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Patricia A. Knapp, appellant, v. Kevi

in his official capacity, and the Uni

of Nebraska Board of Regents, appelle

___ N.W.2d ___

Filed September 1, 2017. No. S-16-785.

1. Summary Judgment: Appeal and Error. An appellate court will 

affirm a lower court’s grant of summary judgment if the pleadings and 

admitted evidence show that there is no genuine issue as to any material 

facts or as to the ultimate inferences that may be drawn from those facts 

and that the moving party is entitled to judgment as a matter of law.

2. ____: ____. In reviewing a summary judgment, an appellate court views 

the evidence in the light most favorable to the party against whom the 

judgment was granted and gives that party the benefit of all reasonable 

inferences deducible from the evidence.

3. Motions for New Trial: Appeal and Error. An appellate court reviews 

a denial of a motion for new trial or, in the alternative, to alter or amend 

the judgment, for an abuse of discretion.

4. Fair Employment Practices: Statutes: Federal Acts. The Nebraska 

Fair Employment Practice Act, Neb. Rev. Stat. §§ 48-1101 through 

48-1126 (Reissue 2010), is patterned after federal title VII of the Civil 

Rights Act of 1964, 42 U.S.C. § 2000e (2012), and therefore, it is appropriate to look to federal court decisions construing Title VII for guidance 

with respect to the Nebraska act.

5. Fair Employment Practices: Discrimination: Proof. A prima facie 

case of gender discrimination requires the plaintiff to prove that he or 

she (1) is a member of a protected class, (2) was qualified to perform 

the job, (3) suffered an adverse employment action, and (4) was treated 

differently from similarly situated persons of the opposite sex.

6. ____: ____: ____. The test to determine whether employees are similarly situated to warrant a comparison to a plaintiff is a rigorous one and 

the plaintiff has the burden of demonstrating that there were individuals 

similarly situated in all relevant aspects to the plaintiff by a preponderance of the evidence.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

11/09/2017 09:14 AM CST
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7. Fair Employment Practices: Statutes: Federal Acts. Because Neb. 

Rev. Stat. § 48-1221(1) (Reissue 2010) is patterned after the federal 

Equal Pay Act, 29 U.S.C. § 206(d) (2012), it is appropriate to look to 

federal court decisions construing 29 U.S.C. § 206(d) for guidance with 

respect to § 48-1221(1).

8. Claims: Fair Employment Practices: Discrimination: Wages: Proof. 

When bringing a claim of wage discrimination based on sex under Neb. 

Rev. Stat. § 48-1221(1) (Reissue 2010), a plaintiff must first establish 

a prima facie case by showing by a preponderance of the evidence 

that (1) the plaintiff was paid less than a person of the opposite sex 

employed in the same establishment; (2) for equal work on jobs requiring equal skill, effort, and responsibility; (3) which were performed 

under similar working conditions. If a plaintiff establishes a prima 

facie case of wage discrimination based on sex, the burden then shifts 

to the defendant to prove one of the affirmative defenses set forth in 

§ 48-1221(1).

9. Fair Employment Practices: Proof. A plaintiff must establish a prima 

facie case of retaliation under Neb. Rev. Stat. § 48-1114 (Reissue 2010) 

by showing (1) he or she engaged in protected conduct, (2) he or she 

was subjected to an adverse employment action, and (3) there was a 

causal connection between the protected conduct and the adverse action.

10. ____: ____. To satisfy the adverse employment action requirement in 

a retaliation claim, a plaintiff must show that a reasonable employee 

would have found the challenged action materially adverse. This, in turn, 

requires a showing that the employment action might have dissuaded a 

reasonable worker from reporting the alleged unlawful practice. To meet 

this burden, a plaintiff must demonstrate that the employment action 

was material, not trivial, and that it resulted in some concrete injury 

or harm.

11. Claims: Fair Employment Practices: Public Policy: Damages. Under 

the public policy exception to the at-will employment doctrine, an 

employee may claim damages for wrongful discharge when the motivation for the firing contravenes public policy. 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. 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.

Appeal from the District Court for Lancaster County: 

Horacio J. Wheelock, Judge. Affirm
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Brandon B. Hanson, of Hanson Law Offices, for appellant.

John C. Wiltse, of University of Nebraska, and David R. 

Buntain, of Cline, Williams, Wright, Johnson & Oldfather, 

L.L.P., for appellees.

Heavican, C.J., Wright, Miller-Lerman, Cassel,

and Funke, J

Miller-Lerman,

I. NATURE OF CASE

Patricia A. Knapp filed an action against Kevin Ruser, in his 

official capacity, and the Board of Regents of the University 

of Nebraska in which she asserted claims of discriminatory 

wage and employment practices based on her sex as well as 

claims of employment retaliation. Knapp’s claims arose from 

alleged occurrences while she was a supervising attorney for 

the civil clinical law program at the University of Nebraska 

College of Law. Knapp appeals the orders of the district 

court for Lancaster County in which the court sustained the 

defendants’ motion for summary judgment and overruled her 

motion to alter or amend the judgment. We affirm the district 

court’s orders.

II. STATEMENT OF FACTS

Knapp commenced this action with a complaint filed in 

the district court on July 11, 2014. In that complaint, Knapp 

set forth eight claims for relief, some based on state law and 

some based on federal law. In August, the defendants had 

the action removed to the U.S. District Court for the District 

of Nebraska. In November 2015, the federal court sustained 

the defendants’ motion for summary judgment in part and 

dismissed certain of Knapp’s claims, which were based on 

federal law, with prejudice. The federal court remanded the 

remaining claims, which were based on Nebraska state law, 

to the district court for Lancaster County for further proceedings. Knapp v. Ruser, 145 F. Supp. 3d 846 (D. Neb. 2015). 

Upon remand to the state court, Knapp filed an amended 
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complaint which mirrored the operative amended complaint 

she had filed in the federal court. In the amended complaint, 

she set forth 10 claims for relief. The federal court had dismissed the first through third, sixth, eighth, and tenth claims. 

Also, it remanded the fourth, fifth, seventh, and ninth claims 

for further proceedings in the state court. Accordingly, our 

consideration on appeal is limited to the state district court’s 

disposition of four claims identified in the operative complaint 

as the fourth, fifth, seventh, and ninth claims.

