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Oldfield v. Nebraska Machinery Co.

Supreme Court of Nebraska

April 21, 2017

David A. Oldfield, appellant.
v.
Nebraska Machinery Company, appellee.

         1. Summary Judgment: Appeal and Error. 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.

         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 the facts and that the moving party is entitled to judgment as a matter of law.

         3. Statutes: Judgments: Appeal and Error. The interpretation of statutes and regulations presents questions of law. An appellate court independently reviews questions of law decided by a lower court.

         4. 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.

         5. Summary Judgment. On a motion for summary judgment, the question is not how a factual issue is to be decided, but whether any real issue of material fact exists.

         6. ___ . Summary judgment is proper when the pleadings and evidence admitted at the hearing disclose that there is no genuine issue as to any material fact 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.

         7. Fair Employment Practices: Discrimination. The ultimate issue in an age discrimination case is whether age was a determining factor in the employer's decision to take the adverse employment action.

         [296 Neb. 470] 8. Discrimination: Summary Judgment: Evidence. To survive summary judgment in a discrimination case, the nonmoving party must do more than simply create a factual dispute as to the issue of pretext; he or she must offer sufficient evidence for a reasonable trier of fact to infer discrimination.

         9. Employer and Employee: Discrimination: Proof. A plaintiff may show discriminatory animus, among other ways, by showing that the employer (1) failed to follow its own policies, (2) treated similarly situated employees in a disparate manner, or (3) shifted its explanation of the employment decision.

         10. Fair Employment Practices: Civil Rights: Employer and Employee. An employee is protected by the Nebraska Fair Employment Practice Act from employer retaliation for his or her opposition to an act of the employer only when the employee reasonably and in good faith believes the act to be unlawful. In order for such a belief to be reasonable, the act believed to be unlawful must either in fact be unlawful or at least be of a type that is unlawful.

         11. Termination of Employment: Public Policy: Damages. Under the public policy exception to the at-will employment doctrine, an employee can claim damages for wrongful discharge when the motivation for the firing contravenes public policy.

         12. Termination of Employment: Public Policy. The public policy exception to the at-will employment doctrine is restricted to cases when a clear mandate of public policy has been violated, and it should be limited to manageable and clear standards.

         13. ___: ___. In determining whether a clear mandate of public policy is violated, courts should inquire whether the employer's conduct contravenes the letter or purpose of a constitutional, statutory, or regulatory provision or scheme.

         Appeal from the District Court for Lancaster County: Andrew R. Jacobsen, Judge. Affirmed.

          Robert F. Bartle, of Bartle & Geier Law Firm, for appellant.

          Margaret C. Hershiser and David A. Yudelson, of Koley Jessen, PC, L.L.O., for appellee.

          Heavican, C.J., Wright, Cassel, Stacy, Kelch, and Funke, JJ.

         [296 Neb. 471] Kelch, J.

         I. NATURE OF CASE

         David A. Oldfield filed a wrongful termination claim against Nebraska Machinery Company (NMC), alleging that his discharge was in violation of Nebraska's Age Discrimination in Employment Act (ADEA), [1] in violation of the whistle-blower retaliation provisions of the Nebraska Fair Employment Practice Act (FEPA), [2] and in violation of public policy. Based on the undisputed evidence of Oldfield's performance issues and the limited evidence offered by Oldfield, we affirm the district court's granting of summary judgment in favor of NMC and against Oldfield on all claims.

         II. FACTS

         This matter arises from Oldfield's termination from NMC after 38 years of employment. In his amended complaint. Oldfield seeks damages against NMC for wrongful discharge in violation of (1) the ADEA, (2) the FEPA, and (3) public policy.

         After filing an answer, NMC moved for summary judgment, and a hearing was set. At the hearing, depositions of Oldfield and Oldfield's superior, Dwight McDermott, were received into evidence, along with the exhibits used in those depositions. After the hearing, the district court granted summary judgment in favor of NMC.

