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Nebraska Supreme Court Advance Sheets

296 Nebraska Reports

OLDFIELD v. NEBRASKA MACHINERY CO.

Cite as 296 Neb. 469

David A. Oldfield, appellant, 

v. Nebraska Machinery

Company, appellee.

___ N.W.2d ___

Filed April 21, 2017. No. S-16-526.

1. Summary Judgment: Appeal and Error. 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.

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 the facts and that the moving party 

is entitled to judgment as a matter of law.

3. Statutes: Judgments: Appeal and Error. The interpretation of statutes 

and regulations presents questions of law. An appellate court independently reviews questions of law decided by a lower court.

4. Termination of Employment. 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. Summary Judgment. On a motion for summary judgment, the question 

is not how a factual issue is to be decided, but whether any real issue of 

material fact exists.

6. ____. Summary judgment is proper when the pleadings and evidence 

admitted at the hearing disclose that there is no genuine issue as to any 

material fact 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.

7. Fair Employment Practices: Discrimination. The ultimate issue in an 

age discrimination case is whether age was a determining factor in the 

employer’s decision to take the adverse employment action.

Nebraska Supreme Court Online Library

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

07/14/2017 01:10 AM CDT
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OLDFIELD v. NEBRASKA MACHINERY CO.

Cite as 296 Neb. 469

8. Discrimination: Summary Judgment: Evidence. To survive summary judgment in a discrimination case, the nonmoving party must do 

more than simply create a factual dispute as to the issue of pretext; he 

or she must offer sufficient evidence for a reasonable trier of fact to 

infer discrimination.

9. Employer and Employee: Discrimination: Proof. A plaintiff may 

show discriminatory animus, among other ways, by showing that the 

employer (1) failed to follow its own policies, (2) treated similarly situated employees in a disparate manner, or (3) shifted its explanation of 

the employment decision.

10. Fair Employment Practices: Civil Rights: Employer and Employee. 

An employee is protected by the Nebraska Fair Employment Practice 

Act from employer retaliation for his or her opposition to an act of the 

employer only when the employee reasonably and in good faith believes 

the act to be unlawful. In order for such a belief to be reasonable, the act 

believed to be unlawful must either in fact be unlawful or at least be of 

a type that is unlawful.

11. Termination of Employment: Public Policy: Damages. Under the 

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

can claim damages for wrongful discharge when the motivation for the 

firing contravenes public policy.

12. Termination of Employment: Public Policy. The public policy exception to the at-will employment doctrine is restricted to cases when a 

clear mandate of public policy has been violated, and it should be limited to manageable and clear standards.

13. ____: ____. 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: 

Andrew R. Jacobsen, Judge. Affirmed.

Robert F. Bartle, of Bartle & Geier Law Firm, for appellant.

Margaret C. Hershiser and David A. Yudelson, of Koley 

Jessen, P.C., L.L.O., for appellee.

Heavican, C.J., Wright, Cassel, Stacy, Kelch, and

Funke, JJ.
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OLDFIELD v. NEBRASKA MACHINERY CO.

Cite as 296 Neb. 469

Kelch, J.

I. NATURE OF CASE

David A. Oldfield filed a wrongful termination claim against 

Nebraska Machinery Company (NMC), alleging that his discharge was in violation of Nebraska’s Age Discrimination 

in Employment Act (ADEA),1 in violation of the whistleblower retaliation provisions of the Nebraska Fair Employment 

Practice Act (FEPA),2 and in violation of public policy. Based 

on the undisputed evidence of Oldfield’s performance issues 

and the limited evidence offered by Oldfield, we affirm the 

district court’s granting of summary judgment in favor of NMC 

and against Oldfield on all claims.

II. FACTS

This matter arises from Oldfield’s termination from NMC 

after 38 years of employment. In his amended complaint, 

Oldfield seeks damages against NMC for wrongful discharge 

in violation of (1) the ADEA, (2) the FEPA, and (3) public policy.

After filing an answer, NMC moved for summary judgment, 

and a hearing was set. At the hearing, depositions of Oldfield 

and Oldfield’s superior, Dwight McDermott, were received into 

evidence, along with the exhibits used in those depositions. 

After the hearing, the district court granted summary judgment 

in favor of NMC.

Because summary judgment requires the court to view the 

facts in the light most favorable to the nonmoving party, we 

set forth the facts presented by Oldfield in his complaint and 

deposition first before reviewing those presented by NMC.

1. Facts Presented By Oldfield

At all relevant times, Oldfield held an “at-will” position as 

a heavy equipment service manager at one of NMC’s locations 

1 See Neb. Rev. Stat. §§ 48-1001 to 48-1010 (Reissue 2010).

2 See Neb. Rev. Stat. §§ 48-1101 to 48-1125 (Reissue 2010 & Cum. Supp. 

2016).
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OLDFIELD v. NEBRASKA MACHINERY CO.

Cite as 296 Neb. 469

in Lincoln, Nebraska. During his deposition, Oldfield admitted 

to having disagreements with his supervisors and not meeting 

NMC’s expectations in certain respects.

(a) Disagreement About 

Flat-Rate Pricing

In June 2011, the day before Oldfield was to go on vacation, 

Oldfield’s direct supervisor, Brandon Zobel, called Oldfield 

into his office to discuss NMC’s transition to “flat-rated” 

pricing, i.e., setting a standard price on doing a certain job. 