1. Background/

Knapp, an attorney, began working in the civil clinic as a 

temporary half-time employee in the summer of 1999. At that 

time, the director of clinical programs was on a sabbatical, 

and Knapp was hired to cover the portion of his responsibilities that concerned the civil clinic. After the director returned 

from sabbatical and informed the college that he would be 

leaving at the end of the fall semester, Knapp was hired as a 

temporary half-time employee beginning in the spring 2000 

semester. The understanding was that she would cover the 

former director’s duties with respect to the civil clinic while 

the law school considered its long-term strategic plan for the 

clinical programs.

Knapp’s half-time employment in the civil clinic ended 

in August 2004 after Ruser was named director of the clinical programs and the law school hired Richard Moberly to 

perform the duties Knapp had performed in the civil clinic. 

In 2006, the law school again hired Knapp as a half-time 

employee in the civil clinic after it determined that Moberly’s 

half-time status was not sufficient to meet student needs. 

While Knapp and Moberly split duties in the civil clinic, 

Moberly held a full-time position which included additional 

responsibilities such as teaching doctrinal classes, research, 

and community service.

Knapp continued to work half-time in the civil clinic until 

August 2011, when Moberly became an associate dean of the 

law school and gave up his duties in the civil clinic. Knapp 
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and Ruser agreed that Knapp’s employment as supervising 

attorney in the civil clinic should go to full time. Knapp’s 

position was classified as that of “Temporary Lecturer” and 

was designated as a “‘Special Appointment.’” Knapp met 

with the dean of the law school to discuss her full-time salary; the dean offered Knapp an annual salary of $80,000. 

After Knapp told the dean that the salary was low, the dean 

told Knapp that she would explore the possibility of increasing the salary by seeking a designation for the position as a 

“‘professor of practice.’” Knapp agreed to accept the salary 

for the upcoming academic year based on what she believed 

to be the dean’s “good-faith commitment” to find a way to 

increase her salary. When Knapp told Ruser the salary she 

had been offered, Ruser told her that the dean had “‘lowballed’” her.

A year later, in August 2012, Ruser left a letter for Knapp 

setting forth proposed terms and conditions for her employment in the upcoming academic year. The letter stated that 

her salary would again be $80,000. Prior to receiving the 

letter, Knapp had had no other communication with the law 

school’s administration regarding her salary for the upcoming year. The letter prompted Knapp to check the salaries of 

others working in the clinical programs. She learned from the 

University of Nebraska’s website that a male professor had 

been hired in March 2012 to teach a business transactions 

clinic at a salary of $106,000 per year. Knapp thereafter spoke 

with Ruser regarding her salary, and she told him that after 

seeing others’ salaries, she thought that the salary structure in 

the clinical programs was “skewed” and that the clinics had a 

“‘gender equity’ problem” that Ruser needed to address. Ruser 

responded that he was “‘baffled’” by Knapp’s allegations of 

discrimination and that the new male professor’s higher salary was justified by the fact that his position was a tenure 

track position.

Knapp alleged that the conversation became heated and 

that afterward, Ruser’s behavior and demeanor toward her 

changed. Knapp alleged that Ruser acted more hostile and 
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that he stopped adequately communicating with her. Knapp 

also observed that Ruser appeared to be neglecting his own 

duties in the clinic, including supervision of students and 

cases. After adopting a child in the spring semester, Ruser 

went to half time, and Knapp alleged that he “disengaged 

even further” from the clinic, with the result being that the 

clinic “was not fulfilling its ethical obligations to its clients 

or to its students.”

In April 2013, Knapp learned that Ruser would be receiving 

a lifetime achievement award from the law school. Although 

other members of the clinic’s staff had known of the award 

for several weeks and had been invited to sit at Ruser’s table 

at the award ceremony, Ruser had not mentioned the award 

to Knapp. This incident prompted Knapp to conclude that her 

relationship with Ruser “was so badly damaged that it had 

become impossible for them to work together as law partners 

in a way that would meet their ethical obligations to their clients and to their students.”

Knapp decided to leave her job at the clinic, but a coworker 

encouraged her to speak with the dean about what was happening in the clinic. Knapp met with the dean and informed her of 

several problems that she perceived in the clinic. Knapp told 

the dean that problems had existed for women in the clinical 

program since the early 1980’s, when Knapp was a student 

at the college. Knapp informed the dean of various concerns 

she had regarding Ruser’s management of the clinical programs, focusing on “the environment created for women in 

the clinical programs over the years” by Ruser and his male 

associates. Knapp alleged that after listening to Knapp’s concerns, the dean “did not offer to help in any way but wished 

[Knapp] well.” Knapp’s employment in the clinic ended on 

May 31, 2013.

2. Federal District Cour

Disposition of Clai

The federal district court concluded that because of sovereign immunity, it lacked jurisdiction to hear four of Knapp’s 
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claims: the fourth, fifth, seventh, and ninth. Those four claims 

were based on state law, and the federal court found that the 

state statutory schemes underlying the claims were not “sufficiently explicit to effect a waiver of sovereign immunity to 

suit in federal court.” Knapp v. Ruser, 145 F. Supp. 3d 846, 855 

(D. Neb. 2015). The federal court therefore remanded the four 

claims for further proceedings in the state district court.

The federal court determined that the six remaining claims—

the first through third, sixth, eighth, and tenth—were asserted 

under federal law and that Congress had abrogated states’ sovereign immunity for those claims. The court stated that five of 

the claims arose under title VII of the Civil Rights Act of 1964, 

42 U.S.C. § 2000e (2012) (Title VII), and that the remaining claim arose under the Equal Pay Act, 29 U.S.C. § 206(d) 

(2012) (EPA). The federal district court considered the six 

claims. It found merit to the defendants’ motion for summary 

judgment and dismissed the six claims.

The federal court stated that Knapp’s first claim was fashioned as a claim of disparate impact under Title VII. The court 

determined that Knapp’s disparate impact claim failed because 

she had not alleged any facially neutral employment policy 

that had a disparate impact on a protected class and instead 

had alleged a practice that was not facially neutral. The court 

characterized Knapp’s allegations as an allegation of disparate treatment rather than disparate impact and concluded that 

Knapp had not pled a prima facie case for disparate impact. 

