Merithew v. City of Omaha

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
MERITHEW v. CITY OF OMAHA
Cite as 319 Neb. 551
George Merithew, appellant, v.
City of Omaha, appellee.
___ N.W.3d ___
Filed July 25, 2025. 	No. S-24-455.
1. Summary Judgment: Appeal and Error. An appellate court reviews
the district court’s grant of summary judgment de novo, viewing the
record in the light most favorable to the nonmoving party and drawing
all reasonable inferences in that party’s favor.
2. ____: ____. An appellate court will affirm a lower court’s grant of sum-
mary 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.
3. Limitations of Actions. The point at which a statute of limitations
begins to run must be determined from the facts of each case.
4. Employer and Employee: Discrimination: Proof. In cases involv-
ing claims of employment discrimination, Nebraska courts recognize a
burden-shifting analysis. First, the plaintiff has the burden of proving
by the greater weight of the evidence a prima facie case of discrimina-
tion. Second, if the plaintiff succeeds in proving the prima facie case,
the burden shifts to the defendant to articulate some legitimate, non-
discriminatory reason for the employee’s rejection. Third, should the
defendant carry the burden, the plaintiff must then have an opportunity
to prove by the greater weight of the evidence that the legitimate reasons
offered by the defendant were not its true reasons, but were a pretext for
discrimination.
5. Summary Judgment. Summary judgment is proper only when the
pleadings, depositions, admissions, stipulations, and affidavits in the
record disclose that there is no genuine issue as to any material fact 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.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 07:54 AM CDT

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
MERITHEW v. CITY OF OMAHA
Cite as 319 Neb. 551
6. Fair Employment Practices: Proof. In order to show retaliation under
the Nebraska Fair Employment Practice Act, a plaintiff must establish
(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.
7. ____: ____. 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. This, in turn,
requires a showing that the employment action might have dissuaded a
reasonable worker from reporting the alleged unlawful practice. To meet
this burden, a plaintiff must demonstrate that the employment action was
material, not trivial, and that it resulted in some concrete injury or harm.
8. Employer and Employee: Words and Phrases. An adverse employ-
ment action is a tangible change in working conditions that produces a
material employment disadvantage.
9. ____: ____. Termination, reduction in pay or benefits, and changes in
employment that significantly affect an employee’s future career pros-
pects are adverse employment actions.
10. Employer and Employee: Termination of Employment: Circumstantial
Evidence. Because an employer is not apt to announce retaliation as its
motive, an employee’s prima facie case in a retaliatory discharge action
is ordinarily proved by circumstantial evidence.
11. Termination of Employment: Time: Proof. In a retaliatory discharge
action, proximity in time between an employee’s protected activity and
discharge of the employee is a typical beginning point for proof of a
causal connection.
12. Employer and Employee: Discrimination: Proof. In cases involving
claims of employment discrimination, the employee may demonstrate
pretext either by showing that the employer’s explanation is unworthy
of credence, because it has no basis in fact, or by persuading the court
that a prohibited reason more likely motivated the employer.
Appeal from the District Court for Douglas County: James
M. Masteller, Judge. Affirmed in part, and in part reversed
and remanded for further proceedings.
Jason M. Bruno, of Sherrets, Bruno & Vogt, L.L.C., for
appellant.
Michelle Peters, Deputy Omaha City Attorney, and Stacey
Hultquist for appellee.

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
MERITHEW v. CITY OF OMAHA
Cite as 319 Neb. 551
Funke, 	C.J., 	Miller-Lerman, 	Cassel, 	Stacy, 	Papik,
Freudenberg, and Bergevin, JJ.
Cassel, J.
I. INTRODUCTION
After George Merithew retired from his employment with
the city of Omaha Police Department (OPD), he sued the City
of Omaha (the City) under the Nebraska Fair Employment
Practice Act (NFEPA) 1 for retaliation. 2 The district court
entered summary judgment in favor of the City, and Merithew
appeals. We affirm the court’s enforcement of a limitations
statute. But because we agree that there are genuine issues of
material fact that preclude summary judgment for unbarred
acts, we otherwise reverse, and remand for further proceedings.
II. BACKGROUND
1. Key Events and Retaliation Allegations
Pursuant to our standard of review, we summarize key
events in the light most favorable to Merithew. We provide
additional background for context, as necessary, with a focus
on the issues raised on appeal. We set forth additional details
in the analysis.
Merithew began his employment as a police officer with
OPD in 1996. He was promoted to sergeant in 2003 and to
lieutenant in 2009. Merithew 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 officer training academy, and serving on the “Legislative
Liaison Committee.” He also assisted with writing OPD’s poli-
cies and procedures manual.
In May 2018, Merithew emailed the City’s human resources
director and reported what he believed to be a violation of the
“Palmer Consent Decree.” Then, in July 2018, he informed
the city council that Todd Schmaderer, the City’s chief of
1 See Neb. Rev. Stat. §§ 48-1101 to 48-1125 (Reissue 2021).
2 See § 48-1114(1).

