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Nebraska Supreme Court Advance Sheets

303 Nebraska Reports

McPHERSON v. CITY OF SCOTTSBLUFF

Cite as 303 Neb. 765

Ian B. McPherson, appellant, v. City of Scottsbluff, 

in the County of Scotts Bluff, in the

State of Nebraska, appellee.

___ N.W.2d ___

Filed July 26, 2019. No. S-18-834.

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

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

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

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

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

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

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

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

inferences deducible from the evidence.

3. Fair Employment Practices: Discrimination: Proof. To show a business necessity for requiring an employee (as distinguished from an 

applicant) to submit to a medical examination under Neb. Rev. Stat. 

§ 48-1107.02(1)(j) (Cum. Supp. 2018), an employer has the burden to 

show that (1) the business necessity is vital to the business; (2) it has 

a legitimate, nondiscriminatory reason to doubt the employee’s ability to perform the essential functions of his or her duties; and (3) the 

examination is no broader than necessary. There must be significant 

evidence that could cause a reasonable person to inquire as to whether 

an employee is still capable of performing his or her job. An employee’s behavior cannot be merely annoying or inefficient to justify an 

examination; rather, there must be genuine reason to doubt whether that 

employee can perform job-related functions.

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

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

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

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

connection between the protected conduct and the adverse action.

Nebraska Supreme Court Online Library

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

09/27/2019 01:09 AM CDT
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Nebraska Supreme Court Advance Sheets

303 Nebraska Reports

McPHERSON v. CITY OF SCOTTSBLUFF

Cite as 303 Neb. 765

Appeal from the District Court for Scotts Bluff County: Leo

P. Dobrovolny, Judge. Affirmed.

Joy Shiffermiller and Abby Osborn, of Shiffermiller Law 

Office, P.C., L.L.O., for appellant.

Steven W. Olsen and Paul W. Snyder, of Simmons Olsen 

Law Firm, P.C., L.L.O., for appellee.

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

Papik, JJ.

Papik, J.

Ian B. McPherson was a police officer for the City of 

Scottsbluff, Nebraska (City). After the police chief became 

concerned that McPherson was exhibiting irrational, paranoid, 

and hostile behavior, he asked McPherson to undergo a fitnessfor-duty examination (FFDE). McPherson refused, and the City 

terminated his employment. McPherson sued, alleging discrimination and retaliation under the Nebraska Fair Employment 

Practice Act (NFEPA). The district court granted the City’s 

motion for summary judgment. McPherson now appeals.

As to McPherson’s discrimination claim, we find that based 

on the undisputed evidence in the summary judgment record, 

the City could lawfully require McPherson to undergo an 

FFDE under Neb. Rev. Stat. § 48-1107.02(1)(j) (Cum. Supp. 

2018). And because McPherson alleged that the City retaliated 

against him for expressing disapproval of the actions of his fellow employees, as opposed to his employer, there is no genuine 

issue of material fact as to whether he engaged in protected 

activity pursuant to Neb. Rev. Stat. § 48-1114(3) (Reissue 

2010). Accordingly, we affirm.

BACKGROUND

McPherson worked for the City as a patrol officer from 

January 19, 2010, to February 3, 2016, when the City terminated his employment. The City had no records that McPherson, 

whose job performance met standards, had any disability.
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McPHERSON v. CITY OF SCOTTSBLUFF

Cite as 303 Neb. 765

McPherson filed a complaint alleging disability discrimination and retaliation under NFEPA. He claimed that the City 

fired him after he reported his belief that members of the police 

department were involved in a break-in on police property. He 

asserted that the City violated NFEPA by requiring him to take 

a FFDE that was not job related and consistent with business 

necessity and by retaliating against him because he opposed 

unlawful practices.

The City’s answer contended that the FFDE was job 

related and consistent with business necessity and that it fired 

McPherson for insubordination in not submitting to the FFDE 

when ordered. The City moved for summary judgment, and 

McPherson moved for partial summary judgment on liability. 

The district court conducted a hearing on the motions. The evidence received at the hearing demonstrated that McPherson’s 

termination came about as described below.

McPherson Raises Concerns 

Regarding Break-In.

