Dibbern v. York Surgical Assocs.

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
DIBBERN v. YORK SURGICAL ASSOCS.
Cite as 318 Neb. 928
Terri Dibbern, appellee, v. York Surgical
Associates, P.C., appellant.
___ N.W.3d ___
Filed May 9, 2025. 	No. S-24-035.
1. Judgments: Verdicts: Appeal and Error. Review of a ruling on a
motion for judgment notwithstanding the verdict is de novo on the
record.
2. Pleadings: Appeal and Error. The content of the motion rather than its
caption controls an appellate court’s review.
3. Termination of Employment. Unless constitutionally, statutorily, or
contractually prohibited, an employer, without incurring liability, may
terminate an at-will employee at any time with or without reason.
4. Termination of Employment: Public Policy: Damages. Under the
public policy exception to the at-will employment doctrine, an employee
may claim damages for wrongful discharge when the motivation for the
firing contravenes public policy.
5. Termination of Employment: Public Policy: Legislature: Statutes.
When the Legislature includes a right to civil enforcement in the very
statute that contains the public policy a common-law claim would
protect, the common-law claim for wrongful discharge in violation of
public policy becomes unnecessary.
6. Federal Acts: Employer and Employee. A remedy is provided under
31 U.S.C. § 3730(h) (2018) to employees who are harmed by their
employer in retaliation for actions taken in furtherance of the False
Claims Act.
Appeal from the District Court for York County: James C.
Stecker, Judge. Reversed and remanded with direction.
Patrick M. Flood, of Pansing, Hogan, Ernst & Buser, L.L.P.,
for appellant.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 08:21 AM CDT

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
DIBBERN v. YORK SURGICAL ASSOCS.
Cite as 318 Neb. 928
James C. Zalewski, of Olson, Zalewski & Wynner, L.L.P.,
for appellee.
Funke, C.J., Miller-Lerman, Cassel, Stacy, Papik, and
Freudenberg, JJ.
Per Curiam.
NATURE OF CASE
Following a jury trial in the district court for York County,
employee Terri Dibbern, appellee, was awarded a monetary
judgment against her employer, York Surgical Associates, P.C.
(YSA), appellant. YSA appeals the award and amount of dam-
ages. By the time of trial, only an alleged cause of action
for termination of employment in violation of public policy
remained and was submitted to the jury. As explained below,
we conclude on the facts of this case that no cause of action for
termination of employment in violation of public policy exists
where the statute on which the public policy is based provides
its own remedy. Specifically, we conclude that because the
False Claims Act, 31 U.S.C. § 3729 et seq. (2018) (FCA),
provides the relevant public policy sought to be effectuated
by Dibbern and provides its own adequate remedy for the
employee, we decline to recognize an additional common-law
tort claim for termination of employment in violation of pub-
lic policy where the facts show the employee was terminated
after she expressed her intention to meet with government
investigators relating to an investigation of alleged improperly
upcoding Medicare charges. Because no cause of action exists,
we conclude that the court should have granted YSA’s motions
for a directed verdict and its posttrial motion for judgment
notwithstanding the verdict. Accordingly, we reverse the judg-
ment for Dibbern and remand the cause with direction to enter
judgment in favor of YSA.
STATEMENT OF FACTS
Dibbern 	was 	a 	longtime 	employee 	at 	YSA, 	which 	is
owned by Dr. Daniel Growney and Dr. Ye Ye. Growney was

