her own.
Such duties included directing clinical programs, undertaking
academic research, and performing community service, none
of which were part of Knapp’s position, which focused solely
on teaching.
The federal court stated that although Knapp argued her
Title VII claims as failure to promote and wage discrimina-
tion, the evidence she presented was more consistent with
a failure to hire. The court noted that Knapp compared her
nontenured position to tenured positions held by male employ-
ees, and the court stated that “the uncontroverted evidence
[was] that Knapp could only become eligible for tenure if she
were hired into a tenure-eligible position.” Knapp v. Ruser,
145 F. Supp. 3d 846, 857 (D. Neb. 2015). The court consid-
ered Knapp’s claims as failure-to-hire claims but determined
that the claims still failed under such characterization. The
court stated Knapp did not allege that she had applied for
any tenure-eligible position or that anyone represented that
her position would be eligible for tenure, and it stated that
instead the uncontroverted evidence was that Knapp and the
college mutually understood that her position was not eligible
for tenure.
The federal court determined that “[t]he uncontroverted
evidence . . . demonstrates that Knapp held a position with
substantially different duties from her male colleagues” and
that “she never applied for a position similar to those they
held.” Id. at 859. The court concluded that Knapp “failed to
allege facts sufficient for a reasonable jury to find that she
suffered less favorable treatment than the Defendants gave to
similarly situated individuals outside of her protected class.”
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KNAPP v. RUSER
Cite as 297 Neb. 639
Id. The court therefore dismissed Knapp’s second, sixth, and
eighth claims.
Knapp’s third claim was fashioned as a constructive dis-
charge claim under Title VII. The federal court rejected the
claim for two reasons. First, the court determined that Knapp
had not alleged facts sufficient for a jury to conclude that a
reasonable person would have found the conditions of employ-
ment intolerable. The court noted that Ruser’s less frequent
communication with Knapp, his personal slights against her,
and his alleged disengagement from his own duties were not
enough to create a cognizable constructive discharge claim.
Second, the court determined that although Knapp had aired
certain grievances with the dean, she did not give the law
school an opportunity to correct the problems before she
resigned, and that her complaints were focused on long-term
problems in the clinic rather than her immediate problems with
Ruser. The court dismissed Knapp’s third claim.
For similar reasons, the court rejected Knapp’s tenth claim,
which it characterized as an employment retaliation claim
under Title VII. The court determined that “a reasonable jury
could not conclude that Ruser’s alleged conduct constituted
an adverse employment action.” Knapp, 145 F. Supp. 3d at
861. The court stated that “Knapp acknowledge[d] that her
strained relationship with Ruser did not interfere with her abil-
ity to perform her duties” and that the evidence did not support
her “assertion that Ruser’s alleged neglect of his own cases
somehow affected her duties.” Id. at 862. The court dismissed
Knapp’s tenth claim.
3. State Court’s Disposition
of R emanded Claims
Having dismissed the six claims that were based on federal
law, the federal district court remanded Knapp’s fourth, fifth,
seventh, and ninth claims, which were based on state law, to
the state district court for further proceedings. On remand, the
defendants moved for summary judgment on those claims. The
state district court applied the familiar framework found in
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KNAPP v. RUSER
Cite as 297 Neb. 639
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct.
1817, 36 L. Ed. 2d 668 (1973), and after a hearing determined
that Knapp’s evidence failed to show a prima facie case of dis-
crimination. The state district court sustained the defendants’
motion for summary judgment.
In its order ruling on the defendants’ motion for summary
judgment, the district court began its analysis by noting that
three of the four remanded claims arose under Nebraska stat-
utes that were patterned on analogous federal laws. The court
stated that in Knapp’s fourth claim, she asserted a discrimina-
tory wage practice claim under Neb. Rev. Stat. §§ 48-1219
through 48-1227.01 (Reissue 2010), which statutes the court
characterized as the state equivalent of the federal EPA. The
court stated that in her fifth and seventh claims, Knapp alleged
violations of the Nebraska Fair Employment Practice Act, Neb.
Rev. Stat. §§ 48-1101 through 48-1126 (Reissue 2010 & Cum.
Supp. 2014) (NFEPA), which the court characterized as the
state equivalent of federal Title VII. The court noted that this
court has held that Nebraska antidiscrimination laws are to be
interpreted in the same manner as their federal counterparts.
The court cited Nebraska appellate court cases looking to fed-
eral decisions construing Title VII for guidance to interpret the
NFEPA. Extrapolating from the reasoning of those cases, the
district court concluded it should apply a similar approach and
looked to federal decisions construing the EPA for guidance
regarding §§ 48-1219 through 48-1227.01.