On or about November 3, 2015, the evidence lockers for the 

Scottsbluff Police Department were burglarized. After learning 

about the break-in, McPherson became suspicious that two of 

his colleagues, Officers William Howton and Matthew Herbel, 

were responsible.

On December 2, 2015, McPherson contacted Brandi Brunz, 

one of the police department’s investigators, and reported that 

he believed Howton and Herbel were involved with the burglary. Brunz encouraged McPherson to discuss the matter with 

Capt. Brian Wasson.

That evening, McPherson contacted Wasson, stating that 

he needed to talk to Wasson immediately and needed to “get 

something off of his chest.” At that time, McPherson was 

driving around in Scottsbluff, but he told Wasson he would 

be more comfortable meeting in Gering, Nebraska. Wasson 

agreed to meet in Gering, where McPherson told him that what 

he was about to say would make Wasson think McPherson 

was “crazy” and that it had been bothering him for days, so 
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McPHERSON v. CITY OF SCOTTSBLUFF

Cite as 303 Neb. 765

much so that he had not been eating. McPherson informed 

Wasson that he suspected the burglary of the evidence lockers was a staged event to compromise a particular homicide 

investigation.

McPherson explained to Wasson that on the night of the 

burglary, the Scottsbluff chief of police, Kevin Spencer (Chief 

Spencer), had given a speech to a group of nurses and that 

Chief Spencer might have discussed some confidential information about a homicide. McPherson believed that the speech 

referring to the homicide and the burglary of the evidence lockers the same night were not coincidental. He further said he 

believed that someone had made a “statement” at the burglary 

site by leaving rubbed patterns on a car that was related to the 

homicide investigation.

McPherson also recalled that the day before the burglary, 

Herbel had asked him to go hunting the next morning, which 

McPherson thought was strange, because Herbel had never 

asked McPherson to go hunting before. McPherson told 

Wasson he believed this was to establish an alibi for the burglary. McPherson also stated that shortly before the burglary 

was discovered, Howton asked McPherson, “‘Has anything 

big happened yet?’” McPherson considered this suspicious, 

because he did not recall Howton ever asking him something 

like that before.

McPherson reported to Wasson that soon after the burglary, 

he was driving off duty when he noticed Howton driving 

nearby. Howton pulled over to talk to McPherson. McPherson 

said that when Howton approached him to talk, McPherson 

immediately got the “‘Heebie Jeebies.’” McPherson stated that 

Howton discussed the burglary with him and that McPherson 

felt Howton kept looking over his shoulder “as if he was paranoid.” In an affidavit prepared for trial, McPherson asserted 

that Howton appeared tense, was scanning the area, and had his 

hand on his gun during his conversation with McPherson, but 

it is not clear from the affidavit whether McPherson reported 

these details to Wasson.
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Cite as 303 Neb. 765

McPherson further described to Wasson an incident earlier 

in the day on December 2, 2015. McPherson stated during 

a conversation about the burglary, Howton asked what was 

going on with the burglary case. McPherson claimed this 

was of significant concern, because it was inconceivable that 

Howton had not already looked at the case file. Howton also 

asked McPherson what the report number was for the burglary 

and what was depicted in a particular crime scene photograph. 

According to McPherson, this was concerning, because he 

claimed that Howton had to have already known this information and was only asking in an attempt to conceal the fact that 

he was involved in the burglary.

When Wasson asked what motive Howton or Herbel would 

have to burglarize the evidence lockers, McPherson theorized 

that Howton may want to compromise the homicide investigation because his brother might have been involved in the homicide. McPherson’s explanation for suspecting Howton’s brother 

was based on his understanding that the homicide involved 

a homosexual relationship and his suspicion that Howton’s 

brother is gay. McPherson based his suspicion that Howton’s 

brother was gay on his observation that Howton had never 

formally introduced his brother to McPherson. In addition, 

McPherson said Howton’s wife made remarks to McPherson’s 

wife that made McPhersons’ wife suspect Howton’s brother is 

gay. McPherson also pointed out that like an individual in the 

homicide case, Howton and Howton’s brother had previously 

worked in construction.