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
DIBBERN v. YORK SURGICAL ASSOCS.
Cite as 318 Neb. 928
responsible for administrative matters, while Ye concentrated
on the practice of medicine. YSA had 10 or 11 employees.
Dibbern’s job duties involved billing, particularly Medicare
patient billing. While Growney and Ye remained ultimately
responsible for Medicare billing, Dibbern assessed the code
that corresponded to a particular visit or procedure and then
used that code to submit the bill to Medicare for reimburse-
ment. Dibbern explained at trial that Medicare’s coding was
from “two through five,” with a “five” corresponding to the
largest reimbursement amount from Medicare.
In February 2020, YSA received notice from the federal
Office of Inspector General (OIG) that it was being audited.
YSA retained an attorney and subsequently a second and third
attorney from a law firm to advise them during the audit.
Dibbern learned that the OIG audit was not random and was
the result of a former employee’s making a complaint to
the OIG. At trial, the first attorney testified that she initially
thought the OIG was concerned that some of the services YSA
performed and billed for were not medically necessary and,
for this reason, had the second attorney in her firm, who is a
“certified [Medicare] coder,” perform an internal audit of the
records. Based on the first internal audit completed by the sec-
ond attorney, the first attorney initially was not too concerned.
Dibbern requested that she be able to speak with the OIG
investigator, but the first attorney recommended against it
because of concerns about Dibbern’s demeanor as a witness.
In April 2021, the second attorney performed a second internal
audit, wherein it appeared that the office of YSA and Dibbern
had upcoded 73 percent of claims that were under review,
which suggested fraud. Based on these findings, the first attor-
ney recommended to Growney that YSA terminate Dibbern’s
employment. Growney informed Dibbern of the recommenda-
tion, and Dibbern “challenged” it, requesting that she remain
employed. Two days later, on April 28, Growney took a leave
of absence, and the first attorney contacted Ye about terminat-
ing Dibbern’s employment.

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
DIBBERN v. YORK SURGICAL ASSOCS.
Cite as 318 Neb. 928
On May 1, 2021, Dibbern reached out to the OIG investiga-
tor and requested to be interviewed. As explained at trial, when
faced with increasing allegations, Dibbern contacted the OIG
and believed she had a right to explain her position. Dibbern’s
position at trial was that she intended to talk to “a government
investigator to explain” her conduct, to clear her name and to
tell the truth.
On May 4, 2021, Ye gave Dibbern the option to resign or
her employment would be terminated. At trial, YSA’s position
was that Dibbern was in charge of coding. She took the charge
slips from the medical professionals, and then “she was the one
who came up with the final codes, she was the one who sub-
mitted that bill to Medicare, and she was trained for that.” YSA
alleged Dibbern was engaged in “fraudulent conduct.”
Dibbern claims that she was told she was fired. YSA intro-
duced a signed resignation letter into evidence.
Dibbern filed this lawsuit, alleging three causes of action
against defendants YSA, Growney, and Ye. In addition, Dibbern
and a separate plaintiff, York Cosmetics, Inc., alleged a fourth
cause of action claim, tortious interference with a business,
against YSA, Growney, and Ye. The district court dismissed
Dibbern’s first and second causes of action on summary judg-
ment, so that the two claims tried were Dibbern’s third cause
of action for wrongful termination of employment in violation
of public policy and Dibbern and York Cosmetics’ fourth cause
of action for tortious interference with a business.
During discovery, Dibbern identified potential statutes gen-
erally as a source of public policy, including the Health Care
Facility Licensure Act, see Neb. Rev. Stat. § 71-445 (Reissue
2018); the Inspector General Act of 1978, see 5 U.S.C. App.
§ 7(c) (2018); the Nebraska Fair Employment Practice Act; and
the Nebraska Workers’ Compensation Act. At trial, Dibbern
testified that she believed that it was a violation of public pol-
icy to terminate her employment for wanting to cooperate in
a government investigation and explain her role in the matter.

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
DIBBERN v. YORK SURGICAL ASSOCS.
Cite as 318 Neb. 928
After Dibbern’s case in chief, the defendants moved for
a directed verdict. The district court dismissed the wrongful
discharge claims against Growney and Ye but overruled the
motion on the wrongful discharge claim as to YSA. It granted
the motion for a directed verdict with respect to the tortious
interference claim. At the close of evidence, YSA renewed its
motion for a directed verdict, but the district court overruled
the motion.
The jury found in favor of Dibbern on her claim based on
termination of employment in violation of public policy and
awarded her damages for past and future lost wages. Judgment
was entered accordingly. Dibbern was not awarded compensa-
tory damages. YSA filed a posttrial motion, claiming, inter alia,
that there was an “error of law” by not directing a verdict in
favor of YSA. The motion was denied. YSA appeals.
ASSIGNMENT OF ERROR
YSA assigns, restated, that the district court erred when it
denied YSA’s motions for a directed verdict and its posttrial
motion for judgment notwithstanding a verdict.
STANDARD OF REVIEW
[1] Review of a ruling on a motion for judgment notwith-
standing the verdict is de novo on the record. 132 Ventures
v. Active Spine Physical Therapy, ante p. 64, 13 N.W.3d 441
(2024).
ANALYSIS
[2] As an initial matter, we address the framework for
this appeal. Although the posttrial motion was captioned
as a motion for new trial, its substance stated that “the
Court should have directed a verdict in favor of [YSA] on
. . . Dibbern’s wrongful discharge claim.” The content of
the motion rather than its caption controls our review. See
In re Guardianship & Conservatorship of Maronica B., 314
Neb. 597, 992 N.W.2d 457 (2023). In view of the foregoing,
we address YSA’s assignment of error as a claim that the