The court therefore dismissed Knapp’s first claim.

The federal court next considered Knapp’s second, sixth, 

and eighth claims, which were fashioned as claims of disparate treatment and discrimination (the second and eighth 

claims, respectively) under Title VII and a claim of wage 

discrimination under the EPA (the sixth claim). The court 

set forth the requirements of a prima facie claim of disparate 

treatment or discrimination under Title VII and stated that a 

prima facie claim of wage discrimination under the EPA was 

sufficiently similar to examine the claims together. The court 

stated that in order to prevail on each of these claims, Knapp 
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needed to identify similarly situated males who were treated 

differently from her. Construing the facts in a light most favorable to Knapp, the court determined that her claims failed 

because “she [had] not shown any similarly situated male 

comparators who were treated differently.” Knapp, 145 F. 

Supp. 3d at 858. The court stated that by Knapp’s own admission, the males to whom she compared herself performed 

work or held duties that differed substantially from her own. 

Such duties included directing clinical programs, undertaking 

academic research, and performing community service, none 

of which were part of Knapp’s position, which focused solely 

on teaching.

The federal court stated that although Knapp argued her 

Title VII claims as failure to promote and wage discrimination, the evidence she presented was more consistent with 

a failure to hire. The court noted that Knapp compared her 

nontenured position to tenured positions held by male employees, and the court stated that “the uncontroverted evidence 

[was] that Knapp could only become eligible for tenure if she 

were hired into a tenure-eligible position.” Knapp v. Ruser, 

145 F. Supp. 3d 846, 857 (D. Neb. 2015). The court considered Knapp’s claims as failure-to-hire claims but determined 

that the claims still failed under such characterization. The 

court stated Knapp did not allege that she had applied for 

any tenure-eligible position or that anyone represented that 

her position would be eligible for tenure, and it stated that 

instead the uncontroverted evidence was that Knapp and the 

college mutually understood that her position was not eligible 

for tenure.

The federal court determined that “[t]he uncontroverted 

evidence . . . demonstrates that Knapp held a position with 

substantially different duties from her male colleagues” and 

that “she never applied for a position similar to those they 

held.” Id. at 859. The court concluded that Knapp “failed to 

allege facts sufficient for a reasonable jury to find that she 

suffered less favorable treatment than the Defendants gave to 

similarly situated individuals outside of her protected class.” 
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Id. The court therefore dismissed Knapp’s second, sixth, and 

eighth claims.

Knapp’s third claim was fashioned as a constructive discharge claim under Title VII. The federal court rejected the 

claim for two reasons. First, the court determined that Knapp 

had not alleged facts sufficient for a jury to conclude that a 

reasonable person would have found the conditions of employment intolerable. The court noted that Ruser’s less frequent 

communication with Knapp, his personal slights against her, 

and his alleged disengagement from his own duties were not 

enough to create a cognizable constructive discharge claim. 

Second, the court determined that although Knapp had aired 

certain grievances with the dean, she did not give the law 

school an opportunity to correct the problems before she 

resigned, and that her complaints were focused on long-term 

problems in the clinic rather than her immediate problems with 

Ruser. The court dismissed Knapp’s third claim.

For similar reasons, the court rejected Knapp’s tenth claim, 

which it characterized as an employment retaliation claim 

under Title VII. The court determined that “a reasonable jury 

could not conclude that Ruser’s alleged conduct constituted 

an adverse employment action.” Knapp, 145 F. Supp. 3d at 

861. The court stated that “Knapp acknowledge[d] that her 

strained relationship with Ruser did not interfere with her ability to perform her duties” and that the evidence did not support 

her “assertion that Ruser’s alleged neglect of his own cases 

somehow affected her duties.” Id. at 862. The court dismissed 

Knapp’s tenth claim.

3. State Court’s Disposit

of Remanded Clai

Having dismissed the six claims that were based on federal 

law, the federal district court remanded Knapp’s fourth, fifth, 

seventh, and ninth claims, which were based on state law, to 

the state district court for further proceedings. On remand, the 

defendants moved for summary judgment on those claims. The 

state district court applied the familiar framework found in 
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McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 

1817, 36 L. Ed. 2d 668 (1973), and after a hearing determined 

that Knapp’s evidence failed to show a prima facie case of discrimination. The state district court sustained the defendants’ 

motion for summary judgment.

In its order ruling on the defendants’ motion for summary 

judgment, the district court began its analysis by noting that 

three of the four remanded claims arose under Nebraska statutes that were patterned on analogous federal laws. The court 

stated that in Knapp’s fourth claim, she asserted a discriminatory wage practice claim under Neb. Rev. Stat. §§ 48-1219 

through 48-1227.01 (Reissue 2010), which statutes the court 

characterized as the state equivalent of the federal EPA. The 

court stated that in her fifth and seventh claims, Knapp alleged 

violations of the Nebraska Fair Employment Practice Act, Neb. 

Rev. Stat. §§ 48-1101 through 48-1126 (Reissue 2010 & Cum. 

Supp. 2014) (NFEPA), which the court characterized as the 

state equivalent of federal Title VII. The court noted that this 

court has held that Nebraska antidiscrimination laws are to be 

interpreted in the same manner as their federal counterparts. 

The court cited Nebraska appellate court cases looking to federal decisions construing Title VII for guidance to interpret the 

NFEPA. Extrapolating from the reasoning of those cases, the 

district court concluded it should apply a similar approach and 

looked to federal decisions construing the EPA for guidance 

regarding §§ 48-1219 through 48-1227.01.

The court first considered Knapp’s fourth claim, regarding discriminatory wage practices, under §§ 48-1219 through 

48-1227.01. Using a rationale similar to that used by the 

federal court when it rejected Knapp’s sixth claim, for wage 

discrimination under the EPA, the court rejected this claim. 