The court first considered Knapp’s fourth claim, regard-
ing discriminatory wage practices, under §§ 48-1219 through
48-1227.01. Using a rationale similar to that used by the
federal court when it rejected Knapp’s sixth claim, for wage
discrimination under the EPA, the court rejected this claim.
The court indicated that the claim was specifically based on
§ 48-1221(1). The court determined that Knapp had failed to
show any male employees who performed comparable work
and that therefore, she could not establish a prima facie case
of wage discrimination under § 48-1221(1). The court stated
that the male professor who was hired in March 2012 had
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duties that Knapp did not have, mainly related to the task
of creating a new entrepreneurship clinic. This task required
him to attend meetings with faculty and the dean and to per-
form community outreach and academic research, as well
as performing administrative tasks involved in establishing
the new clinic. The court determined that three other men to
whom Knapp compared herself were members of the college
faculty who had administrative and other duties that Knapp
did not have as a temporary member of the nontenured staff
of the college. As a temporary lecturer, Knapp was assigned
exclusively to teach students and did not have responsibilities
to conduct academic research or perform community service.
The court also noted that Knapp had never applied for a posi-
tion offering the possibility of tenure. The court granted sum-
mary judgment in favor of the defendants on Knapp’s fourth
claim because she had not presented sufficient evidence of
comparable individuals to make a prima facie inference of
discriminatory wages under § 48-1221(1).
The court next considered Knapp’s fifth claim, which it
characterized as a claim of discrimination on the basis of
sex under the NFEPA. The court determined that Knapp’s
discrimination claim under the NFEPA failed for the same
reason that her eighth claim, for discrimination under Title
VII, had failed in the federal district court. The court noted
that the NFEPA mirrors Title VII and that in order to establish
a prima facie case for sex discrimination, a plaintiff needed
to show, inter alia, that similarly situated males were treated
differently. The court determined that Knapp had failed to
identify any similarly situated males who were treated dif-
ferently from her and that therefore, she had failed to show a
prima facie case of discrimination under the NFEPA. The court
also addressed Knapp’s argument that the defendants failed
to hire her for ­better-paying positions with the opportunity
for tenure. The court agreed with the federal district court’s
analysis to the effect that this argument failed because Knapp
had not presented any evidence that she had applied for any
tenure-eligible positions. The court therefore granted summary
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judgment in favor of the defendants on Knapp’s fifth claim, of
discrimination under the NFEPA.
The court characterized Knapp’s seventh claim as a claim
of employment retaliation under the NFEPA. Knapp argued
that Ruser had created a hostile work environment and had
unreasonably interfered with her work performance after she
complained to him regarding sex discrimination in the clinic.
The court rejected Knapp’s retaliation claim under the NFEPA
based on reasoning similar to that of the federal district court
when it rejected Knapp’s tenth claim, of employment retali-
ation under Title VII. The court determined that Knapp had
failed to show that a reasonable person would have found the
conditions of employment intolerable or that the defendants
either intended to force her to resign or could have reason-
ably foreseen that she would do so as a result of their actions.
The court therefore granted summary judgment in favor of the
defendants on Knapp’s seventh claim, of employment retalia-
tion under the NFEPA.
Finally, the court characterized Knapp’s ninth claim as a
public-policy-based claim of retaliation. Knapp alleged that
the defendants had retaliated against her “for attempting to
prevent ethical issues in a learning setting for future lawyers
. . . in contravention of public policy.” Knapp argued that the
civil clinic was a de facto law firm and that it was therefore
subject to duties required of law firms in Nebraska. The dis-
trict court cited Trosper v. Bag ’N Save, 273 Neb. 855, 734
N.W.2d 704 (2007), and stated that this court has recognized
a public policy exception to the at-will employment doctrine
and that under the public policy exception, an employee may
claim damages for wrongful discharge when the motivation
for the firing contravenes public policy. The court rejected
Knapp’s public policy retaliation claim for much the same
reasons it rejected her claim of employment retaliation under
the NFEPA. The court determined that Knapp had “failed to
show how Ruser’s absence or refusal to communicate fol-
lowing their heated conversation resulted in her discharge or
demotion.” The court noted that certain of Knapp’s concerns
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regarding Ruser’s management of the clinical programs “were
longstanding” and that she did not express those concerns to
anyone in the college prior to April 2013. The court further
determined that “even after Ruser became withdrawn, [Knapp]
was able to fulfill her ethical obligations and performance”
in the clinic, and that there was “no evidence that Ruser’s
work on his own cases could compel a reasonable person in
[Knapp’s] position to resign.” The court granted summary
judgment in favor of the defendants on Knapp’s ninth claim,
of public policy retaliation.