Because Zobel did not have a history in repairs, Zobel asked 

Oldfield’s opinion. Oldfield “tr[ied] to explain to [Zobel] how 

certain jobs, the way he wanted to do it, couldn’t be flat rated.” 

Zobel disagreed, and the discussion became heated. Oldfield 

then asked Zobel if he should come back after his vacation. 

Zobel responded, “‘That’s up to you,’” and Oldfield left.

While Oldfield was on vacation, Kevin Brown, NMC’s vice 

president of services and parts, called Oldfield to make sure 

he was coming back. Brown told Oldfield that he had been 

doing a great job and wanted to make sure that Oldfield stayed 

with NMC.

On June 17, 2011, after Oldfield came back from vacation, 

he met with Brown to discuss some of the problems that he 

and Zobel were having together. Then Brown met with Zobel 

to discuss the problems. Later that day, Zobel arranged a 

meeting between himself and Oldfield with Brown present. At 

Oldfield’s deposition, Oldfield was given an agenda for that 

meeting, which reminded him of what was discussed: the issue 

of the flat-rate jobs, a new process for invoicing work orders, 

and the hiring of two additional technicians.

They also discussed agenda items, including “Uniform 

Attire” and “Shop and Office Cleanliness.” Oldfield testified 

that he had problems with NMC’s uniform company getting 

pants that fit him and did not drag on the ground. Although 

Oldfield had been wearing his uniform shirt, he had not been 

wearing the uniform pants. Instead, he had been wearing 

jeans. Another NMC employee had a similar problem finding 
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Cite as 296 Neb. 469

a uniform that fit, but McDermott (Zobel’s superior) told her 

not to worry about it. Additionally, the shop that Oldfield 

managed “wasn’t as clean as [Zobel] thought it should be.” 

Brown did not say anything during the meeting.

(b) Shop Cleanliness

In December 2011, Zobel wrote an email to Oldfield and 

four other employees, asking them to “work hard to get 

some ‘deep cleaning’ done over the next couple of weeks by 

December 31st.” Cleanliness was important to NMC because 

NMC was a dealer of Caterpillar heavy equipment. Caterpillar 

has a contamination control policy and would inspect NMC to 

make sure it was compliant. Oldfield testified that he did not 

think Zobel’s email meant that his shop needed to be completely compliant with Caterpillar’s audit standards by January 

1, 2012.

On January 18, 2012, NMC conducted a surprise mock contamination control audit. Thereafter, Zobel wrote an email to 

Oldfield, attaching a list of items that came up during the mock 

audit. The email stated, in relevant part:

Your department has made some big improvements over 

the last few weeks with cleaning the shop. I am very 

happy about that, but I am disappointed that it wasn’t 

done before January 1st, like I had stated several times 

during the last several months. That being said, let’s move 

forward and get the items on the attached sheet fixed 

immediately.

Three weeks later, Zobel emailed Oldfield, asking, “How are 

these items coming along?” According to Oldfield, most of 

the items had been completed at that point, but there were still 

some items that needed to be done.

(c) Monthly Meetings

In October 2011, Zobel wrote an email to Oldfield and two 

other employees, requesting that they hold monthly meetings 

with their respective departments. In February 2012, Zobel 

emailed Oldfield requesting that Oldfield cover “at least a 
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OLDFIELD v. NEBRASKA MACHINERY CO.

Cite as 296 Neb. 469

handful of items” at the beginning of the next monthly meeting. Zobel also wrote, “I was upset by your comment/attitude 

about the meetings being a waste of time, ‘that you [would] 

rather have them working.’” After Oldfield received the email, 

he talked to Zobel and told him that he never said the meetings 

were a waste of time and that he was “joking” when he said 

that he would rather have his employees working.

(d) Oldfield’s Performance Appraisal

In May 2012, using NMC’s performance appraisal form, 

Zobel assessed Oldfield’s performance for 2011 and 2012. 

The form listed seven different categories: (1) “Managing 

Others,” (2) “Budgetary Controls,” (3) “Managing Self,” 

(4) “Organizational Relationships,” (5) “Problem Solving,” 

(6) “Performance Standards,” and (7) “Safety and Health.” 

Oldfield met or exceeded expectations on 8 of the 10 categories; he was “Below Requirements” on “Managing Self” 

and “Organizational Relationships.” Under each subsection 

and at the end of the appraisal, there were boxes for Zobel to 

make comments.

Zobel rated Oldfield as meeting expectations for “Managing 

Others” and commented, “[Oldfield] is exceptional at getting 

the most out of his employees. He keeps everybody busy, all 

of the time. [Oldfield] can do a better job about communicating information to his employees, executing company policies, 

and promoting teamwork.”

Oldfield exceeded expectations for “Budgetary Controls,” 

and Zobel commented, “Historically, [Oldfield] has always 

been a top performer when it comes to hitting budget and sales 

numbers. He spends very little and generates a lot of revenue.”

