McPherson v. City of Scottsbluff

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
09/20/2019 08:06 AM CDT
- 765 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
McPHERSON v. CITY OF SCOTTSBLUFF
Cite as 303 Neb. 765
Ian B. McPherson, appellant, v. City of Scottsbluff,
in the County of Scotts Bluff, in the
State of Nebraska, appellee.
___ N.W.2d ___
Filed July 26, 2019. No. S-18-834.
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. Fair Employment Practices: Discrimination: Proof. To show a busi-
ness necessity for requiring an employee (as distinguished from an
applicant) to submit to a medical examination under Neb. Rev. Stat.
§ 48-1107.02(1)(j) (Cum. Supp. 2018), an employer has the burden to
show that (1) the business necessity is vital to the business; (2) it has
a legitimate, nondiscriminatory reason to doubt the employee’s abil-
ity to perform the essential functions of his or her duties; and (3) the
examination is no broader than necessary. There must be significant
evidence that could cause a reasonable person to inquire as to whether
an employee is still capable of performing his or her job. An employ-
ee’s behavior cannot be merely annoying or inefficient to justify an
examination; rather, there must be genuine reason to doubt whether that
employee can perform job-related functions.
4. 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.
- 766 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
McPHERSON v. CITY OF SCOTTSBLUFF
Cite as 303 Neb. 765
Appeal from the District Court for Scotts Bluff County: Leo
P. Dobrovolny, Judge. Affirmed.
Joy Shiffermiller and Abby Osborn, of Shiffermiller Law
Office, P.C., L.L.O., for appellant.
Steven W. Olsen and Paul W. Snyder, of Simmons Olsen
Law Firm, P.C., L.L.O., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
Papik, JJ.
Papik, J.
Ian B. McPherson was a police officer for the City of
Scottsbluff, Nebraska (City). After the police chief became
concerned that McPherson was exhibiting irrational, paranoid,
and hostile behavior, he asked McPherson to undergo a fitness-
for-duty examination (FFDE). McPherson refused, and the City
terminated his employment. McPherson sued, alleging discrim-
ination and retaliation under the Nebraska Fair Employment
Practice Act (NFEPA). The district court granted the City’s
motion for summary judgment. McPherson now appeals.
As to McPherson’s discrimination claim, we find that based
on the undisputed evidence in the summary judgment record,
the City could lawfully require McPherson to undergo an
FFDE under Neb. Rev. Stat. § 48-1107.02(1)(j) (Cum. Supp.
2018). And because McPherson alleged that the City retaliated
against him for expressing disapproval of the actions of his fel-
low employees, as opposed to his employer, there is no genuine
issue of material fact as to whether he engaged in protected
activity pursuant to Neb. Rev. Stat. § 48-1114(3) (Reissue
2010). Accordingly, we affirm.
BACKGROUND
McPherson worked for the City as a patrol officer from
January 19, 2010, to February 3, 2016, when the City termi-
nated his employment. The City had no records that McPherson,
whose job performance met standards, had any disability.
- 767 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
McPHERSON v. CITY OF SCOTTSBLUFF
Cite as 303 Neb. 765
McPherson filed a complaint alleging disability discrimina-
tion and retaliation under NFEPA. He claimed that the City
fired him after he reported his belief that members of the police
department were involved in a break-in on police property. He
asserted that the City violated NFEPA by requiring him to take
a FFDE that was not job related and consistent with business
necessity and by retaliating against him because he opposed
unlawful practices.
The City’s answer contended that the FFDE was job
related and consistent with business necessity and that it fired
McPherson for insubordination in not submitting to the FFDE
when ordered. The City moved for summary judgment, and
McPherson moved for partial summary judgment on liability.
The district court conducted a hearing on the motions. The evi-
dence received at the hearing demonstrated that McPherson’s
termination came about as described below.
McPherson Raises Concerns
Regarding Break-In.
On or about November 3, 2015, the evidence lockers for the
Scottsbluff Police Department were burglarized. After learning
about the break-in, McPherson became suspicious that two of
his colleagues, Officers William Howton and Matthew Herbel,
were responsible.
