McPherson v. City of Scottsbluff
931 N.W.2d 451
Neb.2019Background
- McPherson was a Scottsbluff police patrol officer (2010–2016); the City placed him on administrative leave and later terminated him after he refused a court-ordered fitness-for-duty examination (FFDE).
- In Nov–Dec 2015 McPherson reported to supervisors his belief that two fellow officers had staged a burglary of the department evidence lockers and expressed escalating, detailed suspicions (including sleeplessness, not eating, and that he might be "going crazy").
- During a roadside interaction McPherson felt threatened by a fellow officer and secretly armed himself; investigators and psychologists who reviewed his statements expressed concern about his mental state and fitness for duty.
- Chief Spencer arranged an FFDE after consulting psychologists and the Nebraska State Patrol; McPherson initially agreed but later, through counsel, refused to attend when rescheduled and was ordered to comply; he refused and was terminated for insubordination.
- McPherson sued under the Nebraska Fair Employment Practice Act (NFEPA), alleging disability discrimination for being required to take the FFDE and retaliation for opposing unlawful practices; the district court granted summary judgment for the City.
- The Nebraska Supreme Court affirmed, holding the City met the NFEPA business-necessity exception for the FFDE and that McPherson’s reports about fellow officers were not protected activity under § 48-1114(3).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether requiring McPherson to undergo an FFDE violated NFEPA § 48-1107.02(1)(j) | McPherson: the FFDE was not job-related or consistent with business necessity | City: the FFDE was job-related and necessary given concerns about McPherson's fitness (paranoid/irrational/hostile behavior, armed himself) | Held: City met business-necessity exception; summary judgment for City affirmed |
| Whether McPherson’s reporting of suspected misconduct by fellow officers was protected opposition under § 48-1114(3) (retaliation claim) | McPherson: he was terminated for opposing unlawful activity (reporting burglary suspects) | City: § 48-1114(3) protects opposition to employer’s unlawful practices, not complaints about coworkers; decisionmakers were not aware of any protected opposition to employer misconduct | Held: Reporting suspected wrongdoing by fellow employees is not protected under § 48-1114(3); no causal link; summary judgment for City affirmed |
Key Cases Cited
- Watson v. City of Miami Beach, 177 F.3d 932 (11th Cir. 1999) (police departments may require FFDE when officer is perceived as paranoid, hostile, or oppositional because of public-safety risks)
- Coffman v. Indianapolis Fire Dept., 578 F.3d 559 (7th Cir. 2009) (public-safety work justifies FFDE for withdrawn/defensive behavior that might be harmless in other jobs)
- Brownfield v. City of Yakima, 612 F.3d 1140 (9th Cir. 2010) (police may require FFDE when there is good reason to doubt an officer's ability to respond appropriately to stressful/dangerous situations)
- Arens v. NEBCO, Inc., 291 Neb. 834 (Neb. 2015) (NFEPA business-necessity framework for employer-requested medical examinations)
- Wolfe v. Becton Dickinson & Co., 266 Neb. 53 (Neb. 2003) (§ 48-1114(3) protects opposition to employer unlawful practices, not merely reporting coworkers' wrongdoing)