Oldfield fell below NMC’s requirements for “Managing 

Self.” Zobel commented:

[Oldfield] does his job well in terms of meeting deadlines / responding to his larger customers. However, 

it may take several days for him to respond (sometimes no response) to internal emails and/or phone 

calls. [Oldfield] has been resistant in the past regarding 
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Cite as 296 Neb. 469

priorities and organizational changes. Examples include; 

[flat-rate] jobs, monthly employee meetings, [shop cleanliness], technician training, service writer, wearing his 

uniform, etc.

Zobel rated Oldfield as exceeding expectations for 

“Organizational Relationships” and commented, “[Oldfield] 

does not always execute directives, regardless of personal 

likes/dislikes. Examples include (same as above) . . . . It is 

evident that [Oldfield] dislikes speaking orally in groups and 

avoids it whenever possible. Small to mid-sized customers are 

not always responded to in a timely manner.” In his deposition, 

Oldfield disputed that small and midsized customers were not 

responded to in a timely manner. Oldfield explained that “a 

lot” of small and midsized customers were very happy with the 

service, but some were upset about the cost.

Oldfield was rated as exceeding expectations for “Problem 

Solving.” Zobel commented: “[Oldfield] solves many problems 

each and every week. He has a tremendous amount of experience and job knowledge that helps him solve problems quickly 

and effectively. An opportunity for [Oldfield] would be to participate more in group discussions and provide solutions along 

with the issues.”

Zobel rated Oldfield as exceeding expectations for 

“Performance Standards” and commented:

[Oldfield] does give feedback to his employees, and 

he has been improving on giving positive feedback along 

with the negative. I believe that [Oldfield’s] company 

best flat variance numbers as well as being a top producer show that he is able to get the most out of his technicians through daily feedback. My only concern is that 

he needs to familiarize and train other technicians at key 

customer sites . . . .

Oldfield met expectations for “Safety and Health,” and 

Zobel commented: “For the most part, work is performed 

safely. More can be done to enforce safety glasses, smoking 

areas, and seat-belts. However, the number of injuries for 
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OLDFIELD v. NEBRASKA MACHINERY CO.

Cite as 296 Neb. 469

Lincoln’s heavy equipment department have been fewer over 

the past 6 months, which is a definite improvement.”

In a section entitled “Manager’s Overall Performance 

Comments,” Zobel wrote:

There is no denying that [Oldfield] produces strong 

financial numbers and takes care of his larger customers. 

He works hard to get the most out of his people and is 

able to take care of a large volume of work each week. His 

technical problem-solving skills are top notch. [Oldfield] 

has a hard time adapting to change and follow-through 

with directives, regardless of personal preference. More 

improvement is needed in the area of follow-through with 

internal and external customers. Employee communication and team building needs to improve as well.

Oldfield agreed that he could improve his communication 

with internal customers (other NMC departments), but disagreed that he was deficient in communicating with external customers.

Under a section entitled “Did employee meet goals/

performance objectives from the previous review period? Why 

or why not?,” Zobel wrote:

Partially. Financially, [Oldfield] hit it out of the park 

by finishing $784,348 above budget and $830,347 better 

than 2010. Last labor to invoice improved dramatically 

from 13.56 days in May 2011 to as low as 1.64 days 

in November 2011. This was an impressive improvement. However, [Oldfield] can be very difficult to work 

with at times due to his resistance to change and slow/

non-existent follow-up at times. [Flat-rate] jobs performance in Lincoln for 2011 was the lowest store at 17.07%. 

This improved later in the year and into 2012, but progress was still limited for much of 2011. Monthly meetings were few, infrequent, and too short. Contamination 

control was not made a priority for most of the year; 

progress required several reminders, emails, and nudges 

from upper management.
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OLDFIELD v. NEBRASKA MACHINERY CO.

Cite as 296 Neb. 469

Oldfield explained that Lincoln’s flat-rate jobs performance 

was the lowest store out of NMC’s three stores because other 

stores had smaller equipment that they worked with, so it was 

easier to apply a flat rate to those jobs. Oldfield testified that 

he looked at each job to see if flat-rate pricing could be done 

and that he had been trying to do more.

(e) Monski Replaces Zobel

In spring 2012, Zobel accepted another position and NMC 

hired David Monski to replace him as Oldfield’s supervisor. Before Monski arrived, Brown and McDermott invited 

Oldfield to lunch. According to Oldfield, Brown and 

McDermott thanked Oldfield for a job he had done and mentioned that Monski was coming to Lincoln. During this meeting, McDermott told Oldfield that if Monski did not work or 

had problems in Lincoln that they would think that there was 

a problem with the Lincoln store. Oldfield testified that he did 

not know what McDermott meant by that. Oldfield testified 

that he could not recall Brown or McDermott saying anything about how either of them expected Oldfield to get along 

with Monski.

(f) Failure to Conduct Appraisals

At the beginning of each year, Oldfield and other department managers were to conduct appraisals of subordinate 

employees and those employees were to conduct selfappraisals. Oldfield testified that most of the years, he completed the appraisals, but that there were some years when not 

all were completed.

At some point in 2011, McDermott conducted an audit 

appraisal. After learning the number of incomplete appraisals, McDermott talked to Oldfield outside his office, telling 

him that the number was unacceptable and that they needed to 

do better.

In 2012, Monski sent Oldfield several emails about the 

appraisals. On April 19, Monski emailed Oldfield and another 

employee, asking, “Do you have your techs self-appraisals 
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OLDFIELD v. NEBRASKA MACHINERY CO.