On December 2, 2015, McPherson contacted Brandi Brunz,
one of the police department’s investigators, and reported that
he believed Howton and Herbel were involved with the bur-
glary. Brunz encouraged McPherson to discuss the matter with
Capt. Brian Wasson.
That evening, McPherson contacted Wasson, stating that
he needed to talk to Wasson immediately and needed to “get
something off of his chest.” At that time, McPherson was
driving around in Scottsbluff, but he told Wasson he would
be more comfortable meeting in Gering, Nebraska. Wasson
agreed to meet in Gering, where McPherson told him that what
he was about to say would make Wasson think McPherson
was “crazy” and that it had been bothering him for days, so
- 768 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
McPHERSON v. CITY OF SCOTTSBLUFF
Cite as 303 Neb. 765
much so that he had not been eating. McPherson informed
Wasson that he suspected the burglary of the evidence lock-
ers was a staged event to compromise a particular homicide
investigation.
McPherson explained to Wasson that on the night of the
burglary, the Scottsbluff chief of police, Kevin Spencer (Chief
Spencer), had given a speech to a group of nurses and that
Chief Spencer might have discussed some confidential infor-
mation about a homicide. McPherson believed that the speech
referring to the homicide and the burglary of the evidence lock-
ers the same night were not coincidental. He further said he
believed that someone had made a “statement” at the burglary
site by leaving rubbed patterns on a car that was related to the
homicide investigation.
McPherson also recalled that the day before the burglary,
Herbel had asked him to go hunting the next morning, which
McPherson thought was strange, because Herbel had never
asked McPherson to go hunting before. McPherson told
Wasson he believed this was to establish an alibi for the bur-
glary. McPherson also stated that shortly before the burglary
was discovered, Howton asked McPherson, “‘Has anything
big happened yet?’” McPherson considered this suspicious,
because he did not recall Howton ever asking him something
like that before.
McPherson reported to Wasson that soon after the burglary,
he was driving off duty when he noticed Howton driving
nearby. Howton pulled over to talk to McPherson. McPherson
said that when Howton approached him to talk, McPherson
immediately got the “‘Heebie Jeebies.’” McPherson stated that
Howton discussed the burglary with him and that McPherson
felt Howton kept looking over his shoulder “as if he was para-
noid.” In an affidavit prepared for trial, McPherson asserted
that Howton appeared tense, was scanning the area, and had his
hand on his gun during his conversation with McPherson, but
it is not clear from the affidavit whether McPherson reported
these details to Wasson.
- 769 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
McPHERSON v. CITY OF SCOTTSBLUFF
Cite as 303 Neb. 765
McPherson further described to Wasson an incident earlier
in the day on December 2, 2015. McPherson stated during
a conversation about the burglary, Howton asked what was
going on with the burglary case. McPherson claimed this
was of significant concern, because it was inconceivable that
Howton had not already looked at the case file. Howton also
asked McPherson what the report number was for the burglary
and what was depicted in a particular crime scene photograph.
According to McPherson, this was concerning, because he
claimed that Howton had to have already known this informa-
tion and was only asking in an attempt to conceal the fact that
he was involved in the burglary.
When Wasson asked what motive Howton or Herbel would
have to burglarize the evidence lockers, McPherson theorized
that Howton may want to compromise the homicide investiga-
tion because his brother might have been involved in the homi-
cide. McPherson’s explanation for suspecting Howton’s brother
was based on his understanding that the homicide involved
a homosexual relationship and his suspicion that Howton’s
brother is gay. McPherson based his suspicion that Howton’s
brother was gay on his observation that Howton had never
formally introduced his brother to McPherson. In addition,
McPherson said Howton’s wife made remarks to McPherson’s
wife that made McPhersons’ wife suspect Howton’s brother is
gay. McPherson also pointed out that like an individual in the
homicide case, Howton and Howton’s brother had previously
worked in construction.
McPherson also presented the theory that Howton and
Herbel were motivated by money. McPherson said that Howton
makes multiple drug arrests, but that Howton seems to seize
less money than other officers. McPherson stated that based
on his knowledge of Howton’s possessions and debts owed
by Howton’s wife, it does not appear Howton “lives within
his means.”
