Opinion
Case No. 8:02CV438
January 10, 2003
MEMORANDUM AND ORDER
This matter is before the Court on the Motion to Dismiss (Filing No. 7) submitted by the Defendant, Oriental Trading Company, Inc. ("OTC"), seeking dismissal of the Plaintiff's Second Claim for Relief, and on the related Motion to Certify Questions to the Nebraska Supreme Court (Filing No. 10) submitted by the Plaintiff, Lori Lux ("Lux"). Both parties have thoroughly briefed the issues in support of their respective positions, which briefs are found at Filing Nos. 8, 11 and 13. For the reasons stated below, the Court finds that the Defendant's Motion to Dismiss the Plaintiff's Second Claim for Relief should be granted and that the Plaintiff's Motion to Certify Questions to the Nebraska Supreme Court should be denied. Plaintiff's Second Claim Does Not State a Claim Recognized Under Nebraska Law.
This case was removed from the District Court of Douglas County, Nebraska, by OTC on September 19, 2002. Lux's Second Claim for Relief in her Petition alleges that her employment was terminated by OTC in retaliation for her assertion of workers' compensation claims, and that the termination was actionable as a "wrongful termination" under Nebraska law because Nebraska has a public policy that favors an employee's unfettered right to assert workers' compensation claims (Filing No. 1). OTC moved to dismiss the Second Claim for Relief, arguing that Nebraska does not recognize an action for wrongful termination based on an employee's assertion of workers' compensation claims. Both parties agree that Nebraska law governs Lux's Second Claim for Relief.
The United States Court of Appeals for the Eighth Circuit addressed this issue in Smith v. Gould, 918 F.2d 1361 (1990). The court found that Nebraska's public policy exception to its employment-at-will doctrine was very limited, and did not include terminations allegedly made in retaliation for the filing of workers' compensation claims. Id. at 1364-65. The Smith decision is binding on this Court, absent a showing that Nebraska law has changed since 1990.
Neither Nebraska statutes nor Nebraska case law on this subject have changed in any material respect since 1990. Although Nebraska's Workers' Compensation statutes, Neb. Rev. Stat. §§ 48-101 to 48-1,117, have been amended and reenacted on several occasions since 1990, the legislature has not enacted any mandate to preclude employers from retaliating against employees who assert claims for compensation under the Act. In Nebraska, when statutes have been judicially construed and that construction has not evoked amendment, it will be presumed that the legislature has acquiesced in the court's determination of the legislature's intent. See, e.g., State of Nebraska v. Portsche, 258 Neb. 926, 939, 606 N.W.2d 794, 803 (2000); Mogis v. Lyman-Richey Sand Gravel Corp., 189 F.2d 130, 140 (8th Cir. 1951) cert. denied 342 U.S. 877. The Nebraska Supreme Court's position on the public policy exception to Nebraska's employment-at-will doctrine is likewise unaltered.
Before 1990, the Nebraska Supreme Court recognized that an employer may not terminate an employee when the legislature has made a statutory pronouncement of public policy on the issue of wrongful discharge in clear and unambiguous language. In Ambroz v. Cornhusker Square Ltd., 226 Neb. 899, 416 N.W.2d 510 (1987), the court found that an at-will employee had stated a cause of action for wrongful discharge by alleging his employment was terminated when he refused to submit to a polygraph examination. The court noted that Neb. Rev. Stat. § 81-1932 provided that "[n]o employer or prospective employer may require as a condition of employment or as a condition of continued employment that a person submit to a truth and deception examination . . .," and further provided that violation of the statute constituted a Class II misdemeanor. In Ambroz, the court said:
We believe that it is important that abusive discharge claims of employees at will be limited to manageable and clear standards. The right of an employer to terminate employees at will should be restricted only by exceptions created by statute or to those instances where a very clear mandate of public policy has been violated.
Id. at 905, 416 N.W.2d at 515.
In Schriner v. Meginnis Ford Co., 228 Neb. 85, 421 N.W.2d 755 (1988), the court recognized a plaintiff's cause of action for wrongful termination when the employee claimed he was discharged for reporting his suspicions that his employer was violating state odometer fraud laws — felony conduct under Nebraska statute. The court noted that there was no public policy more basic than the enforcement of a state's criminal code. The Eighth Circuit Court had the benefit of the Nebraska Supreme Court's reasoning in both Ambroz and Schriner when it issued its opinion in Smith, supra.
