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BAKER-HESER v. STATE

Cite as 309 Neb. 979

Natalie Baker-Heser, M.D., and Stacey 

Werth-Sweeney, appellants, v. State of 

Nebraska and Nebraska Department 

of Health and Human 

Services, appellees.

___ N.W.2d ___

Filed August 13, 2021. No. S-20-758.

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. An appellate court reviews the district court’s grant of summary 

judgment de novo, viewing the record in the light most favorable to 

the nonmoving party and drawing all reasonable inferences in that 

party’s favor.

2. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings under the residual hearsay exception, an appellate court reviews 

for clear error the factual findings underpinning a trial court’s hearsay ruling and reviews de novo the court’s ultimate determination to 

admit evidence over a hearsay objection or exclude evidence on hearsay grounds.

3. Motions to Dismiss: Pleadings: Appeal and Error. A district court’s 

grant of a motion to dismiss on the pleadings is reviewed de novo, 

accepting the allegations in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party.

4. Statutes: Appeal and Error. Statutory interpretation presents a question 

of law, for which an appellate court is obligated to reach an independent 

conclusion irrespective of the decision made by the court below.

5. Fair Employment Practices: Proof. In order to show retaliation under 

the Nebraska Fair Employment Practice Act, a plaintiff must establish 

(1) he or she engaged in protected conduct, (2) he or she was subjected 

Nebraska Supreme Court Online Library

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

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

between the protected conduct and the adverse action.

6. Fair Employment Practices: Words and Phrases. The “practice” in 

Neb. Rev. Stat. § 48-1114(1)(c) (Cum. Supp. 2020) refers to an unlawful 

practice of the employer.

7. Fair Employment Practices: Statutes. The Nebraska Fair Employment 

Practice Act is not a general “bad acts” statute.

8. Fair Employment Practices. The evil addressed by Neb. Rev. Stat. 

§ 48-1114(1)(c) (Cum. Supp. 2020) is the exploitation of an employer’s 

power over an employee when used to coerce the employee to endorse, 

through participation or acquiescence, the unlawful acts of the employer.

9. ____. Neb. Rev. Stat. § 48-1114(1)(c) (Cum. Supp. 2020) does not 

protect an employee’s opposition to the unlawful activities of fellow employees.

10. Statutes: Judicial Construction: Legislature: Intent: Presumptions.

Where a statute has been judicially construed and that construction has 

not evoked an amendment, it will be presumed that the Legislature has 

acquiesced in the court’s determination of the Legislature’s intent.

11. Fair Employment Practices. To present a prima facie claim under the 

Nebraska Fair Employment Practice Act, the employee must show either 

his or her opposition to an unlawful practice of the employer or the 

employee’s refusal to honor an employer’s demand that the employee do 

an unlawful act.

12. Appeal and Error. To be considered by an appellate court, the party 

asserting the alleged error must both specifically assign and specifically 

argue it in the party’s initial brief.

13. Rules of Evidence: Hearsay: Proof. Hearsay is defined as a statement, 

other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

14. Hearsay. An out-of-court statement is not hearsay if the proponent 

offers it for a purpose other than proving the truth of the matter 

asserted.

15. ____. A statement is not hearsay if the proponent offers it to show its 

impact on the listener and the listener’s knowledge, belief, response, 

or state of mind after hearing the statement is relevant to an issue in 

the case.

16. Statutes: Immunity: Waiver. Statutes purporting to waive the State’s 

protection of sovereign immunity are strictly construed in favor of the 

sovereign and against waiver.

17. ____: ____: ____. A waiver of sovereign immunity is found only 

where stated by the most express language of a statute or by such 

overwhelming implication from the text as will allow no other reasonable construction.
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18. Immunity: Waiver. Nothing about allowing a private right of action is 

an express or implied waiver of the State’s sovereign immunity.

19. ____: ____. The sovereign must prevail if there is any doubt as to 

whether immunity has been waived.

20. Appeal and Error. An appellate court is not obligated to engage in an 

analysis that is not necessary to adjudicate the case and controversy 

before it.

Appeal from the District Court for Lancaster County: Robert 

R. Otte, Judge. Affirmed.

David A. Domina, of Domina Law Group, P.C., L.L.O., for 

appellants.

Heidi A. Guttau, of Baird Holm, L.L.P., for appellees.

Heavican, C.J., Cassel, Stacy, Funke, Papik, and 

Freudenberg, JJ., and Welch, Judge.

Cassel, J.