McPherson also presented the theory that Howton and 

Herbel were motivated by money. McPherson said that Howton 

makes multiple drug arrests, but that Howton seems to seize 

less money than other officers. McPherson stated that based 

on his knowledge of Howton’s possessions and debts owed 

by Howton’s wife, it does not appear Howton “lives within 

his means.”

Last, McPherson said perhaps Howton and Herbel wanted 

to make the department look bad, claiming that Howton and 
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McPHERSON v. CITY OF SCOTTSBLUFF

Cite as 303 Neb. 765

Herbel do not like the current police administration. McPherson 

supported this theory by stating he heard the two officers discussing the homicide case and that Herbel agreed when Howton 

said, “‘They won’t be able to keep this out of the media.’”

The next morning, on December 3, 2015, McPherson sent 

an email to other patrol officers asking for extra patrol around 

his house. The email included photographs of shoeprints and 

of circles drawn in the snow. Brunz spoke to McPherson 

about the email, and McPherson told her that he believed the 

circles in the snow were “‘glasses or eyes’” that someone had 

drawn. McPherson also told Brunz that he noticed a patrol car 

driving slowly near his house the night he first reported his 

suspicions about the burglary and that he had trouble sleeping afterward.

Wasson drafted a report of his conversations with Brunz and 

McPherson and provided it to Chief Spencer. The report did not 

include any statement by McPherson that Howton had his hand 

on his weapon during the conversation that gave McPherson the 

“Heebie Jeebies.” Wasson’s report caused Chief Spencer to be 

concerned because, according to Wasson’s account, McPherson 

said he had not been eating, the allegations McPherson made 

struck Chief Spencer as bizarre, and the allegations were made 

against McPherson’s self-described friends.

By this time, investigators had identified a burglary suspect 

through several pieces of evidence. (This suspect eventually 

pleaded guilty to theft charges.) Nevertheless, Chief Spencer 

referred McPherson’s allegations to the Nebraska State Patrol 

via an assistant attorney general for investigation, as he did 

not believe it was appropriate for the department to conduct 

its own investigation. Chief Spencer explained to the assistant attorney general that he was “concerned about Officer 

McPherson’s wellbeing knowing that he is a war veteran and 

this behavior seemed very out of character.”

Based on McPherson’s reports to Wasson, the assistant attorney general agreed that there was no basis to believe any officers had been involved in the burglary. Even so, Chief Spencer 
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Cite as 303 Neb. 765

and the assistant attorney general arranged for McPherson to 

report the allegations to Sgt. Monte Lovelace of the Nebraska 

State Patrol.

On December 4, 2015, Chief Spencer contacted Dr. Matthew 

Hutt, a psychologist. Dr. Hutt told him these statements raised 

concerns about McPherson’s fitness for duty and referred Chief 

Spencer to a colleague in Omaha, Nebraska, who specialized 

in law enforcement and had conducted FFDE’s.

On December 7, 2015, when Chief Spencer told McPherson 

about the arrangements for him to speak to Lovelace, McPherson 

again talked about the shoeprints in the snow and the circles 

that he thought represented eyes or glasses. McPherson said 

he thought it was a “sign” from Howton that he was watching McPherson.

State Patrol Interviews McPherson.

On December 7, 2015, Lovelace interviewed McPherson 

about his allegations. Prior to the interview, Lovelace had 

never met McPherson nor did he have any information regarding McPherson’s mental health or any information that it was 

a concern. At a deposition, Lovelace described McPherson’s 

demeanor during the interview as very nervous, troubled, 

standoffish, closed off, always frowning, and almost beside 

himself. Lovelace stated that the information McPherson gave 

was erratic and irrational and that it led him to be concerned 

about McPherson.

In the interview, McPherson related to Lovelace many of the 

same incidents he had described to Wasson, including his roadside interaction with Howton. McPherson told Lovelace, as he 

had told Wasson, that as soon as Howton began to approach 

McPherson’s vehicle, McPherson got the “Heebie Jeebies.” 

McPherson also told Lovelace that he was not sure why he felt 

that way and that in response to this feeling, McPherson put his 

gun under his arm and put his vehicle in reverse. McPherson 

said he was extremely scared while talking to Howton, that he 

did not know how he was going to get himself out of the situation, and that he realized he had made a mistake in talking 
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McPHERSON v. CITY OF SCOTTSBLUFF

Cite as 303 Neb. 765

to Howton about the burglary. McPherson’s description of 

this interaction made Lovelace concerned about the safety of 

McPherson and other officers.

