O'Brien v. Bellevue Public Schools

Nebraska Advance Sheets
O’BRIEN v. BELLEVUE PUBLIC SCHOOLS 637
Cite as 289 Neb. 637
Finally, we find no merit to Pike’s argument that the court
erred in awarding future medical benefits to Damme.
Affirmed.
Robert O’Brien, appellee, v. Bellevue
Public Schools, appellant.
___ N.W.2d ___
Filed December 12, 2014. No. S-12-843.
1. Summary Judgment: Appeal and Error. An appellate court will affirm a lower
court’s grant of summary judgment if the pleadings and admissible evidence
offered at the hearing show that there is no genuine issue as to any material facts
or 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, the 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. Summary Judgment. Summary judgment proceedings do not resolve factual
issues, but instead determine whether there is a material issue of fact in dispute.
4. ____. In the summary judgment context, a fact is material only if it would affect
the outcome of the case.
5. ____. If a genuine issue of fact exists, summary judgment may not properly
be entered.
6. Termination of Employment. Unless constitutionally, statutorily, or contract­
ually prohibited, an employer, without incurring liability, may terminate an
at-will employee at any time with or without reason.
7. Termination of Employment: Public Policy: Damages. Under the public policy
exception to the at-will employment doctrine, an employee may claim damages
for wrongful discharge when the motivation for the firing contravenes pub-
lic policy.
8. Termination of Employment: Proof. The plaintiff in a retaliatory discharge
action retains the ultimate burden of persuading the fact finder that he or she has
been the victim of intentional impermissible conduct.
9. Employer and Employee: Proof. To establish a prima facie case of unlawful
retaliation, an employee must show (1) that he or she participated in a protected
activity, (2) that the employer took an adverse employment action against him or
her, and (3) that a causal connection existed between the protected activity and
the adverse employment action.
10. Employer and Employee: Termination of Employment: Circumstantial
Evidence. Because an employer is not apt to announce retaliation as its motive,
an employee’s prima facie case in a retaliatory discharge action is ordinarily
proved by circumstantial evidence.
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11. Termination of Employment: Time: Proof. In a retaliatory discharge action,
proximity in time between an employee’s protected activity and discharge of the
employee is a typical beginning point for proof of a causal connection.
12. Termination of Employment: Words and Phrases. In employment law involv-
ing alleged impermissible termination, a “pretext” is found when the court disbe-
lieves the reason given by an employer, allowing an inference that the employer
is trying to conceal an impermissible reason for its action.
Petition for further review from the Court of Appeals, Irwin,
Pirtle, and Bishop, Judges, on appeal thereto from the District
Court for Sarpy County, William B. Zastera, Judge. Judgment
of Court of Appeals affirmed.
Jeremy C. Jorgenson for appellant.
Laura K. Essay, Kevin R. McManaman, and Michael W.
Khalili, of Knudsen, Berkheimer, Richardson & Endacott,
L.L.P., for appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Miller-Lerman, J.
NATURE OF CASE
Robert O’Brien, the appellant, filed a complaint in the dis-
trict court for Sarpy County against Bellevue Public Schools
(BPS), the appellee, alleging that he was wrongfully dis-
charged from his employment as a carpenter with BPS because
he reported the presence, demolition, and disposal of asbestos
and asbestos-containing materials to his superiors at BPS. BPS
moved for summary judgment. After a hearing, the district
court granted summary judgment in favor of BPS. O’Brien
appealed, and in a memorandum opinion, the Nebraska Court
of Appeals affirmed the judgment of the district court. We
granted O’Brien’s petition for further review. Because we
determine that BPS is entitled to judgment as a matter of law,
we affirm.
STATEMENT OF FACTS
O’Brien was an at-will employee of BPS from 2006 to 2009.
He filed a complaint against his former employer in the district
court on November 24, 2010, in which he generally alleged
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he was fired in retaliation for reporting to his superiors the
presence and removal of asbestos at the middle school where
he worked.
BPS filed a motion for summary judgment, which the dis-
trict court sustained. In its order filed August 14, 2012, the
district court summarized the evidence and stated:
[I]n his deposition, [O’Brien] admits that he reported the
suspected presence of asbestos to his supervisor on two
occasions, but that he never reported violations of state
and federal regulations. Morever [sic], the record reflects
that there was documentation to show that [O’Brien’s]
work performance was not adequate. Based on the evi-
dence, this Court finds that [BPS] terminated [O’Brien]
for a legitimate, non-retaliatory reason unrelated to his
reports of the suspected presence of asbestos. [O’Brien]
was terminated from his position for his inability to coop-
erate with supervisors, inefficient work performance, and
lack of punctuality. See, Exhibit #7. [O’Brien] stated
in his deposition that during the meeting held to dis-
cuss his performance, he quickly became frustrated and
stated that he believed he was going to be terminated
for his aggression. [O’Brien] admitted that the topic of
asbestos was not mentioned during the meeting, and that
his frustration did not have anything to do with alleged
reports he made to his supervisor regarding his asbestos
concerns. Based on the aforementioned, this Court finds
that [BPS] has met its burden to show that there are no
genuine issues of material fact, and that summary judg-
ment is appropriate.
O’Brien appealed to the Court of Appeals. O’Brien assigned
as error on appeal that
the district court erred when it sustained BPS’ motion
for summary judgment because (1) the court’s order was
unclear whether it found (a) that O’Brien never reported
to BPS that its demolition and disposal of asbestos was
in violation of state and federal regulations, or (b) that
O’Brien never reported to state and federal authorities
those alleged violations, and that neither finding is suffi-
cient to dismiss on summary judgment; and (2) a material
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issue of fact exists as to whether BPS’ reasons for termi-
nating O’Brien’s employment was pretextual.