INTRODUCTION

Two employees of a state hospital highlighted deficient 

recordkeeping by hospital psychiatrists. Following an investigation, the Nebraska Department of Health and Human Services 

(DHHS) fired the two employees. These former employees sued 

DHHS, alleging violations of the Nebraska Fair Employment 

Practice Act (NFEPA) 1 and the Health Care Facility Licensure 

Act (HCFLA). 2 The district court dismissed the HCFLA claims 

on sovereign immunity grounds and granted DHHS’ motion for 

summary judgment on the NFEPA claims. Because the former 

employees did not show that they complained about an unlawful practice of DHHS and because the State did not waive its 

sovereign immunity for claims under the HCFLA, we affirm 

the district court’s judgment.

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

2020).

2 Neb. Rev. Stat. §§ 71-401 to 71-476 (Reissue 2018 & Cum. Supp. 2020).
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BACKGROUND

Lincoln Regional Center

DHHS operates the Lincoln Regional Center (LRC). The 

LRC is a state hospital. 3 Because many psychiatrists will not 

work at state hospitals, the LRC has difficulty recruiting psychiatrists. The LRC is licensed under an administrative regulation 4 and is obligated to meet requirements specified in state 5

and federal 6 regulations. Requirements include having medical 

staff bylaws 7 and maintaining medical records. 8

Key Employees and Events

Stacey Werth-Sweeney (Sweeney) began employment at the 

LRC in 1989. Following a number of promotions, she became 

the facility operating officer in 2010. In that capacity, Sweeney’s 

job duties included working with department heads to ensure 

policies and procedures were current, to ensure staff were 

trained, to lead quality improvement, and to oversee crises. She 

tracked any documentation delinquency and reported it to the 

medical director each month.

In 2015, the LRC rehired a psychiatrist, whom we will refer 

to as “Psychiatrist 1.” The LRC knew that he had a long history of being delinquent in his medical recordkeeping. Psychiatrist 1 is Indian.

In February 2016, the LRC hired another psychiatrist, whom 

we will refer to as “Psychiatrist 2.” When hired, Psychiatrist 2 had a private practice in Illinois and the medical director allowed him to continue his private practice for 1 year. In 

2018, Psychiatrist 2’s private practice remained open, resulting 

3 See Neb. Rev. Stat. § 83-305 (Reissue 2014).

4 See 175 Neb. Admin. Code, ch. 9, § 004.01 (2006).

5 See 175 Neb. Admin. Code, ch. 9.

6 See 42 C.F.R. §§ 482.60 to 482.62 (2019).

7 See 175 Neb. Admin. Code, ch. 9, § 006.

8 Id., § 006.07.
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in his absence every other Monday and Tuesday. Psychiatrist 2 

is Iranian.

In January 2017, Psychiatrist 2 received a written warning 

due to his failure to adhere to LRC’s bylaws and agency values. 

Two months later, he filed a charge of discrimination against 

DHHS, alleging whistleblower retaliation for complaints he 

had made beginning in February 2016. In November 2017, 

Sweeney emailed a complaint about Psychiatrist 2’s abusive 

behavior to the director of the division of behavioral health 

with DHHS and to Bo Botelho, DHHS’ chief operating officer 

and general counsel. In December 2017, a psychologist emailed 

a complaint to Botelho and DHHS’ director of human resources 

regarding unprofessional behavior by Psychiatrist 2.

On March 12, 2018, Natalie Baker-Heser, M.D. (Baker), 

became the LRC’s medical director. Her job duties included 

providing leadership to medical staff at the LRC and promoting a sense of teamwork. Baker supervised six psychiatrists. 

Three of those six psychiatrists, including Psychiatrist 1 and 

Psychiatrist 2, were not current with patient documentation. 

The LRC’s medical staff bylaws authorized the medical director to initiate investigations and to summarily suspend a practitioner when the practitioner’s conduct threatened the life of 

a patient. And as a physician, Baker had a mandatory reporting obligation. 9

In April 2018, Baker, along with the facilities director and 

a human resources partner, met with Psychiatrist 1 to discuss 

his more than 200 delinquent records (mostly patient contact 

notes and progress notes) and how they could assist him in 

becoming current. Approximately 5 weeks after becoming the 

medical director, Baker began recommending the employment 

termination of Psychiatrist 1 and Psychiatrist 2 (collectively 

the Psychiatrists). She observed numerous violations of medical recordkeeping requirements by them. Baker believed that 

9 See 172 Neb. Admin. Code, ch. 5, § 003 (2020).
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the entire patient population cared for by Psychiatrist 2 was 

at risk and that noncompliance with laws and regulations 

involving patient safety put the LRC’s accreditation at risk. 

