Khaitov v. Greater Omaha Packing Co.

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
KHAITOV v. GREATER OMAHA PACKING CO.
Cite as 319 Neb. 932
Bakhodir Khaitov, appellant, v. Greater
Omaha Packing Co., Inc., appellee.
___ N.W.3d ___
Filed September 19, 2025. 	No. S-24-581.
1. Jurisdiction: Appeal and Error. The question of appellate jurisdiction
is a question of law.
2. Judgments: Appeal and Error. Appellate review of a ruling on a
motion for directed verdict is de novo on the record.
3. Statutes: Appeal and Error. Statutory interpretation is a question of
law that an appellate court resolves independently of the trial court.
4. Appeal and Error. Plain error is error plainly evident from the record
and of such a nature that to leave it uncorrected would result in damage
to the integrity, reputation, or fairness of the judicial process.
5. Jurisdiction: Appeal and Error. Before reaching the legal issues
presented for review, it is the duty of an appellate court to determine
whether it has jurisdiction over the matter before it.
6. Jurisdiction: Final Orders: Appeal and Error. Read together, Neb.
Rev. Stat. § 25-1911 (Reissue 2016) and Neb. Rev. Stat. § 25-1912
(Cum. Supp. 2024) generally prescribe that for an appellate court to
acquire jurisdiction of an appeal, the party must be appealing from
either a judgment or decree rendered or from a final order.
7. Final Orders: Appeal and Error. To constitute a final order under
Neb. Rev. Stat. § 25-1902(1)(a) (Cum. Supp. 2024), three require-
ments must be met: The order must (1) affect a substantial right, (2)
be entered in an action, and (3) effectively determine the action and
prevent a judgment.
8. Final Orders. To be a final order under Neb. Rev. Stat. § 25-1902(1)(a)
(Cum. Supp. 2024), an order must dispose of the whole merits of the
case and must leave nothing for further consideration of the court.
9. ____. When an order in an action completely disposes of the subject
matter of the litigation, it affects a substantial right with finality because
it conclusively determines a claim or defense.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 08:05 AM CDT

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
KHAITOV v. GREATER OMAHA PACKING CO.
Cite as 319 Neb. 932
10. Statutes. Statutory interpretation begins with the text, and the text is to
be given its plain and ordinary meaning.
11. Statutes: Legislature: Intent. The fundamental objective of statutory
interpretation is to ascertain and carry out the Legislature’s intent.
12. Legislature: Intent. Legislative intention is to be determined from a
general consideration of the whole act with reference to the subject mat-
ter to which it applies and the particular topic under which the language
in question is found, and the intent as deduced from the whole will
prevail over that of a particular part considered separately.
13. Pleadings. An affirmative defense raises a new matter which, assuming
the allegations of the complaint to be true, constitutes a defense to the
merits of a claim.
14. ____. An affirmative defense generally avoids, rather than negates, the
plaintiff’s prima facie case.
15. Pleadings: Appeal and Error. An affirmative defense must be raised
in the party’s responsive pleading to be considered in the trial court and
on appeal.
16. Pleadings: Proof. The burden of both pleading and proving affirmative
defenses is upon the defendants, and when they fail to do so, they cannot
recover upon mere argument alone.
17. Statutes. When a statute has exemptions laid out apart from the prohibi-
tions, and the exemptions expressly refer to the prohibited conduct, the
exemptions ordinarily constitute affirmative defenses that are entirely
the responsibility of the party raising them.
18. ____. Nebraska follows the common-law rule of statutory construction
that where a party relies upon a statute which contains an exception in
the enacting clause, such exception must be negatived; but where the
exception occurs in a proviso or in a subsequent section of the act, such
exception is matter of defense and need not be negatived.
19. Courts: Legislature: Statutes: Presumptions. Courts presume the
Legislature is conversant with the established rules of statutory con-
struction and considers such rules when enacting legislation.
20. Fair Employment Practices: Pleadings: Proof. The exception in Neb.
Rev. Stat. § 48-1114(2)(e) (Reissue 2021) is an affirmative defense that
an employer must both plead and prove in an action alleging a violation
of § 48-1114(1)(d).
21. Appeal and Error. An appellee’s argument that a lower court’s decision
should be upheld on grounds specifically rejected below constitutes a
request for affirmative relief, and the appellee must cross-appeal for that
argument to be considered.
22. ____. An appellate court always has the option to notice plain error
that was not complained of at trial or on appeal but that is plainly

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
KHAITOV v. GREATER OMAHA PACKING CO.
Cite as 319 Neb. 932
evident from the record and is of such a nature that to leave it uncor-
rected would result in damage to the integrity, reputation, or fairness of
the judicial process.
23. Judgments: Verdicts. Entering judgment in conformity with the ver-
dict under Neb. Rev. Stat. § 25-1313 (Cum. Supp. 2024) is a ministe-
rial duty.
24. Judgments: Verdicts: Directed Verdict. Under the terms of Neb. Rev.
Stat. § 25-1315.02 (Reissue 2016), where a motion has been made at
the close of all of the evidence for a directed verdict, which motion
should have been sustained but was overruled and the case was sub-
mitted to a jury which returned a verdict contrary to the motion, and a
motion for judgment notwithstanding the verdict is duly filed, it is the
duty of the court to sustain the motion and render judgment in accor-
dance with the motion for a directed verdict.
25. ____: ____: ____. The requirement to file a timely motion for judg-
ment notwithstanding the verdict is not removed just because the court
expressly reserved ruling on a motion for directed verdict before submit-
ting the case to the jury.
26. ____: ____: ____. Under the framework of Neb. Rev. Stat.
§ 25-1315.02 (Reissue 2016), even when a trial court expressly
reserves ruling on a motion for directed verdict at the close of all the
evidence and submits the matter to the jury, a timely motion for judg-
ment notwithstanding the verdict is required for a court to engage in
a later determination of the legal questions raised in an earlier motion
for directed verdict.
27. Judgments: Verdicts: Directed Verdict: Time. The plain language of
Neb. Rev. Stat. § 25-1315.02 (Reissue 2016) makes it wholly unneces-
sary for a trial court to expressly reserve the decision on a motion for
directed verdict made at the close of all the evidence, because the statute
makes the reservation automatic, subject to the filing of a motion for
judgment notwithstanding the verdict no later than 10 days after the
entry of judgment.
Appeal from the District Court for Douglas County: Peter
C. Bataillon, Judge. Reversed and remanded with directions.
Michael L. Moran and Adam P. Smith, of McGrath, North,
Mullin & Kratz, P.C., L.L.O., for appellant.
Daniel J. Fischer, of Koley Jessen, P.C., L.L.O., for appellee.