Last, McPherson said perhaps Howton and Herbel wanted
to make the department look bad, claiming that Howton and
- 770 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
McPHERSON v. CITY OF SCOTTSBLUFF
Cite as 303 Neb. 765
Herbel do not like the current police administration. McPherson
supported this theory by stating he heard the two officers dis-
cussing the homicide case and that Herbel agreed when Howton
said, “‘They won’t be able to keep this out of the media.’”
The next morning, on December 3, 2015, McPherson sent
an email to other patrol officers asking for extra patrol around
his house. The email included photographs of shoeprints and
of circles drawn in the snow. Brunz spoke to McPherson
about the email, and McPherson told her that he believed the
circles in the snow were “‘glasses or eyes’” that someone had
drawn. McPherson also told Brunz that he noticed a patrol car
driving slowly near his house the night he first reported his
suspicions about the burglary and that he had trouble sleep-
ing afterward.
Wasson drafted a report of his conversations with Brunz and
McPherson and provided it to Chief Spencer. The report did not
include any statement by McPherson that Howton had his hand
on his weapon during the conversation that gave McPherson the
“Heebie Jeebies.” Wasson’s report caused Chief Spencer to be
concerned because, according to Wasson’s account, McPherson
said he had not been eating, the allegations McPherson made
struck Chief Spencer as bizarre, and the allegations were made
against McPherson’s self-described friends.
By this time, investigators had identified a burglary suspect
through several pieces of evidence. (This suspect eventually
pleaded guilty to theft charges.) Nevertheless, Chief Spencer
referred McPherson’s allegations to the Nebraska State Patrol
via an assistant attorney general for investigation, as he did
not believe it was appropriate for the department to conduct
its own investigation. Chief Spencer explained to the assist­
ant attorney general that he was “concerned about Officer
McPherson’s wellbeing knowing that he is a war veteran and
this behavior seemed very out of character.”
Based on McPherson’s reports to Wasson, the assistant attor-
ney general agreed that there was no basis to believe any offi-
cers had been involved in the burglary. Even so, Chief Spencer
- 771 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
McPHERSON v. CITY OF SCOTTSBLUFF
Cite as 303 Neb. 765
and the assistant attorney general arranged for McPherson to
report the allegations to Sgt. Monte Lovelace of the Nebraska
State Patrol.
On December 4, 2015, Chief Spencer contacted Dr. Matthew
Hutt, a psychologist. Dr. Hutt told him these statements raised
concerns about McPherson’s fitness for duty and referred Chief
Spencer to a colleague in Omaha, Nebraska, who specialized
in law enforcement and had conducted FFDE’s.
On December 7, 2015, when Chief Spencer told McPherson
about the arrangements for him to speak to Lovelace, McPherson
again talked about the shoeprints in the snow and the circles
that he thought represented eyes or glasses. McPherson said
he thought it was a “sign” from Howton that he was watch-
ing McPherson.
State Patrol Interviews McPherson.
On December 7, 2015, Lovelace interviewed McPherson
about his allegations. Prior to the interview, Lovelace had
never met McPherson nor did he have any information regard-
ing McPherson’s mental health or any information that it was
a concern. At a deposition, Lovelace described McPherson’s
demeanor during the interview as very nervous, troubled,
standoffish, closed off, always frowning, and almost beside
himself. Lovelace stated that the information McPherson gave
was erratic and irrational and that it led him to be concerned
about McPherson.
In the interview, McPherson related to Lovelace many of the
same incidents he had described to Wasson, including his road-
side interaction with Howton. McPherson told Lovelace, as he
had told Wasson, that as soon as Howton began to approach
McPherson’s vehicle, McPherson got the “Heebie Jeebies.”
McPherson also told Lovelace that he was not sure why he felt
that way and that in response to this feeling, McPherson put his
gun under his arm and put his vehicle in reverse. McPherson
said he was extremely scared while talking to Howton, that he
did not know how he was going to get himself out of the situ-
ation, and that he realized he had made a mistake in talking
- 772 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
McPHERSON v. CITY OF SCOTTSBLUFF
Cite as 303 Neb. 765
to Howton about the burglary. McPherson’s description of
this interaction made Lovelace concerned about the safety of
McPherson and other officers.