According to Baker, LRC policies contain time requirements 

for completion of progress notes and assessments.

Investigation

In mid-April 2018, Grant Dugdale, an attorney, joined 

DHHS. He reported to Botelho. Dugdale had practiced law 

for over 30 years and had significant experience conducting 

workplace investigations. Soon after Dugdale started, Botelho 

asked him to advise Baker on issues related to Psychiatrist 2. 

Dugdale described being in a “counseling role” with Baker in 

which he was trying “to figure out what was going on, what 

her concerns were, how to address those concerns.” Shortly 

after Dugdale did that, Botelho instructed him to conduct a 

“‘top to bottom’” investigation of the LRC. Botelho issued 

an oral directive that DHHS was putting all employmentrelated decisions and terminations on hold at the LRC pending 

completion of Dugdale’s investigation. DHHS put disciplinary 

actions on hold during the investigation because it wanted to 

ensure that there were legitimate, nondiscriminatory reasons 

for terminating the Psychiatrists’ employment.

Dugdale completed his investigation within 1 month. As 

part of his investigation, he prepared interview summaries of 

the employees with whom he spoke. He learned from Sweeney 

that she had concerns regarding Psychiatrist 1’s history of 

being late with patient documentation and that she had a history of conflict with Psychiatrist 2. The director of nursing told 

Dugdale that she believed Sweeney overstepped her bounds 

and interfered with nursing decisions. Dugdale learned from 

Baker that she wanted to immediately suspend Psychiatrist 1 

due to his late documentation and that she wanted to terminate Psychiatrist 2’s employment due to concerns about his 

delinquent patient documentation, his absence to attend to 

his private practice in Illinois, and his hostility toward others. 
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Dugdale concluded that the LRC was in dire need of leadership changes.

Dugdale recommended terminating Baker’s and Sweeney’s 

employment. He claimed that Baker failed to talk with the 

Psychiatrists about her concerns with their performance in any 

meaningful way before recommending their firings and that 

Baker’s actions could expose DHHS to liability for discrimination claims. Dugdale noted Sweeney’s history of interfering 

with or making clinical medical decisions, retaliating against 

individuals, and forcing employees to leave the LRC. On June 

12, 2018, DHHS fired Baker and Sweeney. DHHS terminated 

the employment of the Psychiatrists 4 to 5 months later.

Lawsuit

Baker and Sweeney (collectively the former employees) 

sued the State and DHHS (collectively DHHS) and requested a 

jury trial. The complaint alleged that DHHS retaliated against 

the former employees for “[r]efusing to conceal, and reporting violations of, and attempting to enforce, patient-protection 

laws” in their respective positions. According to the complaint, 

DHHS thwarted them from completing necessary administrative actions to protect patients and personnel from wrongful acts.

The former employees alleged that they observed and 

reported instances in which the Psychiatrists did not complete 

vital records such as reports and competency examinations 

and failed to complete psychiatric admission assessments and 

discharge summary reports on a timely basis. They claimed 

that the Psychiatrists’ failure to abide by medical recordkeeping requirements placed patients in danger, inhibited effective 

care, violated patients’ rights, delayed court proceedings which 

depended on timely and complete psychiatric records, endangered the community, placed the LRC’s continued accreditation at risk, and undermined the LRC’s mission and goals. The 

former employees alleged that DHHS prevented investigation, 

discipline, or remedial action against the Psychiatrists. They 
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asserted that DHHS’ active attempts to conceal or permit deficient recordkeeping constituted an unlawful practice.

The former employees also alleged that they repeatedly 

reported to DHHS numerous complaints of harassment, intimidation, and abuse by Psychiatrist 2 made by several female 

DHHS employees. However, they later abandoned this claim in 

the district court.

The complaint asserted that the terminations were contrary 

to § 48-1114, to § 71-445, and to public policy. The former 

employees demanded “trial by jury on all issues so triable.” 

With regard to § 48-1114, the former employees alleged that 

their actions and reports related to the Psychiatrists’ unlawful practices—i.e., failure to comply with federal and state 

regulatory requirements concerning creation and maintenance 

of medical records—constituted protected activity. Pertinent 

to § 71-445, they alleged that DHHS’ motivation for terminating their employment was their opposition to the Psychiatrists’ 

violation of the regulatory scheme set forth in statutes and 

regulations. 10

Motions to Dismiss Claim and 

Strike Jury Demand

DHHS filed a motion to dismiss two of the claims for each 

former employee and to strike the jury demand. DHHS alleged 

that the wrongful discharge in violation of public policy claims 

should be dismissed due to noncompliance with the State Tort 

Claims Act and that the HCFLA claims should be dismissed 

because the State had not waived sovereign immunity for such 

claims. There is no dispute that DHHS never received any 

notices from the former employees under the State Tort Claims 

Act. DHHS further alleged that the former employees were not 

entitled to a jury trial and that the demand should be stricken. 

