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Knapp v. Ruser

Supreme Court of Nebraska

September 1, 2017

Patricia A. Knapp, appellant,
v.
Kevin Ruser, in his official capacity, and the University of Nebraska Board of Regents, appellees.

         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. Motions for New Trial: Appeal and Error. An appellate court reviews a denial of a motion for new trial or, in the alternative, to alter or amend the judgment, for an abuse of discretion.

         4. Fair Employment Practices: Statutes: Federal Acts. The Nebraska Fair Employment Practice Act, Neb. Rev. Stat. §§ 48-1101 through 48-1126 (Reissue 2010), is patterned after federal title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (2012), and therefore, it is appropriate to look to federal court decisions construing Title VII for guidance with respect to the Nebraska act.

         5. Fair Employment Practices: Discrimination: Proof. A prima facie case of gender discrimination requires the plaintiff to prove that he or she (1) is a member of a protected class, (2) was qualified to perform the job, (3) suffered an adverse employment action, and (4) was treated differently from similarly situated persons of the opposite sex.

         6. __: __: __. The test to determine whether employees are similarly situated to warrant a comparison to a plaintiff is a rigorous one and the plaintiff has the burden of demonstrating that there were individuals similarly situated in all relevant aspects to the plaintiff by a preponderance of the evidence.

         [297 Neb. 640] 7. Fair Employment Practices: Statutes: Federal Acts. Because Neb. Rev. Stat. § 48-1221(1) (Reissue 2010) is patterned after the federal Equal Pay Act, 29 U.S.C. § 206(d) (2012), it is appropriate to look to federal court decisions construing 29 U.S.C. § 206(d) for guidance with respect to §48-1221(1).

         8. Claims: Fair Employment Practices: Discrimination: Wages: Proof. When bringing a claim of wage discrimination based on sex under Neb. Rev. Stat. § 48-1221(1) (Reissue 2010), a plaintiff must first establish a prima facie case by showing by a preponderance of the evidence that (1) the plaintiff was paid less than a person of the opposite sex employed in the same establishment; (2) for equal work on jobs requiring equal skill, effort, and responsibility; (3) which were performed under similar working conditions. If a plaintiff establishes a prima facie case of wage discrimination based on sex, the burden then shifts to the defendant to prove one of the affirmative defenses set forth in § 48-1221(1).

         9. 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.

         10. __: __. To satisfy the adverse employment action requirement in a retaliation claim, a plaintiff must show that a reasonable employee would have found the challenged action materially adverse. This, in turn, requires a showing that the employment action might have dissuaded a reasonable worker from reporting the alleged unlawful practice. To meet this burden, a plaintiff must demonstrate that the employment action was material, not trivial, and that it resulted in some concrete injury or harm.

         11. Claims: Fair Employment Practices: 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. The public policy exception 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.

         Appeal from the District Court for Lancaster County: Horacio J. Wheelock, Judge. Affirmed.

         [297 Neb. 641] Brandon B. Hanson, of Hanson Law Offices, for appellant.

          John C. Wiltse, of University of Nebraska, and David R. Buntain, of Cline, Williams, Wright, Johnson & Oldfather, L.L.P., for appellees.

          Heavican, C.J., Wright, Miller-Lerman, Cassel, Kelch, and Funke, JJ.

          Miller-Lerman, J.

         I. NATURE OF CASE

         Patricia A. Knapp filed an action against Kevin Ruser, in his official capacity, and the Board of Regents of the University of Nebraska in which she asserted claims of discriminatory wage and employment practices based on her sex as well as claims of employment retaliation. Knapp's claims arose from alleged occurrences while she was a supervising attorney for the civil clinical law program at the University of Nebraska College of Law. Knapp appeals the orders of the district court for Lancaster County in which the court sustained the defendants' motion for summary judgment and overruled her motion to alter or amend the judgment. We affirm the district court's orders.

         II. STATEMENT OF FACTS

         Knapp commenced this action with a complaint filed in the district court on July 11, 2014. In that complaint, Knapp set forth eight claims for relief, some based on state law and some based on federal law. In August, the defendants had the action removed to the U.S. District Court for the District of Nebraska. In November 2015, the federal court sustained the defendants' motion for summary judgment in part and dismissed certain of Knapp's claims, which were based on federal law, with prejudice. The federal court remanded the remaining claims, which were based on Nebraska state law, to the district court for Lancaster County for further proceedings. Knapp v. Ruser, 145 F.Supp. 3d 846 (D. Neb. 2015). Upon remand to the state court, Knapp filed an amended [297 Neb. 642] complaint which mirrored the operative amended complaint she had filed in the federal court. In the amended complaint, she set forth 10 claims for relief. The federal court had dismissed the first through third, sixth, eighth, and tenth claims. Also, it remanded the fourth, fifth, seventh, and ninth claims for further proceedings in the state court. Accordingly, our consideration on appeal is limited to the state district court's disposition of four claims identified in the operative complaint as the fourth, fifth, seventh, and ninth claims.