McPherson also told Lovelace about his concern that 

Howton, who McPherson considered his best friend, made 

many drug arrests but never had large amounts of cash, and he 

wondered how Howton could afford all that he had. McPherson 

told Lovelace that he asked his wife, who works at a bank, to 

look into Howton’s loan records.

McPherson expressed a firm conviction that his colleagues 

were involved in the break-in at the department. McPherson 

said that because he suspected his good friends, he had initially 

questioned whether he was “losing [his] mind” or whether he 

was “going crazy” and stated that “this is absolutely insane.” 

He stated that prior to his discussion with Wasson, his suspicions had been “eating [him] up.” McPherson implied that after 

he spoke to Wasson, the tracks in the snow at his residence 

confirmed what he suspected.

Following the interview, Lovelace and the assistant attorney 

general concluded that McPherson’s information lacked any 

factual basis upon which to open an investigation and that there 

was no basis to investigate further.

On December 14, 2015, Lovelace informed Chief Spencer 

of his concerns and findings. He also told Chief Spencer that 

he wondered if McPherson was experiencing some sort of 

paranoia. Chief Spencer listened to the recorded version of 

Lovelace’s interview with McPherson, and several comments 

made by McPherson, summarized above, caused Chief Spencer 

concern that McPherson might be irrational and displaying 

signs of paranoia and hostility. Like Lovelace, Chief Spencer 

was particularly concerned that McPherson felt the need to arm 

himself during a conversation with Howton, because it implicated the safety of other officers.

City Follows Up With McPherson.

McPherson again met with Wasson on December 14, 2015. 

Wasson said that McPherson was “difficult to follow” during 
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McPHERSON v. CITY OF SCOTTSBLUFF

Cite as 303 Neb. 765

the conversation, that he could not articulate his suspicions in 

any order, and that he appeared to be paranoid in most of his 

interactions with Howton and Herbel.

McPherson began the conversation by confirming that 

Wasson had received the information about the shoeprints and 

“eyeballs” drawn in the snow around his house. McPherson 

told Wasson that he believed Howton had very slowly driven 

by his home, was involved with the markings in the snow, 

and was watching McPherson’s home. McPherson also said 

that Howton appeared to be watching him closely during a 

recent briefing when McPherson took a photograph of another 

officer’s boots. He further stated that he thought he was also 

“‘getting the eyeball from Officer Herbel.’”

McPherson then brought up events that occurred on 

December 12, 2015, when he took a “short day” and came 

in late. McPherson thought it odd that Howton asked where 

he was at shift change. McPherson went on to tell about his 

observations of several other officers that day and described 

their behavior as strange. McPherson then told Wasson he had 

convinced himself that the officers assisted with the burglary 

to anger the administration and that all the details seemed to 

fit together.

McPherson described to Wasson in detail how easy it would 

be for them to burglarize the evidence lockers while on duty. 

McPherson recounted that he told Herbel that if McPherson 

were a serial killer, it would be easy for him to “log body parts 

into evidence.” McPherson noted that this statement appeared 

to make Herbel uncomfortable. He also said that Howton’s 

wife had come over in the past to chat and that he believed 

she was attempting to get information from McPherson and 

his wife by asking open-ended questions. He informed Wasson 

that he felt Howton knew McPherson was “onto something” 

and was “trying to figure out what it is.”

McPherson told Wasson that he was angry with Howton and 

Herbel. He was confident that they were involved in the burglary and that they were “throwing it in his face.” McPherson 
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Cite as 303 Neb. 765

indicated that he could not think of any other explanation for 

their behavior.

Wasson reported the conversation to Chief Spencer. It 

caused Chief Spencer to be more concerned about McPherson 

and his statements. Chief Spencer felt it was his duty to take 

all action necessary to ensure the officers and the public were 

safe, especially because McPherson’s job duties as a patrol 

officer included carrying a firearm and being involved in high 

risk and high pressure situations. Chief Spencer questioned 

whether McPherson could perform his duties without posing a 

threat to himself and others.

