Wanda Walker v. First Care Management Group, 27 F.4th 600

Walker (caregiver, 2015–2017) and Wright (lead medication aide since 2005) worked in the memory-care unit at Parsons House, an assisted-living facility operated by First Care.
Facility policy required employees to immediately report resident abuse to a supervisor, complete an incident report, and note the incident in the resident’s chart; failure could result in discipline up to termination.
Both observed resident B.P. sexually assaulting other residents multiple times and intervened; they recorded incidents in an informal shift-change communication book and on some occasions delayed formal reporting until the next day.
DHHS conducted an unannounced site visit after an anonymous complaint; Wright was interviewed and reported the incidents to investigators; a staff meeting followed in which management said an investigation could lead to discipline.
On February 24, 2017, First Care terminated three black employees (Walker, Wright, and Knowles); First Care explained the terminations by noting those employees worked the shifts during which most of B.P.’s misconduct occurred.
Walker and Wright filed NEOC/state complaints and then sued in state court alleging race discrimination (Title VII, §1981, and Nebraska law) and retaliation; the case was removed to federal court, the district court granted summary judgment for First Care, and the panel affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Retaliation under Neb. Rev. Stat. § 48-1114(1)(c)	Walker: internal reports; Wright: DHHS interview and confronting ED were protected opposition to unlawful practices	First Care: plaintiffs did not oppose an unlawful practice of the employer or refuse to carry out an employer-ordered unlawful act	Not protected activity as a matter of law; retaliation claim fails; summary judgment affirmed
Race discrimination (Title VII, § 1981, Neb. law)	Termination was discriminatory; white employees who reported or were interviewed were not fired	First Care: nondiscriminatory reason — plaintiffs worked the shifts where most misconduct occurred	Plaintiffs assumed to have prima facie case but failed to prove pretext; summary judgment affirmed
Comparator/similarly situated evidence	Plaintiffs identify a white supervisor as a comparator to show disparate treatment	First Care: alleged comparator not similarly situated in all relevant respects	Comparator unacceptable under rigorous same-respect test; failure to identify proper comparator is fatal
Exclusion of NEOC investigator notes (hearsay)	Notes/reports would create factual disputes and alter outcome	First Care: notes are hearsay and inadmissible	Court did not need to resolve hearsay; plaintiffs failed to show any excluded material would change the outcome

Kempf v. Hennepin Cnty., 987 F.3d 1192 (8th Cir. 2021) (summary judgment standard reviewed de novo)
Knapp v. Ruser, 901 N.W.2d 31 (Neb. 2017) (elements for retaliation under Nebraska law)
McPherson v. City of Scottsbluff, 931 N.W.2d 451 (Neb. 2019) (protected conduct requirement in retaliation claims)
Baker-Heser v. State, 963 N.W.2d 59 (Neb. 2021) (opposition must target employer unlawful practices)
Beasley v. Warren Unilube, Inc., 933 F.3d 932 (8th Cir. 2019) (same analysis for Title VII and § 1981 claims)
Edwards v. Hiland Roberts Dairy Co., 860 F.3d 1121 (8th Cir. 2017) (establishing prima facie and burden-shifting framework)
Johnson v. Securitas Sec. Servs. USA, Inc., 769 F.3d 605 (8th Cir. 2014) (rigorous similarly situated comparator test)
Rowles v. Curators of Univ. of Mo., 983 F.3d 345 (8th Cir. 2020) (failure to show similarly situated comparators supports summary judgment)
Guimaraes v. SuperValu, Inc., 674 F.3d 962 (8th Cir. 2012) (pretext proof and ultimate burden of persuasion)
Torgerson v. City of Rochester, 643 F.3d 1031 (8th Cir. 2011) (en banc) (burden-shifting and ultimate burden explanation)
Smith v. Kilgore, 926 F.3d 479 (8th Cir. 2019) (affirming summary judgment where excluded evidence would not create a triable issue)