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
KHAITOV v. GREATER OMAHA PACKING CO.
Cite as 319 Neb. 932
Funke, C.J., Cassel, Stacy, Papik, Freudenberg, and
Bergevin, JJ.
Stacy, J.
In this action for wrongful termination under the Nebraska
Fair Employment Practice Act (NFEPA), 1 Bakhodir Khaitov
appeals from an order granting his former employer’s motion
for directed verdict at the close of all the evidence. Khaitov’s
lawsuit alleged his employer retaliated against him, and even-
tually fired him, because he discussed his compensation with
his supervisor and asked for an increase in his annual bonus.
Khaitov alleged this violated § 48-1114(1)(d), which makes
it an unlawful employment practice for an employer to dis-
criminate against an employee because he or she “has inquired
about, discussed, or disclosed information regarding employee
wages, benefits, or other compensation.”
The case was tried to a jury. At the close of all the evi-
dence, the employer moved for a directed verdict, arguing
that Khaitov could not establish a violation of § 48-1114(1)(d)
as a matter of law because the conversation about compensa-
tion occurred during working hours and thus fell within an
exception in § 48-1114(2)(e), which states that “[n]othing in
. . . subdivision (1)(d) of this section shall . . . [p]ermit an
employee to discuss information regarding employee wages,
benefits, or other compensation during working hours, as
defined in existing workplace policies, or in violation of spe-
cific contractual obligations.” The court took the motion for
directed verdict under advisement and submitted the case to
the jury.
The jury returned a verdict in favor of Khaitov and awarded
him past lost wages and general damages in the total sum
of $660,000. But the court did not thereafter enter judgment
in conformity with the jury’s verdict and instead treated the
motion for directed verdict as “still under advisement.” The
1 See Neb. Rev. Stat. §§ 48-1101 to 48-1125 (Reissue 2021).

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
KHAITOV v. GREATER OMAHA PACKING CO.
Cite as 319 Neb. 932
court later granted that motion, reasoning that Khaitov failed
to establish a violation of § 48-1114(1)(d) as a matter of law
because he had not presented evidence to “contradict[]” the
exception in § 48-1114(2)(e).
Khaitov appeals the directed verdict ruling, assigning error
to the district court’s reasoning but not to the postverdict proce-
dure it followed. Khaitov’s primary argument on appeal is that
in a case alleging a violation of § 48-1114(1)(d), the exception
in § 48-1114(2)(e) is an affirmative defense that must be pled
and proved by the employer, not something to be disproved by
the employee.
We moved this appeal to our docket to consider that issue.
In addition, we address the procedure required by Neb. Rev.
Stat. § 25-1315.02 (Reissue 2016) when a court defers rul-
ing on a motion for directed verdict at the close of all the
evidence and submits the case to the jury. For reasons we
will explain, we reverse the district court’s order granting a
directed verdict and remand the cause for further proceedings
with directions to enter a judgment in conformity with the
jury’s verdict.
I. BACKGROUND
1. Lawsuit
In May 2021, Khaitov filed this civil action against Greater
Omaha Packing Co., Inc. (GOPC), in the district court for
Douglas County. The complaint was styled as three separate
claims, but after a successful motion for judgment on the
pleadings, which Khaitov does not challenge on appeal, only
Khaitov’s NFEPA claim for retaliation and wrongful termina-
tion proceeded to trial.
Regarding that claim, Khaitov alleged he was employed
by GOPC as vice president of finance. In November 2020, he
discovered that his annual performance bonus was less than
the bonuses given to other “peer executives with less respon-
sibility” at GOPC. Khaitov requested a meeting with his

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
KHAITOV v. GREATER OMAHA PACKING CO.
Cite as 319 Neb. 932
supervisor, Henry Davis, who was also the majority owner and
chief executive officer of GOPC, to discuss the situation and
request a larger bonus. Khaitov alleged that after this discus-
sion with Davis, GOPC retaliated against him and eventually
fired him in violation of § 48-1114(1)(d). Khaitov’s complaint
prayed for compensatory damages, including past and future
lost wages, general damages for pain and suffering, attorney
fees, and prejudgment and postjudgment interest.
GOPC’s answer denied retaliating against Khaitov or ter-
minating his employment because he discussed his compensa-
tion with Davis. Instead, GOPC alleged Khaitov either quit
voluntarily or was terminated for performance issues. GOPC’s
answer did not allege that any provision of § 48-1114 provided
an affirmative defense to the action.
2. Jury Trial
A 5-day jury trial was held in December 2023. Consistent
with 	the 	allegations 	in 	his 	complaint, 	Khaitov’s 	theory
at trial was that he engaged in protected conduct under
§ 48-1114(1)(d) by discussing his bonus compensation with
Davis in November 2020 and that GOPC retaliated against
him, eventually terminating his employment for engaging in
such conduct. And consistent with its answer, GOPC’s defense
at trial was that Khaitov either voluntarily resigned or was
terminated for poor work performance.
The evidence at trial showed that Khaitov began work-
ing for GOPC in 2019 and that in July 2020, he was pro-
moted to vice president of finance with an annual salary of
$190,000. While working for GOPC, Khaitov helped modern-
ize the company’s accounting and reporting procedures, and
he was involved with “Project Unicorn”—an internal project
focused on preparing GOPC for a potential sale. Khaitov’s
role within Project Unicorn was to gather financial infor-
mation on GOPC’s performance over the prior 3 years and
provide it to outside consultants so a “Quality of Earnings”
report could be prepared.

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
KHAITOV v. GREATER OMAHA PACKING CO.
Cite as 319 Neb. 932
At the end of each fiscal year, GOPC gave discretionary
performance bonuses to some employees. In 2020, all discre-
tionary bonus decisions were made by department managers
and approved by Davis. Davis shared the list of the annual
performance 	bonuses 	with 	Khaitov, 	whose 	responsibilities
included putting the bonus information on the company’s bal-
ance sheet before the books were closed.
(a) Khaitov Requests Bonus
In September 2020, before the annual discretionary bonuses
for 2020 had been announced, Khaitov sent Davis a letter ask-
ing to be considered for a $500,000 annual bonus. Because
Khaitov’s role required his extensive involvement in Project
Unicorn, Davis instead offered Khaitov a “Change of Control
Bonus Agreement” (Bonus Agreement), under which Khaitov
would receive a $500,000 bonus in the event GOPC was
sold—assuming he remained employed at GOPC. Khaitov
accepted the offer and signed the Bonus Agreement on October
6, 2020. Pursuant to its terms, any amendment to the Bonus
Agreement required the consent of both parties.
(b) Khaitov Requests Additional Bonus
In November 2020, Davis made decisions about the 2020
bonuses and gave the list to Khaitov. While entering the
bonus information into GOPC’s books, Khaitov noticed that
his bonus was $75,000 and that other salaried executives at
GOPC received higher bonuses. Khaitov requested a meeting
with Davis to discuss the amount of his 2020 bonus in relation
to the other executives.
Khaitov and Davis met at approximately 1 p.m. on Friday,
November 27, 2020. Khaitov described that day as a “regular
workday” at GOPC and said the meeting with Davis occurred
“a little after lunch.” Khaitov recorded the meeting on his cel-
lular phone without Davis’ consent. At trial, an audio recording
of this meeting was introduced into evidence and played for
the jury.

