Summary
The Nebraska Supreme Court affirmed the dismissal of claims brought by two former state hospital employees against the State of Nebraska and the Nebraska Department of Health and Human Services. The court held that their opposition to alleged unlawful recordkeeping by coworkers did not constitute protected activity under the Nebraska Fair Employment Practice Act, and that sovereign immunity barred their Health Care Facility Licensure Act claims. The court also addressed hearsay and summary-judgment evidence issues.
Topics
Practice areas
Questions Presented
- Whether the appellants established protected conduct and a prima facie retaliation claim under the Nebraska Fair Employment Practice Act.
- Whether witness interview summaries introduced to show the investigator's state of mind and the employer's asserted nonretaliatory reason were inadmissible hearsay.
- Whether Neb. Rev. Stat. § 71-445 of the Health Care Facility Licensure Act waived the State's sovereign immunity.
- Whether the court needed to decide the challenge to the striking of the jury demand after affirming the dispositive rulings.
Holdings
- NFEPA protects opposition to an unlawful practice of the employer or refusal to perform an unlawful act demanded by the employer; it does not protect opposition solely to unlawful actions by coworkers. Because the appellants opposed alleged unlawful acts by psychiatrists who were not their employer, they failed to establish protected conduct and therefore could not establish a prima facie retaliation claim.
- The appellants also failed to establish a causal connection between their reports about the psychiatrists and their terminations. The evidence indicated that DHHS terminated them because of concerns about their leadership abilities, and their reporting duties were known to DHHS.
- The witness interview summaries were not hearsay because DHHS offered them to show the investigator's state of mind and the nonretaliatory basis for recommending termination, rather than to prove the truth of the statements contained in the summaries.
- Neb. Rev. Stat. § 71-445 does not waive the State's sovereign immunity for retaliation claims under the HCFLA. The statute's private right of action and language permitting relief do not constitute an express or necessarily implied waiver.
Key quotations
“The statute’s purpose is not served by giving an extra layer of protection from discharge to those employees who happen to voice their opposition to any manner of unlawful activity.” (990)
“To present a prima facie claim under the Nebraska Fair Employment Practice Act, the employee must show either his or her opposition to an unlawful practice of the employer or the employee’s refusal to honor an employer’s demand that the employee do an unlawful act.” (991)
“Because the summaries were not offered to prove the truth of the matter asserted, the district court properly overruled the hearsay objections.” (995)
“And because the sovereign must prevail if there is any doubt as to whether immunity has been waived, we do not read § 71-445 as a waiver of sovereign immunity.” (998)
Factual background
Baker-Heser was the medical director and Werth-Sweeney was a facility operating officer at the Lincoln Regional Center, a state hospital operated by DHHS. They reported or opposed deficient medical recordkeeping and other conduct by two psychiatrists and sought disciplinary action against them. After an attorney conducted a DHHS investigation, DHHS terminated Baker-Heser and Werth-Sweeney, citing concerns about their leadership and management; the psychiatrists were terminated several months later.
Procedural history
Baker-Heser and Werth-Sweeney sued the State and DHHS after DHHS terminated their employment, alleging retaliation under NFEPA and the HCFLA, wrongful termination in violation of public policy, and related relief. The district court dismissed the public-policy and HCFLA claims, struck the jury demand, and granted summary judgment to DHHS on the NFEPA claims. The plaintiffs appealed, and the Nebraska Supreme Court affirmed.