McPherson also told Lovelace about his concern that
Howton, who McPherson considered his best friend, made
many drug arrests but never had large amounts of cash, and he
wondered how Howton could afford all that he had. McPherson
told Lovelace that he asked his wife, who works at a bank, to
look into Howton’s loan records.
McPherson expressed a firm conviction that his colleagues
were involved in the break-in at the department. McPherson
said that because he suspected his good friends, he had initially
questioned whether he was “losing [his] mind” or whether he
was “going crazy” and stated that “this is absolutely insane.”
He stated that prior to his discussion with Wasson, his suspi-
cions had been “eating [him] up.” McPherson implied that after
he spoke to Wasson, the tracks in the snow at his residence
confirmed what he suspected.
Following the interview, Lovelace and the assistant attorney
general concluded that McPherson’s information lacked any
factual basis upon which to open an investigation and that there
was no basis to investigate further.
On December 14, 2015, Lovelace informed Chief Spencer
of his concerns and findings. He also told Chief Spencer that
he wondered if McPherson was experiencing some sort of
paranoia. Chief Spencer listened to the recorded version of
Lovelace’s interview with McPherson, and several comments
made by McPherson, summarized above, caused Chief Spencer
concern that McPherson might be irrational and displaying
signs of paranoia and hostility. Like Lovelace, Chief Spencer
was particularly concerned that McPherson felt the need to arm
himself during a conversation with Howton, because it impli-
cated the safety of other officers.
City Follows Up With McPherson.
McPherson again met with Wasson on December 14, 2015.
Wasson said that McPherson was “difficult to follow” during
- 773 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
McPHERSON v. CITY OF SCOTTSBLUFF
Cite as 303 Neb. 765
the conversation, that he could not articulate his suspicions in
any order, and that he appeared to be paranoid in most of his
interactions with Howton and Herbel.
McPherson began the conversation by confirming that
Wasson had received the information about the shoeprints and
“eyeballs” drawn in the snow around his house. McPherson
told Wasson that he believed Howton had very slowly driven
by his home, was involved with the markings in the snow,
and was watching McPherson’s home. McPherson also said
that Howton appeared to be watching him closely during a
recent briefing when McPherson took a photograph of another
officer’s boots. He further stated that he thought he was also
“‘getting the eyeball from Officer Herbel.’”
McPherson then brought up events that occurred on
December 12, 2015, when he took a “short day” and came
in late. McPherson thought it odd that Howton asked where
he was at shift change. McPherson went on to tell about his
observations of several other officers that day and described
their behavior as strange. McPherson then told Wasson he had
convinced himself that the officers assisted with the burglary
to anger the administration and that all the details seemed to
fit together.
McPherson described to Wasson in detail how easy it would
be for them to burglarize the evidence lockers while on duty.
McPherson recounted that he told Herbel that if McPherson
were a serial killer, it would be easy for him to “log body parts
into evidence.” McPherson noted that this statement appeared
to make Herbel uncomfortable. He also said that Howton’s
wife had come over in the past to chat and that he believed
she was attempting to get information from McPherson and
his wife by asking open-ended questions. He informed Wasson
that he felt Howton knew McPherson was “onto something”
and was “trying to figure out what it is.”
McPherson told Wasson that he was angry with Howton and
Herbel. He was confident that they were involved in the bur-
glary and that they were “throwing it in his face.” McPherson
- 774 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
McPHERSON v. CITY OF SCOTTSBLUFF
Cite as 303 Neb. 765
indicated that he could not think of any other explanation for
their behavior.
Wasson reported the conversation to Chief Spencer. It
caused Chief Spencer to be more concerned about McPherson
and his statements. Chief Spencer felt it was his duty to take
all action necessary to ensure the officers and the public were
safe, especially because McPherson’s job duties as a patrol
officer included carrying a firearm and being involved in high
risk and high pressure situations. Chief Spencer questioned
whether McPherson could perform his duties without posing a
threat to himself and others.
City Arranges FFDE, and McPherson
Refuses to Participate.
Chief Spencer contacted Dr. Shari Conner, a psychologist.