The district court concluded its order by stating that Knapp
had “failed to establish a prima facie case of wage discrimi-
nation, failure to promote because of sex, retaliation, and
retaliation in violation of public policy.” The court therefore
sustained the defendants’ motion for summary judgment with
respect to Knapp’s fourth, fifth, seventh, and ninth claims. The
court overruled Knapp’s subsequent motion to alter or amend
its judgment.
Knapp appeals the district court’s orders sustaining the
defendants’ motion for summary judgment and overruling her
motion to alter or amend its judgment.
III. ASSIGNMENTS OF ERROR
Knapp generally claims that the district court erred when it
sustained the defendants’ motion for summary judgment on her
fourth, fifth, seventh, and ninth claims and when it overruled
her motion to alter or amend the judgment.
Knapp specifically claims, restated, that the district court
erred when it (1) analyzed her fifth claim as a claim of fail-
ure to hire but failed to analyze it as a claim of impermis-
sible classification under the NFEPA; (2) determined, with
regard to her fifth claim, that she failed to show that there
were similarly situated male employees who were treated
differently; (3) determined, with regard to her fourth claim,
regarding wage discrimination under § 48-1221(1), that she
failed to show that there were male employees who performed
comparable duties; and (4) determined that she failed, with
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regard to both her seventh claim, of employment retaliation
under the NFEPA, and her ninth claim, of public-policy-
based retaliation, to show retaliatory or unreasonable conduct
by Ruser.
We note that Knapp also claims that the federal district court
erred when it sustained the defendants’ motion for summary
judgment with respect to her first through third, sixth, eighth
and tenth claims. She requests that we reverse the federal dis-
trict court’s order sustaining the defendants’ motion for sum-
mary judgment on those claims. Under federal law, when a fed-
eral district court grants summary judgment on certain claims
and remands the remaining claims to a state court, the federal
district court’s partial summary judgment becomes final as to
the claims on which the federal district court granted summary
judgment and the federal district court’s resolution of those
claims is appealable to the federal circuit court. See Porter
v. Williams, 436 F.3d 917 (8th Cir. 2006). The federal district
court’s order in Knapp v. Ruser, 145 F. Supp. 3d 846 (D. Neb.
2015), as a final judgment as to those claims upon which the
federal court granted summary judgment, is appealable to a
federal circuit court, and we do not review the federal district
court’s resolution of those claims.
IV. STANDARDS OF REVIEW
[1,2] 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 those
facts and that the moving party is entitled to judgment as a
matter of law. Thomas v. Board of Trustees, 296 Neb. 726,
895 N.W.2d 692 (2017). 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. Id.
[3] An appellate court reviews a denial of a motion for new
trial or, in the alternative, to alter or amend the judgment, for
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an abuse of discretion. Cisneros v. Graham, 294 Neb. 83, 881
N.W.2d 878 (2016).
V. ANALYSIS
Knapp generally claims that the district court erred when
it sustained the defendants’ motion for summary judgment on
her fourth, fifth, seventh, and ninth claims generally for the
reason that Knapp’s evidence failed to show a prima facie case
of discrimination, see McDonnell Douglas Corp. v. Green, 411
U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), and when
it overruled her motion to alter or amend the judgment. She
also assigns specific errors, each of which relates to one or
more of the claims. We will review the district court’s ruling
as to each claim and Knapp’s specific arguments as to each
claim in turn.
1. Fifth Claim: Discrimination
Under the NFEPA
Knapp’s fifth claim was based on the NFEPA. The district
court analyzed Knapp’s fifth claim as a claim of discrimi-
nation based on sex under the NFEPA; the court specifi-
cally addressed Knapp’s arguments that it characterized as a
­failure-to-hire claim. On appeal, Knapp makes two main argu-
ments with regard to her fifth claim: (1) that the district court
erred when it failed to analyze the fifth claim as a claim of
improper classification under the NFEPA and (2) that the
court erred when it determined that she had failed to show
similarly situated male employees who were treated differ-
ently. Knapp claims that because of these errors, the district
court erred when it sustained the defendants’ motion for sum-
mary judgment on her fifth claim and that the court abused
its discretion when it overruled her motion to alter or amend
the judgment in order to consider the fifth claim as a claim of
improper classification.
