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McPherson v. City of Scottsbluff

Supreme Court of Nebraska

July 26, 2019

Ian B. McPherson, appellant,
City of Scottsbluff, in the County of Scotts Bluff, in the State of Nebraska, appellee.

         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. 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.

         4. 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.

          [303 Neb. 766] Appeal from the District Court for Scotts Bluff County: Leo P. Dobrovolny, Judge.

          Joy Shiffermiller and Abby Osborn, of Shiffermiller Law Office, PC, L.L.O., for appellant.

          Steven 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 Papik, JJ.

          PAPIK, J.

         Ian B. 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 appeals.

         As to 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.


         McPherson 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.

         [303 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.

         The 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.

         McPherson Raises Concerns Regarding Break-In.

         On or 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.

         On 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.

         That 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.

         McPherson 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.

         McPherson 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 before.

         McPherson 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.

         [303 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.

         When 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 construction.

         McPherson 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 means."

         Last, 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 ...

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