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
KHAITOV v. GREATER OMAHA PACKING CO.
Cite as 319 Neb. 932
During the November 27, 2020, meeting, Khaitov outlined
his contributions to GOPC and asked Davis to consider adjust-
ing his annual bonus to reflect the larger bonuses received by
some of the other salaried executives at GOPC. Several times,
Khaitov said he felt undervalued by Davis; Davis responded
to those concerns by saying things like, “I don’t have one
complaint about you” and “I want you to know I think you’re
unbelievable. You are excellent . . . I think you are very, very
good at what you do, the best I’ve ever seen.” But when
Khaitov asked that his bonus be increased to $200,000, Davis
responded, “You think you’re worth 390[,000]?” Davis told
Khaitov that if he wanted to compare himself to the other
GOPC executives, then perhaps the Bonus Agreement should
be withdrawn. Khaitov replied that he viewed the Bonus
Agreement and the annual bonuses as separate things, adding
that although the $500,000 Bonus Agreement was generous, it
was also a “big if.” Davis then stated, “So you think you’re
worth 690[,000]?” and suggested Khaitov was being “unre-
alistic.” Khaitov asked if a $150,000 annual bonus for 2020
was feasible, and Davis said he would look into comparable
salaries at other companies to decide whether Khaitov was
being undercompensated.
Davis documented the November 27, 2020, meeting in an
email to Khaitov dated the same day. That email recounted
Khaitov’s 	request 	for 	an 	increase 	to 	his 	2020 	bonus
and stated:
You mentioned during our conversation the bonuses
that [other GOPC executives] are to receive this year and
you compared those to yours. You PROMISED me that
the bonus information I gave you would be kept confiden-
tial. I did not expect you to use that information to craft
an argument as to why you deserve a higher bonus.
. . . In addition to using that information in an unpro-
fessional manner you did not factor in the $500,000
that I had offered you in the event of a sale. I am

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
KHAITOV v. GREATER OMAHA PACKING CO.
Cite as 319 Neb. 932
investigating if that type of offer of [$500,000] is com-
mon to someone in a similar position as you.
Davis’ email confirmed that after researching comparable sal-
ary ranges and bonuses agreements, he would decide whether to
adjust Khaitov’s annual performance bonus or propose changes
to the Bonus Agreement. It is undisputed that GOPC did not
thereafter make any adjustments to Khaitov’s bonus for 2020,
but it did propose changes to the Bonus Agreement.
(c) GOPC Seeks to Amend
Bonus Agreement
On April 22, 2021, Khaitov was called into a meeting with
GOPC’s new president, Mike Drury, and GOPC’s in-house
counsel, Mark Theisen. Khaitov once again secretly recorded
this meeting on his cellular phone, and the recording was
received into evidence and played for the jury.
During the April 22, 2021, meeting, Drury and Theisen
asked Khaitov to sign an amended Bonus Agreement, under
which Davis had the sole discretion to decide the amount
of Khaitov’s bonus in the event of a sale. As an explana-
tion for amending the Bonus Agreement, Theisen mentioned
two instances in the prior several months where Davis had
been disappointed in Khaitov’s performance and referred
to “some of the discussions that were held for fiscal year
end 2020 bonuses involv[ing] you and [Davis].” Khaitov
agreed to review the amended Bonus Agreement and left
the meeting.
(d) Khaitov Refuses to Sign Amended
Bonus Agreement
Roughly 1 week later, on Wednesday, April 28, 2021, Khaitov
notified Drury by email that he would not sign the amended
Bonus Agreement, and he requested clarification regarding his
position with GOPC in light of that decision. Drury, Theisen,
and Khaitov had a meeting later that day to address the issue.

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
KHAITOV v. GREATER OMAHA PACKING CO.
Cite as 319 Neb. 932
Khaitov again secretly recorded the meeting, and the recording
was admitted into evidence and played for the jury.
During the April 28, 2021, meeting, Drury told Khaitov that
because he refused to sign the amended Bonus Agreement,
“we’ve come to a crossroads, where we need to have a sepa-
ration.” Drury asked Khaitov to work through the end of the
following week to ease the transition. Khaitov replied that
he did not want to prolong his fate; he requested a termina-
tion letter and left the meeting. With his cellular phone still
recording, Khaitov walked back to his office where he had
another discussion with Drury. In that discussion, Drury told
Khaitov that a termination letter had been drafted recom-
mending that Khaitov stay until Friday of that week. Khaitov
responded, “Okay.”
Drury testified that he understood Khaitov’s response to
mean he was willing to stay and work for 2 additional days,
so he sent an email to Khaitov confirming that understanding.
Khaitov replied to Drury’s email stating that because he had
been terminated, he would be leaving GOPC immediately.
Theisen, who had been copied on the emails, responded
with an email to Khaitov stating it was Khaitov’s decision
to leave.
(e) Motions for Directed Verdict
Once Khaitov rested his case in chief, GOPC moved for
a directed verdict. Outside the presence of the jury, GOPC
argued, for the first time, that Khaitov’s November 2020
discussion with Davis was not protected conduct under
§ 48-1114(1)(d) because it occurred during working hours
and thus fell within the exception in § 48-1114(2)(e), which
states: “(2) Nothing in . . . subdivision (1)(d) of this sec-
tion shall . . . (e) Permit an employee to discuss information
regarding employee wages, benefits, or other compensation
during working hours, as defined in existing workplace poli-
cies, or in violation of specific contractual obligations[.]”

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
KHAITOV v. GREATER OMAHA PACKING CO.
Cite as 319 Neb. 932
GOPC argued the undisputed evidence showed 	that 	the
November 	2020 	discussion 	between 	Khaitov 	and 	Davis
occurred during “a regular workday . . . just after lunch”
and that therefore, Khaitov could not prove a violation
of § 48-1114(1)(d) as a matter of law. The court took the
motion under advisement over the evening recess, explain-
ing, “[T]his is the first time I’ve heard this.”
The next morning, the court overruled GOPC’s motion for
directed verdict without elaborating on its reasoning. GOPC
then rested its case without offering evidence, and Khaitov
had no rebuttal. At the close of all the evidence, GOPC moved
again for a directed verdict on the sole ground that Khaitov’s
discussion with Davis about compensation occurred dur-
ing working hours and therefore was not protected conduct
under § 48-1114(1)(d) because it fell within the exception
in § 48-1114(2)(e). Without hearing additional argument, the
court advised counsel it was taking the renewed motion under
advisement and submitting the case to the jury.
3. Jury Instructions and Verdict
The court’s jury instructions included a definition of “pro-
tected conduct” under the NFEPA that generally recited the
statutory language of both § 48-1114(1)(d) and § 48-1114(2)(e).
On appeal, neither party challenges the jury instructions, so
we do not discuss them further.
After more than 6 hours of deliberation, the jury returned a
general verdict in Khaitov’s favor, awarding him $370,440 in
past lost wages and $289,560 in general damages. The appel-
late record does not include a verbatim transcript of this por-
tion of the trial proceedings, but other entries in the appellate
record indicate the verdict was returned in open court in the
presence of the parties, after which the jury was excused.
The appellate record includes a file-stamped copy of the
completed verdict form, signed by the jurors on December
11, 2023, and entered by the clerk of the district court on

