Rose v. Vickers Petroleum

• Decision Date: 30 April 1996
• Docket Number: No. A-94-394,A-94-394
• Citation: 546 N.W.2d 827,4 Neb.App. 585
• Parties: Lawrence ROSE, Appellant, v. VICKERS PETROLEUM, Appellee.
• Court: Nebraska Court of Appeals

Page 827

546 N.W.2d 827

4 Neb.App. 585

Lawrence ROSE, Appellant, v. VICKERS PETROLEUM, Appellee.

No. A-94-394.

Court of Appeals of Nebraska.

April 30, 1996.

Syllabus by the Court

1. Administrative Law: Appeal and Error. When a petition seeking review of an agency's decision under the Administrative Procedure Act is filed in the district court on or after July 1, 1989, the review shall be conducted by the district court de novo on the record. The judgment rendered or final order made by the district court may be reversed, vacated, or modified by an appellate court for errors appearing on the record.

2. Judgments: Appeal and Error. An appellate court, in reviewing a judgment of the district court for errors appearing on the record, will not substitute its factual findings for those of the district court where competent evidence supports those findings.

3. Federal Acts: Civil Rights: Fair Employment Practices. Because the Nebraska Fair Employment Practice Act is patterned from that part of the Civil Rights Act of 1964 contained in 42 U.S.C. § 2000e (1994), it is appropriate to look to federal court decisions construing similar and parent federal legislation.

4. Fair Employment Practices: Proof. The well-known order and allocation of proof and burdens set forth in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), are applicable to discriminatory employment treatment claims, as well as retaliatory claims.

5. Fair Employment Practices: Proof. An employee must first prove to the fact finder by a preponderance of the evidence a prima facie case of retaliation. If the employee proves a prima facie case, the employer has the burden to articulate a legitimate nondiscriminatory reason for the employment decision in order to rebut the inference of retaliation raised by the employee's prima facie claims. Once the employer produces such a reason, the employee then has the burden to prove by a preponderance of the evidence that the legitimate reasons offered by the employer were but a pretext for retaliation.

6. Fair Employment Practices: Proof: Intent. At all times, the employee retains the ultimate burden of persuading the fact finder that he has been the victim of intentional impermissible conduct.

7. Fair Employment Practices: Proof: Intent. The employee must prove not only falsity of the proffered reasons given by the employer, but also that discriminatory motive was the true reason for the discharge.

8. Fair Employment Practices: Proof: Intent. The trier of fact in a discriminatory employment case may rely on inferences rather than direct evidence of intentional acts, but intent must be proved by a preponderance of the evidence, whether direct, circumstantial, or otherwise.

9. Fair Employment Practices: Proof. The elements of a prima facie case for retaliation are that the employee must show that (1) he or she was engaging in a protected activity, (2) he or she suffered an adverse employment decision, and (3) there was a causal link between the protected activity and the adverse employment decision.

10. Fair Employment Practices: Proof. An employee is not required to prove the merits of the underlying discrimination 11. Fair Employment Practices. Finding of unlawful employer retaliation does not depend on the merits of the underlying discrimination complaint.

charge which forms the basis for the alleged retaliatory treatment so long as the employee possessed a good faith belief that the offensive conduct violated the law.

12. Fair Employment Practices. Employer retaliation even against those whose charges are unwarranted cannot be sanctioned.

13. Fair Employment Practices. The law does not permit an employee's well-founded, albeit unsuccessful, complaint of racial discrimination to be used by an employer as an excuse to retaliate by firing the employee.

Appeal from the District Court for Douglas County; RICHARD J. SPETHMAN, Judge. Affirmed.

Jerrold V. Fennell, of Domina & Copple, P.C., Omaha, for appellant.

Michael T. Levy, Omaha, for appellee.

MILLER-LERMAN, C.J., and IRWIN and MUES, JJ.

MILLER-LERMAN, Chief Judge.

Lawrence Rose appeals the order of the district court for Douglas County, which affirmed the final order of the Nebraska Equal Opportunity Commission (NEOC) dismissing Rose's complaint. In his complaint and at the hearing, Rose claimed that he was the victim of a retaliatory firing several days after he had complained to the operations manager of Vickers Petroleum (Vickers) that a supervisor had made a racial slur against him. The recommended order of the hearing examiner, as adopted as the final order of the NEOC, concluded that Rose had not participated in protected activity and was not a protected person within the meaning of the Nebraska Fair Employment Practice Act (NFEPA), Neb.Rev.Stat. § 48-1101 et seq. (Reissue 1988 & Cum.Supp.1990), and that "[e]ven if [Rose] had proved a prima facie case of discrimination by retaliation, [Vickers had] successfully articulated a reasonable non-discriminatory explanation for its decision to terminate [Rose] from its employment." Although we find that the hearing examiner misstated the law, and it appears that his misstatement was adopted by the NEOC and by the district court which affirmed the decision, we conclude that the recommended order and dismissal were supported by competent evidence, and, accordingly, we affirm.