The former employees thereafter moved to dismiss without 

prejudice their claims that the terminations were contrary to 

public policy.

10 See, § 71-401 et seq.; 175 Neb. Admin. Code, ch. 9.
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The court sustained the motions. Thus, it dismissed the former employees’ claims based on public policy and the HCFLA. 

It also struck the demand for a trial by jury.

Motion for Summary Judgment and Ruling

DHHS moved for summary judgment, and the court entered 

an order sustaining the motion and dismissing the retaliation claims. With respect to the former employees’ objections 

to witness statement summaries offered as exhibits on the 

grounds that they were not affidavits and were hearsay, the 

court stated that DHHS offered the witness interview summaries “not for the truth of the matter asserted, but instead, 

to show the listener’s (i.e., Mr. Dugdale’s) state of mind and 

nonretaliatory basis for recommending [the former employees’] termination.”

The court determined that the former employees’ claims 

were not cognizable under NFEPA because they were doing 

what the law required them to do, i.e., report violations of 

medical recordkeeping requirements. It reasoned that even if 

the claims were cognizable, the former employees could not 

establish all of the prima facie elements of retaliation because 

the medical recordkeeping practices of the Psychiatrists did 

not constitute unlawful actions within the meaning of NFEPA. 

The court also determined that the former employees could 

not establish the causal connection element, noting that they 

were not terminated until approximately 2 months after 

first complaining.

The former employees timely appealed, and we granted their 

petition to bypass review by the Nebraska Court of Appeals. 11

ASSIGNMENTS OF ERROR

The former employees assign that the district court erred 

in (1) entering summary judgment against them, (2) receiving 

witness interview summaries as evidence over hearsay objections, (3) dismissing their claims for wrongful termination 

11 See Neb. Rev. Stat. § 24-1106(2) (Cum. Supp. 2020).
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in violation of § 71-445, and (4) striking their demand for a 

jury trial.

STANDARD OF REVIEW

[1] 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. An appellate court reviews the district court’s 

grant of summary judgment de novo, viewing the record in the 

light most favorable to the nonmoving party and drawing all 

reasonable inferences in that party’s favor. 12

[2] Apart from rulings under the residual hearsay exception, 

an appellate court reviews for clear error the factual findings 

underpinning a trial court’s hearsay ruling and reviews de novo 

the court’s ultimate determination to admit evidence over a 

hearsay objection or exclude evidence on hearsay grounds. 13

[3] A district court’s grant of a motion to dismiss on the 

pleadings is reviewed de novo, accepting the allegations in 

the complaint as true and drawing all reasonable inferences in 

favor of the nonmoving party. 14

[4] Statutory interpretation presents a question of law, 

for which an appellate court is obligated to reach an independent conclusion irrespective of the decision made by the 

court below. 15

ANALYSIS

Summary Judgment on NFEPA Claims

The former employees argue that the court erred in entering summary judgment against them on their NFEPA claims. 

12 McCaulley v. C L Enters., ante p. 141, 959 N.W.2d 225 (2021).

13 Brown v. Morello, 308 Neb. 968, 957 N.W.2d 884 (2021).

14 Ryan v. Streck, Inc., ante p. 98, 958 N.W.2d 703 (2021).

15 Id.
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They contend that their employment terminations were retaliatory. But DHHS counters that the retaliation claims fail as a 

matter of law for a variety of reasons. We begin with discussion of a retaliation claim under NFEPA.

[5] In order to show retaliation under NFEPA, a plaintiff 

must establish (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. 16 Having been terminated from 

employment, the former employees undoubtedly suffered an 

adverse employment action. The primary dispute is whether 

they engaged in protected conduct.