The court indicated that the claim was specifically based on 

§ 48-1221(1). The court determined that Knapp had failed to 

show any male employees who performed comparable work 

and that therefore, she could not establish a prima facie case 

of wage discrimination under § 48-1221(1). The court stated 

that the male professor who was hired in March 2012 had 
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duties that Knapp did not have, mainly related to the task 

of creating a new entrepreneurship clinic. This task required 

him to attend meetings with faculty and the dean and to perform community outreach and academic research, as well 

as performing administrative tasks involved in establishing 

the new clinic. The court determined that three other men to 

whom Knapp compared herself were members of the college 

faculty who had administrative and other duties that Knapp 

did not have as a temporary member of the nontenured staff 

of the college. As a temporary lecturer, Knapp was assigned 

exclusively to teach students and did not have responsibilities 

to conduct academic research or perform community service. 

The court also noted that Knapp had never applied for a position offering the possibility of tenure. The court granted summary judgment in favor of the defendants on Knapp’s fourth 

claim because she had not presented sufficient evidence of 

comparable individuals to make a prima facie inference of 

discriminatory wages under § 48-1221(1).

The court next considered Knapp’s fifth claim, which it 

characterized as a claim of discrimination on the basis of 

sex under the NFEPA. The court determined that Knapp’s 

discrimination claim under the NFEPA failed for the same 

reason that her eighth claim, for discrimination under Title 

VII, had failed in the federal district court. The court noted 

that the NFEPA mirrors Title VII and that in order to establish 

a prima facie case for sex discrimination, a plaintiff needed 

to show, inter alia, that similarly situated males were treated 

differently. The court determined that Knapp had failed to 

identify any similarly situated males who were treated differently from her and that therefore, she had failed to show a 

prima facie case of discrimination under the NFEPA. The court 

also addressed Knapp’s argument that the defendants failed 

to hire her for better-paying positions with the opportunity 

for tenure. The court agreed with the federal district court’s 

analysis to the effect that this argument failed because Knapp 

had not presented any evidence that she had applied for any 

tenure-eligible positions. The court therefore granted summary 
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judgment in favor of the defendants on Knapp’s fifth claim, of 

discrimination under the NFEPA.

The court characterized Knapp’s seventh claim as a claim 

of employment retaliation under the NFEPA. Knapp argued 

that Ruser had created a hostile work environment and had 

unreasonably interfered with her work performance after she 

complained to him regarding sex discrimination in the clinic. 

The court rejected Knapp’s retaliation claim under the NFEPA 

based on reasoning similar to that of the federal district court 

when it rejected Knapp’s tenth claim, of employment retaliation under Title VII. The court determined that Knapp had 

failed to show that a reasonable person would have found the 

conditions of employment intolerable or that the defendants 

either intended to force her to resign or could have reasonably foreseen that she would do so as a result of their actions. 

The court therefore granted summary judgment in favor of the 

defendants on Knapp’s seventh claim, of employment retaliation under the NFEPA.

Finally, the court characterized Knapp’s ninth claim as a 

public-policy-based claim of retaliation. Knapp alleged that 

the defendants had retaliated against her “for attempting to 

prevent ethical issues in a learning setting for future lawyers 

. . . in contravention of public policy.” Knapp argued that the 

civil clinic was a de facto law firm and that it was therefore 

subject to duties required of law firms in Nebraska. The district court cited Trosper v. Bag ’N Save, 273 Neb. 855, 734 

N.W.2d 704 (2007), and stated that this court has recognized 

a public policy exception to the at-will employment doctrine 

and that under the public policy exception, an employee may 

claim damages for wrongful discharge when the motivation 

for the firing contravenes public policy. The court rejected 

Knapp’s public policy retaliation claim for much the same 

reasons it rejected her claim of employment retaliation under 

the NFEPA. The court determined that Knapp had “failed to 

show how Ruser’s absence or refusal to communicate following their heated conversation resulted in her discharge or 

demotion.” The court noted that certain of Knapp’s concerns 
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regarding Ruser’s management of the clinical programs “were 

longstanding” and that she did not express those concerns to 

anyone in the college prior to April 2013. The court further 

determined that “even after Ruser became withdrawn, [Knapp] 

was able to fulfill her ethical obligations and performance” 

in the clinic, and that there was “no evidence that Ruser’s 

work on his own cases could compel a reasonable person in 

[Knapp’s] position to resign.” The court granted summary 

judgment in favor of the defendants on Knapp’s ninth claim, 

of public policy retaliation.

The district court concluded its order by stating that Knapp 

had “failed to establish a prima facie case of wage discrimination, failure to promote because of sex, retaliation, and 

retaliation in violation of public policy.” The court therefore 

sustained the defendants’ motion for summary judgment with 

respect to Knapp’s fourth, fifth, seventh, and ninth claims. The 

court overruled Knapp’s subsequent motion to alter or amend 

its judgment.

Knapp appeals the district court’s orders sustaining the 

defendants’ motion for summary judgment and overruling her 

motion to alter or amend its judgment.

III. ASSIGNMENTS OF ERROR

Knapp generally claims that the district court erred when it 

sustained the defendants’ motion for summary judgment on her 

fourth, fifth, seventh, and ninth claims and when it overruled 

her motion to alter or amend the judgment.

Knapp specifically claims, restated, that the district court 

erred when it (1) analyzed her fifth claim as a claim of failure to hire but failed to analyze it as a claim of impermissible classification under the NFEPA; (2) determined, with 

regard to her fifth claim, that she failed to show that there 

were similarly situated male employees who were treated 

differently; (3) determined, with regard to her fourth claim, 

regarding wage discrimination under § 48-1221(1), that she 

failed to show that there were male employees who performed 

comparable duties; and (4) determined that she failed, with 
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regard to both her seventh claim, of employment retaliation 

under the NFEPA, and her ninth claim, of public-policybased retaliation, to show retaliatory or unreasonable conduct 

by Ruser.

We note that Knapp also claims that the federal district court 

erred when it sustained the defendants’ motion for summary 

judgment with respect to her first through third, sixth, eighth 

and tenth claims. She requests that we reverse the federal district court’s order sustaining the defendants’ motion for summary judgment on those claims. Under federal law, when a federal district court grants summary judgment on certain claims 

and remands the remaining claims to a state court, the federal 

district court’s partial summary judgment becomes final as to 

the claims on which the federal district court granted summary 

judgment and the federal district court’s resolution of those 

claims is appealable to the federal circuit court. See Porter 

v. Williams, 436 F.3d 917 (8th Cir. 2006). The federal district 

court’s order in Knapp v. Ruser, 145 F. Supp. 3d 846 (D. Neb. 