[4] We note first that we have stated that the NFEPA is pat-
terned after federal Title VII and that it is appropriate to look
to federal court decisions construing Title VII for guidance
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with respect to the NFEPA. See Hartley v. Metropolitan
Util. Dist., 294 Neb. 870, 885 N.W.2d 675 (2016). Like the
plaintiff’s claim in Hartley, Knapp’s fifth claim is a claim of
disparate treatment, that is, “a claim based on an employer’s
treating some people less favorably than others because of
their race, color, religion, sex, or other protected character-
istics.” 294 Neb. at 891, 885 N.W.2d at 692-93. In Hartley,
we looked to federal case law applying Title VII, specifically
McDonnell Douglas Corp., supra, to provide a framework
for a discrimination claim under the NFEPA. We noted in
Hartley that the McDonnell Douglas Corp. framework is not
the exclusive method of proving disparate treatment, but in
this case, as in Hartley, the district court used that frame-
work and the parties do not dispute that it was the appropri-
ate approach.
The first step under the McDonnell Douglas Corp. frame-
work is that “first the plaintiff has the burden of proving a
prima facie case of discrimination.” Hartley, 294 Neb. at
893, 885 N.W.2d at 693. In Hartley, the plaintiff set forth a
failure-to-promote claim, and therefore, we stated that a prima
facie case of discrimination in that case consisted of “demon-
strating (1) the employee is a member of a protected group,
(2) the employee was qualified and applied for a promotion
to an available position, (3) the employee was rejected, and
(4) a similarly situated employee, not part of the protected
group, was promoted instead.” 294 Neb. at 893, 885 N.W.2d
at 693.
[5,6] We note, however, that courts typically modify the
formulation of a prima facie case of employment discrimina-
tion based on the specific type of discrimination claimed in a
specific case. Although the requirements set forth in Hartley
focused on a claim of failure to promote, the Nebraska Court
of Appeals in Helvering v. Union Pacific RR. Co., 13 Neb.
App. 818, 703 N.W.2d 134 (2005), set forth a more univer-
sal formulation of the required showing for a prima facie
case of gender discrimination. The Court of Appeals stated
that a “prima facie case of gender discrimination requires
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the plaintiff to prove that he or she (1) is a member of a
protected class, (2) was qualified to perform the job, (3) suf-
fered an adverse employment action, and (4) was treated dif-
ferently from similarly situated persons of the opposite sex.”
Helvering, 13 Neb. Ct. App. at 842, 703 N.W.2d at 154 (citing
Riggs v. County of Banner, 159 F. Supp. 2d 1158 (D. Neb.
2001) (considering Title VII claim of discrimination based
on sex)). The Court of Appeals further stated that the test to
determine whether employees are similarly situated to war-
rant a comparison to a plaintiff is a rigorous one and that the
plaintiff has the burden of demonstrating that there were indi-
viduals similarly situated in all relevant aspects to the plaintiff
by a preponderance of the evidence. Helvering, supra (citing
E.E.O.C. v. Kohler Co., 335 F.3d 766 (8th Cir. 2003) (consid-
ering Title VII retaliation claim based on race)).
(a) Classification
Knapp claims that the district court erred because it failed
to analyze her fifth claim as a claim of improper classification
under the NFEPA. She raises this argument in connection with
her claims of error with respect to the court’s grant of summary
judgment and its overruling of her motion to alter or amend
the judgment.
Knapp’s fifth claim was based on § 48-1104, which is part
of the NFEPA and which provides as follows:
It shall be an unlawful employment practice for an
employer:
(1) To fail or refuse to hire, to discharge, or to harass
any individual, or otherwise to discriminate against any
individual with respect to compensation, terms, condi-
tions, or privileges of employment, because of such indi-
vidual’s race, color, religion, sex, disability, marital sta-
tus, or national origin; or
(2) To limit, advertise, solicit, segregate, or classify
employees in any way which would deprive or tend to
deprive any individual of employment opportunities or
otherwise adversely affect such individual’s status as an
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employee, because of such individual’s race, color, reli-
gion, sex, disability, marital status, or national origin.
Knapp maintains that the district court analyzed her fifth
claim as a claim under only § 48-1104(1), which makes
it an unlawful employment practice to, inter alia, “fail or
refuse to hire . . . or otherwise to discriminate against any
individual with respect to compensation . . . because of such
individual’s . . . sex.” She contends that the court should have
also analyzed the claim as a claim under § 48-1104(2), which
makes it an unlawful employment practice to, inter alia, “clas-
sify employees in any way which would deprive or tend to
deprive any individual of employment opportunities or other-
wise adversely affect such individual’s status as an employee,
because of such individual’s . . . sex.”