O’Brien v. Bellevue Public Schools, No. A-12-843, 2014 WL
1673287 at *4 (Neb. App. Apr. 29, 2014) (selected for posting
to court Web site).
In its memorandum opinion affirming the order of the dis-
trict court, the Court of Appeals recited the facts of the case
which we quote at length and for which we find support in the
summary judgment record. The Court of Appeals stated:
O’Brien was employed by BPS as a carpenter from
2006 to July 2009. Sometime between May and June
2009, he reported in one instance to his immediate super-
visor and in another instance to the vice principal of the
middle school in which he was working that he believed
that floor tiles and countertops he had been ordered to
demolish and remove contained asbestos.
In July 2009, O’Brien’s supervisors completed an
annual performance review and found O’Brien “[N]ot
[A]dequate” in the areas of teamwork, quantity of work,
punctuality/attendance, reliability/dependability, consci-
entiousness, initiative, and cooperation.
On July 7, 2009, a meeting was held to discuss
O’Brien’s review and job performance. The purpose of
the meeting was not to terminate O’Brien’s employment.
O’Brien attended, along with Mike Potter (O’Brien’s
immediate supervisor) and Matt Blomenkamp (the coor-
dinator for buildings and grounds and Potter’s immedi-
ate supervisor). When Potter and Blomenkamp expressed
their concerns about O’Brien’s job performance, O’Brien
repeatedly raised his voice and behaved in an agitated
and aggressive manner. At no time during the meeting
did O’Brien mention asbestos. O’Brien was dismissed
from work for the day, and a formal letter of reprimand
was given to O’Brien summarizing that meeting. O’Brien
signed that letter on July 12.
On July 13, 2009, O’Brien attended an informal
meeting with Jim McMillan, a BPS administrator, and
Blomenkamp. At the meeting, O’Brien admitted to poor
performance in the areas of reliability, punctuality, and
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getting along with coworkers. He also apologized for his
behavior at the July 7 meeting, acknowledging that he
had “butted heads with Potter a few times” and that he
should not have told Blomenkamp that he “wasn’t one
of the kids in the school district, not to speak to me like
that.” O’Brien did not mention asbestos during the July
13 meeting.
Blomenkamp sent O’Brien a letter, dated July 13,
2009, which stated: “This letter is in regard to your
recent evaluation and past and present behavior as an
employee for [BPS]. Your inability to cooperate with
your supervisors, poor work performance, and refusal to
be formally evaluated show a lack of judgment, respect
and conscientiousness, all of which are essential func-
tions of your position.” The letter indicated that a meet-
ing was scheduled for July 16 and that O’Brien would
have an opportunity to be heard concerning his employ-
ment status.
On July 16, 2009, a final meeting was held. O’Brien,
Blomenkamp, and an assistant superintendent attended.
At the meeting, O’Brien admitted that reliability and
punctuality were his “biggest downfalls” and that he had
“butted heads” with Potter. O’Brien was informed that the
meeting was his opportunity to address anything related
to his employment. O’Brien did not mention asbestos dur-
ing the meeting.
In a letter dated July 17, 2009, BPS terminated
O’Brien’s employment for his inability to cooperate
with supervisors, inefficient work performance, and lack
of punctuality.
On November 24, 2010, O’Brien filed a complaint
claiming “wrongful discharge in violation of public pol-
icy including, but not limited to, the right to be free
from retaliatory discharge for reporting violations of state
and federal regulations pertaining to the demolition and
disposal of asbestos and asbestos containing materials.”
O’Brien alleged that BPS retaliated against him after he
reported actions by BPS which were unlawful under state
or federal law and “which violations imperiled the health,
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safety and welfare of [O’Brien], [O’Brien’s] co-workers,
and students and other employees of [BPS].”
In a deposition taken in May 2012, O’Brien testi-
fied, “I believe I was terminated because I raised to the
attention of [BPS] administration that I was carrying out
work orders that were HAZMAT related. When I made
[the] complaints, I believe I was fired for making those
complaints.” O’Brien clarified that by “HAZMAT,” he
meant asbestos. O’Brien acknowledged that BPS had
an asbestos policy and that he understood the policy to
require employees to stop work and report to a supervi-
sor if they saw asbestos. When asked if there was any-
thing wrong with that policy, O’Brien answered, “No.”
O’Brien understood that after reporting asbestos, he was
to let his immediate supervisor handle it, and then he
would wait until he was given the next project. It was
also O’Brien’s belief that small amounts of asbestos, less
than 3 square feet, could be removed without contacting
a supervisor.
O’Brien further testified in his May 2012 deposition
that in the summer of 2007, he complained to Potter that
“we” had been removing asbestos countertops and that
he had received another work order to remove asbestos
flooring. According to O’Brien, Potter put his fingers to
his mouth and told him to “shush,” and Potter later told
O’Brien that Potter himself had removed the flooring
later that night. O’Brien did not observe Potter remove
anything, but “[i]t was gone the next day.” O’Brien testi-
fied that he believed he had committed an unlawful act
by removing the countertops that contained asbestos,
although he also acknowledged that he did not know they
contained asbestos until told that by another employee.
O’Brien testified that on another occasion in the summer
of 2007, O’Brien realized that he was removing asbestos
flooring. He reported it to a vice principal who happened
to pass by the room, and he was instructed to stop work
on the project. The flooring was later removed by asbestos
abatement professionals. It should be noted that although
O’Brien testified repeatedly during his deposition that
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his reports about asbestos were made in the summer of
2007, he at one point indicates that he was terminated
from employment shortly after making his last report,
which suggests the reports about asbestos were made in
2009. During oral arguments before this court, counsel
confirmed the reports were made in 2009.
