Labor & Employment Law Daily Wrap Up, RETALIATION—Neb. Sup. Ct.: Retired Omaha police officer and licensed attorney revives retaliation claim against city, (Jul 29, 2025)

By Jason Albright, J.D.

Following the officer’s complaint to the city council, the chief of police purportedly instructed other officers that he wanted him “written up for anything and everything.”

A police officer for the City of Omaha who retired in lieu of termination in February 2021 after reporting what he believed to be a violation of a consent decree in May 2018 can proceed to trial on his claim of retaliation, the Nebraska Supreme Court found. Although some of his allegations were time-barred, there was evidence that the chief of police instructed others to affirmatively look for reasons to report the officer, and reports followed shortly thereafter. The state high court also found it significant that the officer had been an employee of the department for nearly 25 years, yet just 2 months elapsed between the first discrimination charge and his letter of termination (Merithew v. City of Omaha, No. S-24-455 (Neb. Sup Ct. July 25, 2025)).

Police officer and attorney. The plaintiff began his employment as a police officer with the Omaha Police Department (OPD) in 1996. He was promoted to sergeant in 2003 and to lieutenant in 2009. He is also a licensed attorney. Over the course of his career with OPD, his job duties included serving on a safety review board, teaching courses at the police training academy, and serving on the “Legislative Liaison Committee.” He also assisted with writing OPD’s poli­cies and procedures manual.

Report to HR. In May 2018, however, he emailed the city’s HR director and reported what he believed to be a violation of the “Palmer Consent Decree.”

City council complaint and investigation. Subsequently, in July 2018, he informed Omaha’s city council that the chief of police had retaliated against him for reporting the alleged violation. This, in turn, triggered an investigation into the police chief’s conduct.

Chief’s instructions. Following the officer’s complaint to the city council, the police chief purportedly instructed other officers that he wanted the officer “written up for anything and everything” in order to prompt an investigation on “anything you can find,” and told them to “get [the officer] for anything you can.”

Positive performance review. Meanwhile, the officer received a performance appraisal from his direct supervisor, who rated him “above satisfactory” in all desig­nated categories.

September 2019 incident. Then, in September 2019, a fellow lieutenant reported an incident involving him. The lieutenant alleged that, while at a crowded airport, the officer recounted a story about a female promotional candidate at another assessment center, and he allegedly made a comment that the candidate had, “‘for lack of a better term,’” a “‘real bull dyke persona.’”

The officer denied making the comment and denied being a poor representative of OPD. Because it was “[[his]] word against another lieuten­ant’s word,” OPD declined to take disciplinary action against the officer at that time.

Second incident and suspension. Later, another officer reported an incident involving the employee that led to an internal investigation. While repre­senting OPD at a “Shop With A Cop” event, the employee report­edly told a Latino child, “We already got rid of all the taco blankets.” The other officer perceived this to be a “racially charged statement.” The employee admitted that he attended the event and handed out blankets to children, but he denied mak­ing that statement. Following the investigation, on March 9, 2020, the officer received a 20-day suspension.

NEOC charge. Thereafter, on April 20, 2020, the officer filed a charge of discrimination with the Nebraska Equal Opportunity Commission (NEOC) for alleged retaliation.

Second internal investigation. Then, in May 2020, the chief authorized a second internal investigation after the officer reportedly “called a subordinate a ‘prick’” on March 29. The officer did not recall saying that but indicated that if he did, it was “clearly in jest.” During the investigation, the subordinate and another officer described a separate event, during which the officer “made a statement that they perceived meant they were to treat people out west differently than they were to treat people in east precincts.” The plaintiff asserted that the officers “misunderstood” his state­ment, and he denied that it had “racial undertones.” Following the investigation, however, the chief determined that the officer’s con­duct had violated OPD’s policies and procedures and other applicable rules.

Termination recommended. On June 18, 2020, the chief issued a letter recommend­ing the employee’s termination. It outlined the complaints made by fellow officers to OPD, described the investigations in detail, and stated that effective the same day, his status would be suspended with pay, pending the outcome of a pretermination hearing. In response to a ques­tion by counsel whether he terminated the officer’s employment instead of “demoting” or reassigning him, the chief testi­fied, “Yes, [[the officer]] was terminated.”