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
KHAITOV v. GREATER OMAHA PACKING CO.
Cite as 319 Neb. 932
December 12. But the appellate record does not contain a
judgment in conformity with the jury’s verdict, 2 and the par-
ties agree that no such judgment was ordered or entered in
this case. Instead, the court advised the parties that GOPC’s
motion for directed verdict was “still under advisement” and
that additional argument on that motion would occur at a
later date.
4. Posttrial Motions
(a) Khaitov’s Posttrial Motion
A few days after the verdict was returned, Khaitov filed
a motion seeking an equitable award of front pay to be
determined by the court and a notice claiming entitlement
to prejudgment interest on the jury verdict under Neb. Rev.
Stat. § 45-103.03 (Reissue 2021). The motion was noticed for
hearing on January 5, 2024, but GOPC successfully moved
to continue that hearing, asserting that Khaitov’s posttrial
filings were “premature” because the court had not yet ruled
on GOPC’s motion for directed verdict at the close of all
the evidence.
(b) GOPC’s Posttrial Motion
Several weeks after the verdict was returned, and before
any judgment had been entered in conformity with the ver-
dict, GOPC filed what it titled in part a “Motion for Ruling
on Pending Motion for Directed Verdict.” This motion was
filed January 5, 2024, and it was taken up at a hearing on
February 1.
At 	the 	hearing, 	GOPC 	relied 	on 	the 	exception 	in
§ 48-1114(2)(e) to argue that employees who want to have
protected discussions about compensation must do so during
“lunch breaks and breaks and things like that.” GOPC again
argued it was entitled to a directed verdict based on evidence
2 See Neb. Rev. Stat. § 25-1313 (Cum. Supp. 2024).

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
KHAITOV v. GREATER OMAHA PACKING CO.
Cite as 319 Neb. 932
that the November 2020 discussion between Khaitov and
Davis occurred during “normal working hours” on a “normal
working day,” and therefore, Khaitov failed to prove the dis-
cussion fell outside the exception.
In 	response, 	Khaitov 	argued 	the 	motion 	for 	directed
verdict 	should 	be 	overruled 	because 	the 	exception 	in
§ 48-1114(2)(e) creates an affirmative defense to an alleged
violation 	of 	§ 	48-1114(1)(d), 	and 	GOPC 	waived 	that
defense by failing to plead or otherwise raise it before trial.
Alternatively, Khaitov argued the evidence presented factual
disputes as to whether the November 2020 discussion with
Davis fell within the exception created by § 48-1114(2)(e),
and therefore the issue was properly submitted to the jury and
could not be decided as a matter of law.
(c) District Court Sustains Motion for Directed
Verdict and Dismisses Action
Approximately 7 months after the jury returned its verdict,
the district court ruled on the motion for directed verdict it
had previously taken under advisement. In a written order
entered July 15, 2024, the court summarily rejected Khaitov’s
argument that the provisions of § 48-1114(2)(e) create an
affirmative defense. Instead, the court treated the exception
in § 48-1114(2)(e) as something Khaitov needed to disprove
in order to establish that he was engaged in protected conduct
under § 48-1114(1)(d). The court reasoned:
This [c]ourt understands the importance of a jury ver-
dict, however, even though the jury considered this issue,
there was no evidence that contradicts [the] fact that
[the November 2020] discussion between [Khaitov] and
[Davis] occurred during “working hours” of [GOPC]. This
[c]ourt cannot ignore that fact. As such, this [c]ourt finds
that this discussion about [Khaitov’s] bonus is excluded
from those discussions [protected under] § 48-1114(1)(d)

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
KHAITOV v. GREATER OMAHA PACKING CO.
Cite as 319 Neb. 932
. . . and there can be no actionable discrimination as to the
discussion regarding wages.
For 	these 	reasons, 	this 	[c]ourt 	sustains 	[GOPC’s]
Motion for Directed Verdict at the conclusion of all
evidence. This [c]ourt does not address the other issues
raised by [GOPC] or [Khaitov] as this ruling resolves this
matter. As such, this matter is hereby dismissed.
Khaitov filed a timely notice of appeal, and we moved the
case to our docket on our own motion. Given the unusual
procedural posture of this appeal, we requested supplemen-
tal briefing addressing our appellate jurisdiction. We also
asked the parties to address whether § 25-1315.02 requires a
timely motion for judgment notwithstanding the verdict as a
necessary prerequisite for a court to reexamine, postverdict,
the legal questions raised by a motion for directed verdict at
the close of all the evidence. Both parties submitted supple-
mental briefs addressing these issues, which we have care-
fully reviewed.
II. ASSIGNMENTS OF ERROR
Khaitov assigns, reordered and restated, that the district
court erred in sustaining GOPC’s motion for directed verdict
based on the exception in § 48-1114(2)(e) because (1) the
exception is an affirmative defense that GOPC failed to plead
or otherwise raise before trial and therefore waived and (2)
even if the exception is not an affirmative defense, the evi-
dence at trial created a factual issue for the jury as to whether
the exception applied.
III. STANDARD OF REVIEW
[1] The question of appellate jurisdiction is a question
of law. 3
3 Saint James Apt. Partners v. Universal Surety Co., 316 Neb. 419, 5
N.W.3d 179 (2024).

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
KHAITOV v. GREATER OMAHA PACKING CO.
Cite as 319 Neb. 932
[2] Appellate review of a ruling on a motion for directed
verdict is de novo on the record. 4
[3] Statutory interpretation is a question of law that an
appellate court resolves independently of the trial court. 5
[4] Plain error is error plainly evident from the record and
of such a nature that to leave it uncorrected would result in
damage to the integrity, reputation, or fairness of the judi-
cial process. 6
IV. ANALYSIS
1. Jurisdiction
[5] Before reaching the legal issues presented for review, it
is the duty of an appellate court to determine whether it has
jurisdiction over the matter before it. 7 Khaitov has appealed
from an order granting a motion for directed verdict made at
the close of the evidence and dismissing the action, but the
procedural posture is unusual because the order was entered
after the jury had returned a verdict in favor of Khaitov.
We have found no Nebraska appellate case addressing a
similar circumstance. Although we address the propriety of
the court’s procedure later in our opinion, we must first
determine whether we have jurisdiction to review the order
being appealed.
[6] Neb. Rev. Stat. § 25-1911 (Reissue 2016) states that “[a]
judgment rendered or final order made by the district court
4 See State v. Bruna, 12 Neb. App. 798, 829, 686 N.W.2d 590, 615 (2004)
(“[w]hether a trial court should have granted a motion for directed
verdict at the close of the State’s case is a question of law, regarding
which an appellate court must reach a conclusion independent of the
determination reached by the court below”). Accord 132 Ventures v. Active
Spine Physical Therapy, 318 Neb. 64, 13 N.W.3d 441 (2024) (holding that
appellate review of ruling on motion for judgment notwithstanding verdict
is de novo on the record).
5 State v. Perry, 318 Neb. 613, 17 N.W.3d 504 (2025).
6 State ex rel. Hilgers v. Evnen, 318 Neb. 803, 19 N.W.3d 244 (2025).
7 Id.

