- 625 -

Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

HAFFKE v. SIGNAL 88

Cite as 306 Neb. 625

Nathan Haffke, appellant, v. Signal 88, LLC, 

a Delaware limited liability 

company, appellee.

___ N.W.2d ___

Filed July 31, 2020. No. S-19-667.

1. Jury Instructions. Whether jury instructions are correct is a question 

of law.

2. Judgments: Appeal and Error. An appellate court independently 

reviews questions of law decided by a lower court.

3. Directed Verdict: Appeal and Error. In reviewing a trial court’s ruling 

on a motion for directed verdict, the party against whom the motion is 

directed is entitled to have every controverted fact resolved in its favor 

and to have the benefit of every inference which can reasonably be 

deduced from the evidence.

4. Directed Verdict: Evidence. A directed verdict is proper at the close of 

all the evidence only when reasonable minds cannot differ and can draw 

but one conclusion from the evidence, that is, when an issue should be 

decided as a matter of law.

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 

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

between the protected conduct and the adverse action.

6. Employer and Employee: Proof. A plaintiff alleging he or she was 

subjected to retaliatory action based upon opposing or refusing to participate in an employer’s practice or action which was unlawful only has 

to show a reasonable, good faith belief of the act’s unlawfulness.

7. Employer and Employee. In order for a good faith belief that an 

employer’s action was unlawful 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.

Nebraska Supreme Court Online Library

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

08/21/2020 12:07 AM CDT
- 626 -

Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

HAFFKE v. SIGNAL 88

Cite as 306 Neb. 625

8. Jury Instructions. When evaluating whether a given instruction adequately states the law, the instruction should not be judged in artificial 

isolation but must be viewed in the context of the overall charge to the 

jury considered as a whole.

9. Jury Instructions: Appeal and Error. If the instructions given, taken 

as a whole, correctly state the law, are not misleading, and adequately 

cover the issues submissible to a jury, there is no prejudicial error concerning the instructions and necessitating a reversal.

10. ____: ____. Jury instructions are subject to the harmless error rule, and 

an erroneous jury instruction requires reversal only if the error adversely 

affects the substantial rights of the complaining party.

11. Courts. It is appropriate to look to federal court decisions construing 

similar and parent federal legislation.

12. Employer and Employee: Discrimination: Courts. Employment discrimination laws have not vested in the 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.

13. Employer and Employee: Discrimination: Jury Instructions: Appeal 

and Error. Instructing a jury on the business judgment rule in an 

employment discrimination case is not error.

14. Employer and Employee: Discrimination: Proof. In cases involving claims of employment discrimination, Nebraska courts recognize a 

burden-shifting analysis. First, the plaintiff has the burden of proving 

by a preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, 

the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the employee’s rejection. Third, should the 

defendant carry the burden, the plaintiff must then have an opportunity 

to prove by a preponderance of the evidence that the legitimate reasons 

offered by the defendant were not its true reasons, but were a pretext 

for discrimination.

15. Libel and Slander: Negligence. A defamation claim has four elements: 

(1) a false and defamatory statement concerning the claimant, (2) an 

unprivileged publication to a third party, (3) fault amounting to at least 

negligence on the part of the publisher, and (4) either actionability of the 

statement irrespective of special harm or the existence of special harm 

caused by the publication.

16. Rules of the Supreme Court: Pleadings. Nebraska’s pleading rules 

require that certain enumerated defenses and any other matter constituting an avoidance or affirmative defense must be pled in a defendant’s answer.
- 627 -

Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

HAFFKE v. SIGNAL 88

Cite as 306 Neb. 625

17. Pleadings. An affirmative defense raises a new matter which, assuming 

the allegations in the petition to be true, constitutes a defense to the 

merits of a claim asserted in the petition.

18. ____. An affirmative defense generally avoids, rather than negates, the 

plaintiff’s prima facie case.

19. Rules of the Supreme Court: Pleadings: Notice. The Nebraska Court 

Rules of Pleading in Civil Actions, like the federal rules, have a liberal 

pleading requirement for both causes of action and affirmative defenses, 

but the touchstone is whether fair notice was provided.

20. Appeal and Error. In the absence of plain error, an appellate court considers only claimed errors which are both assigned and discussed.

Appeal from the District Court for Douglas County: Shelly 

R. Stratman, Judge. Affirmed.

Kelly K. Brandon, Aimee C. Bataillon, and Stephanie J. 

Costello, of Fiedler Law Firm, P.L.C., for appellant.

Ruth A. Horvatich, Aaron A. Clark, and Cody E. BrookhouserSisney, of McGrath North, P.C., L.L.O., for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Funke, J.