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
DIBBERN v. YORK SURGICAL ASSOCS.
Cite as 318 Neb. 928
district court erred when it denied YSA’s motion for judgment
notwithstanding the verdict. As explained below, we agree
with YSA that the district court erred when it denied YSA’s
motions for directed verdict and its postjudgment motion
for judgment notwithstanding the verdict and failed to enter
judgment in favor of YSA. We now reverse the judgment for
Dibbern and remand the cause with direction to enter judg-
ment in favor of YSA. See Neb. Rev. Stat. § 25-1315.03
(Reissue 2016).
By the time the case was submitted to the jury, Dibbern
sought common-law relief from YSA for alleged termina-
tion of employment in violation of public policy. Although
the FCA was not explicitly identified, we understand that
Dibbern claimed she was discharged because she expressed
her intention to cooperate with an investigation pertaining to
alleged improperly upcoding Medicare charges, which would
be in violation of the public policy reflected in the FCA.
Dibbern’s lack of awareness of the protections of the FCA is
not fatal to her potential demonstration of facts that protect
her under the federal act. See, e.g., U.S. ex rel. Karvelas v.
Melrose-Wakefield Hosp., 360 F.3d 220 (1st Cir. 2004). But,
as explained below, where there is a robust federal remedy
available under the FCA, as there is in this case, we decline
to recognize a new state cause of action for wrongful termi-
nation based on a violation of the public policy expressed in
the FCA and, therefore, agree with YSA that in the absence
of a state cause of action for termination of employment in
violation of public policy based on an alleged violation of the
FCA, the district court erred when it denied the motions for
direct verdict.
[3,4] It is undisputed that Dibbern was hired on an at-will
basis. The general rule in Nebraska is that unless constitu-
tionally, statutorily, or contractually prohibited, an employer,
without incurring liability, may terminate an at-will employee
at any time with or without reason. Coffey v. Planet Group,
287 Neb. 834, 845 N.W.2d 255 (2014). However, we have

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
DIBBERN v. YORK SURGICAL ASSOCS.
Cite as 318 Neb. 928
recognized a limited public policy exception to the at-will
employment doctrine. See id. Under the public policy excep-
tion, an employee may claim damages for wrongful discharge
when the motivation for the firing contravenes public policy.
See id.
Regarding the public policy exception, we have stated:
[I]t is important that abusive discharge claims of employ-
ees 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.
Ambroz v. Cornhusker Square Ltd., 226 Neb. 899, 905, 416
N.W.2d 510, 515 (1987). See, also, Trosper v. Bag ’N Save,
273 Neb. 855, 734 N.W.2d 704 (2007).
We have applied the public policy exception in various con-
texts. See Jackson v. Morris Communications Corp., 265 Neb.
423, 657 N.W.2d 634 (2003) (discussing cases where we have
applied public policy exception and determining that public
policy exception applied when employee had been discharged
in retaliation for filing workers’ compensation claim). We have
recognized the exception when an employee reports, in good
faith, his suspicions that his employer is violating a criminal
law. Schriner v. Meginnis Ford Co., 228 Neb. 85, 421 N.W.2d
755 (1988). We recognized that the purpose of the Adult
Protective Services Act, specifically Neb. Rev. Stat. § 28-384
(Reissue 1995), would be circumvented if employees man-
dated by that act to report suspected patient abuse could be
threatened with discharge for making such a report. Wendeln v.
Beatrice Manor, 271 Neb. 373, 712 N.W.2d 226 (2006).
In contrast, we determined that the Nebraska Wage Payment
and Collection Act was primarily remedial for enforcing exist-
ing rights and did not “represent a ‘very clear mandate of pub-
lic policy’ which would warrant recognition of an exception
to the employment-at-will doctrine.” Malone v. American Bus.
Info., 262 Neb. 733, 739, 634 N.W.2d 788, 793 (2001). See,
also, Ambroz v. Cornhusker Square Ltd., supra.