         1. Background/Facts

         Knapp, an attorney, began working in the civil clinic as a temporary half-time employee in the summer of 1999. At that time, the director of clinical programs was on a sabbatical, and Knapp was hired to cover the portion of his responsibilities that concerned the civil clinic. After the director returned from sabbatical and informed the college that he would be leaving at the end of the fall semester, Knapp was hired as a temporary half-time employee beginning in the spring 2000 semester. The understanding was that she would cover the former director's duties with respect to the civil clinic while the law school considered its long-term strategic plan for the clinical programs.

         Knapp's half-time employment in the civil clinic ended in August 2004 after Ruser was named director of the clinical programs and the law school hired Richard Moberly to perform the duties Knapp had performed in the civil clinic. In 2006, the law school again hired Knapp as a half-time employee in the civil clinic after it determined that Moberly's half-time status was not sufficient to meet student needs. While Knapp and Moberly split duties in the civil clinic, Moberly held a full-time position which included additional responsibilities such as teaching doctrinal classes, research, and community service.

         Knapp continued to work half-time in the civil clinic until August 2011, when Moberly became an associate dean of the law school and gave up his duties in the civil clinic. Knapp [297 Neb. 643] and Ruser agreed that Knapp's employment as supervising attorney in the civil clinic should go to full time. Knapp's position was classified as that of "Temporary Lecturer" and was designated as a '"Special Appointment.'" Knapp met with the dean of the law school to discuss her full-time salary; the dean offered Knapp an annual salary of $80, 000. After Knapp told the dean that the salary was low, the dean told Knapp that she would explore the possibility of increasing the salary by seeking a designation for the position as a "'professor of practice.'" Knapp agreed to accept the salary for the upcoming academic year based on what she believed to be the dean's "good-faith commitment" to find a way to increase her salary. When Knapp told Ruser the salary she had been offered, Ruser told her that the dean had '"low-balled"' her.

         A year later, in August 2012, Ruser left a letter for Knapp setting forth proposed terms and conditions for her employment in the upcoming academic year. The letter stated that her salary would again be $80, 000. Prior to receiving the letter, Knapp had had no other communication with the law school's administration regarding her salary for the upcoming year. The letter prompted Knapp to check the salaries of others working in the clinical programs. She learned from the University of Nebraska's website that a male professor had been hired in March 2012 to teach a business transactions clinic at a salary of $106, 000 per year. Knapp thereafter spoke with Ruser regarding her salary, and she told him that after seeing others' salaries, she thought that the salary structure in the clinical programs was "skewed" and that the clinics had a '"gender equity' problem" that Ruser needed to address. Ruser responded that he was "'baffled'" by Knapp's allegations of discrimination and that the new male professor's higher salary was justified by the fact that his position was a tenure track position.

         Knapp alleged that the conversation became heated and that afterward, Ruser's behavior and demeanor toward her changed. Knapp alleged that Ruser acted more hostile and [297 Neb. 644] that he stopped adequately communicating with her. Knapp also observed that Ruser appeared to be neglecting his own duties in the clinic, including supervision of students and cases. After adopting a child in the spring semester, Ruser went to half time, and Knapp alleged that he "disengaged even further" from the clinic, with the result being that the clinic "was not fulfilling its ethical obligations to its clients or to its students."

         In April 2013, Knapp learned that Ruser would be receiving a lifetime achievement award from the law school. Although other members of the clinic's staff had known of the award for several weeks and had been invited to sit at Ruser's table at the award ceremony, Ruser had not mentioned the award to Knapp. This incident prompted Knapp to conclude that her relationship with Ruser "was so badly damaged that it had become impossible for them to work together as law partners in a way that would meet their ethical obligations to their clients and to their students."

         Knapp decided to leave her job at the clinic, but a coworker encouraged her to speak with the dean about what was happening in the clinic. Knapp met with the dean and informed her of several problems that she perceived in the clinic. Knapp told the dean that problems had existed for women in the clinical program since the early 1980's, when Knapp was a student at the college. Knapp informed the dean of various concerns she had regarding Ruser's management of the clinical programs, focusing on "the environment created for women in the clinical programs over the years" by Ruser and his male associates. Knapp alleged that after listening to Knapp's concerns, the dean "did not offer to help in any way but wished [Knapp] well." Knapp's employment in the clinic ended on May 31, 2013.

         2. Federal District Court's Disposition of Claims

         The federal district court concluded that because of sovereign immunity, it lacked jurisdiction to hear four of Knapp's [297 Neb. 645] claims: the fourth, fifth, seventh, and ninth. Those four claims were based on state law, and the federal court found that the state statutory schemes underlying the claims were not "sufficiently explicit to effect a waiver of sovereign immunity to suit in federal court." Knapp v. Ruser, 145 F.Supp.3d 846, 855 (D. Neb. 2015). The federal court therefore remanded the four claims for further proceedings in the state district court.

         The federal court determined that the six remaining claims- the first through third, sixth, eighth, and tenth-were asserted under federal law and that Congress had abrogated states' sovereign immunity for those claims. The court stated that five of the claims arose under title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e (2012) (Title VII), and that the remaining claim arose under the Equal Pay Act, 29 U.S.C. § 206(d) (2012) (EPA). The federal district ...


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