In support of her contention that the court analyzed the
claim only under subsection (1) and not under subsection (2),
Knapp focuses on the portion of the district court’s summary
judgment analysis in which it considered the failure-to-hire
aspects of the fifth claim. However, in addition to consider-
ing the claim specifically as a failure-to-hire claim, the district
court also analyzed the claim as a more generalized claim of
discrimination utilizing the framework of McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668
(1973). Knapp contends that she showed a prima facie case of
improper classification under that framework, and she does not
offer an alternative approach.
Although Knapp used “classification” language in her com-
plaint, and we acknowledge that the district court did not
specifically refer to her fifth claim as one of improper “clas-
sification,” this is of no legal consequence. We believe that a
claim of improper classification under § 48-1104(2) is subject
to the McDonnell Douglas Corp. framework and that in such
a case, the “adverse employment action” is an improper clas-
sification, which must be demonstrated by evidence of prima
facie discrimination. In this case, the district court used the
McDonnell Douglas Corp. framework and determined that
Knapp had failed to show that there were similarly situated
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male employees who were treated differently. As a con-
sequence of this determination, the court effectively deter-
mined that Knapp had failed to show similarly situated male
employees who were classified differently than she was and
that therefore, she failed to show a prima facie case of dis-
crimination resulting from an improper classification under
§ 48-1104(2).
(b) Similarly Situated
Knapp further argues that the court erred when it determined
with respect to her fifth claim that she failed to show simi-
larly situated male employees who were treated differently.
As noted above, this finding was dispositive of the improper
classification aspects of Knapp’s claim as well as the other
aspects of the claim. Knapp argues that she presented evidence
of similarly situated males because she presented evidence that
male employees were moved from nontenure positions into
tenure track positions with higher pay.
The district court determined that Knapp failed to show
similarly situated males because the males to whom she com-
pared herself had duties that were different from or in addition
to the duties that she performed. Because Knapp did not show
the existence of males who were similarly situated, she could
not show that males were treated differently. Any differences
in compensation or classification could be explained by the
differences in duties.
Knapp argues that the men were treated differently because
they moved on to tenure track positions. But when the men
moved on to such positions, they took on additional duties
and therefore were no longer similarly situated. Therefore,
to the extent that Knapp compares herself to male employees
who moved on to tenure track positions while she did not, her
argument is no longer that she was treated differently from
similarly situated male employees. Instead, her argument is
more properly characterized as a failure to promote or a fail-
ure to hire claim because she is arguing the male employees
were able to move into tenure positions while she was not.
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The district court analyzed Knapp’s fifth claim as a failure to
hire claim, and the court determined that the claim failed as
such because Knapp did not show that she had attempted to
obtain a tenure track position and therefore could not show that
the defendants refused to hire her for or promote her to such
a position.
Viewing the evidence in the light most favorable to Knapp,
we find she did not present evidence of similarly situated males,
and therefore, she was unable to show under § 48-1104(1) that
they were treated differently, whether such different treatment
was with respect to compensation, classification, or hiring for
or promotion to tenure track positions.
We conclude that with respect to Knapp’s fifth claim under
§ 48-1104(1) and (2), the district court did not err when it
reached the determinations noted above and sustained the
defendants’ motion for summary judgment and overruled
Knapp’s subsequent motion to alter or amend challenging such
determinations.
2. Fourth Claim: Discriminatory
Wage Practices Based on Sex
Knapp’s fourth claim was a claim of wage discrimination
based on sex under §§ 48-1219 through 48-1227.01. The
district court determined that Knapp had failed to identify a
male employee with comparable duties and therefore had not
shown that a male employee performing the same duties was
paid more. Knapp claims that the district court erred when it
determined that she failed to show male employees who had
comparable duties.
[7] As an initial matter, we note that the specific statute
that underlies Knapp’s fourth claim is § 48-1221(1), which
provides:
No employer shall discriminate between employees in the
same establishment on the basis of sex, by paying wages
to any employee in such establishment at a wage rate less
than the rate at which the employer pays any employee
of the opposite sex in such establishment for equal work
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on jobs which require equal skill, effort and responsibil-
ity under similar working conditions. Wage differentials
are not within this prohibition where such payments are
made pursuant to: (a) An established seniority system; (b)
a merit increase system; or (c) a system which measures
earning by quantity or quality of production or any factor
other than sex.