2015), as a final judgment as to those claims upon which the 

federal court granted summary judgment, is appealable to a 

federal circuit court, and we do not review the federal district 

court’s resolution of those claims.

IV. STANDARDS OF REVIEW

[1,2] An appellate court will affirm a lower court’s grant 

of summary judgment if the pleadings and admitted evidence 

show that there is no genuine issue as to any material facts or 

as to the ultimate inferences that may be drawn from those 

facts and that the moving party is entitled to judgment as a 

matter of law. Thomas v. Board of Trustees, 296 Neb. 726, 

895 N.W.2d 692 (2017). In reviewing a summary judgment, an 

appellate court views the evidence in the light most favorable 

to the party against whom the judgment was granted and gives 

that party the benefit of all reasonable inferences deducible 

from the evidence. Id.

[3] An appellate court reviews a denial of a motion for new 

trial or, in the alternative, to alter or amend the judgment, for 
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an abuse of discretion. Cisneros v. Graham, 294 Neb. 83, 881 

N.W.2d 878 (2016).

V. ANALYSIS

Knapp generally claims that the district court erred when 

it sustained the defendants’ motion for summary judgment on 

her fourth, fifth, seventh, and ninth claims generally for the 

reason that Knapp’s evidence failed to show a prima facie case 

of discrimination, see McDonnell Douglas Corp. v. Green, 411 

U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), and when 

it overruled her motion to alter or amend the judgment. She 

also assigns specific errors, each of which relates to one or 

more of the claims. We will review the district court’s ruling 

as to each claim and Knapp’s specific arguments as to each 

claim in turn.

1. Fifth Claim: Discrimin

Under the

Knapp’s fifth claim was based on the NFEPA. The district 

court analyzed Knapp’s fifth claim as a claim of discrimination based on sex under the NFEPA; the court specifically addressed Knapp’s arguments that it characterized as a 

failure-to-hire claim. On appeal, Knapp makes two main arguments with regard to her fifth claim: (1) that the district court 

erred when it failed to analyze the fifth claim as a claim of 

improper classification under the NFEPA and (2) that the 

court erred when it determined that she had failed to show 

similarly situated male employees who were treated differently. Knapp claims that because of these errors, the district 

court erred when it sustained the defendants’ motion for summary judgment on her fifth claim and that the court abused 

its discretion when it overruled her motion to alter or amend 

the judgment in order to consider the fifth claim as a claim of 

improper classification.

[4] We note first that we have stated that the NFEPA is patterned after federal Title VII and that it is appropriate to look 

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with respect to the NFEPA. See Hartley v. Metropolitan 

Util. Dist., 294 Neb. 870, 885 N.W.2d 675 (2016). Like the 

plaintiff’s claim in Hartley, Knapp’s fifth claim is a claim of 

disparate treatment, that is, “a claim based on an employer’s 

treating some people less favorably than others because of 

their race, color, religion, sex, or other protected characteristics.” 294 Neb. at 891, 885 N.W.2d at 692-93. In Hartley, 

we looked to federal case law applying Title VII, specifically 

McDonnell Douglas Corp., supra, to provide a framework 

for a discrimination claim under the NFEPA. We noted in 

Hartley that the McDonnell Douglas Corp. framework is not 

the exclusive method of proving disparate treatment, but in 

this case, as in Hartley, the district court used that framework and the parties do not dispute that it was the appropriate approach.

The first step under the McDonnell Douglas Corp. framework is that “first the plaintiff has the burden of proving a 

prima facie case of discrimination.” Hartley, 294 Neb. at 

893, 885 N.W.2d at 693. In Hartley, the plaintiff set forth a 

failure-to-promote claim, and therefore, we stated that a prima 

facie case of discrimination in that case consisted of “demonstrating (1) the employee is a member of a protected group, 

(2) the employee was qualified and applied for a promotion 

to an available position, (3) the employee was rejected, and 

(4) a similarly situated employee, not part of the protected 

group, was promoted instead.” 294 Neb. at 893, 885 N.W.2d 

at 693.

[5,6] We note, however, that courts typically modify the 

formulation of a prima facie case of employment discrimination based on the specific type of discrimination claimed in a 

specific case. Although the requirements set forth in Hartley 

focused on a claim of failure to promote, the Nebraska Court 

of Appeals in Helvering v. Union Pacific RR. Co., 13 Neb. 

App. 818, 703 N.W.2d 134 (2005), set forth a more universal formulation of the required showing for a prima facie 

case of gender discrimination. The Court of Appeals stated 

that a “prima facie case of gender discrimination requires 
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the plaintiff to prove that he or she (1) is a member of a 

protected class, (2) was qualified to perform the job, (3) suffered an adverse employment action, and (4) was treated differently from similarly situated persons of the opposite sex.” 

Helvering, 13 Neb. App. at 842, 703 N.W.2d at 154 (citing 

Riggs v. County of Banner, 159 F. Supp. 2d 1158 (D. Neb. 

2001) (considering Title VII claim of discrimination based 

on sex)). The Court of Appeals further stated that the test to 

determine whether employees are similarly situated to warrant a comparison to a plaintiff is a rigorous one and that the 

plaintiff has the burden of demonstrating that there were individuals similarly situated in all relevant aspects to the plaintiff 

by a preponderance of the evidence. Helvering, supra (citing 

E.E.O.C. v. Kohler Co., 335 F.3d 766 (8th Cir. 2003) (considering Title VII retaliation claim based on race)).

(a) Classification

Knapp claims that the district court erred because it failed 

to analyze her fifth claim as a claim of improper classification 

under the NFEPA. She raises this argument in connection with 

her claims of error with respect to the court’s grant of summary 

judgment and its overruling of her motion to alter or amend 

the judgment.