In his deposition, O’Brien acknowledged that he had
never been forced to remove asbestos against his will,
nor was he asked to remove asbestos after reporting
its presence. O’Brien denied ever being reprimanded or
disciplined for reporting the presence of asbestos or sus-
pected presence of asbestos or for not removing asbestos.
O’Brien acknowledged that he was subject to annual
reviews, and the “guys [he] worked with,” were also
subject to such reviews. However, according to O’Brien,
this was the first negative annual performance review
he had received during his 31⁄2 years of employment at
BPS. O’Brien stated that after his July 7, 2009, evalua-
tion, “I thought I was on my way out . . . [b]ecause of
the conversation I had with the contractor that I worked
with on my last project with BPS . . . Blomenkamp had
told [the contractor] that they had pulled me off that
project, my last project was a Nature Outdoor Explore
Classroom because of my — that I was aggressive, my
attitude, aggressive attitude.” O’Brien stated that he took
a couple vacation days after he was pulled from that
project, noting, “I got pulled off two projects right in
a row and then I took two days vacation, day and half
vacation, and when I came back there was a meeting on
protocols of taking vacation.” In discussing the July 7
evaluation meeting, O’Brien noted that Potter claimed
that O’Brien “came across the room at him aggressively
and he was in fear for his life,” but O’Brien stated that
all he did was turn toward him to ask him if he wrote
“these things” in his evaluation. O’Brien acknowledged
that Blomenkamp told him to calm down, and the evalua­
tion was discussed. When told that he did not get along
with supervisors or coworkers, O’Brien noted that he
always helped his coworkers and that “[t]he only person
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I didn’t get along with was my supervisor.” O’Brien
confirmed that concerns were expressed regarding the
efficiency and quality of his work, and punctuality, and
he became frustrated “because I was being told I didn’t
get along with my co-workers, my quality of work.”
There was no mention of asbestos or reports of asbestos
during this evaluation meeting, and O’Brien affirmed that
his frustrations at the meeting had nothing to do with
asbestos. He acknowledged receiving a formal letter of
reprimand after this meeting. O’Brien had a subsequent
meeting with McMillan and Blomenkamp, which meet-
ing O’Brien recorded without their knowledge. O’Brien
confirmed that he had stated during the recorded meeting
that he needed to work on punctuality, reliability, and get-
ting along with his peers better.
In the meeting on July 16, 2009, O’Brien stated he met
with Blomenkamp and Doug Townsend, an administrator
“right [beneath]” the superintendent of schools. O’Brien
also recorded that meeting without the knowledge of
other persons present. O’Brien stated that he took to the
meeting his laptop with pictures documenting the work
he had done over a 6- to 7-month period and that he had
written a response to the written reprimand and “was
going to present that and they said I didn’t need to.”
O’Brien claimed he asked twice if he could read it and
was told he did not need to do so. The following colloquy
then took place:
“[Counsel for BPS:] I’m going to read a [transcribed]
quote that was stated on the recording No. 2 at 2720,
quote, I know that me and [Potter] have butted heads a
few times along the way. Those are areas I need to work
on for sure as well as I believe reliability that goes along
with punctuality are my biggest downfalls I believe as an
employee for [BPS] that I need to address.
“[O’Brien:] That sounds right, yes.
“[Counsel:] Do you think you were being disciplined
due to asbestos at this point?
“[O’Brien:] Yes.
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“[Counsel:] Did you bring any asbestos issues up at
this point?
“[O’Brien:] It was in my letter that day. I never got to
read it.
“[Counsel:] Did you say anything verbally regarding
asbestos?
“[O’Brien:] Yes, to Mike Potter.
“[Counsel:] At this meeting?
“[O’Brien:] No, not at that meeting. He wasn’t at that
meeting.”
O’Brien v. Bellevue Public Schools, No. A-12-843, 2014 WL
1673287 at *1-3 (Neb. App. Apr. 29, 2014) (selected for post-
ing to court Web site).
In addition to the facts recited in the Court of Appeals’
opinion quoted above, we note that at the hearing on the
motion for summary judgment, BPS offered and the court
received the affidavit of Mike Potter, O’Brien’s immediate
supervisor, to which BPS’ policy regarding the abatement of
asbestos was attached. The policy, labeled an “Operational
Procedure,” was issued by the “Assistant Superintendent for
Buildings and Grounds.” Under the general heading “Toxic
Substances Control Act - Asbestos Abatement,” the pol-
icy stated:
The purpose of this operational procedure is to state
the district’s philosophy or approach to meeting the
requirements of the aforementioned act and to identify
the specific duties to be performed by selected members
of the administrative staff in meeting the requirements of
the act and the district’s philosophy.
The policy outlines BPS’ approach to asbestos abatement,
and then states that to effectively implement the general
approach, responsibilities are grouped into seven areas. Under
the area of “Asbestos Abatement,” the policy provides:
Personnel in the district who have disturbed asbestos
containing material or who need to disturb asbestos con-
taining material are to contact the building principal. The
building principal or his/her designee shall be respon-
sible for contacting the district’s “designated person”
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before continuing. All asbestos incidences are to be
under the supervision of the “designated person.”
Regarding O’Brien’s assignment of error regarding report-
ing, the Court of Appeals stated:
The record is clear that O’Brien did not report viola-
tions of state and federal regulations either to BPS or
to state and federal authorities. Rather, O’Brien sim-
ply reported the suspected presence of asbestos to his
supervisor and to a building administrator, which he
was expected to do pursuant to a school policy regard-
ing asbestos.