City Arranges FFDE, and McPherson 

Refuses to Participate.

Chief Spencer contacted Dr. Shari Conner, a psychologist. 

Chief Spencer informed Dr. Conner of McPherson’s statements and sent her written reports. Like Dr. Hutt, she advised 

Chief Spencer that McPherson’s behavior raised concerns 

about his fitness for duty. Chief Spencer arranged an FFDE 

for McPherson.

When Chief Spencer informed McPherson that he had 

arranged an FFDE, McPherson stated he was expecting this, 

agreed to go to Omaha for the FFDE, and told Chief Spencer 

that if something was wrong, he needed to know too. According 

to Chief Spencer, at that time, McPherson pointed to his head, 

stating that he had been “wondering himself.”

The City placed McPherson on administrative leave with 

pay. McPherson subsequently retained counsel and canceled 

the FFDE appointment. Counsel for McPherson then corresponded with the City about scheduling another FFDE, 

but McPherson again opted not to attend. In response, Chief 

Spencer ordered McPherson to attend the FFDE. Chief Spencer 

informed McPherson that if he refused to attend, he would 

consider preparing an accusation for termination for insubordination. McPherson refused to participate in the FFDE.

Chief Spencer and McPherson then met, with McPherson’s 

counsel present. Chief Spencer asked McPherson why he 
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McPHERSON v. CITY OF SCOTTSBLUFF

Cite as 303 Neb. 765

should not be recommended for termination. McPherson gave 

no response. Chief Spencer filed an accusation recommending termination of McPherson’s employment and sent it to the 

Scottsbluff city manager for further action.

The city manager met with McPherson and his counsel 

and advised McPherson that he was considering terminating 

McPherson’s employment and asked if McPherson had any 

reason why he should not take that action. McPherson gave 

no response.

On February 1, 2016, the city manager asked McPherson 

and his counsel to discuss the matter further and to respond 

by 2 p.m. on February 2. McPherson did not respond by the 

deadline. On February 3, the city manager delivered a letter 

to McPherson informing him that his employment had been 

terminated for his refusal to follow Chief Spencer’s order to 

attend the FFDE.

District Court’s Rulings.

The district court overruled McPherson’s motion for summary judgment and sustained the City’s motion for summary 

judgment. In its written order, the district court stated that it 

found no dispute as to the following facts: There was no factual basis for McPherson’s allegations concerning the burglary, 

McPherson was concerned about his own mental health, behavior by other officers that McPherson considered suspicious 

had reasonable explanations, McPherson thought he was being 

watched by other officers, McPherson suddenly felt threatened 

during a conversation with Howton on the street and secretly 

held his gun, and McPherson had his wife secretly look into 

Howton’s bank records.

Regarding McPherson’s discrimination cause of action, the 

district court found that McPherson was fired for refusing to 

submit to the FFDE and not because he was regarded as having a disability. It determined that the requested FFDE was 

job related and of business necessity, considering McPherson’s 

undisputed behavior. According to the court, the City was reasonable in requiring the FFDE.
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McPHERSON v. CITY OF SCOTTSBLUFF

Cite as 303 Neb. 765

As to McPherson’s claims of retaliation, the district court 

found no evidence to support a finding that the City was 

retaliating against McPherson for reporting his belief that other 

officers were involved in the burglary. It observed that the City 

had thoroughly followed up on his concerns.

ASSIGNMENTS OF ERROR

McPherson assigns, condensed and rephrased, that the district court erred in (1) finding that the City was entitled to 

summary judgment on his claim that it had violated NFEPA by 

unlawfully requiring him to submit to an FFDE and (2) finding 

that the City was entitled to summary judgment on his claim 

that the City had retaliated against him for opposing unlawful activity.

McPherson’s summary of his argument also asserts that 

the district court judge erred in not recusing himself, but 

this alleged error is neither assigned nor argued, and we will 

not consider it. See State v. Munoz, ante p. 69, 927 N.W.2d 

25 (2019).

