Sunday, July 23, 2006

Nebraska Supreme Court adopts Green v. McDonnel Douglas structure for retaliatory discharge claims related to worker compensation cases. Reverses summary judgment that was in favor of the Employer Riesen v. Irwin Indus. Tool Co., 272 Neb. 41 Filed July 21, 2006. No. S-05-208.The Nebraska Supreme Court reverses summary judgment that was infavor of the employer after Plaintiff after the employer discharged him for making a worker compensation claim. The Supreme Court finds issues of fact existed as to the Plaintiff's prima facie case and the whetherthe employer's reasons for discharging him were pre-textual. The Supreme Court recognized the worker comp retaliatory discharge issue in Jackson v. Morris Communications Corp., 265 Neb. 423, 657 N.W.2d 634 (2003), but without any authority from the Legislature. In cases involving claims of employment discrimination, albeit not involving workers' compensation claims, this court has recognized the burden-shifting analysis which originated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). See, e.g., Billingsley v. BFM Liquor Mgmt., 264 Neb. 56, 645 N.W.2d 791 (2002) (age discrimination) As clarified in St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993), "'McDonnell Douglas Corp. allocates the burden of production and the order for the presentation of the evidence; the ultimate burden of persuasion, however, rests on the plaintiff.'" Billingsley, 264 Neb. at 70, 645 N.W.2d at 803. The Plaintiff has the burden is a burden of production, not of persuasion. See Lincoln County Sheriff's Office v. Horne, 228 Neb. 473, 423 N.W.2d 412 (1988). The employer need only explain what has been done or produce evidence of a legitimate, nondiscriminatory reason for the decision. Id. It is sufficient if the employer's evidence raises a genuine issue of fact as to whether it discriminated against the employee. Id. "'"If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted" . . . and "drops from the case . . . ."'" (Citation omitted.) Agnew, 256 Neb. at 402, 590 N.W.2d at 694, quoting St. Mary's Honor Center, supra. Third, assuming the employer establishes an articulated nondiscriminatory reason for disparate treatment of an employee, the employee maintains the burden of proving that the stated reason was pretextual and not the true reason for the employer's decision; i.e., that the disparate treatment would not have occurred but for the employer's discriminatory reasons. Lincoln County Sheriff's Office, supra. Most jurisdictions apply the above-described analysis to workers' compensation retaliatory discharge cases. Like the trial court in the present case, we will apply the burden-shifting analysis this court has utilized in employment discrimination actions to this case involving retaliatory discharge for filing a workers' compensation claim. Our conclusion, however, differs from that of the trial court. the employment application completed by Riesen instructed applicants to list "all present and past employment" and to "[u]se a separate sheet of paper if necessary," but the application left room to list only three previous employers. Riesen listed only three previous employers on his application (although Riesen suggests that a separate page might have been lost from his personnel file). The record before us includes copies of other employees' job applications. Most of those applications include a listing of only three prior employers, with no addition of a separate page. Such evidence, Riesen claims, supports an inference that "Irwin [Industrial] itself does not consider the inclusion of all employers essential and material and thus, jumped at the first pretextual low-grade reason to terminate [him]." Brief for appellant at 22.

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