STATEMENT OF FACTS

Rose, an African-American, was employed with Vickers as a cashier at its 40th and Cuming Streets location in Omaha.

On March 7, 1991, Robert Settlemyer, the district manager, came to the station. According to Rose's testimony, Settlemyer looked at Rose, who was not in a Vickers uniform, and said, "Where's your smock at, boy?" There is some evidence that Settlemyer repeated this comment a second time. Rose testified that he ignored the remark because he knew the comment was being directed at him and because the term "boy" was "a polite way of calling me a nigger."

After Settlemyer left, Rose told his manager, Cenon Ortiz, that he was upset over Settlemyer's use of the racial slur and that he wanted to call the home office to complain.

The next day, Rose called Vickers' home office in Denver and spoke with Denise K. Beisel, the operations manager, to register a complaint. In accordance with Vickers' policy, Beisel then called the Equal Employment Opportunity Commission coordinator for Vickers.

Approximately on March 11, 1991, Settlemyer called Rose concerning the complaint and apologized. This call was in response to Beisel's instruction to him to call Rose and apologize.

On March 25, 1991, Vickers fired Rose. This dismissal occurred after Rose called his employer twice that day to inform the employer that he would be late to work, evidently because Rose was working with the police in an effort to recover tires and rims stolen from Rose's car. Rose's supervisor, Rick Tangeman, attempted to find a replacement for Rose and, when he was unable to get The record shows that Tangeman was assigned as manager of the 40th and Cuming Streets location 5 days before Rose's dismissal. Tangeman testified that prior to firing Rose, he was aware that Rose had complained about Settlemyer's remark.

coverage, directed Rose to report for work. Rose did not come in at 2 p.m. as scheduled, but showed up 3 hours later. Rose was fired upon his arrival. The firing was consistent with company policy to fire workers for insubordination, but not consistent with a policy that one could not terminate an employee without consulting another supervisor.

Rose filed a complaint with the NEOC based on a claim of retaliatory termination. A hearing was conducted on January 11 and 12, 1993. Five witnesses testified live. Their testimony consumes about 230 pages. Twenty-seven exhibits were received in evidence. In addition, three witnesses appeared by deposition. A "Recommended Order and Decision" was issued on April 5, 1993, recommending dismissal of the complaint as noted above. The NEOC's final order adopting the recommendations over Rose's objection was filed May 21, 1993. Rose appealed the dismissal to the district court, which affirmed the order. This appeal followed.

ASSIGNMENTS OF ERROR

Rose assigns the following three errors: (1) The NEOC erred in determining that Rose " 'did not participate in a protected activity' "; (2) the NEOC erred in not finding that Rose made a prima facie showing of discrimination by retaliation; and (3) the NEOC erred in failing to find that Vickers' proffered reason for Rose's discharge was not the true reason for the employment decision.

STANDARD OF REVIEW

Rose appealed the NEOC decision under the Administrative Procedure Act. See Neb.Rev.Stat. § 84-917 (Reissue 1994). When a petition seeking review of an agency's decision under the Administrative Procedure Act is filed in the district court on or after July 1, 1989, the review shall be conducted by the district court de novo on the record. § 84-917(5)(a). The judgment rendered or final order made by the district court may be reversed, vacated, or modified by an appellate court for errors appearing on the record. Neb.Rev.Stat. § 84-918(3) (Cum.Supp.1990); Metro Renovation v. State, 249 Neb. 337, 543 N.W.2d 715 (1996); Bell Fed. Credit Union v. Christianson, 244 Neb. 267, 505 N.W.2d 710 (1993); Davis v. Wright, 243 Neb. 931, 503 N.W.2d 814 (1993). An appellate court, in reviewing a judgment of the district court for errors appearing on the record, will not substitute its factual findings for those of the district court where competent evidence supports those findings. Id. See, also, Ballard v. Nebraska Dept. of Soc. Servs., 2 Neb.App. 809, 515 N.W.2d 437 (1994).

ANALYSIS

The Nebraska Supreme Court has stated:

Because the NFEPA is patterned from that part of the Civil Rights Act of 1964 contained in 42 U.S.C. §§ 2000e et seq. (1976), it is appropriate to look to federal court decisions...