O’Brien v. Bellevue Public Schools, 2014 WL 1673287 at *4.
The Court of Appeals then stated that O’Brien appeared to
be arguing on appeal that
he did not need to report actual violations of state and
federal regulations related to asbestos for his wrongful
discharge claim to survive; rather, he only needed to
report a potential violation or potential asbestos hazard.
And if he was fired for reporting a potential violation or
potential asbestos hazard, [O’Brien claims] that violates
public policy and qualifies as an exception to the at-will
employment doctrine.
Id. at *5 (emphasis in original). The Court of Appeals rec-
ognized that O’Brien did not specifically assign the position
reflected in this argument as error in his appellate brief, but
his complaint raised the issue of wrongful discharge based on
public policy, and because a summary judgment decision is
based upon the pleadings and admitted evidence, the Court of
Appeals reviewed the proceeding for plain error.
The Court of Appeals reviewed the jurisprudence regarding
at-will employees, retaliatory discharge, and the public policy
exceptions to the at-will employment doctrine, which we recite
later in our analysis. In its opinion, the Court of Appeals
treated O’Brien’s claim as involving the reporting of the pres-
ence of asbestos, not irregularity in removal, and we agree that
only reporting is relevant on appeal.
Although O’Brien did not plead any specific statutory
or public policy exceptions in his complaint, the Court of
Appeals noted that O’Brien argued in his brief on appeal that
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certain federal statutes should be considered as providing a
clear mandate of public policy. The three statutes cited to by
O’Brien were from the following acts: (1) the Asbestos Hazard
Emergency Response Act of 1986, 15 U.S.C. § 2641 et seq.
(2012); (2) the Asbestos School Hazard Abatement Act of
1984, 20 U.S.C. § 4011 et seq. (2012); and (3) the Asbestos
School Hazard Detection and Control Act of 1980, 20 U.S.C.
§ 3601 et seq. (2012). The Court of Appeals stated that
for the sake of completeness under our plain error review
of the public policy exception to at-will employment,
we have reviewed the federal statutes [to which O’Brien
refers on appeal] to determine whether they apply to
the reporting of the presence of asbestos or in any way
support a clear mandate of public policy related to the
reporting of the presence of asbestos. We find that they
do not.
O’Brien v. Bellevue Public Schools, No. A-12-843, 2014 WL
1673287 at *6 (Neb. App. Apr. 29, 2014) (selected for posting
to court Web site).
The Court of Appeals concluded that no public policy excep-
tion to the at-will employment doctrine was available to an
employee reporting the potential presence of asbestos in the
workplace and that “O’Brien’s employment termination falls
under the employment at-will doctrine,” meaning BPS could
terminate O’Brien’s employment at any time with or without
reason. Id. at *8. The Court of Appeals therefore affirmed the
determination of the district court, which had granted summary
judgment in favor of BPS.
We granted O’Brien’s petition for further review.
ASSIGNMENT OF ERROR
On further review, O’Brien claims generally that the Court
of Appeals erred when it affirmed the grant of summary judg-
ment in favor of BPS.
STANDARDS OF REVIEW
[1,2] An appellate court will affirm a lower court’s grant of
summary judgment if the pleadings and admissible evidence
offered at the hearing show that there is no genuine issue as
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to any material facts or the ultimate inferences that may be
drawn from those facts and that the moving party is entitled to
judgment as a matter of law. Gaytan v. Wal-Mart, ante p. 49,
853 N.W.2d 181 (2014). In reviewing a summary judgment,
the 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.
ANALYSIS
O’Brien claims that the Court of Appeals erred when it
affirmed the district court’s order granting summary judgment
in favor of BPS. O’Brien was an at-will employee at BPS,
which generally means he could be terminated at any time
for any reason, subject to certain public policy exceptions.
Although the Court of Appeals examined certain federal stat-
utes and concluded that they did not provide a public policy
exception to the at-will employment doctrine, our disposition
of this case does not depend on such analysis. For the pur-
poses of this opinion, we will assume but not decide that an
action may be brought under the public policy exception to
the at-will employment doctrine based on the federal asbestos
statutes and that O’Brien satisfactorily proved a prima facie
case of retaliatory discharge. However, as reflected below, BPS
produced undisputed evidence articulating a legitimate, permis-
sible reason to discharge O’Brien, and even granting O’Brien
all favorable inferences from the undisputed evidence, O’Brien
presented no evidence that BPS’ articulated explanation was
pretextual and not the true reason for its decision. Accordingly,
BPS was entitled to judgment as a matter of law and the Court
of Appeals did not err when it affirmed the district court’s
order granting summary judgment in favor of BPS.
[3-5] Because this case was decided on a motion for sum-
mary judgment, we set forth legal principles applicable to
a motion for summary judgment. Summary judgment pro-
ceedings do not resolve factual issues, but instead determine
whether there is a material issue of fact in dispute. Brock v.
Dunning, 288 Neb. 909, 854 N.W.2d 275 (2014). In the sum-
mary judgment context, a fact is material only if it would
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affect the outcome of the case. Id. If a genuine issue of fact
exists, summary judgment may not properly be entered. Id. As
noted above, on appeal, we give O’Brien as the nonmoving
party the benefit of all reasonable inferences. See Gaytan v.
Walmart, supra.
[6,7] It is undisputed that O’Brien was hired on an at-will
basis. The general rule in Nebraska is that unless constitu-
tionally, statutorily, or contractually prohibited, an employer,
without incurring liability, may terminate an at-will employee
at any time with or without reason. Coffey v. Planet Group, 287
Neb. 834, 845 N.W.2d 255 (2014). However, we have recog-
nized a public policy exception to the at-will employment doc-
trine. Id. Under the public policy exception, an employee may
claim damages for wrongful discharge when the motivation for
the firing contravenes public policy. Id. Regarding the public
policy exception, we have stated that
it is important that abusive discharge claims of employ-
ees at will be limited to manageable and clear standards.