This appeal concerns Nathan Haffke’s termination of 

employment by Signal 88, LLC, which led to Haffke’s claim of 

retaliation under the Nebraska Fair Employment Practice Act 

(NFEPA) 1 and defamation. The district court granted Signal 88 

a directed verdict on Haffke’s defamation claim, and a jury 

found Haffke failed to prove his retaliation claim. On appeal, 

Haffke challenges a jury instruction for retaliation that required 

Haffke to have opposed or refused to carry out a practice of 

Signal 88 “that is unlawful.” Haffke also challenges the applicability of a jury instruction on the business judgment rule 

in an employment action. Finally, Haffke claims the district 

1 See Neb. Rev. Stat. §§ 48-1101 to 48-1126 (Reissue 2010 & Cum. Supp. 

2016).
- 628 -

Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

HAFFKE v. SIGNAL 88

Cite as 306 Neb. 625

court should not have reached the issue of whether he sufficiently pleaded or proved special damages on his defamation 

claim when Signal 88 did not raise compliance with Neb. Rev. 

Stat. § 25-840.01 (Reissue 2016) as an affirmative defense. For 

the reasons set forth herein, we affirm.

BACKGROUND

Signal 88 is a security service franchisor and sells franchises of mobile security services to business owners. As a 

franchisor, Signal 88 is required to comply with the Federal 

Trade Commission’s franchise rules, including the preparation 

of a franchise disclosure document (FDD) that is provided to 

prospective franchisees as part of the sale process. Under item 

19 of an FDD, if a franchisor is going to provide a potential 

franchisee with a financial performance representation, such 

representation is generally required to be disclosed in the 

FDD. Haffke testified that Signal 88’s FDD’s at issue in this 

case stated:

Other than the information provided in this Item 19, we 

do not furnish or provide prospective franchisees any oral 

or written information concerning the actual or potential 

sales, cost, income or profits of a franchise business. 

Actual results vary from unit to unit. We cannot estimate 

the results of any particular franchise.

Haffke began working for Signal 88 in December 2014 as 

vice president of franchise development. Haffke was responsible for managing a team of contractors and promoting the 

sale of security services.

Signal 88 terminated Haffke’s employment in March 2016, 

and the parties allege differing reasons for this termination. 

Haffke claims he was terminated for alerting Signal 88 it was 

engaging in unlawful transactions and refusing to participate in 

those transactions. In his appellate brief, Haffke points specifically to two allegedly unlawful transactions: (1) a Signal 88 

independent contractor providing a potential franchisee with 

a business plan that included a profit-and-loss statement not 
- 629 -

Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

HAFFKE v. SIGNAL 88

Cite as 306 Neb. 625

included in item 19 of the FDD, and (2) an expansion program 

in which Signal 88 engaged with members of an existing franchisee company to expand with different territory and pricing 

under a newly formed company and purchase the existing 

franchise without providing an updated FDD. Signal 88, in 

turn, alleges Haffke’s employment was terminated due to poor 

performance, including his communication issues in the leading of his team, unsatisfactory sales performances, and stated 

disbelief in Signal 88’s 5-year company plan.

As part of Haffke’s termination from employment, Signal 88 

provided a severance agreement and an independent contractor 

agreement to continue a relationship in which Haffke would 

sell franchises for Signal 88. Although Haffke initially signed 

both documents, he soon after revoked the severance agreement, alleging the termination was wrongful. A day after 

Haffke informed Signal 88 of his revocation of the severance 

agreement, Signal 88 also terminated the independent contractor agreement.

Haffke filed a claim with the Nebraska Equal Opportunity 

Commission in July 2016, alleging retaliation. Signal 88 

amended its FDD to make the necessary disclosure of Haffke’s 

employment action, and this amendment was included in a 

copy of the FDD issued April 19, 2017, which stated:

Haffke v. Signal 88, LLC - Neb 1-16/17-7-48152-S. 

Nathan Haffke filed a charge of retaliation with the 

Nebraska Equal Opportunity Commission (NEOC) on 

or around July 27, 2016. In his Charge, Haffke contends 

that the Company retaliated against him after he made 

protected whistleblower complaints relating to the lawfulness of certain alleged Company activities. Haffke was, 

however, terminated from his employment due to his poor 

performance. The charge is currently in the investigation 

stage with the NEOC.

On July 12, 2017, Haffke sent Signal 88 a letter taking issue 

with the FDD’s statement that Haffke was terminated from 
- 630 -

Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

HAFFKE v. SIGNAL 88

Cite as 306 Neb. 625

employment “due to his poor performance.” On August 2, 

Signal 88 revised the April FDD to state:

Haffke v. Signal 88, LLC - NEB 1-16/17-7-48152-S. 

Nathan Haffke filed a charge of retaliation with the 

Nebraska Equal Opportunity Commission (NEOC) on or 

around July 27, 2016. In his Charge, Haffke contends that 

the Company retaliated against him after he made protected whistleblower complaints relating to the lawfulness 

of certain alleged Company activities. It is the Company’s 

position that Haffke was separated from his employment 

for lawful reasons. The charge is currently in the investigation stage with the NEOC. Haffke seeks compensation 

for back pay and mental suffering.