Cite as 296 Neb. 469

back yet? Or more importantly have you had them complete 

them yet?” On April 23, Monski emailed Oldfield, asking 

him if he had received the self-appraisals back. Monski also 

advised Oldfield that his appraisals of the employees were 

supposed to have been turned in the prior Friday. A few minutes later, Oldfield responded that he was “waiting on 2.” On 

May 15, Monski sent Oldfield an email advising Oldfield that 

he needed to get his appraisals to Monski before “the 29th” 

when Monski would be out of the office. Oldfield did not 

meet the deadline.

Finally, on July 5, 2012, Monski issued Oldfield a written 

warning for failure to meet the deadline to complete the performance appraisals. This warning was issued after Oldfield 

had been given three extensions. In the warning, Monski discussed McDermott’s audit of Oldfield’s performance appraisals and stated that the audit showed that from 2002 to 2011, 

over 95 percent of Oldfield’s subordinates had not received a 

formal appraisal or other written feedback. Oldfield could not 

remember the number of appraisals he had not completed, but 

he thought that 95 percent was too high and that the correct 

percentage was closer to 50 percent. In the written warning, 

Oldfield was given a final deadline by which to complete 

the appraisals so as to avoid “further corrective action, up to 

and including termination of employment.” Oldfield met the 

final deadline.

Oldfield testified that he had gotten behind on appraisals 

because the service writer, whose job was to take customer 

calls and schedule employees for different jobs, did not do a 

good job and eventually left the position. During the 4 months 

that the service writer held the position, Oldfield helped him 

take calls. Oldfield also said that NMC began requiring more 

online reports in 2010, which took service managers extra time. 

Oldfield testified that he was not sure if other NMC managers 

were falling behind on their appraisals, but no other managers 

had as many subordinates as Oldfield. At that time, Oldfield 

had approximately 22 to 25 subordinates.
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Cite as 296 Neb. 469

(g) Railroad Service Manager Position

In the last week of September 2012, two NMC superiors 

approached Oldfield about a railroad service manager position 

in NMC’s railroad division. Although the plan was not ready to 

be put into effect, Oldfield expressed interest.

(h) September Breakfast Meeting

On September 24, 2012, Monski held a “breakfast gathering” with Oldfield’s subordinates; Oldfield was not invited. 

After the gathering, Oldfield emailed Monski, asking how his 

subordinates’ time for that meeting should be billed. Two minutes after that email was sent, Monski responded, “Just training 

will work.” Oldfield directed his shop clerk to enter the time 

for his subordinates who had been at the meeting. Oldfield testified that “[o]nce the shop clerk enters [the time,] that [is] the 

number once and for all.” That number “goes into the payroll 

system, and at the end of the month . . . the payroll checks 

come out.”

On October 3, 2012, Monski sent Oldfield an email stating, 

in relevant part:

I need to know why your field guy’s [sic] billed 

more than 45 minutes for the “meeting” (breakfast) last 

Monday. If they are calling it a meeting[,] I guess that 

is fine[,] but the “meeting” started at 6:30 and was done 

at the latest 7:10[,] so I expect an answer for this. I am 

fine paying them for 45 minutes if you feel they must be 

paid[,] but no more. Surely not 1.5 hours as some of them 

have billed[,] which should have been caught by you or 

[your shop clerk] when it was done. If they had nothing 

to do I expect it to be charged to idle time or whatever 

they actually were doing but not classroom as the “meeting” was over.

Just a quick FYI in case it happens again, I have 

bought breakfast for field guys and even lunch in the 

field, in every location I have been in just because of 

the job they do with NMC. That was partially the reason 
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Cite as 296 Neb. 469

behind this[,] not an official meeting, going behind your 

back, or any other reason other than to answer any questions they may have[,] as they have evidently been voicing questions and opinions to fellow employees who are 

bringing it to my attention. They all need to understand 

if they have a problem or question with what I am doing 

or what is going on[,] they need to come directly to 

me versus discussing issues with fellow employees or 

[customers]. This type of behavior cannot and will not 

be tolerated. I am also still waiting to hear from you 

which one spoke with [the customer] in regards to this 

“meeting” which made it come off negative and need to 

know today.

There are also other entries in the classroom training 

work order that have 3 hours and some with overtime. 

Unless driving to and from class there should be no overtime associated with classroom training only an 8 hour 

day. You need to [e]nsure your techs and [shop clerk] are 

aware of this as well as monitoring this weekly so it is 

caught prior to final invoicing.

Thanks

Eleven minutes later, Monski sent Oldfield another email, stating, in relevant part:

I am still waiting for an answer on the machine which 

was worked on for H&S Plumbing regarding the good 

will request.

You state you have no time but then continue to think 

that by adding another manager to lighten your load is a 

bad thing. I just do not understand.

You also need to [e]nsure you are staying on top of the 

steam bay being cleaned up after it is used[,] as well as 

the shop[,] daily not once a week.

After Oldfield received the email above, he went to talk to 

Monski in person. Oldfield testified that Monski was upset 

with Oldfield for paying the employees, because Monski did 

not consider the breakfast gathering to be a meeting and 
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Cite as 296 Neb. 469

thought that the employees should not have been paid. Oldfield 

admitted that the employees were paid for their time.