As pertinent here, NFEPA makes it “an unlawful employment practice for an employer to discriminate against any of 

his or her employees . . . because he or she . . . has opposed 

any practice or refused to carry out any action unlawful under 

federal law or the laws of this state.” 17 An action is “[u]nlawful under federal law or the laws of this state” if it is “contrary 

to or in defiance of the law or disobeying or disregarding 

the law.” 18

[6-9] In Wolfe v. Becton Dickinson & Co.,

 19 we addressed the 

“practice” component of § 48-1114. We stated that it “refers to 

an unlawful practice of the employer.” 20 We explained that 

“[t]he statute’s purpose is not served by giving an extra layer 

of protection from discharge to those employees who happen 

to voice their opposition to any manner of unlawful activity.” 21

Although we recognized that it may be unfair to disadvantage an employee for opposing unlawful activities unrelated 

to employment, we emphasized that NFEPA is not a general 

16 Haffke v. Signal 88, 306 Neb. 625, 947 N.W.2d 103 (2020).

17 § 48-1114(1)(c).

18 § 48-1102(15).

19 Wolfe v. Becton Dickinson & Co., 266 Neb. 53, 662 N.W.2d 599 (2003).

20 Id. at 57, 662 N.W.2d at 603.

21 Id.
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“bad acts” statute. 22 We clarified that the evil addressed by 

§ 48-1114(3)—now located at § 48-1114(1)(c)—is the exploitation of an employer’s power over an employee when used 

to coerce the employee to endorse, through participation or 

acquiescence, the unlawful acts of the employer. 23 And we 

observed that the legislative intent was “‘to provide some 

protection for employees in the private sector who are asked 

by their employer or labor union to do something that is 

illegal.’” 24 Thus, we determined that NFEPA does not protect 

an employee’s opposition to the unlawful activities of fellow employees. 25

Nine years after Wolfe, the Court of Appeals decided Bonn 

v. City of Omaha 26 and applied our narrow interpretation of 

§ 48-1114. In Bonn, the city fired its public safety auditor 

after the auditor reported that members of the police department acted with discrimination toward minority members of 

the public. In finding no violation under § 48-1114, the Court 

of Appeals reasoned that “[t]he practices being opposed must 

be unlawful practices of the employer, here the City of Omaha, 

and not unlawful actions by individuals or coemployees.” 27

[10] Nearly two decades have elapsed since we construed 

§ 48-1114 in Wolfe, and the Legislature has not substantively 

changed that language. Where a statute has been judicially 

construed and that construction has not evoked an amendment, it will be presumed that the Legislature has acquiesced 

in the court’s determination of the Legislature’s intent. 28 The 

22 Id. at 58, 662 N.W.2d at 603 (internal quotation marks omitted).

23 See Wolfe v. Becton Dickinson & Co., supra note 19.

24 Id. at 58, 662 N.W.2d at 604. See, also, Neb. Rev. Stat. § 48-1126 (Reissue 

2010) (state agencies may be sued upon claims under NFEPA in same 

manner as provided by such law for suits against other employers).

25 See Wolfe v. Becton Dickinson & Co., supra note 19.

26 Bonn v. City of Omaha, 19 Neb. App. 874, 814 N.W.2d 114 (2012).

27 Id. at 882, 814 N.W.2d at 121.

28 Rodriguez v. Lasting Hope Recovery Ctr., 308 Neb. 538, 955 N.W.2d 707 

(2021).
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Legislature amended the statute once after the Wolfe and 

Bonn decisions, but other than renumbering § 48-1114(3) to 

§ 48-1114(1)(c), nothing in the amendment altered the construction given by the appellate courts. 29 If the Legislature 

wished to protect from retaliation an employee who opposed 

a coworker’s unlawful actions, it could have done so. Because 

it has not, we view our narrow interpretation of § 48-1114 in 

Wolfe as having received legislative acquiescence.

The former employees identified their alleged protected 

conduct in their complaint. They asserted that they engaged in 

protected activity via their “actions and reports related to [the 

Psychiatrists’] unlawful practices i.e., failure to comply with 

federal and state regulatory requirements concerning creation 

and maintenance of medical records.” The former employees 

had a reasonable, good faith belief that the Psychiatrists were 

not complying with laws regarding completion of records, i.e., 

that they were committing unlawful acts.

[11] The record shows that the former employees opposed 

the Psychiatrists’ unlawful acts. But the Psychiatrists were not 

the former employees’ “employer.” To present a prima facie 

claim under NFEPA, the employee must show either his or 

her opposition to an unlawful practice of the employer or the 

employee’s refusal to honor an employer’s demand that the 

employee do an unlawful act. 30 The former employees’ opposition to the Psychiatrists’ actions cannot support a prima facie 

case of retaliation under § 48-1114(1)(c).