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may be reversed, vacated, or modified for errors appearing
on the record.” Neb. Rev. Stat. § 25-1912 (Cum. Supp. 2024)
describes the procedure for obtaining a “reversal, vacation,
or modification of judgments and decrees rendered or final
orders made by the district court.” Together, these statutes
generally prescribe that for an appellate court to acquire juris-
diction of an appeal, the party must be appealing from either a
judgment or decree rendered or from a final order. 8
Here, the parties agree the district court did not enter a
judgment in conformity with the jury’s verdict, 9 and the
appellate record does not contain any signed written docu-
ment styled as a judgment under Neb. Rev. Stat. § 25-1301
(Cum. Supp. 2024). Instead, Khaitov has appealed from an
order that granted a directed verdict in favor of GOPC and
dismissed the action, but the order was entered after the jury
returned a verdict in favor of Khaitov and awarded monetary
damages. The threshold jurisdictional question presented by
these unusual facts, then, is whether Khaitov has appealed
from a final order.
Neb. Rev. Stat. § 25-1315.03 (Reissue 2016) expressly
states that an order “entering judgment as provided in section
25-1315.02 . . . is an appealable order.” Section 25-1315.02,
in turn, refers broadly to motions for directed verdict made
at the close of all the evidence, motions for judgment not-
withstanding the verdict, and motions for new trial. We
do not appear to have previously applied the provisions of
§ 25-1315.03 to find that an order granting a motion for
directed verdict made at the close of all the evidence is final
and appealable. But we need not decide the issue in this case
8 See Czech v. Allen, 318 Neb. 904, 21 N.W.3d 1 (2025). But see Neb.
Rev. Stat. § 25-1315 (Reissue 2016) (when more than one claim for relief
is presented in action, or when multiple parties are involved, court may
direct entry of final judgment as to one or more but fewer than all of
claims or parties under specified circumstances).
9 See § 25-1313.

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either, because we conclude the order at issue is a final order
under Neb. Rev. Stat. § 25-1902 (Cum. Supp 2024).
[7,8] In their supplemental briefing, both parties suggest
the order granting a directed verdict was a final order under
§ 25-1902(1)(a), and we agree. To constitute a final order
under § 25-1902(1)(a), three requirements must be met: The
order must (1) affect a substantial right, (2) be entered in an
action, and (3) effectively determine the action and prevent
a judgment. We have also said that to be a final order under
this category, an order “‘must dispose of the whole merits
of the case and must leave nothing for further consideration
of the court.’” 10 Although orders meeting all these require-
ments are rare, 11 we have no difficulty concluding the order
of July 15, 2024, which directed a verdict in favor of GOPC
and dismissed the action in its entirety, is a final order
under § 25-1902(1)(a).
[9] When an order in an action completely disposes of the
subject matter of the litigation, it affects a substantial right
with finality because it conclusively determines a claim or
defense. 12 The court’s July 15, 2024, order was entered in
an action brought under the NFEPA, it affected Khaitov’s
substantial rights with finality by directing a verdict in favor
of GOPC and dismissing the action in its entirety, and it
effectively determined the action and prevented the entry
10 See O’Connor v. Kaufman, 255 Neb. 120, 122, 582 N.W.2d 350, 353
(1998) (quoting Rohde v. Farmers Alliance Mut. Ins. Co., 244 Neb. 863,
509 N.W.2d 618 (1994)).
11 See, generally, D&M Roofing & Siding v. Distribution, Inc., 316 Neb. 952,
7 N.W.3d 868 (2024). See, also, John P. Lenich, What’s So Special About
Special Proceedings? Making Sense of Nebraska’s Final Order Statute, 80
Neb. L. Rev. 239, 324 (2001) (noting it is “extremely difficult to envision
an order that would satisfy all three requirements” of § 25-1902(1)(a)).
12 See Schaaf v. Schaaf, 312 Neb. 1, 6, 978 N.W.2d 1, 7 (2022) (“[a]n order
that completely disposes of the subject matter of the litigation in an
action or proceeding both is final and affects a substantial right because it
conclusively determines a claim or defense”).

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of a judgment in conformity with the jury’s verdict. Having
concluded that the July 15 order directing a verdict in favor
of GOPC was a final order under § 25-1902(1)(a), we turn to
the legal issues presented for appellate review.
2. Ruling on Directed Verdict
Khaitov assigns and argues that the district court’s directed
verdict ruling was erroneous for two reasons. First, he argues
the court erred in treating the exception in § 48-1114(2)(e)
as something Khaitov had to disprove in his case in chief,
rather than an affirmative defense that GOPC had to plead and
prove. Alternatively, Khaitov argues that even if the exception
in § 48-1114(2)(e) is not an affirmative defense, the evidence
at trial created a jury issue as to whether the compensation
discussion between Khaitov and Davis fell within the excep-
tion, so the matter was properly submitted to the jury. Because
we find Khaitov’s first assignment is dispositive, we do not
address his second assignment.
(a) § 48-1114(2)(e) Is Affirmative Defense
Khaitov’s primary argument on appeal is that the provisions
of § 48-1114(2)(e) create an affirmative defense to a claim of
wrongful termination under § 48-1114(1)(d) and that there-
fore, the trial court erred by treating subsection (2)(e) as an
element of Khaitov’s prima facie case. Additionally, relying
on the settled rule that an affirmative defense is waived if not
raised in the party’s responsive pleading, 13 Khaitov argues that
any affirmative defense under § 48-1114(2)(e) was waived by
GOPC because it was not pled in the operative answer and that
GOPC should not have been permitted to raise the defense for
the first time in a motion for directed verdict.
GOPC disagrees. It argues the exception in § 48-1114(2)(e)
is not an affirmative defense, but, rather, is “an integral part
13 See, Haffke v. Signal 88, 306 Neb. 625, 947 N.W.2d 103 (2020); Funk
v. Lincoln-Lancaster Cty. Crime Stoppers, 294 Neb. 715, 885 N.W.2d 1
(2016). See, also, Neb. Ct. R. Pldg. § 6-1108(c) (codified 2008).

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of the definition of protected activity” 14 under § 48-1114(1)(d).
In other words, GOPC contends that to establish his retali-
ation claim under the NFEPA, Khaitov had to prove that
GOPC engaged in an unlawful employment practice under
§ 48-1114(1)(d) and also had to disprove the applicability of
the exception in § 48-1114(2)(e).
These arguments present a very narrow question of statu-
tory interpretation: Do the provisions of § 48-1114(2)(e) cre-
ate an affirmative defense to a claim alleging a violation of
§ 48-1114(1)(d) or state a material element of such a claim?
Stated differently, which party in an action alleging a violation
of § 48-1114(1)(d) bears the burden of proving, or disproving,
the applicability of the exception in § 48-1114(2)(e)?
[10-12] Statutory interpretation begins with the text, and
the text is to be given its plain and ordinary meaning. 15 The
fundamental objective of statutory interpretation is to ascertain
and carry out the Legislature’s intent. 16 Legislative intention is
to be determined from a general consideration of the whole act
with reference to the subject matter to which it applies and the
particular topic under which the language in question is found,
and the intent as deduced from the whole will prevail over that
of a particular part considered separately. 17
[13-16] An affirmative defense raises a new matter which,
assuming the allegations of the complaint to be true, consti-
tutes a defense to the merits of a claim. 18 We have described
an affirmative defense as one that generally avoids, rather
14 Brief for appellee at 21.
15 Johnson v. City of Omaha, ante p. 402, 23 N.W.3d 420 (2025).
16 Dirt Road Development v. Hirschman, 316 Neb. 757, 7 N.W.3d 438
(2024).
17 See Johnson, supra note 15.
18 See, Haffke, supra note 13; Salem Grain Co. v. City of Falls City, 302
Neb. 548, 924 N.W.2d 678 (2019); Armstrong v. Clarkson College, 297
Neb. 595, 901 N.W.2d 1 (2017).