Haffke filed a complaint with the district court in October 

2017. Under the first count, Haffke claimed Signal 88 violated the NFEPA by retaliating against him for his whistleblower actions. Specifically, Haffke alleged Signal 88 impermissibly retaliated against him by terminating his employment 

and revoking the subcontractor agreement because he alerted 

Signal 88 to company actions he reasonably and in good faith 

believed were unlawful “violations of federal/state franchise 

law[,] Nebraska’s Uniform Deceptive Trade Practices Act[,] 

and Nebraska’s Consumer Protection Acts,” as well as wiretapping laws.

Under the second count, Haffke claimed defamation extending from Signal 88’s publication of the April FDD. Haffke 

argued the statement that he was “terminated from his employment due to his poor performance” was untrue, unprivileged, 

unlawful, and slanderous per se due to the implication that he 

was a poor performer and unfit to carry out employment duties. 

Haffke explained that “[u]pon learning of the defamatory disclosure, [Haffke] immediately sent a request to Signal 88 . . . 

pursuant to [§] 25-840.01 to retract its untrue statements contained within the FDD,” but that “[a]t the time of this filing, 

the statement has not been retracted and Signal [88] has not 

released an amended FDD.” Haffke alleged he was “damaged 
- 631 -

Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

HAFFKE v. SIGNAL 88

Cite as 306 Neb. 625

in lost wages and income, lost fringe benefits, damages to his 

reputation, mental and emotional distress, humiliation, and 

future lost income.”

Signal 88 filed an amended answer contesting Haffke’s complaint. On the defamation claim, Signal 88 admitted Haffke 

had “requested that Signal 88 retract the statement [in the 

FDD] that he was terminated from his employment due to his 

poor performance” but denied the allegation that the statement had not been retracted and Signal 88 had not released an 

amended FDD. Additionally, Signal 88 listed various affirmative defenses in its answer, including that Signal 88 “has 

complied with all applicable statutes and regulations and, thus, 

. . . has not defamed [Haffke]” and that Haffke “did not suffer damages or harm attributable to the action or inaction of 

[Signal 88] as alleged in [Haffke’s] complaint.”

A jury trial was held in June 2019. At the close of evidence, 

Signal 88 moved for a directed verdict, which the district 

court denied as to the retaliation claim. Regarding defamation, the court determined that § 25-840.01 applied and that, 

as such, Haffke was required to plead or prove special damages. Because Haffke failed to plead or prove special damages, 

the court granted Signal 88 a directed verdict on the defamation claim.

The district court provided a jury instruction on the remaining retaliation claim. As applicable to the current appeal, jury 

instruction No. 8 stated, in relevant part:

Before the Plaintiff, Nathan Haffke, can recover against 

the Defendant, Signal 88, LLC, on each of his retaliation 

claims. Plaintiff must prove, by the greater weight of the 

evidence, each and all of the following:

1. That Plaintiff engaged in a protected activity by 

opposing or refusing to carry out a practice of Defendant 

that is unlawful under federal law or the laws of the State 

of Nebraska[;]

2. That Plaintiff was subjected to materially adverse 

action by Defendant;
- 632 -

Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

HAFFKE v. SIGNAL 88

Cite as 306 Neb. 625

3. That Defendant would not have subjected Plaintiff 

to the materially adverse action but for Plaintiff’s protected activity.

As to the first requirement under instruction 8, jury instruction 

No. 9 further explained:

Protected activity includes reporting, complaining 

about, opposing or refusing to carry out a practice of 

Signal 88 that Nathan Haffke reasonably and in good faith 

believed to be unlawful under federal law or the laws of 

the State of Nebraska.

An employee is protected against retaliation for opposing or refusing to carry out unlawful activity even if the 

conduct complained of is not unlawful.

Jury instruction No. 12 instructed the jury regarding the 

business judgment rule and provided: “You may not return a 

verdict for the Plaintiff just because you might disagree with 

the Defendant’s decision to terminate Plaintiff’s employment 

and/or deny the independent contractor agreement or believe it 

to be harsh or unreasonable.”

The matter was submitted to the jury. The jury entered a 

verdict in favor of Signal 88 and found that Haffke failed to 

prove his retaliation claim.