STANDARD OF REVIEW

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

of summary judgment if the pleadings and admitted evidence 

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

as to the ultimate inferences that may be drawn from those 

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

matter of law. Larsen v. 401 Main St., 302 Neb. 454, 923 

N.W.2d 710 (2019). In reviewing a summary judgment, an 

appellate court views the evidence in the light most favorable 

to the party against whom the judgment was granted and gives 

that party the benefit of all reasonable inferences deducible 

from the evidence. Id.

ANALYSIS

FFDE Claim.

We begin with McPherson’s assertion that there are genuine 

issues of material fact that precluded the district court from 
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granting the City summary judgment on his claim that the 

City discriminated against him by unlawfully requiring him to 

submit to an FFDE. McPherson is correct that under NFEPA, 

requiring a disabled employee to undergo an examination can, 

under certain circumstances, constitute employment discrimination. See § 48-1107.02(1)(j). The parties dispute whether 

McPherson was a “qualified individual with a disability” eligible for the protections of NFEPA in the first place. See, 

§ 48-1107.02(1); Neb. Rev. Stat. § 48-1102(9) (Cum. Supp. 

2018) (defining “[d]isability” as “(a) a physical or mental 

impairment that substantially limits one or more of the major 

life activities of such individual, (b) a record of such an impairment, or (c) being regarded as having such an impairment”). 

But even assuming without deciding that he was, we disagree 

with McPherson’s contention that there was a genuine issue of 

fact as to whether the City committed discrimination in requiring an FFDE. We conclude that the record contains undisputed 

evidence that the City’s actions fell under NFEPA’s business 

necessity exception.

[3] NFEPA provides that it is an act of discrimination for 

an employer to require a “qualified individual with a disability,” § 48-1107.02(1), to submit to a medical examination 

“unless the examination or inquiry is shown to be job-related 

and consistent with business necessity,” § 48-1107.02(1)(j). 

We have held that to show a business necessity for requiring an employee to submit to a medical examination under 

§ 48-1107.02, an employer has the burden to show that (1) the 

business necessity is vital to the business; (2) it has a legitimate, nondiscriminatory reason to doubt the employee’s ability 

to perform the essential functions of his or her duties; and (3) 

the examination is no broader than necessary. Arens v. NEBCO, 

Inc., 291 Neb. 834, 870 N.W.2d 1 (2015). In this case, we 

understand McPherson to be contending that there were genuine issues of material fact regarding the second element of the 

business necessity exception: whether the City had a legitimate 

reason to doubt his ability to do his job. With respect to this 
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second element, we have held that there must be significant 

evidence that could cause a reasonable person to inquire as to 

whether an employee is still capable of performing his or her 

job. See id. An employee’s behavior cannot be merely annoying or inefficient to justify an examination; rather, there must 

be genuine reason to doubt whether that employee can perform 

job-related functions. Id.

In order to determine whether there is reason to doubt that 

an employee is capable of performing his or her job, a court 

must also take account of what the job entails. See Conroy v. 

New York Dept. of Correctional, 333 F.3d 88, 99 (2d Cir. 2003) 

(“what constitutes a business necessity will undoubtedly vary 

in different workplaces”). In applying a provision of the federal 

Americans with Disabilities Act that is nearly identical to the 

provision of NFEPA at issue, see 42 U.S.C. § 12112(d)(4)(A) 

(2012), a number of federal courts have held that the unique 

nature of public safety work must be considered in determining whether a business necessity exists to support a request 

for an FFDE. We have previously held that it is appropriate to 

look to federal court decisions construing legislation similar to 

NFEPA. See Hartley v. Metropolitan Util. Dist., 294 Neb. 870, 

885 N.W.2d 675 (2016).

In Watson v. City of Miami Beach, 177 F.3d 932 (11th Cir. 

1999), the court held that a municipality was entitled to summary judgment on a police officer’s claim that the municipality discriminated against him by requiring him to undergo an 

unnecessary FFDE. The court explained that where a police 

officer’s fitness for duty is at issue, an employer may require 

an FFDE when it “reasonably perceives an officer to be even 

mildly paranoid, hostile, or oppositional.” Id. at 935. As the 

court explained:

Police departments place armed officers in positions 

where they can do tremendous harm if they act irrationally. . . . [T]he [Americans with Disabilities Act] does 

not, indeed cannot, require a police department to forgo 

a fitness for duty examination to wait until a perceived 
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threat becomes real or questionable behavior results 

in injuries.

