Retaliatory Discharge

John Inserra

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The case of Riesen v Irwin Industrial sets out Nebraska's analysis for a retaliatory discharge for the filing of a worker's compensation claim in an "employee at will" state.

The following procedure is utilized under the three-tiered allocation of proof standard: First, the plaintiff has the burden of proving a prima facie case of discrimination. See Goerke, supra. Second, if the plaintiff succeeds in proving that prima facie case, the burden shifts to the defendant-employer to articulate some legitimate, nondiscriminatory reason for the plaintiff's rejection or discharge from employment. See id. This burden is a burden of production, not of persuasion. See Lincoln County Sheriff's Office v. Horne, 228 Neb. 473, 423 N.W.2d 412 (1988). The employer need only explain what has been done or produce evidence of a legitimate, nondiscriminatory reason for the decision. Id. It is sufficient if the employer's evidence raises a genuine issue of fact as to whether it discriminated against the employee. Id. "'"If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted" . . . and "drops from the case . . . ."'" (Citation omitted.) Agnew, 256 Neb. at 402, 590 N.W.2d at 694, quoting St. Mary's Honor Center, supra.

Third, assuming the employer establishes an articulated nondiscriminatory reason for disparate treatment of an employee, the employee maintains the burden of proving that the stated reason was pretextual and not the true reason for the employer's decision; i.e., that the disparate treatment would not have occurred but for the employer's discriminatory reasons. Lincoln County Sheriff's Office, supra.

This case is a very good step by step analysis of the type of proof for a retaliatory discharge. The case essentially adopts the federal discrimination guidelines to proof. This case belongs in a lawyer's "how to do it" book.