Chief Spencer informed Dr. Conner of McPherson’s state-
ments and sent her written reports. Like Dr. Hutt, she advised
Chief Spencer that McPherson’s behavior raised concerns
about his fitness for duty. Chief Spencer arranged an FFDE
for McPherson.
When Chief Spencer informed McPherson that he had
arranged an FFDE, McPherson stated he was expecting this,
agreed to go to Omaha for the FFDE, and told Chief Spencer
that if something was wrong, he needed to know too. According
to Chief Spencer, at that time, McPherson pointed to his head,
stating that he had been “wondering himself.”
The City placed McPherson on administrative leave with
pay. McPherson subsequently retained counsel and canceled
the FFDE appointment. Counsel for McPherson then cor-
responded with the City about scheduling another FFDE,
but McPherson again opted not to attend. In response, Chief
Spencer ordered McPherson to attend the FFDE. Chief Spencer
informed McPherson that if he refused to attend, he would
consider preparing an accusation for termination for insubordi-
nation. McPherson refused to participate in the FFDE.
Chief Spencer and McPherson then met, with McPherson’s
counsel present. Chief Spencer asked McPherson why he
- 775 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
McPHERSON v. CITY OF SCOTTSBLUFF
Cite as 303 Neb. 765
should not be recommended for termination. McPherson gave
no response. Chief Spencer filed an accusation recommend-
ing termination of McPherson’s employment and sent it to the
Scottsbluff city manager for further action.
The city manager met with McPherson and his counsel
and advised McPherson that he was considering terminating
McPherson’s employment and asked if McPherson had any
reason why he should not take that action. McPherson gave
no response.
On February 1, 2016, the city manager asked McPherson
and his counsel to discuss the matter further and to respond
by 2 p.m. on February 2. McPherson did not respond by the
deadline. On February 3, the city manager delivered a letter
to McPherson informing him that his employment had been
terminated for his refusal to follow Chief Spencer’s order to
attend the FFDE.
District Court’s Rulings.
The district court overruled McPherson’s motion for sum-
mary judgment and sustained the City’s motion for summary
judgment. In its written order, the district court stated that it
found no dispute as to the following facts: There was no fac-
tual basis for McPherson’s allegations concerning the burglary,
McPherson was concerned about his own mental health, behav-
ior by other officers that McPherson considered suspicious
had reasonable explanations, McPherson thought he was being
watched by other officers, McPherson suddenly felt threatened
during a conversation with Howton on the street and secretly
held his gun, and McPherson had his wife secretly look into
Howton’s bank records.
Regarding McPherson’s discrimination cause of action, the
district court found that McPherson was fired for refusing to
submit to the FFDE and not because he was regarded as hav-
ing a disability. It determined that the requested FFDE was
job related and of business necessity, considering McPherson’s
undisputed behavior. According to the court, the City was rea-
sonable in requiring the FFDE.
- 776 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
McPHERSON v. CITY OF SCOTTSBLUFF
Cite as 303 Neb. 765
As to McPherson’s claims of retaliation, the district court
found no evidence to support a finding that the City was
retaliating against McPherson for reporting his belief that other
officers were involved in the burglary. It observed that the City
had thoroughly followed up on his concerns.
ASSIGNMENTS OF ERROR
McPherson assigns, condensed and rephrased, that the dis-
trict court erred in (1) finding that the City was entitled to
summary judgment on his claim that it had violated NFEPA by
unlawfully requiring him to submit to an FFDE and (2) finding
that the City was entitled to summary judgment on his claim
that the City had retaliated against him for opposing unlaw-
ful activity.
McPherson’s summary of his argument also asserts that
the district court judge erred in not recusing himself, but
this alleged error is neither assigned nor argued, and we will
not consider it. See State v. Munoz, ante p. 69, 927 N.W.2d
25 (2019).
STANDARD 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. Larsen v. 401 Main St., 302 Neb. 454, 923
N.W.2d 710 (2019). 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.
ANALYSIS
FFDE Claim.