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than negates, the plaintiff’s prima facie case. 19 An affirmative
defense must be raised in the party’s responsive pleading to
be considered in the trial court and on appeal. 20 As we have
explained, “The burden of both pleading and proving affirma-
tive defenses is upon the defendants, and when they fail to do
so, they cannot recover upon mere argument alone.” 21
[17] When considering whether the Legislature intended
the provisions of § 48-1114(2)(e) to constitute an affirmative
defense, additional rules of statutory construction inform our
analysis. The U.S. Supreme Court has long relied on a gen-
eral rule of statutory construction that “the burden of proving
justification or exemption under a special exception to the
prohibitions of a statute generally rests on one who claims
its benefits.” 22 This rule of construction is based on “the
familiar principle that [w]hen a proviso . . . carves an excep-
tion out of the body of a statute or contract those who set up
such exception must prove it.” 23 More specifically, “when a
statute has exemptions laid out apart from the prohibitions,
and the exemptions expressly refe[r] to the prohibited con-
duct . . . , the exemptions ordinarily constitute affirmative
defense[s] that are entirely the responsibility of the party rais-
ing them.” 24 Because this “longstanding convention is part of
the backdrop against which the Congress writes laws,” 25 the
19 Haffke, supra note 13; Salem Grain Co., supra note 18.
20 See Funk, supra note 13. See, also, § 6-1108(c).
21 Funk, supra note 13, 294 Neb. at 728, 885 N.W.2d at 11.
22 Cunningham v. Cornell Univ., 604 U.S. 693, 701, 145 S. Ct. 1020, 221
L. Ed. 2d 591 (2025) (internal quotation marks omitted). Accord NLRB v.
Kentucky River Community Care, Inc., 532 U.S. 706, 121 S. Ct. 1861, 149
L. Ed. 2d 939 (2001); Trade Comm’n v. Morton Salt Co., 334 U.S. 37, 68
S. Ct. 822, 92 L. Ed. 2d 1196 (1948).
23 Meacham v. Knolls Atomic Power Laboratory, 554 U.S. 84, 91, 128 S. Ct.
2395, 171 L. Ed. 2d 283 (2008) (internal quotation marks omitted).
24 Cunningham, supra note 22, 604 U.S. at 701 (internal quotation marks
omitted).
25 Meacham, supra note 23, 554 U.S. at 91.

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U.S. Supreme Court follows this rule of construction absent
“compelling reasons to think that Congress meant to put the
burden of persuasion on the other side.” 26
[18,19] Nebraska has long followed a similar rule when
construing statutes to determine whether an exception presents
a matter to be proved by the defense or disproved by the plain-
tiff. More than a century ago, we endorsed the common-law
rule of statutory construction that “‘[w]here a party relies upon
a statute which contains an exception in the enacting clause,
such exception must be negatived; but where the exception
occurs in a proviso or in a subsequent section of the act, such
exception is matter of defense and need not be negatived.’” 27
And like the U.S. Supreme Court, Nebraska courts presume
the Legislature “is conversant with the established rules of
statutory construction” 28 and considers such rules when enact-
ing legislation.
Applying these rules of construction, we first consider the
structure of § 48-1114. The enacting clause is contained in
subsection (1) of § 48-1114, which currently identifies four
unlawful employment practices in subdivisions (1)(a) through
(d). As relevant here, subdivision (1)(d) provides that it shall
be an unlawful employment practice to discriminate against
any employee because he or she
has inquired about, discussed, or disclosed information
regarding employee wages, benefits, or other compensa-
tion. This subdivision (d) shall not apply to instances in
which an employee who has authorized access to the infor-
mation regarding wages, benefits, or other compensation
26 Id., 554 U.S. at 91-92.
27 Cram v. Chicago, B. & Q. R. Co., 85 Neb. 586, 589, 123 N.W. 1045, 1046
(1909).
28 Id. at 592, 123 N.W. at 1047. See, also, Aguilar v. Valdez-Mendoza, 318
Neb. 402, 409, 16 N.W.3d 130, 135 (2025) (recognizing that “[i]n enacting
a statute, the Legislature . . . is presumed to know and contemplate the
legal effect that accompanies the language it employs to make effective
the legislation”).

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of other employees as a part of such employee’s job func-
tions discloses such information to a person who does
not otherwise have authorized access to such information,
unless such disclosure is in response to a charge or com-
plaint or in furtherance of an investigation, proceeding,
hearing, or other action, including an investigation con-
ducted by the employer. 29
Because subdivision (1)(d) contains an exception within the
enacting clause, that exception is one an employee must
negate in an action alleging a violation of § 48-1114(1)(d).
And though GOPC did not seek a directed verdict on the
basis of the exception in § 48-1114(1)(d), we note the evi-
dence established that Khaitov had access to the information
about other employees’ bonuses as part of his job functions,
and there was no evidence that he disclosed such information
to anyone who did not otherwise have authorized access to
the information.
Subsection (2) of § 48-1114 is a proviso to the unlawful
employment practice identified in subdivision (1)(d), and
it contains six exceptions in subsections (2)(a) through (f).
As relevant here, subsection (2)(e) provides that nothing in
subdivision (1)(d) shall “[p]ermit an employee to discuss
information regarding employee wages, benefits, or other
compensation during working hours, as defined in existing
workplace policies, or in violation of specific contractual
obligations[.]” 30
Because the exception in § 48-1114(2)(e) is found in a
subsection that is separate from the enacting clause, Khaitov
is correct that the exception in § 48-1114(2)(e) is a matter
of defense that must be pled and proved by the employer. 31
This conclusion is supported not only by the structure of the
statute and the common-law rule of statutory construction,
29 § 48-1114(1)(d).
30 § 48-1114(2)(e).
31 See Cram, supra note 27.