The complaint alleged that DHHS’ “active attempts to conceal or permit” deficient recordkeeping constituted an unlawful practice. And the former employees claim in their brief 

that they were fired for refusing “to go along with a cover 

up.” 31 But we are not presented with a situation where DHHS 

asked the former employees to perform an unlawful act. The 

29 See 2019 Neb. Laws, L.B. 217.

30 See Wolfe v. Becton Dickinson & Co., supra note 19.

31 Brief for appellants at 17, 18.
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evidence shows that Baker wished to take disciplinary action 

against the Psychiatrists, but that a directive placed employment-related decisions on hold pending completion of Dugdale’s 

investigation. Although Baker was not allowed to suspend 

or fire the Psychiatrists prior to completion of the investigation, there is no evidence that she or Sweeney were instructed 

to cease complaining about or reporting the Psychiatrists’ 

record deficiencies. The former employees’ complaints about 

the Psychiatrists simply do not challenge any unlawful act by 

DHHS as their employer. Because they opposed alleged unlawful actions by coemployees and not practices of DHHS, their 

cause of action does not lie in NFEPA.

Moreover, the former employees cannot establish a causal 

connection between their reports about the Psychiatrists and 

their employment terminations. Part of Sweeney’s job duties 

was to report late documentation, and there is no dispute 

that DHHS was aware of the Psychiatrists’ recordkeeping 

issues. Baker was hired in part in the hope that she could 

help the Psychiatrists improve in that area. Instead, Baker, 

within weeks of her hiring and while supported by Sweeney, 

sought to have the Psychiatrists suspended or fired. The former employees would have us believe that they were fired in 

retaliation for performing their job duties. Rather than showing 

that the former employees were fired for retaliatory reasons, 

the evidence shows that DHHS terminated their employment 

due to concerns about their leadership abilities. Employment 

discrimination laws have not vested in the Nebraska courts 

the authority to sit as super personnel departments reviewing 

the wisdom or fairness of the business judgments made by 

employers, except to the extent that those judgments involve 

intentional discrimination. 32 The general rule in Nebraska is 

that unless constitutionally, statutorily, or contractually prohibited, an employer, without incurring liability, may terminate an 

32 See Haffke v. Signal 88, supra note 16.
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at-will employee at any time with or without reason. 33 Because 

the former employees were employed at-will, DHHS could 

terminate their employment for any reason in the absence of a 

motive that was retaliatory or that contravened public policy.

We conclude the former employees failed to establish a 

prima facie case of retaliation. Accordingly, the district court 

did not err in granting summary judgment in favor of DHHS 

on the NFEPA causes of action.

Hearsay

In connection with the summary judgment proceeding, the 

former employees raise a claim of evidentiary error. In the 

district court, they objected that witness interview summaries 

offered as evidence “are not affidavits, not admissible on summary judgment as statements . . . , and are hearsay.” The court 

overruled the objections.

[12] The former employees’ brief alludes, but does not assign 

error, to the summaries’ being improper materials to support or 

oppose summary judgment. 34 To be considered by an appellate court, the party asserting the alleged error must both specifically assign and specifically argue it in the party’s initial 

brief. 35 Even if error had been assigned to the form of the 

exhibits, it would have exulted form over substance. Dugdale’s 

affidavit, exhibit 49, specifically identified, authenticated, and 

purported to attach the other exhibits which were not in the 

form of affidavits. Because the exhibits were submitted as PDF 

files, it may be a simple technical mistake that they were not 

attached. While the better practice may have been to ensure the 

attachment was accomplished, the former employees do not 

explain how they were prejudiced by this procedure.

33 O’Brien v. Bellevue Public Schools, 289 Neb. 637, 856 N.W.2d 731 

(2014).

34 See Neb. Rev. Stat. § 25-1332(1) (Cum. Supp. 2020) (evidence receivable 

on motion for summary judgment includes “depositions, answers to interrogatories, admissions, stipulations, and affidavits”).

35 In re Interest of Victor L., ante p. 21, 958 N.W.2d 413 (2021).
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In any event, they do assign error to and focus their argument on the receipt of the evidence over hearsay objections. 

We turn our attention to that issue.