Knapp’s fifth claim was based on § 48-1104, which is part 

of the NFEPA and which provides as follows:

It shall be an unlawful employment practice for an 

employer:

(1) To fail or refuse to hire, to discharge, or to harass 

any individual, or otherwise to discriminate against any 

individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, disability, marital status, or national origin; or

(2) To limit, advertise, solicit, segregate, or classify 

employees in any way which would deprive or tend to 

deprive any individual of employment opportunities or 

otherwise adversely affect such individual’s status as an 
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employee, because of such individual’s race, color, religion, sex, disability, marital status, or national origin.

Knapp maintains that the district court analyzed her fifth 

claim as a claim under only § 48-1104(1), which makes 

it an unlawful employment practice to, inter alia, “fail or 

refuse to hire . . . or otherwise to discriminate against any 

individual with respect to compensation . . . because of such 

individual’s . . . sex.” She contends that the court should have 

also analyzed the claim as a claim under § 48-1104(2), which 

makes it an unlawful employment practice to, inter alia, “classify employees in any way which would deprive or tend to 

deprive any individual of employment opportunities or otherwise adversely affect such individual’s status as an employee, 

because of such individual’s . . . sex.”

In support of her contention that the court analyzed the 

claim only under subsection (1) and not under subsection (2), 

Knapp focuses on the portion of the district court’s summary 

judgment analysis in which it considered the failure-to-hire 

aspects of the fifth claim. However, in addition to considering the claim specifically as a failure-to-hire claim, the district 

court also analyzed the claim as a more generalized claim of 

discrimination utilizing the framework of McDonnell Douglas 

Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 

(1973). Knapp contends that she showed a prima facie case of 

improper classification under that framework, and she does not 

offer an alternative approach.

Although Knapp used “classification” language in her complaint, and we acknowledge that the district court did not 

specifically refer to her fifth claim as one of improper “classification,” this is of no legal consequence. We believe that a 

claim of improper classification under § 48-1104(2) is subject 

to the McDonnell Douglas Corp. framework and that in such 

a case, the “adverse employment action” is an improper classification, which must be demonstrated by evidence of prima 

facie discrimination. In this case, the district court used the 

McDonnell Douglas Corp. framework and determined that 

Knapp had failed to show that there were similarly situated 
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male employees who were treated differently. As a consequence of this determination, the court effectively determined that Knapp had failed to show similarly situated male 

employees who were classified differently than she was and 

that therefore, she failed to show a prima facie case of discrimination resulting from an improper classification under 

§ 48-1104(2).

(b) Similarly Situated

Knapp further argues that the court erred when it determined 

with respect to her fifth claim that she failed to show similarly situated male employees who were treated differently. 

As noted above, this finding was dispositive of the improper 

classification aspects of Knapp’s claim as well as the other 

aspects of the claim. Knapp argues that she presented evidence 

of similarly situated males because she presented evidence that 

male employees were moved from nontenure positions into 

tenure track positions with higher pay.

The district court determined that Knapp failed to show 

similarly situated males because the males to whom she compared herself had duties that were different from or in addition 

to the duties that she performed. Because Knapp did not show 

the existence of males who were similarly situated, she could 

not show that males were treated differently. Any differences 

in compensation or classification could be explained by the 

differences in duties.

Knapp argues that the men were treated differently because 

they moved on to tenure track positions. But when the men 

moved on to such positions, they took on additional duties 

and therefore were no longer similarly situated. Therefore, 

to the extent that Knapp compares herself to male employees 

who moved on to tenure track positions while she did not, her 

argument is no longer that she was treated differently from 

similarly situated male employees. Instead, her argument is 

more properly characterized as a failure to promote or a failure to hire claim because she is arguing the male employees 

were able to move into tenure positions while she was not. 
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The district court analyzed Knapp’s fifth claim as a failure to 

hire claim, and the court determined that the claim failed as 

such because Knapp did not show that she had attempted to 

obtain a tenure track position and therefore could not show that 

the defendants refused to hire her for or promote her to such 

a position.

Viewing the evidence in the light most favorable to Knapp, 

we find she did not present evidence of similarly situated males, 

and therefore, she was unable to show under § 48-1104(1) that 

they were treated differently, whether such different treatment 

was with respect to compensation, classification, or hiring for 

or promotion to tenure track positions.

We conclude that with respect to Knapp’s fifth claim under 

§ 48-1104(1) and (2), the district court did not err when it 

reached the determinations noted above and sustained the 

defendants’ motion for summary judgment and overruled 

Knapp’s subsequent motion to alter or amend challenging such 

determinations.

2. Fourth Claim: Discrimina

Wage Practices Based 

Knapp’s fourth claim was a claim of wage discrimination 

based on sex under §§ 48-1219 through 48-1227.01. The 

district court determined that Knapp had failed to identify a 

male employee with comparable duties and therefore had not 

shown that a male employee performing the same duties was 

paid more. Knapp claims that the district court erred when it 

determined that she failed to show male employees who had 

comparable duties.

[7] As an initial matter, we note that the specific statute 

that underlies Knapp’s fourth claim is § 48-1221(1), which 

provides:

No employer shall discriminate between employees in the 

same establishment on the basis of sex, by paying wages 

to any employee in such establishment at a wage rate less 

than the rate at which the employer pays any employee 

of the opposite sex in such establishment for equal work 
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on jobs which require equal skill, effort and responsibility under similar working conditions. Wage differentials 

are not within this prohibition where such payments are 

made pursuant to: (a) An established seniority system; (b) 

a merit increase system; or (c) a system which measures 

earning by quantity or quality of production or any factor 

other than sex.

Knapp’s sixth claim, which was dismissed by the federal district court, was a claim of wage discrimination under the federal EPA, 29 U.S.C. § 206(d)(1), which provides:

No employer having employees subject to any provisions 

of this section shall discriminate, within any establishment in which such employees are employed, between 

employees on the basis of sex by paying wages to 

employees in such establishment at a rate less than the 

rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the 

performance of which requires equal skill, effort, and 

responsibility, and which are performed under similar 

working conditions, except where such payment is made 

pursuant to (i) a seniority system; (ii) a merit system; 

(iii) a system which measures earnings by quantity or 

quality of production; or (iv) a differential based on any 

other factor other than sex: Provided, That an employer 

who is paying a wage rate differential in violation of 

this subsection shall not, in order to comply with the 

provisions of this subsection, reduce the wage rate of 

any employee.

