O'Brien v. Bellevue Public Schools, 289 Neb. 637

Background

Robert O’Brien, an at-will carpenter employed by Bellevue Public Schools (BPS) from 2006–2009, was terminated July 16, 2009 after receiving a negative year-end evaluation and a series of meetings and reprimands for poor performance, punctuality, and failure to cooperate with supervisors.
O’Brien reported suspected asbestos in his workplace to supervisors (per BPS asbestos policy) in May–June 2009; he admitted he never reported regulatory violations to state or federal authorities and was not compelled to remove asbestos after reporting it.
BPS’s evidence included the July 6, 2009 written evaluation (rating O’Brien “Not Adequate”), formal reprimand summarizing an agitated July 7 meeting, subsequent meetings on July 13 and July 16, and termination letter citing performance issues.
O’Brien sued for wrongful (retaliatory) discharge under the public‑policy exception to at‑will employment, alleging he was fired for reporting asbestos hazards; BPS moved for summary judgment.
The district court granted summary judgment for BPS; the Nebraska Court of Appeals affirmed; the Nebraska Supreme Court granted further review and affirmed the lower courts, holding BPS entitled to judgment as a matter of law because O’Brien failed to show pretext.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether reporting suspected asbestos to employer supports a public‑policy wrongful discharge claim	O’Brien: internally reporting suspected asbestos (a hazard) is protected activity invoking the public‑policy exception	BPS: at‑will employer lawfully terminated O’Brien for legitimate job‑performance reasons; reporting did not amount to protected statutory reporting to authorities	Court assumed, without deciding, such activity could be protected for purposes of analysis but held plaintiff failed to show pretext; summary judgment for BPS affirmed
Whether temporal proximity between reporting and termination creates a triable issue of pretext	O’Brien: timing (reporting in May–June, termination in July) establishes causal inference and supports pretext	BPS: temporal proximity alone is insufficient in light of direct evidence of poor performance and contemporaneous disciplinary actions	Held temporal proximity insufficient to overcome BPS’s articulated legitimate reasons; no pretext shown
Whether BPS articulated a legitimate, nondiscriminatory reason for firing	O’Brien: prior satisfactory evaluations (argued) and lack of direct evidence of retaliatory statements cast doubt on BPS’s reasons	BPS: produced written evaluation, reprimand, meeting records and admissions by O’Brien acknowledging reliability/punctuality problems and aggressive conduct	Held BPS met its burden to articulate legitimate reason (poor performance)
Whether plaintiff produced evidence that BPS’s stated reason was pretextual	O’Brien: urged inference of pretext from timing and past satisfactory performance	BPS: noted lack of evidence of retaliatory remarks or inconsistent application of discipline; asbestos not mentioned during termination meetings	Held O’Brien produced no evidence creating a genuine factual dispute on pretext; summary judgment proper

Key Cases Cited

Gaytan v. Wal‑Mart, 853 N.W.2d 181 (Neb. 2014) (summary judgment standard and appellate review)
Coffey v. Planet Group, 845 N.W.2d 255 (Neb. 2014) (at‑will employment rule and exceptions)
Ambroz v. Cornhusker Square Ltd., 416 N.W.2d 510 (Neb. 1987) (public‑policy exception should be limited to clear mandates)
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (U.S. 1973) (burden‑shifting framework for discrimination/retaliation claims)
Riesen v. Irwin Indus. Tool Co., 717 N.W.2d 907 (Neb. 2006) (application of McDonnell Douglas framework in retaliatory discharge context)
Rose v. Vickers Petroleum, 546 N.W.2d 827 (Neb. App. 1996) (temporal proximity insufficient absent evidence undermining employer’s reason)
Smith v. Allen Health Systems, Inc., 302 F.3d 827 (8th Cir. 2002) (temporal proximity can support causation but requires stronger showing for pretext)