Oldfield testified that Monski also let Oldfield’s shop clerk 

know that he was not happy about the employees’ being paid 

for the meeting. According to Oldfield, the shop clerk left her 

job at NMC because Monski harassed her about this incident.

(i) Failure to Disclose Name of Employee 

Who Violated NMC Policy

As stated in Monski’s email, an employee had spoken with a 

customer about the September 2012 breakfast meeting, which 

was against NMC company policy and a terminable offense. 

Oldfield knew which employee it was, but refused to disclose 

the employee’s identity to Monski, because Oldfield did not 

want the employee to get fired.

Monski sent the emails above on a Wednesday. On the following Monday, Monski called Oldfield to his office. When 

Oldfield arrived, McDermott was also there.

McDermott and Monski gave Oldfield a memorandum 

advising him of the decision to terminate his employment. The 

memorandum stated, in relevant part:

Despite receiving several warnings regarding our 

behavioral expectations, you continue to behave well 

beneath our established guidelines. More specifically, you 

continue to behave insubordinately by failing to follow 

the reasonable requests of your management team and by 

failing to manage and support the company’s direction 

with your team, clients and coworkers. As stated in the 

Performance and Conduct Policy found within the NMC 

Employee Handbook, “Insubordination, such as refusal 

to do assigned work, inappropriate language or behavior 

toward a supervisor/manager” can result in corrective 

action, up to and including termination of employment. 

Because you have not illustrated the willingness or ability to cure these matters we have made the decision to 

terminate your employment.
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After the memorandum was read through, Oldfield told 

McDermott that he knew Monski had mentioned that he 

was getting close to retirement age but that he did not 

think he was talking this soon. Oldfield testified that neither 

McDermott nor Monski responded to this comment, and the 

meeting ended.

(j) Monski’s Comment About 

Oldfield’s Retiring

Oldfield explained that he made the comment about retirement in response to one comment Monski had made in a meeting approximately 1 month prior. On September 17, 2012, 

Monski stated that he “‘need[ed] to get someone trained to take 

over for [Oldfield] because one of these days, [Oldfield was] 

going to want to retire.’”

Oldfield testified that Monski’s comment seemed unusual 

and that it was his experience that having a succession plan 

within a department was not important to NMC. Oldfield testified that usually, if someone was going to retire from NMC, 

then the person would tell upper management that they were 

going to retire and then upper management would decide who 

was going to take that person’s place.

Oldfield admitted that this comment is the sole basis for his 

age discrimination claim.

2. Facts Presented by NMC

After Zobel accepted another position, McDermott and two 

other NMC employees met with two or three salespeople to 

discuss matters related to Oldfield. The salespeople expressed 

concern that Oldfield was not adequately communicating with 

customers, and Brown and McDermott decided to have a meeting with Oldfield and took him to lunch.

Brown and McDermott talked to Oldfield about the concerns that Zobel had with Oldfield and Oldfield’s “attitude 

of, If it’s not my idea, I’m not behind it.” According to 

McDermott, he told Oldfield, “you know, we’ve had problems 

with the last branch manager. We’re going to bring another guy 
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in here . . . and if we have the same problems with the new 

guy, then we know that the problem was not with the previous 

store manager.”

McDermott testified that nothing was put in Oldfield’s personnel file about the lunch meeting, because “as long as 

[Oldfield] had been [at NMC], we wanted to give him every 

opportunity to change his habits, come around to our way of 

doing things . . . which was to no avail.” McDermott said that 

Monski also reported problems.

McDermott testified that he was the one who made the decision to fire Oldfield. When asked if he relied upon Monski in 

making that determination, McDermott responded, “Monski 

had input, as well as the input that I’d received from . . . 

Zobel, the input from the meeting with the sales[people]; 

but, ultimately, the decision to terminate [Oldfield’s employment] was mine.” However, McDermott also made statements 

that suggested Monski was also responsible for the decision. For example, when McDermott was asked if a previous 

safety violation had factored into his decision to terminate 

Oldfield, McDermott responded, “Not with mine, personally, 

no.” At one point, McDermott also stated that “we made the 

determination that — I made the determination to terminate” 

Oldfield’s employment.

In response to questions about why Oldfield’s employment 

was terminated, McDermott stated, “It was an accumulation 

of issues and the fact that it became evident that we were not 

going to be able to work with . . . Oldfield to get him to the 

point where we needed him.” As reasons for the termination, 

McDermott cited Oldfield’s failure to provide Monski with 

information, failure to communicate with customers, failure to 

work with people within his department, failure to train new 

employees, and failure to keep his shop clean, as well as “his 

whole attitude of, It’s my way, if I don’t buy into it, I’m not 

going to do it.”

As an example of failure to train new or student employees, 

McDermott talked about a new employee who spent months 
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just washing equipment because, according to Oldfield, “the 

young kids, they weren’t any good.”

McDermott also said, “It was a bigger challenge getting 

the Lincoln location to conform to the [cleanliness] policies 

on an ongoing basis throughout the year [than] in the other 

locations,” which he attributed to the “fact that . . . Oldfield 

did not buy into [cleanliness]; so, therefore, it was not important to him, and then it wouldn’t be important to his team.” 

Oldfield had told McDermott that cleaning was a waste 

of time.