ASSIGNMENTS OF ERROR

Haffke assigns, restated, that the district court erred in 

(1) giving instruction No. 8, because a protected activity 

in a retaliation claim only requires a reasonable and good 

faith belief that the underlying company action the employee 

opposed or refused to participate in was unlawful; (2) giving instruction No. 12 on the business judgment rule when 

it is inapplicable to an employment discrimination case and 

conflicts with the pretext standard; and (3) granting Signal 88 

a directed verdict on the defamation claim and shifting the 

burden to Haffke to plead or prove special damages when 

Signal 88 failed to raise compliance with § 25-840.01 as 

an affirmative defense.
- 633 -

Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

HAFFKE v. SIGNAL 88

Cite as 306 Neb. 625

STANDARD OF REVIEW

[1,2] Whether jury instructions are correct is a question 

of law. 2 An appellate court independently reviews questions 

of law decided by a lower court. 3

[3,4] In reviewing a trial court’s ruling on a motion for 

directed verdict, the party against whom the motion is directed 

is entitled to have every controverted fact resolved in its favor 

and to have the benefit of every inference which can reasonably be deduced from the evidence. 4 A directed verdict is 

proper at the close of all the evidence only when reasonable 

minds cannot differ and can draw but one conclusion from the 

evidence, that is, when an issue should be decided as a matter 

of law. 5

ANALYSIS

Jury Instruction No. 8

Under NFEPA, “It is the policy of [Nebraska] to foster the 

employment of all employable persons in the state on the basis 

of merit . . . and to safeguard their right to obtain and hold 

employment without discrimination . . . .” 6 Section 48-1114 

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 or refused to carry out any action unlawful under 

federal law or the laws of this state.”

[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, 

2 See Jacobs Engr. Group v. ConAgra Foods, 301 Neb. 38, 917 N.W.2d 435 

(2018).

3 Id.

4 See id.

5 Id.

6 § 48-1101.
- 634 -

Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

HAFFKE v. SIGNAL 88

Cite as 306 Neb. 625

and (3) there was a causal connection between the protected 

conduct and the adverse action. 7

[6,7] We have previously held that a plaintiff alleging he or 

she was subjected to retaliatory action based upon opposing 

or refusing to participate in an employer’s practice or action 

which was unlawful only has to show a reasonable, good faith 

belief of the act’s unlawfulness. 8 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. 9

In challenging instruction No. 8, Haffke argues that the 

required element that he “engaged in a protected activity by 

opposing or refusing to carry out a practice of [Signal 88] 

that is unlawful” improperly stated the law. Haffke claims this 

requirement failed to explain that he only needed to establish a 

reasonable and good faith belief that Signal 88’s actions were 

unlawful and instead imposed an additional burden on him to 

show Signal 88’s actions were actually unlawful.

[8-10] When evaluating whether a given instruction adequately states the law, the instruction should not be judged 

in artificial isolation but must be viewed in the context of 

the overall charge to the jury considered as a whole. 10 If the 

instructions given, taken as a whole, correctly state the law, are 

not misleading, and adequately cover the issues submissible to 

a jury, there is no prejudicial error concerning the instructions 

and necessitating a reversal. 11 Jury instructions are subject 

to the harmless error rule, and an erroneous jury instruction 

7 See McPherson v. City of Scottsbluff, 303 Neb. 765, 931 N.W.2d 451 

(2019).

8 See, Oldfield v. Nebraska Mach. Co., 296 Neb. 469, 894 N.W.2d 278 

(2017); Wolfe v. Becton Dickinson & Co., 266 Neb. 53, 662 N.W.2d 599 

(2003).

9 Oldfield, supra note 8; Wolfe, supra note 8.

10 State v. Ely, 295 Neb. 607, 889 N.W.2d 377 (2017).

11 See Rodriguez v. Surgical Assocs., 298 Neb. 573, 905 N.W.2d 247 (2018).
- 635 -

Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

HAFFKE v. SIGNAL 88

Cite as 306 Neb. 625

requires reversal only if the error adversely affects the substantial rights of the complaining party. 12

Instruction No. 8 followed the wording of § 48-1114 in 

requiring that Haffke prove he engaged in a “protected activity” 

by opposing or refusing to carry out a practice “unlawful under 

federal law or the laws of the State of Nebraska.” Instruction 

No. 9 further defined “[p]rotected activity” to include “opposing or refusing to carry out a practice of Signal 88 that . . . 

Haffke reasonably and in good faith believed to be unlawful 

under federal law or the laws of the State of Nebraska” and 

clarified that “[a]n employee is protected against retaliation for 

opposing or refusing to carry out unlawful activity even if the 

conduct complained of is not unlawful.”

These instructions provide the required element that Haffke 

engaged in a protected activity, that such protected activity 

could include opposing or refusing to carry out an unlawful 

practice, and that an unlawful practice could include an act 

Haffke reasonably and in good faith believed to be unlawful 

without needing to actually be unlawful. We find, when read 

together, instructions Nos. 8 and 9 correctly state the required 

elements of the claimed retaliation under § 48-1114.