[13-15] Hearsay is defined as “a statement, other than one 

made by the declarant while testifying at the trial or hearing, 

offered in evidence to prove the truth of the matter asserted.” 36

By definition, an out-of-court statement is not hearsay if the 

proponent offers it for a purpose other than proving the truth 

of the matter asserted. 37 Thus, a statement is not hearsay if the 

proponent offers it to show its impact on the listener and the 

listener’s knowledge, belief, response, or state of mind after 

hearing the statement is relevant to an issue in the case. 38

Federal and state courts have determined that internal documents of an employer related to employment decisions are 

not hearsay. The Eighth Circuit has stated that in employment 

discrimination cases, internal documents relied upon by the 

employer in making an employment decision are not hearsay; 

rather, such documents are relevant and admissible because 

they help explain the employer’s conduct. 39 Other federal circuit courts have ruled similarly. 40 The New Jersey Supreme 

Court held that “when an employer defends against a claim 

that an employee’s discharge was the product of retaliation, 

an investigative report prepared by the employer that purports 

36 Neb. Evid. R. 801(3), Neb. Rev. Stat. § 27-801(3) (Cum. Supp. 2020).

37 State v. Poe, 292 Neb. 60, 870 N.W.2d 779 (2015).

38 Id.

39 See Wolff v. Brown, 128 F.3d 682 (8th Cir. 1997). See, also, Hardie v. 

Cotter and Co., 849 F.2d 1097 (8th Cir. 1988); Crimm v. Missouri Pacific 

R. Co., 750 F.2d 703 (8th Cir. 1984).

40 See, e.g., Luckie v. Ameritech Corp., 389 F.3d 708 (7th Cir. 2004); Ryder 

v. Westinghouse Elec. Corp., 128 F.3d 128 (3d Cir. 1997); Jones v. Los 

Angeles Community College Dist., 702 F.2d 203 (9th Cir. 1983); Moore 

v. Sears, Roebuck and Co., 683 F.2d 1321 (11th Cir. 1982); Zamora v. 

Board of Educ. for Las Cruces Public Schools, 553 Fed. Appx. 786 (10th 

Cir. 2014).
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to demonstrate a non-retaliatory reason for the employee’s 

termination is a non-hearsay statement.” 41 The Iowa Supreme 

Court likewise determined that “internal documents relied upon 

by an employer in making employment decisions in a discrimination case are generally not hearsay because they can be relevant to explain the employer’s conduct.” 42

The district court determined that the exhibits were not hearsay. It noted that the witness interview summaries were authenticated by Dugdale’s affidavit and stated that the exhibits were 

offered to show Dugdale’s state of mind and nonretaliatory 

basis for recommending termination of the former employees’ 

employment. The court explained: “[T]he truth of the matter 

asserted in each witness interview summary or investigative 

report is not at issue or even relevant in this case. Rather, what 

is relevant is whether [DHHS] investigated, interviewed witnesses, and had a good faith belief in the grounds asserted at 

the time of termination.”

We see no clear error in any of the court’s factual findings, 

and on de novo review, we find no error in the admission of 

these exhibits. Because the summaries were not offered to 

prove the truth of the matter asserted, the district court properly 

overruled the hearsay objections.

Wrongful Termination Under HCFLA

The former employees next argue that the court erred in 

dismissing their claims for retaliation under the HCFLA after 

determining that the State had not waived its sovereign immunity. Section 71-445(1) of the HCFLA provides:

A health care facility or health care service shall not 

discriminate or retaliate against a person . . . employed 

at such facility . . . who has presented a complaint or 

41 Carmona v. Resorts Int’l. Hotel, 189 N.J. 354, 359-60, 915 A.2d 518, 521 

(2007).

42 McElroy v. State, 637 N.W.2d 488, 502 (Iowa 2001).
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provided information to the administrator of such facility or service or [DHHS]. Such person may maintain an 

action for any type of relief . . . permitted by law.

There is no dispute that the HCFLA applies to the LRC.

The dispute centers on whether § 71-445 waived the State’s 

sovereign immunity. DHHS is a state agency, 43 and an action 

against a state agency is an action against the State. 44 Our 

constitution allows the State to be sued, but specifies that 

“the Legislature shall provide by law in what manner and in 

what courts suits shall be brought.” 45 Thus, we have long held 

that no suit may be maintained against the State unless the 

Legislature, by law, has so provided. 46

[16-18] It is well settled that statutes purporting to waive 

the State’s protection of sovereign immunity are strictly construed in favor of the sovereign and against waiver. 47 A waiver 

of sovereign immunity is found only where stated by the most 

express language of a statute or by such overwhelming implication from the text as will allow no other reasonable construction. 48 For example, the State is subject to be sued under 

NFEPA because a statute expressly provides that “[t]he state 

and governmental agencies created by the state may be sued 

upon claims arising under the [NFEPA] in the same manner 

as provided by such law for suits against other employers.” 49

There is no similar express waiver of sovereign immunity 

in the HCFLA. And we have declared that nothing about 

43 See Neb. Rev. Stat. § 81-3111 (Reissue 2014).

44 See State ex rel. Rhiley v. Nebraska State Patrol, 301 Neb. 241, 917 

N.W.2d 903 (2018).

