Trosper v. Bag `N Save
| Decision Date | 06 July 2007 |
| Docket Number | No. S-05-889.,S-05-889. |
| Citation | 734 N.W.2d 704,273 Neb. 855 |
| Parties | Kimberlee TROSPER, appellant, v. BAG `N SAVE, appellee. |
| Court | Nebraska Supreme Court |
Michael P. Dowd, of Dowd, Howard & Corrigan, L.L.C., Omaha, for appellant.
Robert F. Rossiter, Jr., and Sherman P. Willis, of Fraser, Stryker, Meusey, Olson, Boyer & Bloch, P.C., Omaha, for appellee.
Under Nebraska law, an employer, without incurring liability, generally may terminate an at-will employee at any time. But in Jackson v. Morris Communications Corp.,1 we held a public policy exception to this rule applies when an employer wrongfully discharges an employee in retaliation for filing a workers' compensation claim. Kimberlee Trosper alleges not that she was fired, but that she was demoted because she pursued workers' compensation. This case presents the question whether we should extend the public policy exception to include retaliatory demotion. Extending our ruling in Jackson, we now hold that demotion, like discharge, violates public policy. We reverse, and remand for further proceedings.
Trosper filed a complaint alleging the following: Bag `N Save employed her as a "deli manager." During the course of her employment, she suffered a work-related injury which required medical treatment. When she reported her injury to her employers, the company demoted her from "deli manager" to "deli clerk," and her annual salary decreased from $30,100 to $22,500. Trosper's complaint does not allege that she filed for workers' compensation. Bag `N Save, however, acknowledges that Trosper filed a workers' compensation claim and that she reported the injury under the Nebraska Workers' Compensation Act.2
Trosper alleged that Bag `N Save acted in a retaliatory manner contrary to our decision in Jackson v. Morris Communications Corp.3 Bag `N Save moved to dismiss under Neb. Ct. R. of Pldg. in Civ. Actions 12(b)(6) (rev.2003), alleging that the complaint failed to state a claim upon which relief could be granted. The trial court sustained the motion and dismissed the complaint.
Whether a petition states a cause of action is a question of law which requires this court to reach a conclusion independent of the trial court.4
Trosper assigns, restated, that the district court erred as a matter of law in sustaining Bag `N Save's motion to dismiss.
Trosper urges this court to adopt a cause of action for retaliatory demotion when an employer demotes an employee for filing a workers' compensation claim. She contends that demotion, like termination, frustrates the public policy behind the Nebraska Workers' Compensation Act. Bag `N Save argues that the public policy exception should be restricted to situations involving discharge. It argues that demotion does not implicate the same concerns as discharge and that expanding the tort could cause a flood of litigation.
Unless constitutionally, statutorily, or contractually prohibited, an employer, without incurring liability, may terminate an at-will employee at any time with or without reason.5 We recognize, however, a public policy exception to the at-will employment doctrine. Under the public policy exception, we will allow an employee to claim damages for wrongful discharge when the motivation for the firing contravenes public policy.6 The public policy exception is restricted to cases when a clear mandate of public policy has been violated, and it should be limited to manageable and clear standards.7 In determining whether a clear mandate of public policy is violated, courts should inquire whether the employer's conduct contravenes the letter or purpose of a constitutional, statutory, or regulatory provision or scheme.8
We have addressed whether a public policy exception to the at-will employment doctrine should apply in several cases. We have previously recognized public policy exceptions when a statute prohibits an employer from discharging an employee.9 And we have recognized the exception when an employee reports, in good faith, his suspicions that his employer is violating a criminal law.10 In contrast, we determined that the Nebraska Wage Payment and Collection Act did not "represent a `very clear mandate of public policy' which would warrant recognition of an exception to the employment-at-will doctrine."11 That act did not prohibit employers from discharging employees, and it did not provide employees with any substantive rights. Instead, it was primarily remedial, providing an enforcement mechanism for rights that already exist.12