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but also by the fact that the exception in § 48-1114(2)(e) raises
a new matter that avoids, rather than negates, a claim that the
employer engaged in an unlawful employment practice under
§ 48-1114(1)(d). 32
[20] We therefore hold that the exception in § 48-1114(2)(e) is
an affirmative defense that an employer must both plead and
prove in an action alleging a violation of § 48-1114(1)(d).
Because the record on appeal confirms that GOPC failed to
plead § 48-1114(2)(e) as an affirmative defense in its answer,
that defense was waived and has no applicability to Khaitov’s
claim. Moreover, because GOPC did not raise the applicabil-
ity of § 48-1114(2)(e) until after Khaitov rested his case in
chief, this is not a case where GOPC can successfully claim
the affirmative defense was tried by the express or implied
consent of the parties under Neb. Ct. R. Pldg. § 6-1115(b)(2)
(codified 2008) and should be treated as if it were raised in
the pleadings. Having failed to plead the affirmative defense,
GOPC waived it and should not have been permitted to raise
the defense by argument alone. 33
The trial court erred in granting GOPC’s motion for directed
verdict based on § 48-1114(2)(e), and we therefore reverse the
order and remand the cause with directions to enter a judgment
in conformity with the jury’s verdict and to thereafter take up
any timely posttrial motions filed by the parties.
(b) Parties’ Other Arguments
In addition to arguing over whether § 48-1114(2)(e) is
an affirmative defense, the parties’ appellate briefs pres-
ent broader arguments about the proper scope and meaning
of the language in § 48-1114(1)(d) and (2)(e). But hav-
ing already determined that § 48-1114(2)(e) is an affirma-
tive defense that was waived and therefore has no appli-
cation to this case, disposition of this appeal does not
32 See Funk, supra note 13.
33 See id.

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require that we more broadly construe the language of either
§ 48-1114(1)(d) or § 48-1114(2)(e), and we leave such mat-
ters for another day. 34
[21] We also decline to address GOPC’s argument that
even if it was error to grant the directed verdict based on
§ 48-1114(2)(e), the order should nevertheless be affirmed “on
the separate and independent ground” 35 that § 48-1114(1)(d)
was not intended to “protect employees who ask for more
money.” 36 GOPC raised a similar argument in support of its
motion for summary judgment, and the trial court rejected it.
An appellee’s argument that a lower court’s decision should
be upheld on grounds specifically rejected below constitutes
a request for affirmative relief, and the appellee must cross-
appeal for that argument to be considered. 37 GOPC has not
cross-appealed to challenge the summary judgment ruling, and
its motion for directed verdict at the close of all the evidence
was based exclusively on the exception in § 48-1114(2)(e).
Because GOPC’s argument regarding the proper scope and
construction of § 48-1114(1)(d) has not been preserved for
appellate review, we do not address it.
3. Postverdict Procedure Was Improper
[22] Neither party challenges the unusual postverdict pro-
cedure followed by the court, but we choose to address it on
plain error review. An appellate court always has the option
to notice plain error that was not complained of at trial or
on appeal but that is plainly evident from the record and is
of such a nature that to leave it uncorrected would result
34 See Ronnfeldt Farms v. Arp, 317 Neb. 690, 11 N.W.3d 371 (2024)
(noting appellate courts are not obligated to engage in analysis that is not
necessary to adjudicate case and controversy before them).
35 Brief for appellee at 23.
36 Id. at 24.
37 State v. Jennings, 308 Neb. 835, 957 N.W.2d 143 (2021); Weaver v.
Weaver, 308 Neb. 373, 954 N.W.2d 619 (2021).

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in damage to the integrity, reputation, or fairness of the judi-
cial process. 38
To be clear, our plain error review is limited to the court’s
postverdict procedure and does not concern the court’s pre-
verdict decision to take the motion for directed verdict under
advisement and submit the case to the jury. Deferring ruling on
such a motion is a sound practice that is both contemplated by
§ 25-1315.02 and generally encouraged by appellate courts. 39
As one commentator explains:
Even at the close of all the evidence, it may be desir-
able to refrain from granting a motion for [directed
verdict] despite the fact that it would be possible for the
district court to do so. If [a directed verdict] is granted
and the appellate court holds that the evidence in fact
was sufficient to go to the jury, an entire new trial must
be had. If, on the other hand, the trial [court] submits
the case to the jury, even though [it] thinks the evidence
insufficient, final determination of the case is expedited
greatly. If the jury agrees with the trial court’s appraisal
of the evidence, and returns a verdict for the party who
moved for judgment as a matter of law, the case is at
38 See, e.g., Jackson v. Rodriguez, 318 Neb. 657, 18 N.W.3d 408 (2025);
State v. Torres, 300 Neb. 694, 915 N.W.2d 596 (2018); State v. Kantaras,
294 Neb. 960, 885 N.W.2d 558 (2016).
39 See, e.g., Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc., 546 U.S.
394, 405, 126 S. Ct. 980, 163 L. Ed. 2d 974 (2006) (observing that
although trial courts are permitted to grant motions for judgment as matter
of law at close of all evidence, they are “encouraged to submit the case to
the jury, rather than granting such motions”); Samson v. Riesing, 62 Wis.
2d 698, 704, 215 N.W.2d 662, 665 (1974) (noting “where there is a motion
for directed verdict, it is the better practice to reserve the ruling on the
motion and submit the matter to the jury”). Accord 75A Am. Jur. 2d Trial
§ 785 at 405 (2018) (“[t]rial judges, faced with a motion for a directed
verdict in doubtful cases, should submit all issues to the jury, reserving
the prerogative of correcting the jury’s verdict later on a motion for a
judgment notwithstanding the verdict which saves needless retrials if, on
appeal, the appellate court disagrees with the trial judge”).

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an end. If the jury brings in a different verdict, the trial
court can grant a renewed motion for judgment [notwith-
standing the verdict]. Then, if the appellate court holds
that the trial court was in error in its appraisal of the evi-
dence, it can reverse and order judgment on the verdict
of the jury, without any need for a new trial.
For this reason the appellate courts repeatedly have
said that it usually is desirable to take a verdict, and
then pass on the sufficiency of the evidence on a post-
verdict motion. 40
Although the trial court’s decision to take the motion for
directed verdict under advisement and submit the case to the
jury was entirely appropriate, the court and the parties misun-
derstood the effect of that decision under § 25-1315.02, and
that misunderstanding led to a postverdict procedure that was
fundamentally flawed and contrary to Nebraska statute. As
such, although we have already found reversible error in the
court’s ruling on directed verdict, we take this opportunity
to address the proper procedure to be followed when a court
defers ruling on a motion for directed verdict and submits the
case to the jury.
Here, after submitting the case to the jury, the jury returned
a general verdict in Khaitov’s favor, awarding monetary dam-
ages. No party contends there was any defect or irregularity
in the verdict form or in the manner of its return, and the jury
was discharged. 41 The clerk filed the verdict, but the court
did not thereafter order or enter judgment in conformity with
the verdict. 42 Instead, it advised the parties that the motion
for directed verdict was “still under advisement” and that
additional written and oral argument on the motion would be
40 9B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure
§ 2533 at 516-17 (3d ed. 2008).
41 See Neb. Rev. Stat. § 25-1123 (Reissue 2016).
42 See § 25-1313.

