Retaliation claims are among the most numerous types of employee claims processed through the Equal Employment Opportunity Commission and state EEO agencies. Central to these claims are whether an employee engaged in protected activity and how the employer responded to it. A recent Eighth Circuit case involving Nebraska law on retaliation is exemplary.
In Walker v. First Care Mgmt. Grp., LLC, the United States Court of Appeals for the Eighth Circuit held that employees’ conduct in response to a facility resident’s abuse upon another facility resident did not constitute protected conduct to support a retaliation claim under Nebraska law. 27 F.4th 600 (8th Cir. 2022).
Two caregivers employed by a retirement community witnessed a resident sexually assaulting other residents several times. Per company policy, employees had to report resident abuse immediately, by reporting any incident to a supervisor, completing an incident report, and making a note in the resident’s chart. The two employees claimed they reported observing the abuse, but on at least one occasion, they waited to make their report until day after the incident.
The Nebraska Department of Health and Human Services (“DHHS”) responded to an anonymous complaint about the resident’s abuse and made an unannounced site visit of the facility. Shortly after, a retirement community manager claimed she was unaware of the abuse that led DHHS to the facility. Several employees stated the manager must have been aware of the abuse because the employees reported such abuse. Upon completion of the visit and a staff meeting, the two caregiver employees were terminated.
The employees filed suit alleging, among other claims, unlawful retaliation after engaging in a protected activity. The retirement community moved in the District Court for summary judgment, which was granted, resulting in a judgment against the employees and dismissing their claims. The employees appealed.
On appeal, the Eighth Circuit considered whether the lower court erred in granting the retirement community’s motion for summary judgment. Under Nebraska law, an employer may not discriminate against an employee who opposed or refused to carry out any unlawful action of the employer. Neb. Rev. Stat. § 48-1114(1)(c). In other words, employees claiming retaliation must demonstrate that they opposed an unlawful practice of their employer.
The two employees alleged engaging in the following activities: the report made to DHHS, internal complaints to supervisors about the abuse, and confronting a manager about her alleged ignorance of their report of abuse. However, none of these acts were found to have opposed unlawful activity of the retirement community. Nor did they amount to acts of refusing to carry out an unlawful action. Thus, there was no protected activity on which to base a retaliation claim. Accordingly, the Eighth Circuit upheld the summary judgment because the employees’ conduct in response to the abuse of the facility resident did not constitute protected conduct under Nebraska law.
Obviously, the facts of the case suggest egregious acts of abuse. However, a retaliation claim is closely focused on the activities of employees and the response of the employer. Any time an issue arises, employers are cautioned to involve their attorneys at an early stage to avoid or minimize potential claims of retaliation and to appropriately respond to abuse, to complaints, or to protected activity of employees.
Thanks to Rob Toth, current law clerk and joining E|S as an associate attorney in the fall of 2022, for assistance in preparing this article.
Bonnie Boryca and E|S employment attorneys can be reached at 402-397-2200.