The right of an employer to terminate employees at will
should be restricted only by exceptions created by statute
or to those instances where a very clear mandate of public
policy has been violated.
Ambroz v. Cornhusker Square Ltd., 226 Neb. 899, 905, 416
N.W.2d 510, 515 (1987). We have applied the public pol-
icy exception in various contexts. See Jackson v. Morris
Communications Corp., 265 Neb. 423, 657 N.W.2d 634 (2003)
(discussing cases where we have applied public policy excep-
tion and determining in that case that public policy exception
applied when employee had been discharged for filing workers’
compensation claim).
[8] In cases involving allowable claims of retaliatory dis-
charge, we have applied the three-tiered burden-shifting analy-
sis that originated in McDonnell Douglas Corp. v. Green, 411
U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). See Riesen
v. Irwin Indus. Tool Co., 272 Neb. 41, 717 N.W.2d 907 (2006)
(collecting cases). The cases sometimes use the language of
alleged “discrimination” interchangeably with the language of
“impermissible conduct.” Regarding this burden-shifting analy-
sis, we have stated:
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The following procedure is utilized under the three-
tiered allocation of proof standard: First, the plaintiff has
the burden of proving a prima facie case of discrimina-
tion. See [Father Flanagan’s Boys’ Home v.] Goerke[,
224 Neb. 731, 401 N.W.2d 461 (1987)]. Second, if the
plaintiff succeeds in proving that prima facie case, the
burden shifts to the defendant-employer to articulate some
legitimate, nondiscriminatory reason for the plaintiff’s
rejection or discharge from employment. See id. This
burden is a burden of production, not of persuasion. See
Lincoln County Sheriff ’s Office v. Horne, 228 Neb. 473,
423 N.W.2d 412 (1988). The employer need only explain
what has been done or produce evidence of a legitimate,
nondiscriminatory reason for the decision. Id. It is suffi-
cient if the employer’s evidence raises a genuine issue of
fact as to whether it discriminated against the employee.
Id. “‘“If the defendant carries this burden of production,
the presumption raised by the prima facie case is rebut-
ted” . . . and “drops from the case . . . .”’” (Citation omit-
ted.) [Father Flanagan’s Boys’ Home v.] Agnew, 256 Neb.
[394,] 402, 590 N.W.2d [688,] 694 [(1999)], quoting St.
Mary’s Honor Center [v. Hicks, 509 U.S. 502, 113 S. Ct.
2742, 125 L. Ed. 2d 407 (1993)].
Third, assuming the employer establishes an articu-
lated nondiscriminatory reason for disparate treatment
of an employee, the employee maintains the burden of
proving that the stated reason was pretextual and not
the true reason for the employer’s decision; i.e., that
the disparate treatment would not have occurred but for
the employer’s discriminatory reasons. Lincoln County
Sheriff ’s Office, supra.
Riesen v. Irwin Indus. Tool Co., 272 Neb. at 47-48, 717
N.W.2d at 914. At all times, the plaintiff retains the ultimate
burden of persuading the fact finder that he or she has been
the victim of intentional impermissible conduct. See Helvering
v. Union Pacific RR. Co., 13 Neb. Ct. App. 818, 703 N.W.2d 134
(2005). See, also, Harris v. Misty Lounge, Inc., 220 Neb. 678,
371 N.W.2d 688 (1985).
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We have not previously determined whether to allow an
action for retaliatory discharge under the public policy excep-
tion to the at-will employment doctrine when an employee
alleges that he or she has been discharged for internally
reporting the presence or suspected presence of asbestos.
O’Brien urges us to recognize a public policy exception to the
at-will employment doctrine under such circumstances, and in
support of his argument, he points to three federal statutes that
he asserts support a manageable and clear mandate of public
policy related to the reporting of the presence of asbestos.
See, Asbestos Hazard Emergency Response Act of 1986, 15
U.S.C. § 2641 et seq.; Asbestos School Hazard Abatement
Act of 1984, 20 U.S.C. § 4011 et seq.; and Asbestos School
Hazard Detection and Control Act of 1980, 20 U.S.C. § 3601
et seq.
We need not decide whether there is a public policy regard-
ing internally reporting the presence or suspected presence of
asbestos pursuant to an employer’s policy in this case because,
even assuming the existence of such policy and taking all infer-
ences in favor of O’Brien, BPS is entitled to judgment as a
matter of law.
O’Brien’s Prima Facie Case.
[9] To establish a prima facie case of unlawful retaliation, an
employee must show (1) that he or she participated in a pro-
tected activity, (2) that the employer took an adverse employ-
ment action against him or her, and (3) that a causal connec-
tion existed between the protected activity and the adverse
employment action. Trosper v. Bag ’N Save, 273 Neb. 855, 734
N.W.2d 704 (2007).
With respect to the first element of a prima facie case, as
stated above, we will assume without deciding for the purposes
of this opinion that O’Brien was engaged in a protected activ-
ity when he reported the presence or suspected presence of
asbestos to his employer, as he was required to do under his
employer’s policy. With respect to the second element, it is
undisputed that O’Brien suffered an adverse employment deci-
sion when he was terminated on July 16, 2009.