We disagree with Haffke’s contention that instruction No. 8 

is misleading by requiring actual unlawfulness when instruction No. 9 only requires a reasonable and in good faith belief 

of unlawfulness. Instruction No. 8 follows the wording of 

§ 48-1114 and defines a protected activity to include opposing 

a company’s unlawful actions. Instruction No. 9 clarifies that 

unlawful actions may include actions which the employee reasonably and in good faith believes to be unlawful, but which 

do not actually violate the law. These instructions are not contradictory nor misleading. Instead, they are accurate statements 

and explanations of the law.

Because instruction No. 8, when read together with the rest 

of the instructions, was a correct statement of the law and 

12 Id.
- 636 -

Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

HAFFKE v. SIGNAL 88

Cite as 306 Neb. 625

was not misleading, there is no prejudicial error necessitating 

a reversal. The district court did not err in giving instruction 

No. 8 to the jury.

Jury Instruction No. 12

Haffke next assigns that the district court erred in giving 

instruction No. 12, because it instructed the jury regarding the business judgment rule. More specifically, Haffke 

contends that the business judgment rule does not apply to 

employment discrimination cases and that instruction No. 12 

conflicts with the jury’s ability to find Signal 88’s purported 

reasons for Haffke’s termination from employment and denial 

of the subcontractor agreement were pretext and to draw inferences therefrom.

Haffke argues that the statutory basis for the business judgment rule, and therefore instruction No. 12, is Neb. Rev. Stat. 

§ 21-2,103 (Cum. Supp. 2016). Because § 21-2,103 directs 

that “[a] director shall not be liable to the corporation or its 

shareholders” for any action when made in good faith and pursuant to a reasonable and adequately informed belief as to the 

best interests of the corporation, Haffke claims the Legislature 

intended to limit the business judgment rule’s application to 

corporate governance cases. Haffke therefore argues the business judgment rule, as provided in instruction No. 12, does not 

apply to employment cases.

We agree that § 21-2,103 is inapplicable to the instant action. 

However, the language of instruction No. 12 does not address 

the application of § 21-2,103. Instruction No. 12 does not 

concern a director’s liability to its corporation or shareholders. 

Additionally, instruction No. 12 does not reduce or eliminate 

an employer’s liability because an employer terminated an 

employee pursuant to a good faith, reasonable, and informed 

belief as to the best interests of the corporation. Instead, 

instruction No. 12 explains that the jury cannot grant Haffke a 

verdict simply because the jury finds the termination or denial 

of the subcontractor agreement harsh and unreasonable.
- 637 -

Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

HAFFKE v. SIGNAL 88

Cite as 306 Neb. 625

[11] NFEPA is patterned from that part of the Civil Rights 

Act of 1964 contained in 42 U.S.C. § 2000e et seq. (2012), 

and it is appropriate to look to federal court decisions construing similar and parent federal legislation. 13 As such, we note 

that numerous federal courts have long held that the employment discrimination laws have not vested in the federal 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. 14

The 11th Circuit has held that a “plaintiff is not allowed to 

recast an employer’s proffered nondiscriminatory reasons or 

substitute his business judgment for that of the employer.” 15

“Provided that the proffered reason is one that might motivate 

a reasonable employer, an employee must meet that reason 

head on and rebut it, and the employee cannot succeed by simply quarreling with the wisdom of that reason.” 16 Additionally, 

the Seventh Circuit has held that “[i]t is not the role of the 

court to determine whether an employer’s expectations were 

fair, prudent, or reasonable.” 17 “So long as its management 

decision was not a guise for a discriminatory purpose, we must 

respect that decision.” 18 However, at least one circuit court 

has recognized that an employer’s business judgment is not an 

absolute defense to unlawful discrimination. 19

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

14 Hutson v. McDonnell Douglas Corp., 63 F.3d 771 (8th Cir. 1995). See, 

Boss v. Castro, 816 F.3d 910 (7th Cir. 2016); Ya-Chen Chen v. City 

University of New York, 805 F.3d 59 (2d Cir. 2015); Chapman v. AI 

Transport, 229 F.3d 1012 (11th Cir. 2000); Verniero v. Air Force Academy 

Sch. Dist. No. 20, 705 F.2d 388 (10th Cir. 1983).

15 Chapman, supra note 14, 229 F.3d at 1030.

16 Id.

17 Boss, supra note 14, 816 F.3d at 917.

18 Id.

19 Wexler v. White’s Furniture, Inc., 317 F.3d 564 (6th Cir. 2003).
- 638 -

Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

HAFFKE v. SIGNAL 88

Cite as 306 Neb. 625

These propositions have translated into courts’ determining 

that employers have the right to have juries instructed on the 

business judgment rule in employment discrimination cases 

and that such instructions do not prejudice the employee. 20 In 

fact, the Eighth Circuit has held that in employment discrimination cases, a business judgment instruction is “‘crucial to a 

fair presentation of the case.’” 21

The Nebraska Court of Appeals, in a memorandum opinion, 

has also noted that employment discrimination laws have not 

vested in the 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 discrimintation.”’” 22

Contrary to the Civil Rights Act of 1964 as interpreted by 

the described federal courts, Haffke contends that the Nebraska 

Legislature limited application of the business judgment rule 

in its enactment of NFEPA. In support of this argument, 

Haffke compares NFEPA to the County Civil Service Act 

and cites Blakely v. Lancaster County,

 23 wherein we found a 

county’s business judgment authority was limited by statutory 

requirements and rules adopted by the county for appointing 

employees.

