Union Pacific wins appeal in fair employment practices case dismissal

Plaintiff failed to prove disparate treatment in discharge from Union Pacific Railroad; While Plaintiff made prima facie case of retaliation for complaining about females' sexual comments he failed to rebut employers evidence of legitimate non-discriminatory motive for firing him; Douglas county District court summary judgment ruling affirmed. Helvering v. Union Pacific RR. Co., 13 Neb. App. 818 Filed August 30, 2005. No. A-04-266. Plaintiff's allegation that female employees suffered no consequences from telling sexual jokes at work while he did did not create a disparate impact claim for him. UP demonstrated leigitimate nondiscriminatory reason for firing plaintiff because he was subject to a harassment claim himself; while proving motive is subjective, plaintiff did not overcome hurdle on summary judgment of proving the falsity and improper motive of the employer's proffered reason for firing him. Unspecific suggestion that company wanted to fire older employees insufficient to prove motive. he Nebraska Fair Employment Practice Act (FEPA), Neb. Rev. Stat. §§ 48-1101 to 48-1126 (Reissue 2004), furthers “the policy of [Nebraska] to foster the employment of all employable persons in the state on the basis of merit . . . and to safeguard their right to obtain and hold employment without discrimination.” § 48-1101. FEPA is patterned from that part of the Civil Rights Act of 1964 contained in 42 U.S.C. § 2000e et seq. (2000), and it is appropriate to look to federal court decisions construing similar and parent federal legislation. See, Airport Inn v. Nebraska Equal Opp. Comm., 217 Neb. 852, 353 N.W.2d 727 (1984); The plaintiff bears the burden to first prove to the fact finder by a preponderance of the evidence a prima facie case of discrimination. See, Texas Dept. of Community Affairs v. Burdine, supra; Rose v. Vickers Petroleum, supra. If the plaintiff proves a prima facie case, the defendant has the burden to articulate a legitimate nondiscriminatory reason for the employment decision to rebut the inference of discrimination raised by the plaintiff’s prima facie claims. See id. Once the defendant produces such a reason, the plaintiff then has the burden to prove by a preponderance of the evidence that the legitimate reason offered by the defendant was but a pretext for discrimination. See id. At all times, the plaintiff retains the ultimate burden of persuading the fact finder that he has been the victim of intentional impermissible conduct. See id. This same analysis has also been referred to as the “McDonnell Douglas test,” applied in disparate treatment cases. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973) It is now incumbent upon an employee to prove not only falsity of the proffered reasons given by the employer, but also that discriminatory motive was the true reason for the discharge. See id. See, also, Ventura v. State, 246 Neb. 116, 517 N.W.2d 368 (1994). The trier of fact may rely on inferences rather than direct evidence of intentional acts, but intent must be proven by a preponderance of the evidence, whether direct, circumstantial, or otherwise.St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993), Although we conclude that Helvering satisfied his burden of adducing sufficient evidence to demonstrate a prima facie case of discrimination, we conclude that UP demonstrated a legitimate nondiscriminatory basis for terminating Helvering’s employment and that Helvering failed to satisfy his burden of demonstrating that the proffered basis was merely pretextual. The court did grant plaintiff the benefit of the doubt that the retaliation against him was close enough to his complaining about females' language that the two were connected: Notwithstanding the district court’s contrary statement that Helvering’s allegation of a causal connection was “unsupported,” the district court appeared to recognize that Helvering had demonstrated a sufficient causal connection by demonstrating the very close temporal proximity between the allegedly protected activity and the adverse employment action. We conclude that the district court improperly resolved genuine issues of fact concerning the causal connection between the allegedly protected activity and the adverse employment action. Nonetheless, it is apparent that the district court implicitly found that Helvering had satisfied his burden to demonstrate a prima facie case of discrimination, at least sufficiently so to survive summary judgment. However even giving the plaintiff the benefit of the doubt as to his prima facie case against UP for retaliation, UP satisfied its burden on summary judgment which the plaintiff failed to rebut with evidence proper for a summary judgment hearing: Because UP demonstrated a legitimate nondiscriminatory basis for terminating Helvering’s employment, it became Helvering’s burden to demonstrate that the proffered basis was merely pretextual. See, Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981); Rose v. Vickers Petroleum, 4 Neb. App. 585, 546 N.W.2d 827 (1996). We agree with the district court that Helvering failed to satisfy this burden, because he presented no evidence, other than the temporal proximity between the allegedly protected activity and the adverse employment action, to suggest that the real reason UP terminated his employment was discriminatory and not legitimate. It is now incumbent upon an employee to prove not only falsity of the proffered reasons given by the employer, but also that discriminatory motive was the true reason for the discharge. See id. See, also, Ventura v. State, 246 Neb. 116, 517 N.W.2d 368 (1994). The trier of fact may rely on inferences rather than direct evidence of intentional acts, but intent must be proven by a preponderance of the evidence, whether direct, circumstantial, or otherwise. See, Texas Dept. of Community Affairs v. Burdine, supra;mith v. Allen Health Systems, Inc., 302 F.3d 827 (8th Cir. 2002), the court specifically held that although temporal proximity may be sufficient to demonstrate a prima facie case of discrimination, temporal proximity alone is not sufficient to satisfy the burden to show pretext Helvering failed to satisfy the heightened burden of proof required to demonstrate pretext or intentional discrimination.CONCLUSION The district court did not err in granting UP summary judgment on Helvering’s retaliation claim, Helvering’s gender discrimination claim, and Helvering’s age discrimination claim. Helvering failed to satisfy his burden of proof with respect to each of the claims, and UP was entitled to a judgment as a matter of law on each. The order of the district court granting UP summary judgment on each of the claims is affirmed.