David A. Oldfield, appellant.
Nebraska Machinery Company, appellee.
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
___. 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.
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.
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.
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.
. 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.
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.
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.
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.
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.
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.
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.
___: ___. 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.
from the District Court for Lancaster County: Andrew R.
Jacobsen, Judge. Affirmed.
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.
Neb. 471] Kelch, J.
NATURE OF CASE
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),  in violation of the whistle-blower
retaliation provisions of the Nebraska Fair Employment
Practice Act (FEPA),  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.
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.
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.
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.
Facts Presented By Oldfield
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
Disagreement About Flat-Rate Pricing
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.
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.
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.
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.
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.
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
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.
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.
Oldfield's Performance Appraisal
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.
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."
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
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.
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.
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."
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 ....
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
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.
agreed that he could improve his communication with internal
customers (other NMC departments), but disagreed that he was