Watson, 177 F.3d at 935.

Similarly, in Coffman v. Indianapolis Fire Dept., 578 F.3d 

559 (7th Cir. 2009), the court held that behavior that might 

not justify a fitness for duty inquiry for some jobs will be sufficient to demonstrate a business necessity in a public safety 

position. In Coffman, a municipality had requested a firefighter 

to undergo an FFDE. In the course of its opinion affirming the 

entry of summary judgment in favor of the municipality, the 

court stated:

Although a psychological evaluation in response to “withdrawn” and “defensive” behavior might not be job-related 

in many vocations, we do not second-guess the propriety of such an evaluation for a firefighter. The [fire] 

Department has an obligation to the public to ensure that 

its workforce is both mentally and physically capable 

of performing what is doubtless mentally and physically demanding work. This special work environment 

convinces us that the Department’s decision to refer [the 

plaintiff] for the [FFDE’s] was job-related and consistent 

with business necessity.

Id. at 566.

Brownfield v. City of Yakima, 612 F.3d 1140 (9th Cir. 2010), 

is yet another case in which a federal court of appeals held 

that a claim that a police officer was unlawfully forced to 

undergo an FFDE must be reviewed with the nature of the job 

in mind. In that case, the court explained that because police 

officers are likely to encounter stressful and dangerous situations, a police department can require its officers to undergo 

an FFDE if they have “good reason to doubt an officer’s ability to respond to these situations in an appropriate manner.” 

Id. at 1147.

Many other cases are to the same effect. See, e.g., Wisbey 

v. City of Lincoln, Neb., 612 F.3d 667 (8th Cir. 2010) (nature 

of employee’s position as emergency dispatcher involved lives 
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at risk, supporting business necessity exception), abrogated on 

other grounds, Torgerson v. City of Rochester, 643 F.3d 1031 

(8th Cir. 2011); Dengel v. Waukesha County, 16 F. Supp. 3d 

983 (E.D. Wis. 2014) (business necessity exception applied 

where employee who maintained radios used in emergency 

services and therefore vital to public safety displayed behavior that was obsessive, intense, and detached from reality); 

Davis-Durnil v. Village of Carpentersville, Ill., 128 F. Supp. 2d 

575 (N.D. Ill. 2001) (observing that police officers encounter 

stressful situations and that employers are entitled to inquire 

into their employees’ mental health where it has legitimate 

concerns about employee and public safety).

In this case, as in many of the cases discussed above, there 

is much undisputed evidence demonstrating that the City had 

reason to doubt whether McPherson could perform the jobrelated duties of a police officer. This included the evidence 

that McPherson was aware of and had expressed to the City 

that his break-in theories were unlikely to be true to the point 

that they could cause uncertainty about his mental health. 

When he first reported his concerns about the break-in to 

Wasson, he prefaced his statements by saying Wasson was 

going to think he was “crazy,” but that the issue had been 

bothering him for days, to the extent that he had not been eating. In his interview with Lovelace, McPherson acknowledged 

that his theories made him question whether he was “losing 

[his] mind” or “going crazy” and called the situation “absolutely insane,” but he held to the firm conviction that his theories were true. And later, when McPherson initially agreed to 

Chief Spencer’s request that he undergo an FFDE, McPherson 

pointed to his head and said that he had been “wondering 

himself.” He told Chief Spencer that he had been expecting 

an FFDE and wanted to be the first to know if something 

was wrong.

Indeed, when Chief Spencer shared McPherson’s statements and behavior with two psychologists, they suggested 

that something could, in fact, be wrong; they both told 
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Chief Spencer that the information raised red flags about 

McPherson’s fitness for duty. Lovelace, who was not informed 

of concerns regarding McPherson’s mental health prior to 

interviewing him, also expressed concerns about McPherson’s 

well-being after the interview.