Knapp’s sixth claim, which was dismissed by the federal dis-
trict court, was a claim of wage discrimination under the fed-
eral EPA, 29 U.S.C. § 206(d)(1), which provides:
No employer having employees subject to any provisions
of this section shall discriminate, within any establish-
ment in which such employees are employed, between
employees on the basis of sex by paying wages to
employees in such establishment at a rate less than the
rate at which he pays wages to employees of the oppo-
site sex in such establishment for equal work on jobs the
performance of which requires equal skill, effort, and
responsibility, and which are performed under similar
working conditions, except where such payment is made
pursuant to (i) a seniority system; (ii) a merit system;
(iii) a system which measures earnings by quantity or
quality of production; or (iv) a differential based on any
other factor other than sex: Provided, That an employer
who is paying a wage rate differential in violation of
this subsection shall not, in order to comply with the
provisions of this subsection, reduce the wage rate of
any employee.
The state and federal statutes are similar, and the Nebraska stat-
ute appears to be patterned after the federal statute. Therefore,
similarly to our holding in Hartley v. Metropolitan Util. Dist.,
294 Neb. 870, 885 N.W.2d 675 (2016), noted above with
regard to the NFEPA and Title VII, we hold that because
§ 48-1221(1) is patterned after the federal EPA, 29 U.S.C.
§ 206(d), it is appropriate to look to federal court decisions
construing 29 U.S.C. § 206(d) for guidance with respect to
§ 48-1221(1).
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The district court in this case looked to federal court deci-
sions construing the federal EPA when it analyzed Knapp’s
fourth claim. The court cited Price v. Northern States Power
Co., 664 F.3d 1186, 1191 (8th Cir. 2011), in which the U.S.
Court of Appeals for the Eighth Circuit stated that when
bringing a claim of pay discrimination on the basis of sex
pursuant to the federal EPA, “[a] plaintiff must first establish
a prima facie case that women were paid less than men in
the same establishment for equal work requiring equal skill,
effort, and responsibility and performed under similar work-
ing conditions” and that “[i]f a plaintiff establishes a prima
facie case, the burden then shifts to the defendant to prove
one of [the] statutory affirmative defenses.” We note that in
Hunt v. Nebraska Public Power Dist., 282 F.3d 1021 (8th Cir.
2002), the Court of Appeals for the Eighth Circuit formulated
the prima facie case under the EPA as follows: To establish an
equal pay claim, a plaintiff must show by a preponderance of
the evidence that (1) she was paid less than a male employed
in the same establishment; (2) for equal work on jobs requir-
ing equal skill, effort, and responsibility; (3) which were per-
formed under similar working conditions.
[8] We believe that the framework applicable to a federal
EPA claim is also the proper framework to be applied to a
claim under § 48-1221(1) for wage discrimination based on
sex. Therefore, when bringing a claim of wage discrimina-
tion based on sex under § 48-1221(1), a plaintiff must first
establish a prima facie case by showing by a preponderance
of the evidence that (1) the plaintiff was paid less than a per-
son of the opposite sex employed in the same establishment;
(2) for equal work on jobs requiring equal skill, effort, and
responsibility; (3) which were performed under similar work-
ing conditions. If a plaintiff establishes a prima facie case of
wage discrimination based on sex, the burden then shifts to the
defendant to prove one of the affirmative defenses set forth in
§ 48-1221(1).
Using this general framework to analyze Knapp’s fourth
claim, the district court concluded that Knapp had not
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established a prima facie case of wage discrimination, because
she had not shown that the male employees to whom she com-
pared herself were performing comparable duties. The court
determined that “[a]lthough all faculty named by Knapp as
comparators also taught in the clinics as part of their posi-
tions, the totality of their duties were [sic] not substantially
equal.” The court noted that while their positions shared cer-
tain duties that Knapp performed, each of the male employees
had additional responsibilities including some combination of
classroom teaching, research, and service to the faculty, admin-
istration, and community.
In terms of the requirements of a prima facie case of wage
discrimination based on sex set forth above, we read the dis-
trict court’s determinations as a ruling that Knapp failed to
show a male employee who was doing “equal work on jobs
requiring equal skill, effort, and responsibility.” See Hunt v.
Nebraska Public Power Dist., 282 F.3d 1021, 1029 (8th Cir.
2002). Specifically, the court determined that the male employ-
ees to whom Knapp compared herself performed work that
required additional responsibilities.