The state and federal statutes are similar, and the Nebraska statute appears to be patterned after the federal statute. Therefore, 

similarly to our holding in Hartley v. Metropolitan Util. Dist., 

294 Neb. 870, 885 N.W.2d 675 (2016), noted above with 

regard to the NFEPA and Title VII, we hold that because 

§ 48-1221(1) is patterned after the federal EPA, 29 U.S.C. 

§ 206(d), it is appropriate to look to federal court decisions 

construing 29 U.S.C. § 206(d) for guidance with respect to 

§ 48-1221(1).
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The district court in this case looked to federal court decisions construing the federal EPA when it analyzed Knapp’s 

fourth claim. The court cited Price v. Northern States Power 

Co., 664 F.3d 1186, 1191 (8th Cir. 2011), in which the U.S. 

Court of Appeals for the Eighth Circuit stated that when 

bringing a claim of pay discrimination on the basis of sex 

pursuant to the federal EPA, “[a] plaintiff must first establish 

a prima facie case that women were paid less than men in 

the same establishment for equal work requiring equal skill, 

effort, and responsibility and performed under similar working conditions” and that “[i]f a plaintiff establishes a prima 

facie case, the burden then shifts to the defendant to prove 

one of [the] statutory affirmative defenses.” We note that in 

Hunt v. Nebraska Public Power Dist., 282 F.3d 1021 (8th Cir. 

2002), the Court of Appeals for the Eighth Circuit formulated 

the prima facie case under the EPA as follows: To establish an 

equal pay claim, a plaintiff must show by a preponderance of 

the evidence that (1) she was paid less than a male employed 

in the same establishment; (2) for equal work on jobs requiring equal skill, effort, and responsibility; (3) which were performed under similar working conditions.

[8] We believe that the framework applicable to a federal 

EPA claim is also the proper framework to be applied to a 

claim under § 48-1221(1) for wage discrimination based on 

sex. Therefore, when bringing a claim of wage discrimination based on sex under § 48-1221(1), a plaintiff must first 

establish a prima facie case by showing by a preponderance 

of the evidence that (1) the plaintiff was paid less than a person of the opposite sex employed in the same establishment; 

(2) for equal work on jobs requiring equal skill, effort, and 

responsibility; (3) which were performed under similar working conditions. If a plaintiff establishes a prima facie case of 

wage discrimination based on sex, the burden then shifts to the 

defendant to prove one of the affirmative defenses set forth in 

§ 48-1221(1).

Using this general framework to analyze Knapp’s fourth 

claim, the district court concluded that Knapp had not 
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established a prima facie case of wage discrimination, because 

she had not shown that the male employees to whom she compared herself were performing comparable duties. The court 

determined that “[a]lthough all faculty named by Knapp as 

comparators also taught in the clinics as part of their positions, the totality of their duties were [sic] not substantially 

equal.” The court noted that while their positions shared certain duties that Knapp performed, each of the male employees 

had additional responsibilities including some combination of 

classroom teaching, research, and service to the faculty, administration, and community.

In terms of the requirements of a prima facie case of wage 

discrimination based on sex set forth above, we read the district court’s determinations as a ruling that Knapp failed to 

show a male employee who was doing “equal work on jobs 

requiring equal skill, effort, and responsibility.” See Hunt v. 

Nebraska Public Power Dist., 282 F.3d 1021, 1029 (8th Cir. 

2002). Specifically, the court determined that the male employees to whom Knapp compared herself performed work that 

required additional responsibilities.

In this regard, we note that the Eighth Circuit Court of 

Appeals in Hunt explained the required showing of “equal 

work” by stating that the jobs need not be identical to be 

considered “‘equal’” under the EPA and they need only 

be substantially equal. 282 F.3d at 1029. The court further 

stated that neither job classifications nor titles are dispositive for determining whether jobs are equal for purposes of 

the EPA and that determining whether two jobs are substantially equal requires a practical judgment on the basis of all 

the facts and circumstances of a particular case, including 

factors such as level of experience, training, education, ability, effort, and responsibility. Hunt, supra. The court further 

stated that two jobs could require insubstantial or minor 

differences in the degree or amount of skill, or effort, or 

responsibility and still be substantially equal. Id. We find 

these standards to be sound, and we adopt them and apply 

them to this case.
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With these considerations in mind, we determine that 

Knapp’s evidence did not show that the male employees to 

whom she compared herself were doing “equal work . . . 

requiring equal . . . responsibility.” See Hunt, 282 F.3d at 1029. 

The evidence showed that the male employees had additional 

responsibilities that were not insubstantial or minor differences 

from the work Knapp was doing. We conclude therefore that 

the district court did not err when it sustained the defendants’ 

motion for summary judgment on Knapp’s fourth claim; nor 

did the court abuse its discretion when it overruled Knapp’s 

motion to alter or amend such judgment.

3. Seventh Claim: Retalia

Under the

Knapp’s seventh claim was a claim of retaliation under the 

NFEPA. Knapp claims on appeal that the district court erred 

in its determination that she had failed to show that a reasonable person would have found the conditions of employment 

intolerable or that the defendants either intended to force her 

to resign or could have reasonably foreseen that she would do 

so as a result of their actions.

[9] A claim of retaliation under the NFEPA is based on 

§ 48-1114, which provides in relevant part that “[i]t shall be 

an unlawful employment practice for an employer to discriminate against any of his or her employees . . . because he or she 

. . . has opposed any practice made an unlawful employment 

practice by the [NFEPA].” The Nebraska Court of Appeals in

Helvering v. Union Pacific RR. Co., 13 Neb. App. 818, 703 

N.W.2d 134 (2005), noted that the framework for a claim of 

retaliation under the NFEPA is the framework of McDonnell 

Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 

L. Ed. 2d 668 (1973), used for other unlawful employment 

practice claims under the NFEPA as set forth above in connection with our analysis of Knapp’s fifth claim. The Court 

of Appeals for the Eighth Circuit set forth the formulation 

of a prima facie case in a retaliation claim as being that a 

plaintiff must establish such case by showing (1) he or she 
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engaged in protected conduct, (2) he or she was subjected to 

an adverse employment action, and (3) there was a causal connection between the protected conduct and the adverse action. 