Also casting doubt on McPherson’s fitness for duty as a 

police officer was McPherson’s statement to Lovelace that 

based only on an unexplainable feeling of unease, McPherson 

prepared himself to use his firearm against Howton, his friend 

and fellow officer. Although the incident occurred while 

McPherson was off duty, it was reasonable for the City to 

consider it in evaluating McPherson’s fitness for duty as a 

police officer, a job that placed him “in positions where [he 

could] do tremendous harm if [he were to] act irrationally.” 

See Watson v. City of Miami Beach, 177 F.3d 932, 935 (11th 

Cir. 1999). As Chief Spencer described, McPherson’s duties as 

a patrol officer included carrying a firearm and being involved 

in high risk and high pressure situations with the public and 

other officers.

We recognize that in his summary judgment affidavit, 

McPherson stated that Howton had his hand on his gun during 

the same conversation. McPherson did not tell Lovelace that 

he was concerned about Howton’s having his hand on his gun, 

and it is not clear that McPherson ever told anyone at the City 

that Howton also had his hand on his gun. Even assuming he 

did, however, we find that McPherson’s reaction, in view of all 

of the other evidence of concerning behavior by McPherson, 

could contribute to doubts about McPherson’s ability to safely 

do his job.

In sum, the undisputed evidence establishes that the City had 

genuine reason to doubt whether McPherson could perform his 

duties as a police officer. His acknowledgment that his theories could call his mental health into question, the opinions of 

psychologists and other law enforcement professionals that his 

behavior raised concerns about his fitness for duty, and the 

incident in which he armed himself against Howton all support 
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the business necessity exception. Therefore, the district court 

did not err in granting summary judgment in favor of the City 

on McPherson’s discrimination claim.

Retaliation.

[4] We turn now to McPherson’s retaliation claim. A claim 

of retaliation under NFEPA is based on § 48-1114, which 

provides: “It shall be an unlawful employment practice for an 

employer to discriminate against any of his or her employees 

. . . because he or she . . . (3) has opposed any practice or 

refused to carry out any action unlawful under federal law or 

the laws of this state.” A plaintiff must establish a prima facie 

case of retaliation under § 48-1114 by showing (1) he or she 

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

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

Knapp v. Ruser, 297 Neb. 639, 901 N.W.2d 31 (2017).

McPherson contends that reporting his suspicions about his 

fellow employees was protected conduct for which he was 

ultimately terminated, in violation of § 48-1114(3). But he 

overlooks this court’s application of § 48-1114(3). In Wolfe 

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

(2003), we rejected the “whistleblower” and retaliation claims 

of an employee who experienced adverse employment actions 

after reporting his belief that fellow employees were using 

illegal drugs. We expressly addressed whether § 48-1114(3) 

protects an employee’s opposition to the illegal actions of fellow employees, and concluded that it does not. Considering the 

context of NFEPA and the purposes it was meant to serve, we 

held that “the ‘practice’ in § 48-1114(3) refers to an unlawful 

practice of the employer” and not “any manner of unlawful 

activity.” Wolfe, 266 Neb. at 57, 662 N.W.2d at 603 (emphasis 

supplied). See, also, Bonn v. City of Omaha, 19 Neb. App. 874, 

814 N.W.2d 114 (2012) (applying Wolfe, supra).

At oral argument, McPherson acknowledged that Wolfe

requires an unlawful act of the employer and argued for the 
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first time that the City retaliated against him because he was 

critical of the department’s investigation of the burglary. While 

McPherson is undoubtedly now critical of the department’s 

investigation of the burglary, there is no evidence that those 

who made the decisions to ask McPherson to undergo an 

FFDE and, subsequently, to terminate his employment were 

made aware that McPherson felt the investigation was unlawfully inadequate.

In the absence of any knowledge that McPherson opposed 

the department’s investigation, City officials could not have 

taken adverse action against McPherson based on that opposition. See Ambrose v. Township of Robinson, Pa., 303 F.3d 

488, 493 (3d Cir. 2002) (“[i]t is only intuitive that for protected conduct to be a substantial or motiv[at]ing factor in a 

decision, the decisionmakers must be aware of the protected 

conduct”). The City was entitled to summary judgment on 

McPherson’s retaliation claim.

CONCLUSION

For the foregoing reasons, we affirm the entry of summary 

judgment in favor of the City.

Affirmed.

Freudenberg, J., not participating.