Second NEOC charge. In July 2020, the officer filed a second charge of discrimina­tion with the NEOC. He asserted that on June 20—two days after receiving the termination letter—he discovered that he was “locked out of [his] work email” and that “[his] office com­puter was being seized in order to perform a forensic analysis on it.” From that point forward, he was “banned from [the City and OPD’s] property” and unable to perform his job.

Retirement in lieu of termination. The officer thereafter undisputedly retired from OPD in February 2021, under what the parties referred to as an “Early Delayed Retirement Option,” which “allowed him to use his leave bal­ances rather than be terminated.”

Lawsuit. In July 2021, the employee sued the city for damages under the Nebraska Fair Employment Practice Act. His amended complaint alleged that he was “discharged” and subjected to “different terms and conditions of employment” in retaliation for (1) report­ing his employer’s alleged violation of the Palmer Consent Decree in 2018, (2) reporting “retaliatory conduct” that he experienced shortly thereafter, and (3) filing the April 2020 charge of discrimination with the NEOC.

Decision below. The city moved for summary judgment, and the trial court addressed two primary questions. First, it agreed with the city that any alleged discriminatory action that occurred before June 25, 2019, was untimely and therefore would not be considered. Second, the court determined that the officer could not establish all the prima facie elements of retaliation. It agreed with him that he had engaged in protected conduct—both when he reported the alleged con­sent decree violation in 2018 and when he filed the April 2020 charge of discrimination. However, it rejected his argument that he was “constructively discharged.” It also found that he failed to produce evidence establishing the causal connection element. Further, the trial court reasoned that, even if the officer could establish a prima facie case, the city presented legitimate, nondiscriminatory reasons for its actions. It said that the officer’s evidence was insufficient to show that the city’s stated reasons were mere pretext for retaliation.

The officer timely appealed to the Nebraska Supreme Court.

Limitations. The state high court initially rejected the officer’s contention that the trial court erred in not considering conduct that occurred prior to June 25, 2019—the date marking 300 days before he filed his first charge with the NEOC. Rejecting the officer’s “continuing violation theory,” the Nebraska Supreme Court enforced the trial court’s cutoff.

Prima facie case and pretext. Next, applying the McDonnell Douglas burden-shifting framework to the officer’s NFEPA claims, the state high court concluded that the trial court erred in sustaining the city’s motion for summary judg­ment regarding events not barred by the statute of limitations.

Materially adverse action. To satisfy the adverse employment action requirement in a retaliation claim, a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, the state high court observed. Here, though the alleged actions in 2018 could not form the basis of his claim, and though arguments as to his writeup and sus­pension were not raised below, the court would consider his argument that he was effectively terminated.

Although the city argued that because he retired, he could not meet this element, the police chief’s testimony was that “[[the officer]] was terminated.” The officer also presented evidence that he was suspended after receiving the termination letter, his work computer was confiscated, and he was no longer permitted on his employer’s premises. Viewing the record in the light most favorable to the officer and drawing all reason­able inferences in his favor, the court found that a reasonable employee could find that the city’s action was materially adverse and resulted in concrete injury or harm.

Causation. The causation element was also sufficiently supported, according to the Nebraska Supreme Court. The officer presented evidence supporting his belief that OPD had a retaliatory motive. Specifically, there was evidence that the chief instructed others to affirmatively look for reasons to report him, and reports followed shortly thereafter.

The state high court also found it significant that the officer had been an employee of OPD for nearly 25 years, yet just two months elapsed between his first discrimination charge and the termination letter. “This time period might not be significant in other cases,” the court observed, but here, in light of the chief’s alleged directive and the officer’s exten­sive employment history with OPD—including the satisfac­tory performance appraisal completed by his direct supervisor around the same time—a reasonable inference of causation could be drawn in his favor.

Pretext. Finally, although the city argued that there was a “plethora of evidence” supporting the chief’s recom­mendation of termination, the court, “[h]aving determined that there are genuine issues as to material facts and as to the inferences that may be drawn from those facts,” concluded that the officer presented sufficient evidence of pretext as well.

The case is No. S-24-455.

Judge: Cassel, W.

Attorneys: Jason M. Bruno (Sherrets, Bruno & Vogt) for George Merithew. Michelle Peters, Office of the Omaha City Attorney, for City of Omaha.

Companies: City of Omaha

Cases: Retaliation Whistleblowers PublicEmployees StateLawClaims NebraskaNews