See Wood v. SatCom Marketing, LLC, 705 F.3d 823 (8th Cir. 

2013). The same formulation applies to set forth a prima facie 

case of retaliation under § 48-1114.

Knapp’s claim of retaliation under the NFEPA was that 

she had engaged in a protected activity when she opposed 

practices by Ruser that she alleged amounted to discrimination based on sex. The district court determined that the claim 

failed because Knapp had not shown that she “‘suffered an 

adverse employment decision.’” Knapp did not allege that the 

law school had terminated her employment because she had 

complained to Ruser or to the dean; instead, she argued that 

after she complained to Ruser, he created an environment that 

drove her to leave her employment. The district court determined that Knapp’s evidence on summary judgment regarding Ruser’s behavior did not rise to the level of an adverse 

employment action.

[10] To satisfy the “adverse employment action” requirement in a retaliation claim, see Helvering, 13 Neb. App. at 

842, 703 N.W.2d at 154, a plaintiff must show that “a reasonable employee would have found the challenged action 

materially adverse,” see Burlington N. & S. F. R. Co. v. White, 

548 U.S. 53, 68, 126 S. Ct. 2405, 165 L. Ed. 2d 345 (2006). 

This, in turn, requires a showing that the employment action 

“‘might have “dissuaded . . .”’” a reasonable worker from 

reporting the alleged unlawful practice. Id. To meet this burden, a plaintiff must demonstrate that the employment action 

was material, not trivial, and that it resulted in some concrete 

“‘injury or harm.’” AuBuchon v. Geithner, 743 F.3d 638, 644 

(8th Cir. 2014). In this regard, it has been noted that reporting discriminatory behavior “‘cannot immunize that employee 

from those petty slights or minor annoyances that often take 

place at work and that all employees experience.’” Id. (quoting 

White, supra).
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Viewing Knapp’s evidence in the light most favorable to her 

and applying the standards set forth above, we determine that 

Knapp did not show the sort of “adverse employment action” 

necessary to support a claim of retaliation under § 48-1114 

of the NFEPA. Ruser’s alleged change in attitude and the 

behaviors he displayed after Knapp raised concerns regarding gender discrimination are more properly characterized as 

“petty slights” and “minor annoyances” than as the sort of 

actions a reasonable employee would have found to be materially adverse and that would have resulted in some concrete 

injury or harm. We therefore conclude that the district court 

did not err when it sustained the defendants’ motion for summary judgment as to Knapp’s seventh claim nor did the court 

abuse its discretion when it overruled Knapp’s motion to alter 

or amend such judgment.

4. Ninth Claim: Public Policy Reta

Finally, Knapp’s ninth claim was a claim of retaliation based 

on public policy considerations. Similar to its disposition of 

the seventh claim, the district court rejected this claim on the 

basis that Knapp’s evidence did not show material retaliatory 

conduct. Knapp claims on appeal that the district court erred 

in this determination because, she argues, she and Ruser were 

“de facto law partners” and because ethical concerns relating 

to law firms give rise to a public policy claim and require that 

a different standard be used to determine whether there was 

retaliation. Brief for appellant at 33.

[11] Knapp argues that her ninth claim is cognizable as a 

“tort-based claim for retaliation when it violates public policy,” 

id. at 31, and she cites Trosper v. Bag ’N Save, 273 Neb. 855, 

734 N.W.2d 704 (2007), as support for this theory. In Trosper, 

we recognized that generally, an employer may terminate the 

employment of an at-will employee at any time, but we recognized a public policy exception to the at-will employment 

doctrine. We described the exception as follows:

Under the public policy exception, we will allow an 

employee to claim damages for wrongful discharge when 
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the motivation for the firing contravenes public policy. 

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. 

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.

Trosper, 273 Neb. at 857-58, 734 N.W.2d at 707. The specific 

exception noted in Trosper originated in Jackson v. Morris 

Communications Corp., 265 Neb. 423, 657 N.W.2d 634 (2003), 

where we recognized a public policy exception to the at-will 

employment doctrine and allowed an action for retaliatory 

discharge when an employee has been discharged for filing 

a workers’ compensation claim. Trosper extended Jackson to 

include a claim for retaliatory demotion for filing a workers’ 

compensation claim.

Knapp argues that a public policy exception should be recognized to allow her ninth claim and that the public policy 

supporting her claim consists of ethical considerations governing the legal profession and law firms as expressed in the 

Nebraska Rules of Professional Conduct. She contends that 

the defendants retaliated against her because she raised ethical 

concerns regarding Ruser’s conduct at the civil clinic.

Whether or not a public policy exception related to such 

ethical concerns should be recognized, we note that in cases 

like Trosper, the public policy exception is fashioned as an 

exception to the at-will employment doctrine. As such, the 

exception has been limited to claims of retaliatory discharge 

and, as extended in Trosper, claims of retaliatory demotion. 

Knapp’s evidence does not show that the defendants either discharged or demoted her after she raised ethical concerns; nor 

does it show a constructive discharge or some other adverse 

employment action that falls short of a discharge or demotion. As we noted in connection with Knapp’s seventh claim 

for retaliation under the NFEPA, Knapp has not shown any 
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adverse employment action that was material and that resulted 

in some concrete injury or harm.

Viewing the evidence in the light most favorable to Knapp, 

we determine she has not shown employment-related retaliation that would give rise to a claim based on public policy. 

Therefore, we conclude that the district court did not err when 

it sustained the defendants’ motion for summary judgment 

on Knapp’s ninth claim; nor did the court abuse its discretion when it overruled Knapp’s motion to alter or amend 

such judgment.

VI. CONCLUSION

We conclude that the district court did not err when it sustained the defendants’ motion for summary judgment with 

respect to Knapp’s fourth, fifth, seventh, and ninth claims and 

that it did not abuse its discretion when it overruled Knapp’s 

subsequent motion to alter or amend its judgment. We therefore affirm the district court’s orders.

Affirmed

Stacy, J., not participatin