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[10,11] With respect to the third element of a prima facie
case, a causal connection, we have recognized that because
an employer is not apt to announce retaliation as its motive,
an employee’s prima facie case is ordinarily proved by cir-
cumstantial evidence. See Riesen v. Irwin Indus. Tool Co., 272
Neb. 41, 717 N.W.2d 907 (2006). The Eighth Circuit Court
of Appeals discussed the possibility that temporal proximity
between protected activity and an adverse employment action
can be sufficient to circumstantially demonstrate causality. See
Smith v. Allen Health Systems, Inc., 302 F.3d 827 (8th Cir.
2002). Proximity in time between the protected activity and
discharge is a typical beginning point for proof of a causal con-
nection. See Riesen v. Irwin Indus. Tool Co., supra.
Reviewing the evidence favorably to O’Brien, we exam-
ine the temporal proximity between O’Brien’s reports of the
presence or suspected presence of asbestos and his termina-
tion of employment. O’Brien made his first report of asbestos
in May 2009, and he made the second report in the second
week of June. O’Brien’s annual written evaluation is dated
July 6, 2009, and he had a meeting regarding his evalua-
tion with Matt Blomenkamp, Potter’s immediate supervisor,
and Potter on July 7. Another meeting was held on July 13,
with Blomenkamp and James McMillan, a BPS administra-
tor, regarding O’Brien’s conduct at the July 7 meeting. After
the July 13 meeting, Blomenkamp sent a letter dated July 13,
2009, to O’Brien stating that he was being placed on admin-
istrative leave. A final meeting was held on July 16, with
Blomenkamp and Doug Townsend, a BPS assistant superin­
tendent, and after this meeting, Blomenkamp sent O’Brien a
letter informing him that he was terminated from his employ-
ment. For purposes of summary judgment, we consider the
interval between O’Brien’s second report of potential asbestos
in the second week of June and his termination of employment
to be sufficient for summary judgment purposes to establish a
causal connection between his reports of suspected asbestos
and his termination of employment. Thus, O’Brien success-
fully proved a prima facie case of impermissible termination
of employment.
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BPS’ Justification for Discharge.
The burden shifted to BPS to articulate some legitimate,
permissible reason for O’Brien’s discharge from employment.
See Riesen v. Irwin Indus. Tool Co., supra. In order to meet
the requisite burden, the employer need only explain what has
been done or produce evidence of a legitimate, permissible
reason for the decision. Id.
BPS offered evidence to show that it terminated O’Brien’s
employment due to his poor job performance. As an employee
of BPS, O’Brien was subject to annual evaluations, and the
July 7, 2009, meeting was set as the yearend evaluation. From
the time that O’Brien was employed by BPS from 2006 to July
2009, O’Brien had received three annual evaluations. O’Brien’s
written evaluation was dated July 6, 2009, and it covered the
period from June 30, 2008, to June 30, 2009. It was the peri-
odic yearend evaluation, not triggered by any event. The writ-
ten evaluation stated that O’Brien was “Not Adequate” in the
areas of teamwork, quantity of work, punctuality and attend­
ance, reliability and dependability, conscientiousness, initia-
tive, and cooperation.
On July 7, 2009, a meeting was held to discuss O’Brien’s
annual evaluation and job performance. O’Brien attended the
meeting, along with Potter and Blomenkamp. The purpose of
the July 7 meeting was not to terminate O’Brien’s employ-
ment. However, when Potter and Blomenkamp expressed their
concerns about O’Brien’s job performance, O’Brien grew frus-
trated and raised his voice. O’Brien was dismissed from work
for the day. The topic of asbestos was not mentioned by
O’Brien or BPS at the July 7 meeting.
O’Brien was given a formal letter of reprimand dated July 7,
2009, from Blomenkamp summarizing the July 7 meeting. The
formal letter of reprimand stated:
Tuesday, July 07, 2009 a meeting was scheduled in
. . . Potter’s office to discuss your year-end evaluation.
After reading the form you became upset. You started
to criticize . . . Potter, raising your voice and stepping
toward him aggressively. I asked you to calm down and to
lower your voice. You ignored my request and continued
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to speak to . . . Potter in an inappropriate manner. Again,
I asked you to calm down. At that time you directed
your argument towards me. I tried to explain to you that
you were not being fired, but that this meeting was to
address areas of concern . . . Potter and I had with your
job performance, including efficiency, quality of work,
and being punctual. In each instance, you argued that . . .
Potter wasn’t doing his job, you were in no way in the
wrong, and that I didn’t have the experience or expertise
to evaluate your job performance. As we continued to
talk, you again became agitated, raising your voice and
approaching . . . Potter in an aggressive manner. Again, I
told you to sit down and act appropriately or you would
be sent home. You didn’t follow my direction. I asked
you a second time to calm down. You again ignored me.
At that time I told you to go home and that you’d be paid
for the day. As you walked out of the office, you contin-
ued to speak to both [Potter] and I inappropriately. A few
minutes later, you returned to the office and tried to quar-
rel with the both of us. I again told you to go home. After
an array of inappropriate comments and criticisms I asked
you to leave for a third time. You then left the transporta-
tion building.
Although there is evidence in the record that O’Brien behaved
in an aggressive manner toward Potter, there is also evidence
in the record tending to minimize the encounter. On July 12,
O’Brien signed the letter indicating that he was aware that a
copy would be placed in his file.
On July 13, 2009, O’Brien attended a meeting with
Blomenkamp and McMillan. At the July 13 meeting, O’Brien
admitted to poor performance in the areas of reliability, punc-
tuality, and getting along with coworkers. He also apologized
for his behavior at the July 7 meeting. O’Brien did not mention
asbestos during the July 13 meeting.