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
DIBBERN v. YORK SURGICAL ASSOCS.
Cite as 318 Neb. 928
However, as recently expressed by the Iowa Supreme Court,
because the tort is a narrow exception to the at-will employ-
ment doctrine, it is not enough for this court to rely on gener-
alized concepts of fairness and justice in determining whether
the tort should be allowed. See Halbur v. Larson, 14 N.W.3d
363 (Iowa 2024). The Iowa Supreme Court continued, stating:
Nor is it enough for this court to merely identify a statute
evidencing a public policy because all statutes are enacted
to advance some public policy, presumably. Instead, this
court will imply a cause of action for wrongful discharge
in violation of public policy only where the public policy
is “clearly defined and well-recognized” and there is a
“compelling need” for a cause of action to enforce or vin-
dicate the public policy at issue.
Id. at 374.
[5] As we discuss below, we agree with the widely held
proposition that there is generally no compelling need to rec-
ognize an implied cause of action where a legislature has pro-
vided a means to enforce or vindicate the public policy at issue.
See 1A C.J.S. Actions § 14 n.55 (1985). The Iowa Supreme
Court further observed: “‘[W]hen the legislature includes a
right to civil enforcement in the very statute that contains the
public policy a common law claim would protect, the com-
mon law claim for wrongful discharge in violation of public
policy becomes unnecessary.’” Halbur v. Larson, 14 N.W.3d
at 375. We agree with this reasoning. We therefore conclude
that a common-law claim for termination of employment in
violation of public policy is unavailable in this case because
the statute that contains the public policy, the FCA, provides
its own remedy.
It has been said:
The FCA, 31 U.S.C. §§ 3729-3733, was enacted in
1863 to remedy rampant fraud by suppliers of goods to
the Union Army. The purpose of the FCA is to “broadly
protect the funds and property of the Government from
fraudulent claims, regardless of the particular form, or

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
DIBBERN v. YORK SURGICAL ASSOCS.
Cite as 318 Neb. 928
function, of the government instrumentality upon which
such claims were made.” The statute imposes liability on
anyone who knowingly submits a false claim to the gov-
ernment or causes another to do so, or knowingly makes
a false record or statement to get a false claim paid by
the government.
David B. Chaffin & Jonah S. Levinson, The False Claims
Acts and the Public Policy Exception: A Match Not Made in
Heaven, 104 Mass. L. Rev. 1, 4 (2023). In case law, it has
been noted that the purpose of the FCA is “to discourage fraud
against the government [and] to encourage those with knowl-
edge of fraud to come forward.” Neal v. Honeywell, Inc., 826
F. Supp. 266, 269 (N.D. Ill. 1993) (citing H.R. Rep. No. 660,
99th Cong., 2d Sess. (1986)).
[6] To effectuate the foregoing purposes, the FCA provides
various enforcement provisions and protections to individu-
als who further the goals of the FCA. Specifically, 31 U.S.C.
§ 3730(h) provides a remedy to employees who are harmed by
their employer in retaliation for actions taken in furtherance
of the FCA. The retaliation provision of the FCA, 31 U.S.C.
§ 3730(h), states:
(1) . . . Any employee . . . shall be entitled to all
relief necessary to make that employee . . . whole, if
that employee . . . is discharged, demoted, suspended,
threatened, harassed, or in any other manner discrimi-
nated against in the terms and conditions of employment
because of lawful acts done by the employee . . . or
associated others in furtherance of an action under this
section or other efforts to stop 1 or more violations of
this subchapter.
(2) . . . Relief under paragraph (1) shall include rein-
statement with the same seniority status that employee
. . . would have had but for the discrimination, 2 times
the amount of back pay, interest on the back pay, and
compensation for any special damages sustained as a
result of the discrimination, including litigation costs and