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
MERITHEW v. CITY OF OMAHA
Cite as 319 Neb. 551
police, had retaliated against him for reporting the alleged
violation, which triggered an investigation into Schmaderer’s
conduct.
Following 	Merithew’s 	complaint 	to 	the 	city 	council,
Schmaderer purportedly instructed officers that he wanted
Merithew “written up for anything and everything” in order to
prompt an investigation on “anything you can find,” and told
them to “get [Merithew] for anything you can.” Meanwhile,
Merithew received a performance appraisal from his direct
supervisor, who rated him “above satisfactory” in all desig-
nated categories.
In September 2019, a fellow lieutenant reported an incident
involving Merithew. The lieutenant alleged that while at a
crowded airport, Merithew recounted a story about a female
promotional candidate at another assessment center, and he
made a comment that the candidate had, “‘for lack of a better
term,’” a “‘real bull dyke persona.’” Merithew denied being a
poor representative of OPD and denied making the comment.
Because it was “[Merithew’s] word against another lieuten-
ant’s word,” OPD declined to take disciplinary action against
Merithew at that time.
Later, another fellow officer reported an incident involving
Merithew that led to an internal investigation. While repre-
senting OPD at a “Shop With A Cop” event, Merithew report-
edly told a Latino child, “We already got rid of all the taco
blankets.” The fellow officer perceived this to be a “racially
charged statement.” Merithew admitted that he attended the
event and handed out blankets to children, but he denied mak-
ing that statement.
Following the investigation, on March 9, 2020, Merithew
received a 20-day suspension.
On April 20, 2020, Merithew filed a charge of discrimination
with the Nebraska Equal Opportunity Commission (NEOC) for
alleged retaliation.
In May 2020, Schmaderer authorized a second internal
investigation after Merithew reportedly “called a subordinate

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
MERITHEW v. CITY OF OMAHA
Cite as 319 Neb. 551
a ‘prick’” on March 29. Merithew 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 Merithew “made a statement
that they perceived meant they were to treat people out west
differently than they were to treat people in east precincts.”
Merithew asserted that the officers misunderstood his state-
ment and disagreed that it had “racial undertones.” Following
the investigation, Schmaderer determined that Merithew’s con-
duct had violated OPD’s policies and procedures and other
applicable rules.
On June 18, 2020, Schmaderer issued a letter recommend-
ing Merithew’s employment be terminated. It outlined the
complaints made by fellow officers to OPD, described the
investigations in detail, and stated that effective that day (June
18), Merithew’s status would be suspended with pay, pending
the outcome of a pretermination hearing. In response to a ques-
tion by counsel whether he terminated Merithew’s employment
instead of “demoting” or reassigning him, Schmaderer testi-
fied, “Yes, [Merithew] was terminated.”
In July 2020, Merithew filed a second charge of discrimina-
tion with the NEOC. He asserted that on June 20—2 days after
receiving the termination letter—he discovered that he was
“locked out of [his] work email” and that “[his] office com-
puter 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.
It is undisputed that Merithew retired from OPD in February
2021, under what the parties refer to as an “Early Delayed
Retirement Option,” which “allowed him to use his leave bal-
ances rather than be terminated.”
2. Lawsuit
In July 2021, Merithew sued the City for damages under
the NFEPA. As relevant here, his amended complaint alleged
that he was “discharged” and subjected to “different terms