In Blakely, a county employee contended that the county 

denied him an opportunity to fairly compete for job vacancies 

because the county failed to properly comply with the County 

20 See, Julian v. City of Houston, Tex., 314 F.3d 721 (5th Cir. 2002); Kelley 

v. Airborne Freight Corp., 140 F.3d 335 (1st Cir. 1998); Walker v. AT & 

T Technologies, 995 F.2d 846 (8th Cir. 1993); Hancock v. Washington 

Hospital Center, 13 F. Supp. 3d 1 (D.D.C. 2014).

21 Stemmons v. Missouri Dept. of Corrections, 82 F.3d 817, 819 (8th Cir. 

1996), quoting Walker, supra note 20.

22 Stevens v. County of Lancaster, No. A-18-003, 2019 WL 2755097 at *10 

(Neb. App. July 2, 2019) (selected for posting to court website), quoting 

Bone v. G4S Youth Services, LLC, 686 F.3d 948 (8th Cir. 2012), quoting 

Hutson, supra note 14.

23 Blakely v. Lancaster County, 284 Neb. 659, 825 N.W.2d 149 (2012).
- 639 -

Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

HAFFKE v. SIGNAL 88

Cite as 306 Neb. 625

Civil Service Act. In response to the county’s argument that 

no one had the authority “‘to sit as a super personnel department reviewing the business judgments made . . . when hiring 

personnel,’” this court held that by passing the County Civil 

Service Act, “the Legislature has limited those ‘business judgments’ [and that it was] a court’s duty to enforce those statutory requirements.” 24

However, Haffke has pointed to no statutory or regulatory 

requirement or limitation which would have limited Signal 88’s 

business judgment authority to terminate his employment or 

deny his subcontractor agreement, unlike the statutes involved 

in Blakely. Contrary to Haffke’s argument, Blakely did not 

stand for the proposition that employment decisions are never 

subject to a business’ judgment. The statutes and rules involved 

in Blakely expressly imposed procedural requirements and limited the ability of the county as to its consideration of certain 

employment decisions. Because we find no such limiting statutes or rules are at issue here, Blakely and its analysis of the 

County Civil Service Act do not apply to Haffke’s retaliation 

claim under NFEPA.

[12,13] In line with the described federal courts and the 

Nebraska Court of Appeals, we too now hold that 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. We further hold that instructing 

a jury on the business judgment rule in an employment discrimination case is not error when the evidence warrants such 

an instruction.

Haffke also claims instruction No. 12 misled the jury and 

inhibited its ability to consider and make inferences that 

Signal 88’s purported reasons for termination of his employment and denial of the subcontract agreement were pretexts. 

24 Id. at 673, 825 N.W.2d at 161-62.
- 640 -

Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

HAFFKE v. SIGNAL 88

Cite as 306 Neb. 625

Haffke argues this instruction contradicts the pretext standard 

provided by instructions Nos. 10 and 11.

[14] In cases involving claims of employment discrimination, this court has recognized the burden-shifting analysis 

which originated in McDonnell Douglas Corp. v. Green.

 25

First, the plaintiff has the burden of proving by a preponderance of the evidence a prima facie case of discrimination. 26 Second, if the plaintiff succeeds in proving the prima 

facie case, the burden shifts to the defendant to articulate 

some legitimate, nondiscriminatory reason for the employee’s 

rejection. 27 Third, should the defendant carry the burden, the 

plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by 

the defendant were not its true reasons, but were a pretext for 

discrimination. 28

Because Haffke articulated a showing that he was discharged following protected activities of which the employer 

was aware, he established a prima facie case of retaliatory 

dismissal. As a result, the burden shifted to Signal 88 to show 

a legitimate, nondiscriminatory justification for discharging 

Haffke. Signal 88 met this burden by advancing as justification for Haffke’s discharge his work performance issues. The 

record adequately substantiates these reasons. Therefore, the 

presumption of discrimination disappeared, requiring Haffke 

to prove that the proffered justification was merely a pretext 

for discrimination.

Instructions Nos. 10 and 11 address the jury’s ability to 

consider whether Signal 88’s reasoning was a pretext to hide 

retaliation. Specifically, these instructions explain:

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

Ed. 2d 668 (1973). See Riesen v. Irwin Indus. Tool Co., 272 Neb. 41, 717 

N.W.2d 907 (2006).