We begin with McPherson’s assertion that there are genuine
issues of material fact that precluded the district court from
- 777 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
McPHERSON v. CITY OF SCOTTSBLUFF
Cite as 303 Neb. 765
granting the City summary judgment on his claim that the
City discriminated against him by unlawfully requiring him to
submit to an FFDE. McPherson is correct that under NFEPA,
requiring a disabled employee to undergo an examination can,
under certain circumstances, constitute employment discrimi-
nation. See § 48-1107.02(1)(j). The parties dispute whether
McPherson was a “qualified individual with a disability” eli-
gible for the protections of NFEPA in the first place. See,
§ 48-1107.02(1); Neb. Rev. Stat. § 48-1102(9) (Cum. Supp.
2018) (defining “[d]isability” as “(a) a physical or mental
impairment that substantially limits one or more of the major
life activities of such individual, (b) a record of such an impair-
ment, or (c) being regarded as having such an impairment”).
But even assuming without deciding that he was, we disagree
with McPherson’s contention that there was a genuine issue of
fact as to whether the City committed discrimination in requir-
ing an FFDE. We conclude that the record contains undisputed
evidence that the City’s actions fell under NFEPA’s business
necessity exception.
[3] NFEPA provides that it is an act of discrimination for
an employer to require a “qualified individual with a dis-
ability,” § 48-1107.02(1), to submit to a medical examination
“unless the examination or inquiry is shown to be job-related
and consistent with business necessity,” § 48-1107.02(1)(j).
We have held that to show a business necessity for requir-
ing an employee to submit to a medical examination under
§ 48-1107.02, an employer has the burden to show that (1) the
business necessity is vital to the business; (2) it has a legiti-
mate, nondiscriminatory reason to doubt the employee’s ability
to perform the essential functions of his or her duties; and (3)
the examination is no broader than necessary. Arens v. NEBCO,
Inc., 291 Neb. 834, 870 N.W.2d 1 (2015). In this case, we
understand McPherson to be contending that there were genu-
ine issues of material fact regarding the second element of the
business necessity exception: whether the City had a legitimate
reason to doubt his ability to do his job. With respect to this
- 778 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
McPHERSON v. CITY OF SCOTTSBLUFF
Cite as 303 Neb. 765
second element, we have held that there must be significant
evidence that could cause a reasonable person to inquire as to
whether an employee is still capable of performing his or her
job. See id. An employee’s behavior cannot be merely annoy-
ing or inefficient to justify an examination; rather, there must
be genuine reason to doubt whether that employee can perform
job-related functions. Id.
In order to determine whether there is reason to doubt that
an employee is capable of performing his or her job, a court
must also take account of what the job entails. See Conroy v.
New York Dept. of Correctional, 333 F.3d 88, 99 (2d Cir. 2003)
(“what constitutes a business necessity will undoubtedly vary
in different workplaces”). In applying a provision of the federal
Americans with Disabilities Act that is nearly identical to the
provision of NFEPA at issue, see 42 U.S.C. § 12112(d)(4)(A)
(2012), a number of federal courts have held that the unique
nature of public safety work must be considered in determin-
ing whether a business necessity exists to support a request
for an FFDE. We have previously held that it is appropriate to
look to federal court decisions construing legislation similar to
NFEPA. See Hartley v. Metropolitan Util. Dist., 294 Neb. 870,
885 N.W.2d 675 (2016).
In Watson v. City of Miami Beach, 177 F.3d 932 (11th Cir.
1999), the court held that a municipality was entitled to sum-
mary judgment on a police officer’s claim that the municipal-
ity discriminated against him by requiring him to undergo an
unnecessary FFDE. The court explained that where a police
officer’s fitness for duty is at issue, an employer may require
an FFDE when it “reasonably perceives an officer to be even
mildly paranoid, hostile, or oppositional.” Id. at 935. As the
court explained:
Police departments place armed officers in positions
where they can do tremendous harm if they act irratio-
nally. . . . [T]he [Americans with Disabilities Act] does
not, indeed cannot, require a police department to forgo
a fitness for duty examination to wait until a perceived
- 779 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
McPHERSON v. CITY OF SCOTTSBLUFF
Cite as 303 Neb. 765
threat becomes real or questionable behavior results
in injuries.
Watson, 177 F.3d at 935.
