Miller-Lerman, J.
Robert O'Brien, the appellant, filed a complaint in the district court for Sarpy County against Bellevue Public Schools (BPS), the appellee, alleging that he was wrongfully discharged 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
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 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 district court sustained. In its order filed August 14, 2012, the district court summarized the evidence and stated:
O'Brien appealed to the Court of Appeals. O'Brien assigned as error on appeal that
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 district 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 v. Bellevue Public Schools, No. A-12-843, 2014 WL 1673287 at *1-3 (Neb. App. Apr. 29, 2014) (selected for posting 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
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 "
Regarding O'Brien's assignment of error regarding reporting, the Court of Appeals stated:
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
Id. at *5 (emphasis in original). The Court of Appeals recognized 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 presence 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 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
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 exception 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.
On further review, O'Brien claims generally that the Court of Appeals erred when it affirmed the grant of summary judgment in favor of BPS.
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. Gaytan v. Wal-Mart, 289 Neb. 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.
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 statutes 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 purposes 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, permissible 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,
Because this case was decided on a motion for summary judgment, we set forth legal principles applicable to a motion for summary judgment. Summary judgment proceedings 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 summary judgment context, a fact is material only if it would 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.
It is undisputed that O'Brien was hired on an at-will basis. The general rule in Nebraska is that unless constitutionally, 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 recognized a public policy exception to the at-will employment doctrine. 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
Ambroz v. Cornhusker Square Ltd., 226 Neb. 899, 905, 416 N.W.2d 510, 515 (1987). We have applied the public policy 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 exception and determining in that case that public policy exception applied when employee had been discharged for filing workers' compensation claim).
In cases involving allowable claims of retaliatory discharge, we have applied the three-tiered burden-shifting analysis 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 analysis, we have stated:
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.App. 818, 703 N.W.2d 134 (2005). See, also, Harris v. Misty Lounge, Inc., 220 Neb. 678, 371 N.W.2d 688 (1985).
We have not previously determined whether to allow an action for retaliatory discharge under the public policy exception 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 regarding 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 inferences in favor of O'Brien, BPS is entitled to judgment as a matter of law.
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. 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 activity 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 decision when he was terminated on July 16, 2009.
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 circumstantial
Reviewing the evidence favorably to O'Brien, we examine the temporal proximity between O'Brien's reports of the presence or suspected presence of asbestos and his termination 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 evaluation 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 administrator, 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 administrative leave. A final meeting was held on July 16, with Blomenkamp and Doug Townsend, a BPS assistant superintendent, and after this meeting, Blomenkamp sent O'Brien a letter informing him that he was terminated from his employment. 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 successfully proved a prima facie case of impermissible termination of employment.
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 periodic yearend evaluation, not triggered by any event. The written evaluation stated that O'Brien was "Not Adequate" in the areas of teamwork, quantity of work, punctuality and attendance, reliability and dependability, conscientiousness, initiative, 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 employment. However, when Potter and Blomenkamp expressed their concerns about O'Brien's job performance, O'Brien grew frustrated 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.
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, punctuality, 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:
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 punctuality 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
Based on the above evidence presented by BPS, we determine that BPS articulated a legitimate reason for terminating O'Brien's employment based on his poor job performance. BPS met its burden.
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 evidence 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 favorable 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 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.
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 substantial 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 considered pretext, and we refer to them for guidance. In Rose v. Vickers Petroleum, 4 Neb.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 employer'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 opposing 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 properly dismissed by the NEOC. Despite the temporal proximity between the complaint regarding the statement and the termination, 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
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 filing a workers' compensation claim. The employer claimed the employee was terminated for misrepresenting his past employment 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 termination of the employee's employment was a pretext for an impermissible termination.
In the present case, O'Brien contends that BPS' reasons for firing him are pretextual. In this regard, he points to two factors: (1) the temporal proximity between reporting suspected asbestos and being fired and (2) his suggestion that in prior 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 proximity "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 proximity between O'Brien's reports of suspected asbestos and his firing does not overcome BPS' specific, direct, and considerable 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 indicates 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 regarding 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
In his deposition, O'Brien admitted that reliability and punctuality were his "biggest downfalls" and that he believed he was being fired for his aggressive behavior. O'Brien's deposition with respect to the July 7, 2009, meeting regarding his evaluation contains the following colloquy:
O'Brien testified that he recorded the July 16, 2009, meeting with Blomenkamp and Townsend without their knowledge. O'Brien's deposition contains the following colloquy with respect to the July 16 meeting:
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 inference from which created a genuine issue as to whether BPS' evidence articulating the permissible reason of poor job performance 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.
For the reasons explained above, O'Brien failed to present evidence of a genuine issue of material fact that the permissible 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.