26 Riesen, supra note 25; Harris v. Misty Lounge, Inc., 220 Neb. 678, 371 

N.W.2d 688 (1985).

27 Id.

28 Id.
- 641 -

Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

HAFFKE v. SIGNAL 88

Cite as 306 Neb. 625

You may find Defendant would not have [terminated 

or denied the independent contractor agreement] “but for” 

Plaintiff’s opposition to or refusal to carry out an unlawful practice of Defendant, if it has been proved that the 

Defendant’s stated reasons for its decision[s] to [terminate the Plaintiff’s employment or deny the independent 

contractor agreement] are not the real reasons, but are a 

pretext to hide retaliation.

Instruction No. 12 does not conflict with instructions Nos. 10 

and 11 and does not limit the jury’s ability to find Signal 88’s 

purported reasons were pretexts to hide its real retaliatory 

reasons. Instruction No. 12 explains that the jury cannot find 

retaliation simply because it disagrees with Signal 88’s decision or finds it harsh or unreasonable. It does not address 

the possibility that the jury does not believe Signal 88’s 

purported reasons were the real reasons. Instead, instructions 

Nos. 10 and 11 properly instruct that should the jury determine Signal 88’s reasons were pretexts to hide retaliation, the 

jury could make inferences from that finding and determine 

Haffke’s opposition or refusal to carry out Signal 88’s allegedly unlawful business practices was the cause of Haffke’s 

termination from employment or Signal 88’s denial of the 

subcontractor agreement.

We also find instruction No. 12 did not interfere with the 

jury’s ability to draw inferences if it found termination or 

denial of the subcontractor agreement was harsh or unreasonable when compared to Signal 88’s purported reasoning. As 

stated, the jury was properly instructed by instructions Nos. 10 

and 11 that it could find Signal 88’s offered reasons were not 

the real reasons but pretexts to hide retaliation. Additionally, 

instructions Nos. 1 and 4 explained that the parties’ arguments 

may have been drawn from legitimate deductions and inferences from the evidence and that the jury had the ability to find 

facts based upon logical inferences. Instruction No. 12 did not 

contradict these instructions and prohibit such inferences from 

being made.
- 642 -

Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

HAFFKE v. SIGNAL 88

Cite as 306 Neb. 625

Instruction No. 12, when read together with the rest of the 

instructions, correctly states that the jury could not find retaliation simply because it disagreed with Signal 88’s purported 

reasons or found them harsh or unreasonable. Instruction 

No. 12 did not restrict the jury’s ability to draw logical inferences from evidence presented that the termination or denial 

of the subcontract agreement was harsh or unreasonable and 

did not restrict the jury’s ability to find the purported reasons 

were not the real reasons but were pretexts for retaliation under 

instructions Nos. 10 and 11. The instructions given, taken 

as a whole, correctly state the law, are not misleading, and 

adequately cover the submitted issues. Therefore, there is no 

prejudicial error concerning instruction No. 12 and necessitating a reversal. 29

Based upon the foregoing, this assignment of error is without merit.

Defamation

[15] A defamation claim has four elements: (1) a false and 

defamatory statement concerning the claimant, (2) an unprivileged publication to a third party, (3) fault amounting to at least 

negligence on the part of the publisher, and (4) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication. 30

Section 25-840.01 addresses this fourth element and states, 

in relevant part:

(1) In an action for damages for the publication of a 

libel . . . , the plaintiff shall recover no more than special 

damages unless correction was requested as herein provided and was not published. Within twenty days after 

knowledge of the publication, plaintiff shall have given 

each defendant a notice . . . specifying the statements 

claimed to be libelous . . . and specifically requesting 

29 See Rodriguez, supra note 11.

30 JB & Assocs. v. Nebraska Cancer Coalition, 303 Neb. 855, 932 N.W.2d 71 

(2019).
- 643 -

Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

HAFFKE v. SIGNAL 88

Cite as 306 Neb. 625

correction. Publication of a correction shall be made 

within three weeks after receipt of the request. It shall 

be made in substantially as conspicuous a manner as the 

original publication about which complaint was made. . 

. . The term special damages, as used in this section, shall 

include only such damages as plaintiff alleges and proves 

were suffered in respect to his or her property, business, 

trade, profession, or occupation as the direct and proximate result of the defendant’s publication.

Haffke assigns the district court erred in granting Signal 88 

a directed verdict on the defamation claim by shifting the burden to Haffke to plead or prove § 25-840.01. Haffke argues 

Signal 88 was required to raise compliance with § 25-840.01 

as an affirmative defense but failed to do so. As such, Haffke 

claims he was not required to plead or prove special damages 

under § 25-840.01.