Similarly, in Coffman v. Indianapolis Fire Dept., 578 F.3d
559 (7th Cir. 2009), the court held that behavior that might
not justify a fitness for duty inquiry for some jobs will be suf-
ficient to demonstrate a business necessity in a public safety
position. In Coffman, a municipality had requested a firefighter
to undergo an FFDE. In the course of its opinion affirming the
entry of summary judgment in favor of the municipality, the
court stated:
Although a psychological evaluation in response to “with-
drawn” and “defensive” behavior might not be job-related
in many vocations, we do not second-guess the propri-
ety of such an evaluation for a firefighter. The [fire]
Department has an obligation to the public to ensure that
its workforce is both mentally and physically capable
of performing what is doubtless mentally and physi-
cally demanding work. This special work environment
convinces us that the Department’s decision to refer [the
plaintiff] for the [FFDE’s] was job-related and consistent
with business necessity.
Id. at 566.
Brownfield v. City of Yakima, 612 F.3d 1140 (9th Cir. 2010),
is yet another case in which a federal court of appeals held
that a claim that a police officer was unlawfully forced to
undergo an FFDE must be reviewed with the nature of the job
in mind. In that case, the court explained that because police
officers are likely to encounter stressful and dangerous situa-
tions, a police department can require its officers to undergo
an FFDE if they have “good reason to doubt an officer’s abil-
ity to respond to these situations in an appropriate manner.”
Id. at 1147.
Many other cases are to the same effect. See, e.g., Wisbey
v. City of Lincoln, Neb., 612 F.3d 667 (8th Cir. 2010) (nature
of employee’s position as emergency dispatcher involved lives
- 780 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
McPHERSON v. CITY OF SCOTTSBLUFF
Cite as 303 Neb. 765
at risk, supporting business necessity exception), abrogated on
other grounds, Torgerson v. City of Rochester, 643 F.3d 1031
(8th Cir. 2011); Dengel v. Waukesha County, 16 F. Supp. 3d
983 (E.D. Wis. 2014) (business necessity exception applied
where employee who maintained radios used in emergency
services and therefore vital to public safety displayed behav-
ior that was obsessive, intense, and detached from reality);
Davis-Durnil v. Village of Carpentersville, Ill., 128 F. Supp. 2d
575 (N.D. Ill. 2001) (observing that police officers encounter
stressful situations and that employers are entitled to inquire
into their employees’ mental health where it has legitimate
concerns about employee and public safety).
In this case, as in many of the cases discussed above, there
is much undisputed evidence demonstrating that the City had
reason to doubt whether McPherson could perform the job-
related duties of a police officer. This included the evidence
that McPherson was aware of and had expressed to the City
that his break-in theories were unlikely to be true to the point
that they could cause uncertainty about his mental health.
When he first reported his concerns about the break-in to
Wasson, he prefaced his statements by saying Wasson was
going to think he was “crazy,” but that the issue had been
bothering him for days, to the extent that he had not been eat-
ing. In his interview with Lovelace, McPherson acknowledged
that his theories made him question whether he was “losing
[his] mind” or “going crazy” and called the situation “abso-
lutely insane,” but he held to the firm conviction that his theo-
ries were true. And later, when McPherson initially agreed to
Chief Spencer’s request that he undergo an FFDE, McPherson
pointed to his head and said that he had been “wondering
himself.” He told Chief Spencer that he had been expecting
an FFDE and wanted to be the first to know if something
was wrong.
Indeed, when Chief Spencer shared McPherson’s state-
ments and behavior with two psychologists, they suggested
that something could, in fact, be wrong; they both told
- 781 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
McPHERSON v. CITY OF SCOTTSBLUFF
Cite as 303 Neb. 765
Chief Spencer that the information raised red flags about
McPherson’s fitness for duty. Lovelace, who was not informed
of concerns regarding McPherson’s mental health prior to
interviewing him, also expressed concerns about McPherson’s
well-being after the interview.
Also casting doubt on McPherson’s fitness for duty as a
police officer was McPherson’s statement to Lovelace that
based only on an unexplainable feeling of unease, McPherson
prepared himself to use his firearm against Howton, his friend
and fellow officer. Although the incident occurred while
McPherson was off duty, it was reasonable for the City to
consider it in evaluating McPherson’s fitness for duty as a
police officer, a job that placed him “in positions where [he
could] do tremendous harm if [he were to] act irrationally.”