In this regard, we note that the Eighth Circuit Court of
Appeals in Hunt explained the required showing of “equal
work” by stating that the jobs need not be identical to be
considered “‘equal’” under the EPA and they need only
be substantially equal. 282 F.3d at 1029. The court further
stated that neither job classifications nor titles are disposi-
tive for determining whether jobs are equal for purposes of
the EPA and that determining whether two jobs are substan-
tially equal requires a practical judgment on the basis of all
the facts and circumstances of a particular case, including
factors such as level of experience, training, education, abil-
ity, effort, and responsibility. Hunt, supra. The court further
stated that two jobs could require insubstantial or minor
differences in the degree or amount of skill, or effort, or
responsibility and still be substantially equal. Id. We find
these standards to be sound, and we adopt them and apply
them to this case.
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With these considerations in mind, we determine that
Knapp’s evidence did not show that the male employees to
whom she compared herself were doing “equal work . . .
requiring equal . . . responsibility.” See Hunt, 282 F.3d at 1029.
The evidence showed that the male employees had additional
responsibilities that were not insubstantial or minor differences
from the work Knapp was doing. We conclude therefore that
the district court did not err when it sustained the defendants’
motion for summary judgment on Knapp’s fourth claim; nor
did the court abuse its discretion when it overruled Knapp’s
motion to alter or amend such judgment.
3. Seventh Claim: R etaliation
Under the NFEPA
Knapp’s seventh claim was a claim of retaliation under the
NFEPA. Knapp claims on appeal that the district court erred
in its determination that she had failed to show that a reason-
able person would have found the conditions of employment
intolerable or that the defendants either intended to force her
to resign or could have reasonably foreseen that she would do
so as a result of their actions.
[9] A claim of retaliation under the NFEPA is based on
§ 48-1114, which provides in relevant part that “[i]t shall be
an unlawful employment practice for an employer to discrimi-
nate against any of his or her employees . . . because he or she
. . . has opposed any practice made an unlawful employment
practice by the [NFEPA].” The Nebraska Court of Appeals in
Helvering v. Union Pacific RR. Co., 13 Neb. Ct. App. 818, 703
N.W.2d 134 (2005), noted that the framework for a claim of
retaliation under the NFEPA is the framework of McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36
L. Ed. 2d 668 (1973), used for other unlawful employment
practice claims under the NFEPA as set forth above in con-
nection with our analysis of Knapp’s fifth claim. The Court
of Appeals for the Eighth Circuit set forth the formulation
of a prima facie case in a retaliation claim as being that a
plaintiff must establish such case by showing (1) he or she
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engaged in protected conduct, (2) he or she was subjected to
an adverse employment action, and (3) there was a causal con-
nection between the protected conduct and the adverse action.
See Wood v. SatCom Marketing, LLC, 705 F.3d 823 (8th Cir.
2013). The same formulation applies to set forth a prima facie
case of retaliation under § 48-1114.
Knapp’s claim of retaliation under the NFEPA was that
she had engaged in a protected activity when she opposed
practices by Ruser that she alleged amounted to discrimina-
tion based on sex. The district court determined that the claim
failed because Knapp had not shown that she “‘suffered an
adverse employment decision.’” Knapp did not allege that the
law school had terminated her employment because she had
complained to Ruser or to the dean; instead, she argued that
after she complained to Ruser, he created an environment that
drove her to leave her employment. The district court deter-
mined that Knapp’s evidence on summary judgment regard-
ing Ruser’s behavior did not rise to the level of an adverse
employment action.
[10] To satisfy the “adverse employment action” require-
ment in a retaliation claim, see Helvering, 13 Neb. Ct. App. at
842, 703 N.W.2d at 154, a plaintiff must show that “a rea-
sonable employee would have found the challenged action
materially adverse,” see Burlington N. & S. F. R. Co. v. White,
548 U.S. 53, 68, 126 S. Ct. 2405, 165 L. Ed. 2d 345 (2006).
This, in turn, requires a showing that the employment action
“‘might have “dissuaded . . .”’” a reasonable worker from
reporting the alleged unlawful practice. Id. To meet this bur-
den, a plaintiff must demonstrate that the employment action
was material, not trivial, and that it resulted in some concrete
“‘injury or harm.’” AuBuchon v. Geithner, 743 F.3d 638, 644
(8th Cir. 2014). In this regard, it has been noted that report-
ing discriminatory behavior “‘cannot immunize that employee
from those petty slights or minor annoyances that often take
place at work and that all employees experience.’” Id. (quoting
White, supra).