[16-19] Nebraska’s pleading rules require that certain enumerated defenses “and any other matter constituting an avoidance or affirmative defense” must be pled in a defendant’s 

answer. 31 An affirmative defense raises a new matter which, 

assuming the allegations in the petition to be true, constitutes 

a defense to the merits of a claim asserted in the petition. 32 It 

generally avoids, rather than negates, the plaintiff’s prima facie 

case. 33 The Nebraska Court Rules of Pleading in Civil Actions, 

like the federal rules, have a liberal pleading requirement for 

both causes of action and affirmative defenses, but the touchstone is whether fair notice was provided. 34

Here, the pleadings of the parties put the application of 

§ 25-840.01 at issue and gave Haffke fair notice that Signal 88 

was alleging its compliance with the statute. In his complaint, 

31 Neb. Ct. R. Pldg. § 6-1108(c).

32 Armstrong v. Clarkson College, 297 Neb. 595, 901 N.W.2d 1 (2017).

33 Salem Grain Co. v. City of Falls City, 302 Neb. 548, 924 N.W.2d 678 

(2019).

34 Funk v. Lincoln-Lancaster Cty. Crime Stoppers, 294 Neb. 715, 885 

N.W.2d 1 (2016).
- 644 -

Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

HAFFKE v. SIGNAL 88

Cite as 306 Neb. 625

Haffke explicitly claimed Signal 88 failed to comply with 

§ 25-840.01. The complaint alleged that “[u]pon learning of 

the defamatory disclosure, [Haffke] immediately sent a request 

to Signal 88 . . . pursuant to [§] 25-840.01 to retract its 

untrue statements contained within the FDD,” but that “[a]t 

the time of this filing, the statement has not been retracted and 

Signal [88] has not released an amended FDD.” Signal 88’s 

answer admitted Haffke had “requested that Signal 88 retract 

the statement [in the FDD] that he was terminated from his 

employment due to his poor performance,” but denied that it 

had not retracted the statement or released an amended FDD. 

Moreover, Signal 88’s answer claimed it “has complied with 

all applicable statutes and regulations and, thus, . . . has not 

defamed [Haffke]” and that Haffke “did not suffer damages 

or harm attributable to the action or inaction of [Signal 88] 

as alleged in [Haffke’s] complaint.” In consideration of these 

pleadings, there was a known, disputed question of fact about 

whether Signal 88 issued a correction or amendment, and it 

was known Signal 88’s compliance with § 25-840.01 was 

at issue.

This case is distinguishable from Funk v. Lincoln-Lancaster 

Cty. Crime Stoppers,

 35 in which we held a “failure to request a 

retraction under § 25-840.01 constitutes an affirmative defense 

which must be raised prior to trial.” In Funk, the complaint 

made an allegation of defamation against the city of Lincoln 

but made no reference to § 25-804.01. The city’s answer raised 

various affirmative defenses, but did not raise compliance with 

§ 25-804.01. This court in Funk noted that the city’s argument 

that the plaintiff was entitled to only special damages because 

she failed to ask for a retraction was a new matter that raised 

a new issue.

Here, Haffke’s complaint makes it clear that he was alleging 

that he had sent a request for retraction, that Signal 88 failed 

to issue a retraction, and that, as such, he was not limited to 

35 Id. at 729, 885 N.W.2d at 12.
- 645 -

Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

HAFFKE v. SIGNAL 88

Cite as 306 Neb. 625

seeking only special damages. Signal 88’s answer admitted that 

Haffke sent a request, but it denied the allegation that it failed 

to amend the statement. Unlike in Funk, supra, Signal 88’s 

reliance on § 28-804.01 was not a new matter that raised a 

new issue. The parties’ pleading put § 25-840.01 at issue, and 

Haffke had fair notice that Signal 88 was alleging it complied 

with § 25-840.01. Accordingly, the district court did not err in 

considering the application of § 25-840.01.

[20] Additionally, in his appellate brief, Haffke did not 

argue that Signal 88’s amended FDD failed to comply with 

§ 25-840.01 and argued only that he was not required to 

plead or prove special damages because Signal 88 did not 

raise compliance with § 25-840.01 as an affirmative defense. 

Although Haffke did raise the argument in his reply brief that 

the amended statement did not comply with § 25-840.01 and 

argued that this issue raised a question of fact which should 

have been determined by the jury before it was determined 

he needed to plead or prove special damages, Haffke failed to 

assign and argue it in his initial brief. In the absence of plain 

error, an appellate court considers only claimed errors which 

are both assigned and discussed. 36 Finding no such plain error 

here, we decline to address this issue because Haffke failed to 

assign and argue it in his initial brief.

CONCLUSION

For the reasons stated above, the district court did not err 

in giving instructions Nos. 8 and 12. The court also did not 

err in applying § 25-840.01 and directing a verdict in favor 

of Signal 88 on Haffke’s defamation claim. Accordingly, we 

affirm.

Affirmed.

36 Salem Grain Co. v. Consolidated Grain and Barge Co., 297 Neb. 682, 900 

N.W.2d 909 (2017).