Ian B. McPherson, appellant,
City of Scottsbluff, in the County of Scotts Bluff, in the State of Nebraska, appellee.
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
__:__. 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
Fair Employment Practices: Discrimination:
Proof. To show a business necessity for requiring an
employee (as distinguished from an applicant) to submit to a
medical examination under Neb. Rev. Stat. §
48-1107.02(1)(j) (Cum. Supp. 2018), an employer has the
burden to show that (1) the business necessity is vital to
the business; (2) it has a legitimate, nondiscriminatory
reason to doubt the employee's ability to perform the
essential functions of his or her duties; and (3) the
examination is no broader than necessary. There must be
significant evidence that could cause a reasonable person to
inquire as to whether an employee is still capable of
performing his or her job. An employee's behavior cannot
be merely annoying or inefficient to justify an examination;
rather, there must be genuine reason to doubt whether that
employee can perform job-related functions.
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.
Neb. 766] Appeal from the District Court for Scotts Bluff
County: Leo P. Dobrovolny, Judge.
Shiffermiller and Abby Osborn, of Shiffermiller Law Office,
PC, L.L.O., for appellant.
W. Olsen and Paul W. Snyder, of Simmons Olsen Law Firm, PC,
L.L.O., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
McPherson was a police officer for the City of Scottsbluff,
Nebraska (City). After the police chief became concerned that
McPherson was exhibiting irrational, paranoid, and hostile
behavior, he asked McPherson to undergo a fitness-for-duty
examination (FFDE). McPherson refused, and the City
terminated his employment. McPherson sued, alleging
discrimination and retaliation under the Nebraska Fair
Employment Practice Act (NFEPA). The district court granted
the City's motion for summary judgment. McPherson now
McPherson's discrimination claim, we find that based on
the undisputed evidence in the summary judgment record, the
City could lawfully require McPherson to undergo an FFDE
under Neb. Rev. Stat. § 48-1107.02(1)0) (Cum. Supp.
2018). And because McPherson alleged that the City retaliated
against him for expressing disapproval of the actions of his
fellow employees, as opposed to his employer, there is no
genuine issue of material fact as to whether he engaged in
protected activity pursuant to Neb. Rev. Stat. §
48-1114(3) (Reissue 2010). Accordingly, we affirm.
worked for the City as a patrol officer from January 19,
2010, to February 3, 2016, when the City terminated his
employment. The City had no records that McPherson, whose job
performance met standards, had any disability.
Neb. 767] McPherson filed a complaint alleging disability
discrimination and retaliation under NFEPA. He claimed that
the City fired him after he reported his belief that members
of the police department were involved in a break-in on
police property. He asserted that the City violated NFEPA by
requiring him to take a FFDE that was not job related and
consistent with business necessity and by retaliating against
him because he opposed unlawful practices.
City's answer contended that the FFDE was job related and
consistent with business necessity and that it fired
McPherson for insubordination in not submitting to the FFDE
when ordered. The City moved for summary judgment, and
McPherson moved for partial summary judgment on liability.
The district court conducted a hearing on the motions. The
evidence received at the hearing demonstrated that
McPherson's termination came about as described below.
Raises Concerns Regarding Break-In.
about November 3, 2015, the evidence lockers for the
Scottsbluff Police Department were burglarized. After
learning about the break-in, McPherson became suspicious that
two of his colleagues, Officers William Howton and Matthew
Herbel, were responsible.
December 2, 2015, McPherson contacted Brandi Brunz, one of
the police department's investigators, and reported that
he believed Howton and Herbel were involved with the
burglary. Brunz encouraged McPherson to discuss the matter
with Capt. Brian Wasson.
evening, McPherson contacted Wasson, stating that he needed
to talk to Wasson immediately and needed to "get
something off of his chest." At that time, McPherson was
driving around in Scottsbluff, but he told Wasson he would be
more comfortable meeting in Gering, Nebraska. Wasson agreed
to meet in Gering, where McPherson told him that what he was
about to say would make Wasson think McPherson was
"crazy" and that it had been bothering him for
days, so [303 Neb. 768] much so that he had not been eating.
McPherson informed Wasson that he suspected the burglary of
the evidence lockers was a staged event to compromise a
particular homicide investigation.
explained to Wasson that on the night of the burglary, the
Scottsbluff chief of police, Kevin Spencer (Chief Spencer),
had given a speech to a group of nurses and that Chief
Spencer might have discussed some confidential information
about a homicide. McPherson believed that the speech
referring to the homicide and the burglary of the evidence
lockers the same night were not coincidental. He further said
he believed that someone had made a "statement" at
the burglary site by leaving rubbed patterns on a car that
was related to the homicide investigation.
also recalled that the day before the burglary, Herbel had
asked him to go hunting the next morning, which McPherson
thought was strange, because Herbel had never asked McPherson
to go hunting before. McPherson told Wasson he believed this
was to establish an alibi for the burglary. McPherson also
stated that shortly before the burglary was discovered,
Howton asked McPherson, '"Has anything big happened
yet?'" McPherson considered this suspicious, because
he did not recall Howton ever asking him something like that
reported to Wasson that soon after the burglary, he was
driving off duty when he noticed Howton driving nearby.
Howton pulled over to talk to McPherson. McPherson said that
when Howton approached him to talk, McPherson immediately got
the '"Heebie Jeebies.'" McPherson stated
that Howton discussed the burglary with him and that
McPherson felt Howton kept looking over his shoulder "as
if he was paranoid." In an affidavit prepared for trial,
McPherson asserted that Howton appeared tense, was scanning
the area, and had his hand on his gun during his conversation
with McPherson, but it is not clear from the affidavit
whether McPherson reported these details to Wasson.
Neb. 769] McPherson further described to Wasson an incident
earlier in the day on December 2, 2015. McPherson stated
during a conversation about the burglary, Howton asked what
was going on with the burglary case. McPherson claimed this
was of significant concern, because it was inconceivable that
Howton had not already looked at the case file. Howton also
asked McPherson what the report number was for the burglary
and what was depicted in a particular crime scene photograph.
According to McPherson, this was concerning, because he
claimed that Howton had to have already known this
information and was only asking in an attempt to conceal the
fact that he was involved in the burglary.
Wasson asked what motive Howton or Herbel would have to
burglarize the evidence lockers, McPherson theorized that
Howton may want to compromise the homicide investigation
because his brother might have been involved in the homicide.
McPherson's explanation for suspecting Howton's
brother was based on his understanding that the homicide
involved a homosexual relationship and his suspicion that
Howton's brother is gay. McPherson based his suspicion
that Howton's brother was gay on his observation that
Howton had never formally introduced his brother to
McPherson. In addition, McPherson said Howton's wife made
remarks to McPherson's wife that made McPhersons'
wife suspect Howton's brother is gay. McPherson also
pointed out that like an individual in the homicide case,
Howton and Howton's brother had previously worked in
also presented the theory that Howton and Herbel were
motivated by money. McPherson said that Howton makes multiple
drug arrests, but that Howton seems to seize less money than
other officers. McPherson stated that based on his knowledge
of Howton's possessions and debts owed by Howton's
wife, it does not appear Howton "lives within his
McPherson said perhaps Howton and Herbel wanted to make the
department look bad, claiming that Howton and [303 Neb. 770]
Herbel do not like the current police administration.
McPherson supported this theory by stating he heard the two
officers discussing the homicide case and that Herbel agreed