         Because summary judgment requires the court to view the facts in the light most favorable to the nonmoving party, we set forth the facts presented by Oldfield in his complaint and deposition first before reviewing those presented by NMC.

         1. Facts Presented By Oldfield

         At all relevant times, Oldfield held an "at-will" position as a heavy equipment service manager at one of NMC's locations [296 Neb. 472] in Lincoln, Nebraska. During his deposition, Oldfield admitted to having disagreements with his supervisors and not meeting NMC's expectations in certain respects.

         (a) Disagreement About Flat-Rate Pricing

         In June 2011, the day before Oldfield was to go on vacation, Oldfield's direct supervisor, Brandon Zobel, called Oldfield into his office to discuss NMC's transition to "flat-rated'' pricing, i.e., setting a standard price on doing a certain job. Because Zobel did not have a history in repairs, Zobel asked Oldfield's opinion. Oldfield "tr[ied] to explain to [Zobel] how certain jobs, the way he wanted to do it, couldn't be flat rated." Zobel disagreed, and the discussion became heated. Oldfield then asked Zobel if he should come back after his vacation. Zobel responded, '"That's up to you, '" and Oldfield left.

         While Oldfield was on vacation, Kevin Brown, NMC's vice president of services and parts, called Oldfield to make sure he was coming back. Brown told Oldfield that he had been doing a great job and wanted to make sure that Oldfield stayed with NMC.

         On June 17, 2011, after Oldfield came back from vacation, he met with Brown to discuss some of the problems that he and Zobel were having together. Then Brown met with Zobel to discuss the problems. Later that day, Zobel arranged a meeting between himself and Oldfield with Brown present. At Oldfield's deposition, Oldfield was given an agenda for that meeting, which reminded him of what was discussed: the issue of the flat-rate jobs, a new process for invoicing work orders, and the hiring of two additional technicians.

         They also discussed agenda items, including "Uniform Attire" and "Shop and Office Cleanliness." Oldfield testified that he had problems with NMC's uniform company getting pants that fit him and did not drag on the ground. Although Oldfield had been wearing his uniform shirt, he had not been wearing the uniform pants. Instead, he had been wearing jeans. Another NMC employee had a similar problem finding [296 Neb. 473] a uniform that fit, but McDermott (Zobel's superior) told her not to worry about it. Additionally, the shop that Oldfield managed "wasn't as clean as [Zobel] thought it should be.'' Brown did not say anything during the meeting.

         (b) Shop Cleanliness

         In December 2011, Zobel wrote an email to Oldfield and four other employees, asking them to "work hard to get some 'deep cleaning' done over the next couple of weeks by December 31st." Cleanliness was important to NMC because NMC was a dealer of Caterpillar heavy equipment. Caterpillar has a contamination control policy and would inspect NMC to make sure it was compliant. Oldfield testified that he did not think Zobel's email meant that his shop needed to be completely compliant with Caterpillar's audit standards by January 1, 2012.

         On January 18, 2012, NMC conducted a surprise mock contamination control audit. Thereafter, Zobel wrote an email to Oldfield, attaching a list of items that came up during the mock audit. The email stated, in relevant part:

Your department has made some big improvements over the last few weeks with cleaning the shop. I am very happy about that, but I am disappointed that it wasn't done before January 1st, like I had stated several times during the last several months. That being said, let's move forward and get the items on the attached sheet fixed immediately.

         Three weeks later, Zobel emailed Oldfield, asking, "How are these items coming along?" According to Oldfield, most of the items had been completed at that point, but there were still some items that needed to be done.

         (c) Monthly Meetings

         In October 2011, Zobel wrote an email to Oldfield and two other employees, requesting that they hold monthly meetings with their respective departments. In February 2012, Zobel emailed Oldfield requesting that Oldfield cover "at least a [296 Neb. 474] handful of items" at the beginning of the next monthly meeting. Zobel also wrote, "I was upset by your comment/attitude about the meetings being a waste of time, 'that you [would] rather have them working.'" After Oldfield received the email, he talked to Zobel and told him that he never said the meetings were a waste of time and that he was "joking" when he said that he would rather have his employees working.