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
MERITHEW v. CITY OF OMAHA
Cite as 319 Neb. 551
and conditions of employment” in retaliation for (1) report-
ing 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.
In its answer, the City denied Merithew’s allegations. It
asserted affirmative defenses, including that Merithew was an
at-will employee, that he failed to state a prima facie case of
retaliation, and that some allegations in the complaint were
time barred.
3. Motion for Summary
Judgment and Ruling
The City moved for summary judgment. Following a hear-
ing, the district court entered a judgment, styled as an order,
sustaining the motion and dismissing the action.
The 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
Merithew could not establish all of the prima facie elements
of retaliation. It agreed with Merithew that he had engaged
in protected conduct—both when he reported the alleged con-
sent decree violation in 2018 and when he filed the April
2020 charge of discrimination. However, it rejected Merithew’s
argument that he was “constructively discharged.” It also found
that he failed to produce evidence establishing the causal
connection element. Further, the court reasoned that even if
Merithew could establish a prima facie case, the City presented
legitimate, nondiscriminatory reasons for its actions. It said
that Merithew’s evidence was insufficient to show that the
City’s stated reasons were mere pretext for retaliation.
Merithew filed a timely appeal, which we moved to our
docket. 3
3 See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2024).

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
MERITHEW v. CITY OF OMAHA
Cite as 319 Neb. 551
III. ASSIGNMENTS OF ERROR
Merithew assigns, reordered, that the district court erred in
(1) not considering conduct prior to June 25, 2019; (2) deter-
mining as a matter of law there was no adverse employment
action; (3) finding a lack of causation as a matter of law; and
(4) finding no evidence of pretext as a matter of law.
Merithew also assigns, separately, that the court erred in
granting the motion for summary judgment and dismissing
the case. His argument centers on the court’s finding that he
failed to establish a prima facie case of retaliation. Because this
assignment is subsumed in our analyses of the others, we need
not consider it separately.
IV. STANDARD OF REVIEW
[1,2] An appellate court reviews the district court’s grant of
summary judgment de novo, viewing the record in the light
most favorable to the nonmoving party and drawing all rea-
sonable inferences in that party’s favor. 4 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. 5
V. ANALYSIS
1. Continuing Violation Theory
Argument Fails
[3] In his first assignment, Merithew contends that the
district 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. The date of filing and
the mathematical computation are not disputed. The point at
4 Czech v. Allen, 318 Neb. 904, 21 N.W.3d 1 (2025).
5 Id.

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
MERITHEW v. CITY OF OMAHA
Cite as 319 Neb. 551
which a statute of limitations begins to run must be deter-
mined from the facts of each case. 6
A statute provides that “[a] written charge of violation of
the [NFEPA] shall be filed within three hundred days after the
occurrence of the alleged unlawful employment practice . .
. .” 7 Because there is no dispute as to the date of Merithew’s
filing and the statute is clear, he attempts to avoid the statu-
tory bar.
Merithew 	urges 	us 	to 	apply 	the 	“continuing 	violation
theory,” 8 but we have previously rejected similar arguments.
Merithew relies upon a doctrine of accrual. 9 In the context
of tort claims, we have held that it is not an exception to the
statute of limitations: “It simply allows claims to the extent
that they accrue within the limitations period.” 10 Particularly
relevant here, we have held that this doctrine did not apply to
an alleged violation of the NFEPA for wrongful termination. 11
We explained that because the alleged discriminatory act was
discrete, it must have occurred within the limitations period in
order to be actionable. 12
Merithew points to cases involving hostile work environ-
ment claims that have arrived at a different conclusion. But the
U.S. Supreme Court has soundly rejected applying this doc-
trine to discrete acts claims. “Hostile environment claims are
different in kind from discrete acts. Their very nature involves
repeated conduct.” 13 Because Merithew’s allegations in this
6 See Brown v. Regional West Med. Ctr., 300 Neb. 937, 916 N.W.2d 590
(2018).
7 § 48-1118(2).
8 Brief for appellant at 24.
9 See Alston v. Hormel Foods Corp., 273 Neb. 422, 730 N.W.2d 376 (2007).
10 Id., 273 Neb. at 430, 730 N.W.2d at 383-84.
11 See Brown v. Regional West Med. Ctr., supra note 6.
12 Id.
13 National Railroad Passenger Corporation v. Morgan, 536 U.S. 101, 115,
122 S. Ct. 2061, 153 L. Ed. 2d 106 (2002).