See Watson v. City of Miami Beach, 177 F.3d 932, 935 (11th
Cir. 1999). As Chief Spencer described, McPherson’s duties as
a patrol officer included carrying a firearm and being involved
in high risk and high pressure situations with the public and
other officers.
We recognize that in his summary judgment affidavit,
McPherson stated that Howton had his hand on his gun during
the same conversation. McPherson did not tell Lovelace that
he was concerned about Howton’s having his hand on his gun,
and it is not clear that McPherson ever told anyone at the City
that Howton also had his hand on his gun. Even assuming he
did, however, we find that McPherson’s reaction, in view of all
of the other evidence of concerning behavior by McPherson,
could contribute to doubts about McPherson’s ability to safely
do his job.
In sum, the undisputed evidence establishes that the City had
genuine reason to doubt whether McPherson could perform his
duties as a police officer. His acknowledgment that his theo-
ries could call his mental health into question, the opinions of
psychologists and other law enforcement professionals that his
behavior raised concerns about his fitness for duty, and the
incident in which he armed himself against Howton all support
- 782 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
McPHERSON v. CITY OF SCOTTSBLUFF
Cite as 303 Neb. 765
the business necessity exception. Therefore, the district court
did not err in granting summary judgment in favor of the City
on McPherson’s discrimination claim.
Retaliation.
[4] We turn now to McPherson’s retaliation claim. A claim
of retaliation under NFEPA is based on § 48-1114, which
provides: “It shall be an unlawful employment practice for an
employer to discriminate against any of his or her employees
. . . because he or she . . . (3) has opposed any practice or
refused to carry out any action unlawful under federal law or
the laws of this state.” A plaintiff must establish a prima facie
case of retaliation under § 48-1114 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 con-
nection between the protected conduct and the adverse action.
Knapp v. Ruser, 297 Neb. 639, 901 N.W.2d 31 (2017).
McPherson contends that reporting his suspicions about his
fellow employees was protected conduct for which he was
ultimately terminated, in violation of § 48-1114(3). But he
overlooks this court’s application of § 48-1114(3). In Wolfe
v. Becton Dickinson & Co., 266 Neb. 53, 662 N.W.2d 599
(2003), we rejected the “whistleblower” and retaliation claims
of an employee who experienced adverse employment actions
after reporting his belief that fellow employees were using
illegal drugs. We expressly addressed whether § 48-1114(3)
protects an employee’s opposition to the illegal actions of fel-
low employees, and concluded that it does not. Considering the
context of NFEPA and the purposes it was meant to serve, we
held that “the ‘practice’ in § 48-1114(3) refers to an unlawful
practice of the employer” and not “any manner of unlawful
activity.” Wolfe, 266 Neb. at 57, 662 N.W.2d at 603 (emphasis
supplied). See, also, Bonn v. City of Omaha, 19 Neb. Ct. App. 874,
814 N.W.2d 114 (2012) (applying Wolfe, supra).
At oral argument, McPherson acknowledged that Wolfe
requires an unlawful act of the employer and argued for the
- 783 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
McPHERSON v. CITY OF SCOTTSBLUFF
Cite as 303 Neb. 765
first time that the City retaliated against him because he was
critical of the department’s investigation of the burglary. While
McPherson is undoubtedly now critical of the department’s
investigation of the burglary, there is no evidence that those
who made the decisions to ask McPherson to undergo an
FFDE and, subsequently, to terminate his employment were
made aware that McPherson felt the investigation was unlaw-
fully inadequate.
In the absence of any knowledge that McPherson opposed
the department’s investigation, City officials could not have
taken adverse action against McPherson based on that oppo-
sition. See Ambrose v. Township of Robinson, Pa., 303 F.3d
488, 493 (3d Cir. 2002) (“[i]t is only intuitive that for pro-
tected conduct to be a substantial or motiv[at]ing factor in a
decision, the decisionmakers must be aware of the protected
conduct”). The City was entitled to summary judgment on
McPherson’s retaliation claim.
CONCLUSION
For the foregoing reasons, we affirm the entry of summary
judgment in favor of the City.
A ffirmed.
Freudenberg, J., not participating.