After the July 13, 2009, meeting, Blomenkamp sent O’Brien
a letter dated July 13, 2009, which stated in part:
This letter is in regard to your recent evaluation and
past and present behavior as an employee for [BPS]. Your
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inability to cooperate with your supervisors, poor work
performance and refusal to be formally evaluated showed
a lack of judgment, respect and conscientiousness; all of
which are essential functions of your position.
The letter informed O’Brien that another meeting would be
held on July 16 and that at the meeting, O’Brien would have
the opportunity to be heard regarding his employment status.
O’Brien was also placed on administrative leave on July 13.
On July 16, 2009, a final meeting was held. O’Brien,
Blomenkamp, and Townsend attended the meeting. At the
July 16 meeting, O’Brien admitted that reliability and punc-
tuality were his “biggest downfalls” and that he had “butted
heads” with Potter. O’Brien was informed that the July 16
meeting was his opportunity to address anything related to his
employment, but he did not mention asbestos at this meeting.
After the meeting, O’Brien was sent a letter stating that his
employment was terminated. The letter stated that his “inabil-
ity to cooperate with [his] supervisors, inefficient work per-
formance and lack of punctuality show poor judgment, respect
and conscientiousness; all of which are essential functions of
[his] position.”
Based on the above evidence presented by BPS, we deter-
mine that BPS articulated a legitimate reason for terminating
O’Brien’s employment based on his poor job performance.
BPS met its burden.
O’Brien’s Failure to Present
Evidence of Pretext.
Once BPS articulated a legitimate and permissible reason
for terminating O’Brien’s employment, the burden shifted
back to O’Brien, and O’Brien was required to present evi-
dence showing that BPS’ proffered explanation for firing him
was merely pretextual. See Riesen v. Irwin Indus. Tool Co.,
272 Neb. 41, 717 N.W.2d 907 (2006). Because the case was
decided on summary judgment, we give O’Brien the favor-
able inferences from the evidence, and we must determine
whether O’Brien presented evidence to create a genuine issue
of fact for the fact finder. O’Brien’s evidence, when viewed
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in the light most favorable to him as the nonmoving party,
needed to create an inference in reasonable minds that BPS
had retaliatory motives for firing him and that the explanation
for terminating O’Brien was pretextual. O’Brien presented no
such evidence.
[12] In employment law involving alleged impermissible
termination, a “pretext” is found when the court disbelieves the
reason given by an employer, allowing an inference that the
employer is trying to conceal an impermissible reason for its
action. See Riesen v. Irwin Indus. Tool Co., supra, citing Ryther
v. KARE 11, 108 F.3d 832 (8th Cir. 1997). In Smith v. Allen
Health Systems, Inc., 302 F.3d 827 (8th Cir. 2002), involving
alleged discrimination, the Eighth Circuit Court of Appeals
stated that although strong evidence of a prima facie case of
discrimination can also be considered to establish pretext,
proof of pretext or actual discrimination requires more sub-
stantial evidence. The rationale expressed in Smith applies to
the instant case decided on summary judgment. In the present
case involving an alleged impermissible termination, O’Brien
offered no material evidence supporting an inference of pretext
in his prima facie case or in his rebuttal.
The appellate courts in Nebraska have previously consid-
ered pretext, and we refer to them for guidance. In Rose v.
Vickers Petroleum, 4 Neb. Ct. App. 585, 587, 546 N.W.2d 827,
830 (1996), a retaliatory discharge case, an African-American
employee, who was not in proper uniform, was asked by a
manager, “‘Where’s your smock at, boy?’” The employee
claimed that calling him “‘boy’ was ‘a polite way of calling me
a nigger.’” Id. The next day, the employee called the employ-
er’s headquarters and registered a complaint. The employee
was fired 2 weeks later for reporting to work 3 hours late. The
employee filed a claim with the Nebraska Equal Opportunity
Commission (NEOC) based on having been fired allegedly in
retaliation for complaining to headquarters or otherwise oppos-
ing an unlawful practice. The NEOC dismissed the claim, and
the district court affirmed the NEOC’s ruling. On appeal, the
Court of Appeals determined that the district court did not err
when it determined that the employee’s complaint was prop-
erly dismissed by the NEOC. Despite the temporal proximity
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between the complaint regarding the statement and the termi-
nation, the NEOC had determined that even if the employee
established a prima facie case, the explanation given by the
employer was not pretextual. The evidence showed that the
employee had arrived at work 3 hours late, was fired by an
individual not involved in the incident, and had been late on
other occasions. The employee did not present evidence tend-
ing to negate the employer’s evidence.
Unlike the outcome in Rose, in Riesen v. Irwin Indus. Tool
Co., 272 Neb. 41, 717 N.W.2d 907 (2006), we considered an
appeal which had been decided on summary judgment and
determined that the inferences from an employer’s action
terminating the employment of its employee was potentially
a pretext for impermissible termination precluding summary
judgment. In Riesen, the employee filed an action against his
former employer alleging that he was fired in retaliation for fil-
ing a workers’ compensation claim. The employer claimed the
employee was terminated for misrepresenting his past employ-
ment on his employment application. The employee presented
evidence showing that there had been no similar disciplinary
actions for other employees. Additionally, we noted evidence
of statements allegedly made by the employer which tended
to support an inference that the employer’s proffered reason
for the employee’s termination was pretextual. The employer’s
several negative comments regarding the employee included:
“‘The little son of a bitch is faking and he only did this to
get his raise’”; “‘it would be a lot easier on all of [them] if
[the employee would] just quit’”; and “‘“[y]ou finally messed
up . . . you lied on your work comp application.”’” Id. at
54-55, 717 N.W.2d at 918-19 (emphasis in original). Viewing
the evidence in a light most favorable to the employee, we
determined that a genuine issue of material fact existed as to
whether the reason proffered by the employer for the termina-
tion of the employee’s employment was a pretext for an imper-
missible termination.