McDermott also said that Oldfield was against putting a 

service writer in the Lincoln location and that he believed the 

service writer did not succeed because Oldfield did not want 

him to succeed.

McDermott stated that the “breakfast gathering” issue did 

not factor into his decision to terminate Oldfield’s employment.

When asked how many warnings Oldfield received, 

McDermott stated that he could not recall the exact number 

but that there was “a pattern of many of them.” He explained, 

“There would have been warnings like the ones I gave him 

about [shop cleanliness], the ones . . . Brown and I gave him 

when we had the [lunch] meeting. [Zobel and Monski] had 

communicated back and forth with him.”

Oldfield was replaced by two employees. McDermott testified that one of them was “probably in his forties” and that the 

other was in his “late thirties.” McDermott was 56 years old at 

the time of the deposition and still working for NMC.

3. Summary Judgment Granted

After a hearing, the district court granted summary judgment in favor of NMC and against Oldfield. The district court 

determined that, even in the light most favorable to Oldfield, 

the evidence failed to raise an inference that NMC’s proffered reasons for Oldfield’s termination of employment were 

merely a pretext for discrimination or retaliation. The district court also determined that Oldfield’s claim of wrongful 
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termination in violation of public policy was duplicative of 

his age discrimination and retaliation claims.

III. ASSIGNMENTS OF ERROR

Oldfield alleges that the district court erred in (1) concluding 

that Oldfield had not presented sufficient evidence to establish 

a prima facie case for discrimination and retaliation, (2) concluding that NMC offered legitimate reasons for terminating 

Oldfield’s employment, (3) concluding that Oldfield had not 

presented sufficient evidence of pretext to counter NMC’s 

legitimate nondiscriminatory reasons for his claims of termination due to both age and retaliation, and (4) not giving Oldfield 

the benefit of every reasonable inference based on the evidence 

presented in a summary judgment proceeding.

IV. STANDARD OF REVIEW

[1] 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

[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 the facts and 

that the moving party is entitled to judgment as a matter of law.4

[3] The interpretation of statutes and regulations presents 

questions of law. We independently review questions of law 

decided by a lower court.5

V. ANALYSIS

[4] Unless constitutionally, statutorily, or contractually 

prohibited, an employer, without incurring liability, may 

3 Coffey v. Planet Group, 287 Neb. 834, 845 N.W.2d 255 (2014).

4 Id.

5 Id.
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terminate an at-will employee at any time with or without reason.6

 However, we have recognized a public policy exception 

to the at-will employment doctrine.7 As noted above, Oldfield 

alleged in his amended complaint that NMC’s decision to 

terminate his employment violated the ADEA, the FELA, and 

public policy. On appeal, he claims that the district court erred 

in granting summary judgment in favor of NMC.

[5,6] On a motion for summary judgment, the question is 

not how a factual issue is to be decided, but whether any real 

issue of material fact exists.8 Summary judgment is proper 

when the pleadings and evidence admitted at the hearing disclose that there is no genuine issue as to any material fact 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.9

We note that both parties, as well as the district court, 

have analyzed the age discrimination claim and the retaliation 

claim using the three-part burden-shifting framework from 

McDonnell Douglas Corp. v. Green.

10 The McDonnell Douglas 

Corp. framework is a procedural device of order of proof and 

production, designed to force an employer to reveal information that is available only to the employer, i.e., any unstated 

reasons for the adverse employment action, as well as any discretionary factors underlying its decision.11

But, although the burden of production shifts between 

the plaintiff and the employer, the plaintiff retains the ultimate burden of persuasion,12 and the ultimate question is 

6 Id.

7 See id.

8 Melick v. Schmidt, 251 Neb. 372, 557 N.W.2d 645 (1997).

9 Strode v. City of Ashland, 295 Neb. 44, 886 N.W.2d 293 (2016).

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

Ed. 2d 668 (1973).

11 Hartley v. Metropolitan Util. Dist., 294 Neb. 870, 885 N.W.2d 675 (2016).

12 Id.
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discrimination or retaliation vel non.13 Thus, in our review 

of this summary judgment action, we focus on the ultimate 

question of whether NMC violated the ADEA, the FELA, or 

public policy and determine whether the moving party, NMC, 

satisfied its burden to prove that no genuine issue of material fact exists and whether it produced sufficient evidence 

to demonstrate that NMC is entitled to judgment as a matter 

of law.14 In other words, we consider whether NMC satisfied 

its burden to show that there is no evidence or reasonable 

inference that NMC violated the ADEA, the FELA, or public policy.

1. ADEA

The ADEA makes it unlawful for an employer to discharge 

or discriminate against any individual because of such individual’s age, unless the reasonable demands of the position 

require an age distinction.15 The Nebraska ADEA is patterned 

after the federal Age Discrimination in Employment Act of 

1967,16 so, in construing the Nebraska ADEA, it is appropriate 

to look to federal decisions interpreting the federal act.17

[7] The ultimate issue in an age discrimination case is 

whether age was a determining factor in the employer’s decision to take the adverse employment action.18 NMC sought 

to prove that age was not a determining factor in Oldfield’s 

termination of employment by setting forth evidence of its 

legitimate and nondiscriminatory reasons for the termination, 

13 See, St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 113 S. Ct. 2742, 

125 L. Ed. 2d 407 (1993); Billingsley v. BFM Liquor Mgmt., 264 Neb. 

56, 70, 645 N.W.2d 791, 803 (2002) (“[t]he ultimate issue is whether 

age was a determining factor in the employer’s decision” to take adverse 

employment action).