Recently, in Jackson, we recognized a public policy exception to the at-will employment doctrine and permitted a cause of action when an employer discharges an employee for filing a claim under the Nebraska Workers' Compensation Act. In Jackson, we acknowledged that the Nebraska Workers' Compensation Act, like the Nebraska Wage Payment and Collection Act, does not include a statutory prohibition that prevents employers from discharging employees who assert their rights under the act.13 We, however, cited other states which recognized public policy exceptions absent a clear statutory ban.14
Moreover, unlike the Nebraska Wage Payment and Collection Act, the Nebraska Workers' Compensation Act creates substantive rights to compensation arising from the statute itself. It serves the important and beneficent purpose of protecting injured workers from the adverse economic effects of work-related injuries and occupational disease and binds employers to compensate injured workers. This duty "would be seriously frustrated if employers were able to prevent employees from filing claims through the threat of discharge."15 We further explained:
To hold that there is not a clear public policy warranting an exception to the at-will employment doctrine would ignore the beneficent nature of the Nebraska Workers' Compensation Act. This, in effect, would allow an employer to say to the employee: " "16
Thus, we held that the Nebraska Workers' Compensation Act presented a clear mandate of public policy warranting application of the exception.
Trosper now requests that we expand our cause of action for retaliatory discharge to retaliatory demotion.
We have not previously addressed whether our cause of action for retaliatory discharge should be expanded to include any lesser retaliatory actions against employees who file workers' compensation claims. Other jurisdictions provide some guidance.
In Zimmerman v. Buchheit of Sparta, Inc.,17 a plurality of the Illinois Supreme Court rejected a claim for retaliatory demotion. The court first addressed this claim as a possible extension of its retaliatory discharge tort.18 In declining to expand the tort, the court cited several Illinois cases which had narrowly interpreted the cause of action.19
The Zimmerman court stated that the element of discharge was essential to the tort it had created. It explained,
In our view, adoption of plaintiff's argument [a cause of action for retaliatory demotion] would replace the well-developed element of discharge with a new, ill-defined, and potentially all-encompassing concept of retaliatory conduct or discrimination. The courts then would be called upon to become increasingly involved in the resolution of workplace disputes which center on employer conduct that heretofore has not been actionable at common law or by statute.20
The plaintiff's recitations of the "general principles of policy" behind retaliatory discharge did not sway the court.21 It held that the plaintiff had not established a compelling reason to expand the cause of action.
The court also rejected the plaintiff's claim under an Illinois statutory provision which made it unlawful for an employer to "discriminate" against an employee because he exercised his rights under that state's workers' compensation act. In its discussion, the court pointed out that the "plaintiff fail[ed] to explain the manner in which demotions, as distinct from terminations, relieve employers of their responsibility to compensate employees for their work-related injuries."22
Only two justices joined the majority decision. Two concurring justices and two dissenting justices disagreed with the plurality's decision to treat retaliatory demotion and retaliatory discharge differently. The concurring justices stated that the courts should leave recognition of both retaliatory discharge and demotion to the legislature. The concurrence pointed out, however, that refusing to recognize a tort of retaliatory demotion while maintaining the retaliatory discharge tort created a "glaring loophole" because employers could simply retaliate by demoting rather than firing employees who file workers' compensation claims.23
The dissent argued the cause of action should be extended to demotion because there is "no principled way to distinguish the two situations."24 The dissent relied on an Illinois statute which made it a crime to either discharge or discriminate against workers who filed workers' compensation claims.
In response to the concurring and dissenting opinions, the plurality wrote:
Neither the dissent nor the concurrence acknowledges that this court acts within its authority in reaffirming the well-settled and limited tort of retaliatory discharge, as an exception to the at-will employment doctrine, without being constrained to open broad new avenues of litigation for other, less defined types of retaliatory conduct in the workplace.25
Similarly, the Utah Supreme Court rejected a cause of action for retaliatory harassment or...
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