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Viewing Knapp’s evidence in the light most favorable to her
and applying the standards set forth above, we determine that
Knapp did not show the sort of “adverse employment action”
necessary to support a claim of retaliation under § 48-1114
of the NFEPA. Ruser’s alleged change in attitude and the
behaviors he displayed after Knapp raised concerns regard-
ing gender discrimination are more properly characterized as
“petty slights” and “minor annoyances” than as the sort of
actions a reasonable employee would have found to be materi-
ally adverse and that would have resulted in some concrete
injury or harm. We therefore conclude that the district court
did not err when it sustained the defendants’ motion for sum-
mary judgment as to Knapp’s seventh claim nor did the court
abuse its discretion when it overruled Knapp’s motion to alter
or amend such judgment.
4. Ninth Claim: Public Policy R etaliation
Finally, Knapp’s ninth claim was a claim of retaliation based
on public policy considerations. Similar to its disposition of
the seventh claim, the district court rejected this claim on the
basis that Knapp’s evidence did not show material retaliatory
conduct. Knapp claims on appeal that the district court erred
in this determination because, she argues, she and Ruser were
“de facto law partners” and because ethical concerns relating
to law firms give rise to a public policy claim and require that
a different standard be used to determine whether there was
retaliation. Brief for appellant at 33.
[11] Knapp argues that her ninth claim is cognizable as a
“tort-based claim for retaliation when it violates public policy,”
id. at 31, and she cites Trosper v. Bag ’N Save, 273 Neb. 855,
734 N.W.2d 704 (2007), as support for this theory. In Trosper,
we recognized that generally, an employer may terminate the
employment of an at-will employee at any time, but we rec-
ognized a public policy exception to the at-will employment
doctrine. We described the exception as follows:
Under the public policy exception, we will allow an
employee to claim damages for wrongful discharge when
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the motivation for the firing contravenes public policy.
The public policy exception is restricted to cases when
a clear mandate of public policy has been violated, and
it should be limited to manageable and clear standards.
In determining whether a clear mandate of public policy
is violated, courts should inquire whether the employer’s
conduct contravenes the letter or purpose of a constitu-
tional, statutory, or regulatory provision or scheme.
Trosper, 273 Neb. at 857-58, 734 N.W.2d at 707. The specific
exception noted in Trosper originated in Jackson v. Morris
Communications Corp., 265 Neb. 423, 657 N.W.2d 634 (2003),
where we recognized a public policy exception to the at-will
employment doctrine and allowed an action for retaliatory
discharge when an employee has been discharged for filing
a workers’ compensation claim. Trosper extended Jackson to
include a claim for retaliatory demotion for filing a workers’
compensation claim.
Knapp argues that a public policy exception should be rec-
ognized to allow her ninth claim and that the public policy
supporting her claim consists of ethical considerations gov-
erning the legal profession and law firms as expressed in the
Nebraska Rules of Professional Conduct. She contends that
the defend­ants retaliated against her because she raised ethical
concerns regarding Ruser’s conduct at the civil clinic.
Whether or not a public policy exception related to such
ethical concerns should be recognized, we note that in cases
like Trosper, the public policy exception is fashioned as an
exception to the at-will employment doctrine. As such, the
exception has been limited to claims of retaliatory discharge
and, as extended in Trosper, claims of retaliatory demotion.
Knapp’s evidence does not show that the defendants either dis-
charged or demoted her after she raised ethical concerns; nor
does it show a constructive discharge or some other adverse
employment action that falls short of a discharge or demo-
tion. As we noted in connection with Knapp’s seventh claim
for retaliation under the NFEPA, Knapp has not shown any
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adverse employment action that was material and that resulted
in some concrete injury or harm.
Viewing the evidence in the light most favorable to Knapp,
we determine she has not shown employment-related retali-
ation that would give rise to a claim based on public policy.
Therefore, we conclude that the district court did not err when
it sustained the defendants’ motion for summary judgment
on Knapp’s ninth claim; nor did the court abuse its discre-
tion when it overruled Knapp’s motion to alter or amend
such judgment.
VI. CONCLUSION
We conclude that the district court did not err when it sus-
tained the defendants’ motion for summary judgment with
respect to Knapp’s fourth, fifth, seventh, and ninth claims and
that it did not abuse its discretion when it overruled Knapp’s
subsequent motion to alter or amend its judgment. We there-
fore affirm the district court’s orders.
A ffirmed.
Stacy, J., not participating.