14 See Melick v. Schmidt, supra note 8.

15 § 48-1004(1).

16 See 29 U.S.C. §§ 621 to 634 (2012 & Supp. II 2014).

17 See Billingsley v. BFM Liquor Mgmt., supra note 13.

18 Id.
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namely that Oldfield was having performance issues and was 

not getting along with his supervisor.

The material facts are not in dispute. Although Oldfield’s 

testimony put certain performance issues and behavioral issues 

in dispute, Oldfield admitted to a plethora of other issues that 

NMC had with Oldfield. He admitted, among other things, 

that during the last few years of his employment, he argued 

with his supervisor about new policies and procedures, he 

failed to conform with NMC’s uniform policy, he failed to 

make his shop’s appearance comply with upper management’s 

expectations, he did not hold monthly meetings as often as 

instructed, he needed to improve on communicating with 

internal customers, he did not complete at least 50 percent 

of performance appraisals for his subordinates from 2002 to 

2011, and he refused to comply with his supervisor’s direct 

orders to disclose the name of an employee who had violated 

company policy.

[8] Oldfield argues that in light of Monski’s comment about 

Oldfield’s retirement, NMC’s motivation in terminating his 

employment is still in dispute. However, to survive summary 

judgment, Oldfield “must do more than simply create a factual 

dispute as to the issue of pretext; he must offer sufficient evidence for a reasonable trier of fact to infer discrimination.”19

Even viewing the evidence in the light most favorable to 

Oldfield, we conclude that no reasonable trier of fact could 

infer that NMC discriminated against him on the basis of 

his age.

Oldfield admitted in his deposition testimony that the sole 

basis for his age discrimination claim was a single comment 

of Monski’s that he “‘need[ed] to get someone trained to take 

over for [Oldfield] because one of these days, [Oldfield was] 

going to want to retire.’” But, one isolated comment about 

retirement is not enough to demonstrate pretext for purposes 

19 See Mathews v. Trilogy Communications, Inc., 143 F.3d 1160, 1165 (8th 

Cir. 1998).
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of age discrimination.20 Although “retirement inquiries can 

sometimes be so unnecessary and excessive as to constitute 

evidence of discriminatory harassment,”21 such was not the 

case here, where Monski made only a single comment.

[9] Instead, there was simply no evidence of discriminatory animus. A plaintiff may show discriminatory animus by 

showing that the proffered reason for the adverse employment 

action was pretext for discrimination.22 The plaintiff may do so, 

among other ways, by showing that the employer (1) failed to 

follow its own policies, (2) treated similarly situated employees in a disparate manner, or (3) shifted its explanation of the 

employment decision.23

Oldfield claims that he showed NMC failed to follow its 

own policies when it did not formally document all warnings 

to Oldfield. However, a review of an exhibit which Oldfield 

agreed was NMC’s company manual shows that NMC did 

not require itself to document every warning. In fact, the 

manual states:

[A]ll of [NMC’s] employees are considered to be “atwill” and may be terminated at any time, with or without cause or advance notice. As further detailed below, 

disciplinary action may include any one or combination 

of the following steps — verbal warning, written warning, suspension with or without pay or termination of 

employment. Depending on the severity of the problem 

and the number of occurrences, [NMC] reserves the 

right to immediately terminate an employee, even upon 

a first offense.

Next, Oldfield claims that he showed that NMC “treated 

similarly-situated employees in a disparate manner” by hiring 

20 See, Ziegler v. Beverly Enterprises-Minnesota, Inc., 133 F.3d 671 (8th Cir. 

1998); Barket v. Nextira One, 72 Fed. Appx. 508 (8th Cir. 2003).

21 See Montgomery v. John Deere & Co., 169 F.3d 556, 560 (8th Cir. 1999).

22 Hartley v. Metropolitan Util. Dist., supra note 11.

23 Gibson v. American Greetings Corp., 670 F.3d 844 (8th Cir. 2012).
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“two considerably younger men to assume [Oldfield’s] prior 

position.”24 However, the only evidence of the employees’ 

ages was McDermott’s testimony that one was in his “late thirties” and the other was “probably in his forties.” Moreover, to 

be similarly situated, the two employees would have to have 

performance issues similar to Oldfield. There was no evidence 

that these employees had performance issues.

Oldfield also claims that he showed pretext because NMC 

allegedly shifted its explanation for the employment decision. 

In support of his argument, Oldfield points to McDermott’s 

testimony, which he says “illustrate[s] that there was no specific incident” that led to Oldfield’s termination of employment.25 However, the fact that Oldfield was terminated for “an 

accumulation of issues,” rather than just one, does not mean 

that NMC has shifted its explanation. Instead, McDermott’s 

testimony was consistent and matches the memorandum that 

Oldfield received, which explained that the reason he was 

terminated was because of insubordination and performance issues.

In sum, based on the undisputed evidence of Oldfield’s performance issues, we conclude that no reasonable trier of fact 

could infer from one isolated statement that NMC terminated 

his employment for discriminatory reasons.