         (d) Oldfield's Performance Appraisal

         In May 2012, using NMC's performance appraisal form, Zobel assessed Oldfield's performance for 2011 and 2012. The form listed seven different categories: (1) "Managing Others, " (2) "Budgetary Controls, " (3) "Managing Self, " (4) "Organizational Relationships, " (5) "Problem Solving, " (6) "Performance Standards, " and (7) "Safety and Health." Oldfield met or exceeded expectations on 8 of the 10 categories; he was "Below Requirements" on "Managing Self and "Organizational Relationships." Under each subsection and at the end of the appraisal, there were boxes for Zobel to make comments.

         Zobel rated Oldfield as meeting expectations for "Managing Others" and commented, "[Oldfield] is exceptional at getting the most out of his employees. He keeps everybody busy, all of the time. [Oldfield] can do a better job about communicating information to his employees, executing company policies, and promoting teamwork."

         Oldfield exceeded expectations for "Budgetary Controls, " and Zobel commented, "Historically, [Oldfield] has always been a top performer when it comes to hitting budget and sales numbers. He spends very little and generates a lot of revenue."

         Oldfield fell below NMC's requirements for "Managing Self." Zobel commented:

[Oldfield] does his job well in terms of meeting deadlines / responding to his larger customers. However, it may take several days for him to respond (sometimes no response) to internal emails and/or phone calls. [Oldfield] has been resistant in the past regarding [296 Neb. 475] priorities and organizational changes. Examples include; [flat-rate] jobs, monthly employee meetings, [shop cleanliness], technician training, service writer, wearing his uniform, etc.

         Zobel rated Oldfield as exceeding expectations for "Organizational Relationships" and commented, "[Oldfield] does not always execute directives, regardless of personal likes/dislikes. Examples include (same as above) .... It is evident that [Oldfield] dislikes speaking orally in groups and avoids it whenever possible. Small to mid-sized customers are not always responded to in a timely manner." In his deposition, Oldfield disputed that small and midsized customers were not responded to in a timely manner. Oldfield explained that "a lot" of small and midsized customers were very happy with the service, but some were upset about the cost.

         Oldfield was rated as exceeding expectations for "Problem Solving." Zobel commented: "[Oldfield] solves many problems each and every week. He has a tremendous amount of experience and job knowledge that helps him solve problems quickly and effectively. An opportunity for [Oldfield] would be to participate more in group discussions and provide solutions along with the issues."

         Zobel rated Oldfield as exceeding expectations for "Performance Standards" and commented:

[Oldfield] does give feedback to his employees, and he has been improving on giving positive feedback along with the negative. I believe that [Oldfield's] company best flat variance numbers as well as being a top producer show that he is able to get the most out of his technicians through daily feedback. My only concern is that he needs to familiarize and train other technicians at key customer sites ....

         Oldfield met expectations for "Safety and Health, " and Zobel commented: "For the most part, work is performed safely. More can be done to enforce safety glasses, smoking areas, and seat-belts. However, the number of injuries for [296 Neb. 476] Lincoln's heavy equipment department have been fewer over the past 6 months, which is a definite improvement.''

         In a section entitled "Manager's Overall Performance Comments, " Zobel wrote:

There is no denying that [Oldfield] produces strong financial numbers and takes care of his larger customers. He works hard to get the most out of his people and is able to take care of a large volume of work each week. His technical problem-solving skills are top notch. [Oldfield] has a hard time adapting to change and follow-through with directives, regardless of personal preference. More improvement is needed in the area of follow-through with internal and external customers. Employee communication and team building needs to improve as well.

         Oldfield agreed that he could improve his communication with internal customers (other NMC departments), but disagreed that he was ...


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