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O'Brien v. Bellevue Pub. Schs

Supreme Court of Nebraska

December 12, 2014


Page 732

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.



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. Summary Judgment: Appeal and Error. 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. Summary Judgment. In the summary judgment context, a fact is material only if it would affect the outcome of the case.

5. Summary Judgment. If a genuine issue of fact exists, summary judgment may not properly be entered.

6. Termination of Employment. Unless constitutionally, statutorily, or contractually prohibited, an employer, without incurring liability, may terminate an at-will employee at any time with or without reason.

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 public 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.

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 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.

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.



Page 733

[289 Neb. 638] 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

Page 734

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.


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 [289 Neb. 639] 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:

[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 evidence, 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 cooperate with supervisors, inefficient work performance, and lack of punctuality. See, Exhibit #7. [O'Brien] stated in his deposition that during the meeting held to discuss 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 judgment 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 sufficient to dismiss on summary judgment; and (2) a material [289 Neb. 640] issue of fact exists as to whether BPS' reasons for terminating 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 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 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 supervisor and in another instance to the vice principal of the middle school

Page 735

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, conscientiousness, 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 coordinator for buildings and grounds and Potter's immediate 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 [289 Neb. 641] 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 functions of your position." The letter indicated that a meeting was scheduled for July 16 and that O'Brien would have an opportunity to be heard concerning his employment 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 during 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 policy 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, [289 Neb. 642] safety and welfare of [O'Brien], [O'Brien's] co-workers,

Page 736

and students and other employees of [BPS]."
In a deposition taken in May 2012, O'Brien testified, " 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 supervisor if they saw asbestos. When asked if there was anything 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 ...

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