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
DIBBERN v. YORK SURGICAL ASSOCS.
Cite as 318 Neb. 928
reasonable attorneys’ fees. An action under this subsec-
tion may be brought in the appropriate district court of the
United States for the relief provided in this subsection.
In our view, the FCA’s antiretaliation provisions provide com-
prehensive and adequate remedies, including damages and
reinstatement. These are robust remedies that vindicate the
public policy in the FCA.
As noted, the proposition that it is not necessary to recog-
nize a common-law exception where the statute containing the
public policy also contains a remedy is widely recognized,
including matters involving Medicaid or Medicare and the
FSA. For example, in the health care setting, in U.S. ex rel.
Lockyer v. Hawaii Pacific Health, 490 F. Supp. 2d 1062, 1081
(D. Haw. 2007), the federal court quoted the Hawaii Supreme
Court in Ross v. Stouffer Hotel Co. (Hawai‘i) Ltd., Inc., 76
Haw. 454, 879 P.2d 1037 (1994), stating:
“Absent a clear expression of legislative intent to the con-
trary, we think it is both unnecessary and unwise to per-
mit a judicially created cause of action, which is designed
to promote a specific public policy in a ‘narrow class of
cases,’ to be maintained where the policy sought to be
vindicated is already embodied in a statute providing its
own remedy for its violation.”
The proposition has been widely recognized elsewhere.
See, e.g., Tracy v. Northrop Grumman Systems Corp., No.
10-3930, 2011 WL 6965839 (6th Cir. Dec. 21, 2011); Tsahas
v. Community Foundation of Northwest Indiana, Inc., No. 2:21
CV 279, 2023 WL 4763139 (N.D. Ind. July 25, 2023); Jones
v. D.C. Water & Sewer Auth., 943 F. Supp. 2d 90 (D.D.C.
2013); Osborn v. Professional Services Industries Inc., 872 F.
Supp. 679 (W.D. Mo. 1994); Crews v. Memorex Corp., 588 F.
Supp. 27 (D. Mass. 1984); Halbur v. Larson, 14 N.W.3d 363
(Iowa 2024); Wiles v. Medina Auto Parts, 96 Ohio St. 3d 240,
773 N.E.2d 526 (2002); Burnham v. Karl and Gelb, P.C., 252
Conn. 153, 745 A.2d 178 (2000); Makovi v. Sherwin-Williams

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
DIBBERN v. YORK SURGICAL ASSOCS.
Cite as 318 Neb. 928
Co., 316 Md. 603, 561 A.2d 179 (1989); Allen v. Safeway
Stores Inc., 699 P.2d 277 (Wyo. 1985).
Further, it has been observed that a new cause of action
could interfere with the FCA. Commentators have noted that a
new separate cause of action would undermine legislative pref-
erence, lead to duplicative remedies, and interfere with provi-
sions of the FCA such as its “qui tam” opportunities. See David
B. Chaffin & Jonah S. Levinson, The False Claims Acts and
the Public Policy Exception: A Match Not Made in Heaven,
104 Mass. L. Rev. 1, 8 (2023).
As noted, we are inclined to limit the Nebraska exceptions
to at-will employment. We are aware some other state courts
have held to the contrary and created a cause of action under
similar circumstances. See, e.g., Palmer v. Brown, 242 Kan.
893, 900, 752 P. 2d 685, 689-90 (1988) (in Medicaid fraud
setting, “holding termination of an employee in retaliation
for good faith reporting of a serious infliction of such rules,
regulations, or the law by a co-worker or an employer to either
company management or law enforcement officials (whistle-
blowing) is an actionable tort”). Nevertheless, we conclude
that because the existence of the public policy and remedy are
both found in the FCA, and the statutes Dibbern has identi-
fied are too general to meet the standard articulated in Ambroz
v. Cornhusker Square, Ltd., 226 Neb. 899, 416 N.W.2d 510
(1987), it is not necessary for us to create an additional excep-
tion, and accordingly, we decline to recognize a common-law
claim for termination of employment in violation of public
policy in the matter before us. And for completeness, we state
that because no claim based on 31 U.S.C. § 3730(h) was raised
below, we make no comment regarding state concurrent juris-
diction of a case under that section.
CONCLUSION
Because we conclude on the facts of this case that no new
common-law cause of action for termination of employment
in violation of public policy exists where the statute on which

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
DIBBERN v. YORK SURGICAL ASSOCS.
Cite as 318 Neb. 928
the public policy is based provides its own remedy, we con-
clude that the district court should have directed a verdict
and granted YSA’s motion for judgment notwithstanding the
verdict. We reverse the judgment for Dibbern and remand the
cause with direction to enter judgment in favor of YSA.
Reversed and remanded with direction.