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
MERITHEW v. CITY OF OMAHA
Cite as 319 Neb. 551
case concern discrete acts, the hostile work environment cases
do not control.
We adhere to our prior reasoning and enforce the June 25,
2019, cutoff. This precludes Merithew’s complaint regarding
numerous acts prior to that date. Because there was no fac-
tual dispute and because Merithew’s attempt to circumvent
the statutory bar lacked merit, the question became a matter
of law. The district court correctly determined that all prior
discrete discriminatory acts were untimely filed and no longer
actionable.
2. NFEPA Burden-Shifting Analysis
Merithew’s remaining assignments challenge the court’s
determinations under the framework for analyzing the NFEPA
claims. Here, the standard of review for summary judgment
drives the outcome.
[4] In cases involving claims of employment discrimina-
tion, Nebraska courts recognize a burden-shifting analysis
that originated in McDonnell Douglas Corp. v. Green. 14 First,
the plaintiff has the burden of proving by the greater weight
of the evidence a prima facie case of discrimination. Second,
if the plaintiff succeeds in proving the prima facie case, the
burden shifts to the defendant to articulate some legitimate,
nondiscriminatory reason for the employee’s rejection. Third,
should the defendant carry the burden, the plaintiff must
then have an opportunity to prove by the greater weight
of the evidence that the legitimate reasons offered by the
defendant were not its true reasons, but were a pretext for
discrimination. 15
[5] For reasons we will explain, we conclude that the
court erred in sustaining the City’s motion for summary judg-
ment regarding events not barred by the statute of limitations.
14 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L.
Ed. 2d 668 (1973).
15 See Galloway v. Husker Auto Group, 318 Neb. 178, 14 N.W.3d 218
(2024).

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
MERITHEW v. CITY OF OMAHA
Cite as 319 Neb. 551
Summary judgment is proper only when the pleadings, depo-
sitions, admissions, stipulations, and affidavits in the record
disclose that there is no genuine issue as to any material fact
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. 16
(a) Factual Dispute Exists Regarding
Merithew’s Prima Facie Case
[6] The first step is determining whether the evidence was
sufficient to establish a prima facie case. In order to show
retaliation under the NFEPA, a plaintiff must establish (1) he
or she engaged in protected conduct, (2) he or she was sub-
jected to an adverse employment action, and (3) there was
a causal connection between the protected conduct and the
adverse action. 17
The district court found that Merithew’s evidence showed
two 	“protected 	activities”—reporting 	the 	alleged 	consent
decree violation in 2018 and filing the April 2020 discrimina-
tion charge. Neither party assigns error to that determination.
The primary dispute is whether Merithew was subjected to an
adverse employment action and, if so, whether such action
was causally connected to his protected conduct.
[7] 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. This, in turn, requires a showing that the employ-
ment action might have dissuaded a reasonable worker from
reporting the alleged unlawful practice. To meet this burden,
a plaintiff must demonstrate that the employment action was
material, not trivial, and that it resulted in some concrete injury
or harm. 18
16 Scott v. Lancaster Cty. Sch. Dist. 0001, 318 Neb. 670, 18 N.W.3d 417
(2025).
17 Galloway v. Husker Auto Group, supra note 15.
18 Knapp v. Ruser, 297 Neb. 639, 901 N.W.2d 31 (2017).

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
MERITHEW v. CITY OF OMAHA
Cite as 319 Neb. 551
Merithew maintains that he presented evidence showing
that he was subjected to adverse employment action on several
occasions. He highlights that he was removed from various
roles, which, according to the record, occurred in 2018. Then,
in September 2019, he was “written up.” 19 Beginning on March
9, 2020, he was suspended for 20 days without pay. Finally, in
June 2020, he was “effectively terminated.” 20
We 	disagree 	that 	each 	instance 	constituted 	an 	adverse
employment action for purposes of our analysis. First, the
alleged actions in 2018 cannot form the basis of Merithew’s
claim. We have already determined that any actions by the
City prior to June 25, 2019, were not timely challenged and
thus are not actionable. Further, because the writeup and sus-
pension arguments were not raised below, we do not consider
them. 21 We limit our analysis to Merithew’s contention that he
was effectively terminated.
[8,9] An adverse employment action is a tangible change
in working conditions that produces a material employment
disadvantage. 22 Termination, reduction in pay or benefits, and
changes in employment that significantly affect an employee’s
future career prospects are adverse employment actions. 23
The record shows that a genuine issue of material fact exists.
Although the City argued that because Merithew retired, he
could not meet this element, Schmaderer’s testimony was that
“[Merithew] was terminated.” Merithew presented evidence
that he was suspended after receiving the termination letter,
his work computer was confiscated, and he was no longer
19 Brief for appellant at 15.
20 Id. at 16.
21 See Saylor v. State, 315 Neb. 285, 995 N.W.2d 192 (2023) (appellate court
will not consider argument or theory raised for first time on appeal).
22 Fraternal Order of Police v. County of Douglas, 270 Neb. 118, 699
N.W.2d 820 (2005), modified on denial of rehearing 270 Neb. 469, 745
N.W.2d 883.
23 Id.