In the present case, O’Brien contends that BPS’ reasons for
firing him are pretextual. In this regard, he points to two fac-
tors: (1) the temporal proximity between reporting suspected
asbestos and being fired and (2) his suggestion that in prior
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years, his work was satisfactory. As to temporal proximity,
O’Brien relies on the period between his reports of potential
asbestos and his termination and contends that such proxim-
ity “alone should be enough to generate a material issue of
material fact as to the issue of pretext.” Memorandum brief
for appellant in support of petition for further review at 8.
We do not agree. Just as in Rose v. Vickers Petroleum, 4 Neb.
App. 585, 546 N.W.2d 827 (1996), the mere temporal proxim-
ity between O’Brien’s reports of suspected asbestos and his
firing does not overcome BPS’ specific, direct, and consider-
able evidence regarding poor job performance. Unlike Riesen
v. Irwin Indus. Tool Co., supra, where the employee pointed
to several negative statements regarding the employee made
by the employer, O’Brien has presented no such evidence,
circumstantial or direct, and he further acknowledges that
asbestos was not mentioned in the meetings with BPS prior to
his firing.
O’Brien also contends that a genuine issue of material fact
exists as to whether BPS’ explanation was pretextual, because
he claims that he performed his job in a positive manner in the
years prior to his termination of employment. O’Brien indi-
cates that he received three annual evaluations during the time
he was employed by BPS from 2006 to July 2009. O’Brien
stated that he had received positive annual evaluations regard-
ing his job performance until the yearend review in July 2009,
although the prior evaluations are not in the record.
Viewing the evidence in the light most favorable to O’Brien,
and even assuming his annual evaluations prior to July 2009
were satisfactory in the sense that his employment was not ter-
minated earlier, it does not necessarily follow that his yearend
evaluation covering June 30, 2008, to June 30, 2009, which is
squarely at issue in this case, must also be positive. In fact, the
evidence and O’Brien’s admissions regarding the current year
are to the contrary.
In his deposition, O’Brien admitted that reliability and punc-
tuality were his “biggest downfalls” and that he believed he
was being fired for his aggressive behavior. O’Brien’s deposi-
tion with respect to the July 7, 2009, meeting regarding his
evaluation contains the following colloquy:
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[Counsel for BPS:] Did you believe you were being
terminated at that interview — I mean evaluation?
[O’Brien:] Did I believe I was being terminated?
[Counsel for BPS:] At that evaluation on July 7th,
2009.
[O’Brien:] Yes. I thought I was on my way out.
[Counsel for BPS:] And why was that?
[O’Brien:] Because of the conversation I had with
the contractor that I worked with on my last project
with BPS.
....
[Counsel for BPS:] And what did that contractor
tell you?
[O’Brien:] That . . . Blomenkamp had told him that
they had pulled me off that project, my last project was a
Nature Outdoor Explore Classroom because of my — that
I was aggressive, my attitude, aggressive attitude.
O’Brien testified that he recorded the July 16, 2009, meet-
ing with Blomenkamp and Townsend without their knowledge.
O’Brien’s deposition contains the following colloquy with
respect to the July 16 meeting:
[Counsel for BPS:] I’m going to read a [transcribed]
quote that was stated on the recording No. 2 at 2720,
quote, I know that me and [Potter] have butted heads a
few times along the way. Those are areas I need to work
on for sure as well as I believe reliability that goes along
with punctuality are my biggest downfalls I believe as an
employee for [BPS] that I need to address.
[O’Brien:] That sounds right, yes.
We also note that asbestos was not mentioned by O’Brien
or BPS representatives at any of the July meetings prior to
his termination.
In sum, O’Brien did not present any evidence the infer-
ence from which created a genuine issue as to whether BPS’
evidence articulating the permissible reason of poor job per­
formance was a pretext for an impermissible termination.
Thus, the district court did not err when it granted summary
judgment in favor of BPS, and the Court of Appeals did not err
when it affirmed this ruling.
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CONCLUSION
For the reasons explained above, O’Brien failed to present
evidence of a genuine issue of material fact that the permis-
sible reason of poor job performance articulated by BPS for
his termination was a pretext; therefore, BPS is entitled to
judgment as a matter of law. The Court of Appeals did not err
when it affirmed the district court’s order granting summary
judgment in favor of BPS.
Affirmed.
State of Nebraska ex rel. Counsel for Discipline
of the Nebraska Supreme Court, relator,
v. James E. Connor, respondent.
___ N.W.2d ___
Filed December 12, 2014. No. S-13-963.
1. Disciplinary Proceedings: Appeal and Error. In attorney discipline and admis-
sion cases, the Nebraska Supreme Court reviews recommendations de novo on
the record, reaching a conclusion independent of the referee’s findings.
2. Disciplinary Proceedings. To determine whether and to what extent discipline
should be imposed in a lawyer discipline proceeding, the Nebraska Supreme
Court considers the following factors: (1) the nature of the offense, (2) the need
for deterring others, (3) the maintenance of the reputation of the bar as a whole,
(4) the protection of the public, (5) the attitude of the respondent generally, and
(6) the respondent’s present or future fitness to continue in the practice of law.
3. ____. Each attorney discipline case must be evaluated individually in light of its
particular facts and circumstances. In addition, the propriety of a sanction must
be considered with reference to the sanctions imposed in prior similar cases.
Original action. Judgment of suspension.
Kent L. Frobish, Assistant Counsel for Discipline, for
relator.
Thomas J. Anderson, of Thomas J. Anderson, P.C., L.L.O.,
and Tim J. Kielty for respondent.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.