45 Neb. Const. art. V, § 22.

46 See Edwards v. Douglas County, 308 Neb. 259, 953 N.W.2d 744 (2021).

47 See, id.; Burke v. Board of Trustees, 302 Neb. 494, 924 N.W.2d 304 

(2019).

48 Edwards v. Douglas County, supra note 46; Burke v. Board of Trustees, 

supra note 47.

49 § 48-1126.
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allowing a private right of action is an express or implied 

waiver of the State’s sovereign immunity. 50

We find helpful our analysis in Edwards v. Douglas County.

 51

In Edwards, the plaintiff argued that Nebraska’s Emergency 

Telephone Communications Systems Act 52 should be construed 

as a waiver of sovereign immunity for claims alleging negligence against any provider of 911 emergency dispatch services. 

We recognized that the Political Subdivisions Tort Claims 

Act 53 provided the exclusive means by which to maintain a 

tort claim against a political subdivision and its employees 

and that the Political Subdivisions Tort Claims Act made no 

reference to any statute contained in the Emergency Telephone 

Communications Systems Act.

Similar to the Political Subdivisions Tort Claims Act at 

issue in Edwards, the Legislature in the State Tort Claims 

Act 54 declares:

The State of Nebraska shall not be liable for the torts 

of its officers, agents, or employees, and no suit shall 

be maintained against the state, any state agency, or any 

employee of the state on any tort claim except to the 

extent, and only to the extent, provided by the State Tort 

Claims Act. 55

Like the Political Subdivisions Tort Claims Act, the State 

Tort Claims Act provides the “exclusive” means to maintain a 

tort claim and suit against the State and its employees. 56 And 

although the State Tort Claims Act expressly refers to and 

50 State ex rel. Rhiley v. Nebraska State Patrol, supra note 44.

51 Edwards v. Douglas County, supra note 46.

52 Neb. Rev. Stat. §§ 86-420 to 86-441.01 (Reissue 2014).

53 Neb. Rev. Stat. §§ 13-901 to 13-928 (Reissue 2012 & Cum. Supp. 2020).

54 Neb. Rev. Stat. §§ 81-8,209 to 81-8,235 (Reissue 2014 & Cum. Supp. 

2020).

55 § 81-8,209.

56 See § 81-8,229.
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incorporates statutes outside of the act, 57 it does not refer to 

any statute contained within the HCFLA. Nor does the HCFLA 

make reference to the State Tort Claims Act.

[19] The former employees contend that federal requirements for benefits coupled with the language of § 71-445 

create an overwhelming implication from the text that the 

State waived sovereign immunity. We are not persuaded. And 

because the sovereign must prevail if there is any doubt as to 

whether immunity has been waived, 58 we do not read § 71-445 

as a waiver of sovereign immunity. Accordingly, the district 

court did not err in dismissing the claims for retaliation under 

the HCFLA based on the State’s sovereign immunity.

Right to Jury Trial

[20] Finally, the former employees challenge the striking of 

their demand for a jury trial. An appellate court is not obligated 

to engage in an analysis that is not necessary to adjudicate the 

case and controversy before it. 59 Because we agree with the 

court’s entry of summary judgment on the former employees’ NFEPA claims and its dismissal of their claims under 

the HCFLA, no claims remain for trial. We need not resolve 

this issue.

CONCLUSION

Because the former employees did not establish that they 

engaged in protected activity, the district court properly entered 

summary judgment against them on their NFEPA claims. The 

court did not err in receiving witness interview summaries over 

hearsay objections, because the summaries were not offered 

to prove the truth of the matter asserted. And because the 

State did not waive its sovereign immunity to suit under the 

57 See, e.g., §§ 81-8,210, 81-8,212, 81-8,215.01, 81-8,219, 81-8,220, 

81-8,225, and 81-8,227.

58 See Edwards v. Douglas County, supra note 46.

59 Seldin v. Estate of Silverman, 305 Neb. 185, 939 N.W.2d 768 (2020).
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HCFLA, the court properly dismissed those claims. We affirm 

the district court’s judgment.

Affirmed.

Miller-Lerman, J., not participating.

Welch, Judge, concurring.

Regarding that portion of the opinion analyzing the district 

court’s grant of summary judgment on the former employees’ 

NFEPA claims, I concur with the result on the basis that the 

former employees failed to establish a prima facie case of 

retaliation because they failed to establish a causal connection 

between their reports about the Psychiatrists and their employment terminations. I join the opinion of the court regarding the 

other issues presented.