In 2001, the Nebraska Supreme Court declined to expand the public policy exception to Nebraska's employment-at-will doctrine to include claims of wrongful discharge based upon an employee's assertion of rights under the Nebraska Wage Payment and Collection Act. Malone v. American Business Information, 262 Neb. 733, 634 N.W.2d 788 (2001). Like Lux, the plaintiff in Malone alleged that she was terminated for invoking a statutory procedure to obtain compensation. The court noted that the Wage Payment and Collection Act was primarily remedial in nature, did not represent a "very clear mandate" of public policy which would warrant recognition of an exception to the employment-at-will doctrine, and did not contain any specific provision restricting the employer's common-law right to discharge an at-will employee. Id. at 739, 634 N.W.2d at 793.
It is true that distinctions may be drawn between the Nebraska Wage Payment and Collection Act and the Nebraska Workers' Compensation Act. The Workers' Compensation Act does contain certain criminal penalties. Neb. Rev. Stat § 48-144.04 (Cum. Supp. 2000) provides that any "employer . . . who fails, neglects, or refuses to file any report required of him or her by the Nebraska Workers' Compensation Court shall be guilty of a Class II misdemeanor for each such failure, neglect or refusal." Nev. Rev. Stat § 48-145.01 (Cum Supp. 2000) provides that any "employer required to secure the payment of compensation under the Nebraska Workers' Compensation Act who willfully fails to secure the payment of such compensation shall be guilty of a Class I misdemeanor." These statutory provisions were in effect prior to 1990, however, and Lux has not alleged that OTC terminated her in retaliation for reporting or threatening to report any statutory violations on the part of OTC, or in retaliation for refusing to commit a crime herself.
Although the Nebraska Supreme Court may well choose to recognize a public policy exception to Nebraska's at-will-employment doctrine in cases where an employee alleges that he or she was terminated in retaliation for exercising rights under the Workers' Compensation Act, it has not done so at this time, and this Court will not attempt to create such an exception on its own initiative. The Malone opinion persuades this Court that it is still bound by the Eighth Circuit Court's decision in Smith, supra. Certification of Issues to the Nebraska Supreme Court is not Warranted.
Lux asks that certain issues be certified to the Nebraska Supreme Court under Neb. Rev. Stat. § 24-219 (1995) which provides in pertinent part:
The [Nebraska] Supreme Court may answer questions of law certified to it by . . . a United States District Court, when requested by the certifying court, if there are involved in any proceeding before it questions of law of this state which may be determinative of the cause then pending in the certifying court as to which it appears to the certifying court there is no controlling precedent in the decisions of the Supreme Court of this state.
The questions that Lux asks be certified to the Nebraska Supreme Court are:
Whether an employer in Nebraska may be held liable to an employee whom the employer has discharged in retaliation for filing, or otherwise pursuing, a claim for compensation under the Nebraska Workers' Compensation Act, Neb. Rev. Stat §§ 48-101 to 48-117, regardless of the validity of the claim or its ultimate disposition?
a. Where a contract of employment falls within the coverage of the workers' compensation law, are the provisions of the statute deemed a part of that contract between the employee and employer, so that, where the primary motivating factor in the employee's discharge was retaliation for asserting a workers' compensation claim, the employee has a cause of action for breach of the contract of employment?
b. Does the Nebraska Workers' Compensation Act, Neb. Rev. Stat. §§ 48101 to 48-1,117, represent a very clear mandate of public policy, i.e., that employees have a right to assert claims for benefits without fear of reprisal or retaliation, which would warrant recognition of an exception to the employment-at-will doctrine and provide a basis for a civil action for wrongful discharge to an employee who is terminated in retaliation for filing a workers' compensation claim?
c. Does an employee have a cause of action in tort for retaliatory discharge under the common law of Nebraska where an employer discharges an employee in retaliation for asserting a workers' compensation claim?
(Filing No. 10.)
This Court declines to certify the above questions to the Nebraska Supreme Court because the existing opinions of the Nebraska Supreme Court do provide substantial guidance regarding how that court would address the issues which are material to Lux's Second Claim for Relief; the decision of the Eighth Circuit Court in Smith, supra, is precedent binding on this Court; and the issues proposed for certification are not determinative of the cause pending before this Court in that Lux's First and Third Claims for Relief would remain pending and could provide her with the same relief she seeks through the Second Claim for Relief.
IT IS ORDERED:
1. The Defendant's Motion to Dismiss the Plaintiff's Second Claim for Relief (Filing No. 7) is granted;
2. The Plaintiff's Motion to Certify Questions to the Nebraska Supreme Court (Filing No. 10) is denied.