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
MERITHEW v. CITY OF OMAHA
Cite as 319 Neb. 551
permitted on his employer’s premises. Viewing the record in
the light most favorable to Merithew and drawing all reason-
able inferences in his favor, a reasonable employee could find
that the City’s action was materially adverse and resulted in
concrete injury or harm. When the evidence is viewed in that
light, there was a tangible change that produced a material
disadvantage.
[10,11] We further conclude that viewed through the sum-
mary judgment lens, the evidence was sufficient regarding a
causal connection. Because an employer is not apt to announce
retaliation as its motive, an employee’s prima facie case in a
retaliatory discharge action is ordinarily proved by circum-
stantial evidence. 24 Proximity in time between an employee’s
protected activity and discharge of the employee is a typical
beginning point for proof of a causal connection. 25
Merithew presented evidence supporting his belief that OPD
had a retaliatory motive. There was evidence that Schmaderer
instructed others to affirmatively look for reasons to report
Merithew, and reports followed shortly thereafter. We find it
significant that Merithew had been an employee of OPD for
nearly 25 years, yet just 2 months elapsed between the first
discrimination charge and the termination letter. This time
period might not be significant in other cases. But here, in
light of Schmaderer’s alleged directive and Merithew’s exten-
sive employment history with OPD, including the satisfac-
tory performance appraisal completed by Merithew’s direct
supervisor around the same time, a reasonable inference of
causation may be drawn in his favor. Here again, the summary
judgment standard, which is highly deferential to the nonmov-
ing party, precluded a legal conclusion that Merithew failed to
establish a prima facie case.
24 O’Brien v. Bellevue Public Schools, 289 Neb. 637, 856 N.W.2d 731
(2014).
25 Id.

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
MERITHEW v. CITY OF OMAHA
Cite as 319 Neb. 551
(b) City’s Justification
The next step of the framework concerns the City’s justifi-
cation. Merithew does not challenge the court’s determination
that the City met its burden to produce evidence of a legiti-
mate, nondiscriminatory reason for its actions. On remand, the
City will be deemed to have met this burden of production.
(c) Factual Dispute Exists Regarding
Allegations of Pretext
Turning to the final step of the framework, Merithew argues
that the district court erred in finding there was no evidence
of pretext as a matter of law. He generally contends that there
was conflicting testimony and evidence that established a
genuine issue of material fact as to whether the City’s reasons
were mere pretext for retaliation. The City maintains that
Merithew cannot show a retaliatory motive by Schmaderer,
when there was a “plethora of evidence” supporting his recom-
mendation of termination. 26
[12] The parties agree that in cases involving claims of
employment discrimination, “[t]he employee may demonstrate
pretext either by showing that the employer’s explanation is
unworthy of credence, because it has no basis in fact, or by
persuading the court that a prohibited reason more likely moti-
vated the employer.” 27
Here again, our standard of review controls. We cannot say
that the City is entitled, as a matter of law, to judgment on this
step of the framework.
Having determined that there are genuine issues as to mate-
rial facts and as to the inferences that may be drawn from
those facts, we conclude that Merithew presented sufficient
evidence, at this stage, to preclude judgment as a matter of
law on Merithew’s burdens to establish a prima facie case and
demonstrate that the City’s justification was pretextual. We
26 Brief for appellee at 30.
27 Hartley v. Metropolitan Util. Dist., 294 Neb. 870, 897, 885 N.W.2d 675,
696 (2016).

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MERITHEW v. CITY OF OMAHA
Cite as 319 Neb. 551
express no opinion regarding the ultimate merits of Merithew’s
retaliation claim.
VI. CONCLUSION
We reject Merithew’s continuing violation theory argument
and conclude that the district court’s decision regarding the
statute of limitations was legally correct. We affirm that part
of the judgment. However, viewing the record in the light
most favorable to Merithew and drawing all reasonable infer-
ences in his favor, we conclude that there were genuine issues
of material fact that precluded summary judgment regarding
(1) whether Merithew was subjected to an adverse employ-
ment action, (2) whether such action was causally connected
to his protected conduct, and (3) whether the City’s stated
reasons were mere pretext for retaliation. We reverse that
part of the district court’s judgment and remand the cause for
further proceedings.
Affirmed in part, and in part reversed and
remanded for further proceedings.