2. FEPA

[10] Both federal law and the FEPA make it unlawful for 

an employer to discriminate against its employee on the basis 

of the employee’s opposition to an unlawful employment 

practice.26 We have said that “[a]n employee is protected by 

FEPA from employer retaliation for his or her opposition to 

an act of the employer only when the employee reasonably 

24 Brief for appellant at 8, 16.

25 Id. at 17.

26 See, 42 U.S.C. § 2000e-3(a) (2012); § 48-1114.
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and in good faith believes the act to be unlawful.”27 In order 

for such a belief to be reasonable, the act believed to be unlawful must either in fact be unlawful or at least be of a type that 

is unlawful.28

After reviewing the pleadings and the evidence presented, 

we conclude that NMC did not engage in an unlawful practice; 

that Oldfield could not have reasonably believed that NMC was 

engaging in an unlawful practice; and that even if Oldfield had 

established that he reasonably believed the act to be unlawful, 

he failed to show that his termination was causally connected 

to his alleged reporting of an unlawful practice.

As noted by the district court, “[t]he crux of Oldfield’s claim 

is that he was terminated after reporting alleged violations 

of the federal Fair Labor Standards Act with respect to nonpayment of wages to his subordinates for their time spent at a 

breakfast meeting with NMC manager . . . Monski.” However, 

Oldfield admits that the employees were actually paid for that 

meeting, so clearly, there is no evidence that NMC engaged in 

an unlawful practice.

And Oldfield could not have reasonably believed that NMC 

was engaged in an unlawful practice. After the breakfast meeting, Oldfield sent Monski an email asking how the time should 

be recorded and Monski responded, “Just training will work.” 

Oldfield then instructed his shop clerk to enter the time for his 

subordinates. Oldfield admitted that once the shop clerk enters 

the number of hours for the subordinates into the payroll system, then that is the number of hours for which the subordinates will be paid. Accordingly, the evidence shows that the 

subordinates were lawfully paid and Oldfield could not have 

reasonably believed that they were not.

Moreover, the evidence does not reflect a causal connection between Oldfield’s alleged reporting of an unlawful 

27 Wolfe v. Becton Dickinson & Co., 266 Neb. 53, 61, 662 N.W.2d 599, 605 

(2003).

28 Id.
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practice and his termination of employment. Oldfield alleges 

that in addition to the evidence of pretext, which we rejected 

above, his evidence of temporal proximity (approximately 3 

weeks) shows that there was a nexus. However, generally, a 

temporal connection between the protected conduct and the 

adverse employment action by itself is not enough to present 

a genuine factual issue on retaliation.29 This is especially true 

where, as here, the evidence shows that the employer was 

concerned about a problem before the alleged protected conduct occurred.30 Here, Oldfield admits that prior to his alleged 

protected conduct, he had, among other things, argued with his 

supervisor about new policies and procedures, failed to make 

his shop’s appearance comply with upper management’s expectations, failed to hold monthly meetings, failed to sufficiently 

communicate with internal customers, and failed to complete at 

least 50 percent of performance appraisals for his subordinates 

from 2002 to 2011.

In light of this evidence, and the fact that Oldfield’s act of 

insubordination (failing to disclose the name of the employee 

who violated company policy) was within 2 days of his termination, we conclude that no rational jury could find that 

Oldfield’s termination was a result of retaliation. Therefore, the 

district court properly granted summary judgment in favor of 

NMC with respect to the retaliation claim.

3. Public Policy

[11-13] Under the public policy exception to the at-will 

employment doctrine, an employee can claim damages for 

29 Hervey v. County of Koochiching, 527 F.3d 711 (8th Cir. 2008) (quoting 

Kiel v. Select Artificials, Inc., 169 F.3d 1131 (8th Cir. 1999)).

30 See id. (quoting Smith v. Allen Health Systems, Inc., 302 F.3d 827 (8th 

Cir. 2002), and citing Slattery v. Swiss Reinsurance America Corp., 248 

F.3d 87, 95 (2d Cir. 2001) (“[w]here timing is the only basis for a claim of 

retaliation, and gradual adverse job actions began well before the plaintiff 

had ever engaged in any protected activity, an inference of retaliation does 

not arise”)).
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wrongful discharge when the motivation for the firing contravenes public policy.31 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.32 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.33

In Oldfield’s amended complaint, he alleges that his termination of employment violated Nebraska common law 

and Nebraska public policy “against employers discharging 

employees from such a tenured position for unjustifiable reasons.” But the “unjustifiable reasons” proffered by Oldfield 

are the same as his statutory reasons, i.e., that his termination 

of employment was a result of discrimination on the basis of 

his age and also retaliation for reporting an allegedly unlawful 

activity. In this respect, Oldfield’s claim is duplicative of his 

ADEA and FELA claims, which we have already addressed 

and found to be meritless. Therefore, the district court properly 

granted summary judgment in favor of NMC with respect to 

Oldfield’s public policy claim.

VI. CONCLUSION

For the foregoing reasons, we conclude that Oldfield’s 

assignments of error are without merit. We therefore affirm the 

judgment of the district court, granting summary judgment in 

favor of NMC and against Oldfield.

Affirmed.

Miller-Lerman, J., not participating.

31 Coffey v. Planet Group, supra note 3.

32 Id.

33 Id.