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considered at a later date. Several weeks later, GOPC filed
a motion asking for a ruling on the “Pending Motion for
Directed Verdict,” and a hearing was held, after which the
court entered a written order granting the motion for directed
verdict made at the close of all the evidence and dismissing
the case in its entirety.
It is apparent from the procedure just described, and from
the appellate record, that no one questioned the trial court’s
assertion that the preverdict motion for directed verdict was
“still under advisement” after a verdict was returned; every-
one assumed that because the motion had been taken under
advisement, it had to be ruled upon before the court could
decide whether to enter judgment in conformity with the
verdict. But that assumption was incorrect, and it resulted
in a postverdict procedure that was contrary to the gov-
erning statutes.
[23] First, the procedure failed to comply with § 25-1313,
which governs the entry of judgment after a jury trial. Section
25-1313 provides that “[w]hen a trial by jury has been had,
judgment must be ordered by the court and entered upon
the record in conformity to the verdict, unless it is special,
or the court orders the case to be reserved for future argu-
ment or consideration.” Entering judgment in conformity with
the verdict under § 25-1313 is a ministerial duty, 43 and we
43 See, e.g., Webber v. City of Scottsbluff, 155 Neb. 48, 50 N.W.2d 533,
(1951) (recognizing, under prior version of § 25-1313, that clerk had duty
to render judgment in conformity with jury verdict once it was received
and filed); Crete Mills v. Stevens, 120 Neb. 794, 797, 235 N.W. 453, 455
(1931) (noting that once jury verdict was returned, § 25-1313 imposed
duty to enter judgment in conformity therewith and failure to do so “was
the basis for the fundamental error that runs through this proceeding”).
Accord Thompson v. Church, 13 Neb. 287, 289, 13 N.W. 626, 626–27
(1882) (stating that when jury verdict is received “it is the duty of
the justice to render judgment thereon” and such justice “is required
immediately to perform this duty”) (emphasis in original).

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have found plain error in a trial court’s failure to comply with
the directions of § 25-1313 or its alternatives. 44
The parties agree that the trial court failed to order or enter
judgment in conformity with the jury’s verdict, but GOPC sug-
gests the court nevertheless complied with § 25-1313 by treat-
ing the motion for directed verdict as “still under advisement”
and setting the matter for later argument. To the extent GOPC
contends that by taking the motion under advisement the
court “order[ed] the case to be reserved for future argument
or consideration,” 45 as permitted under § 25-1313, we cannot
agree. No such order was entered by the court, and even if it
had been, it would rest on the flawed assumption that when
a court expressly reserves ruling on a motion for directed
verdict made at the close of all the evidence and submits the
case to the jury, it thereby preserves the preverdict motion for
a postverdict ruling even without a timely motion for judg-
ment notwithstanding the verdict. The procedure required by
§ 25-1315.02 does not support such an assumption.
Section 25-1315.02 states, in relevant part:
Whenever a motion for a directed verdict made at
the close of all the evidence is denied or for any reason
is not granted, the court is deemed to have submitted
the action to the jury subject to a later determination
of the legal questions raised by the motion. No later
than ten days after the entry of judgment, a party who
has moved for a directed verdict may move to have the
verdict and any judgment entered thereon set aside and
to have judgment entered in accordance with the mov-
ing party’s motion for a directed verdict. If the motion
is filed after the announcement of a verdict but before
the entry of judgment, it shall be treated as filed after
44 See Northwestern Public Service Co. v. Juhl, 177 Neb. 625, 129 N.W.2d
570 (1964).
45 § 25-1313.

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the entry of judgment and on the day thereof. If a ver-
dict is not returned, within ten days after the jury is
discharged a party who has moved for a directed verdict
may move for judgment in accordance with the moving
party’s motion for a directed verdict.
(Emphasis supplied.) It appears the parties and the trial court
understood the italicized language quoted above to permit
“later determination of the legal questions raised” on a prever-
dict motion for directed verdict without the need for a timely
filed postverdict motion for judgment notwithstanding the
verdict. Again, this understanding is incorrect. The italicized
language above merely reflects what one legal commentator
has described as a “legal fiction,” explaining:
In effect, [§ 25-1315.02] creates the legal fiction that the
court is not re-examining the facts that were tried by the
jury when it grants a motion for judgment notwithstand-
ing the verdict. It is instead ruling on the legal issue of
whether the evidence is such that a reasonable jury could
only come to one conclusion. . . .
. . . [U]nder the fiction, the post-verdict motion is a
request for a ruling on the pre-verdict motion. 46
[24-26] We have consistently said that under the terms of
§ 25-1315.02,
“where a motion has been made at the close of all of
the evidence for a directed verdict, which motion should
have been sustained but was overruled and the case was
submitted to a jury which returned a verdict contrary to
the motion, and a motion for judgment notwithstanding
the verdict is duly filed, it is the duty of the court to
46 John P. Lenich, Nebraska Civil Procedure § 30:21 at 1455-56 (2025). See,
also, 9B Wright & Miller, supra note 40, § 2522 at 228 (observing that
similar language in Fed. R. Civ. P. 50(b) merely “supplie[s] a fiction to
replace the [necessity of an] express reservation”).

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sustain the motion and render judgment in accordance
with the motion for a directed verdict. 47”
The requirement to file a timely motion for judgment not-
withstanding the verdict is not removed just because the court
expressly reserved ruling on a motion for directed verdict
before submitting the case to the jury. To the contrary, under
the framework of § 25-1315.02, even when a trial court
expressly reserves ruling on a motion for directed verdict at
the close of all the evidence and submits the matter to the jury,
a timely motion for judgment notwithstanding the verdict is
required for a court to engage in a later determination of the
legal questions raised in an earlier motion for directed verdict.
Other courts agree with this interpretation.
In Gilbert v. Cliche, 48 the Maine Supreme Court considered
the effect of a court rule similar to § 25-1315.02. 49 The trial
court in Gilbert submitted the case to the jury without ruling
on the defendant’s motion for directed verdict made at the
close of all the evidence. After the jury returned a verdict
for the plaintiff, and without the defendant’s having filed a
motion for judgment notwithstanding the verdict, the court
stated it had a “‘duty now to rule on the Defendant’s motion
for a directed verdict,’” 50 and it sustained the motion and
entered judgment in favor of the defendant. This procedure
was found to be erroneous on appeal, with the Maine Supreme
Court reasoning:
The presiding Justice believed, as is evident from
his remarks, that since he had submitted the case to
47 Schleusener v. Nebraska Tractor & Equipment Co., 187 Neb. 648, 652–53,
193 N.W.2d 438, 440 (1972) (emphasis supplied). Accord Corbitt v.
Omaha Transit Co., 162 Neb. 598, 77 N.W.2d 144 (1956). See, Weichel v.
Lojka, 185 Neb. 819, 179 N.W.2d 112 (1970); Buick v. Stoehr, 172 Neb.
629, 111 N.W.2d 391 (1961).
48 Gilbert v. Cliche, 379 A.2d 717 (Me. 1977).
49 See Me. R. Civ. P. 50(b).
50 Gilbert, supra note 48, 379 A.2d at 719 (emphasis omitted).

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the jury without ruling on defendant’s motion for a
directed verdict in her favor, that motion remained open
and in need of being ruled upon as such, notwithstand-
ing the supervention of a jury verdict deciding in favor
of the plaintiff.
This was an erroneous view. It overlooked that Rule
50(b) M.R.Civ.P. plainly requires, in addition to the pre-
verdict motion for directed verdict, that a post-verdict
motion be filed invoking the power of the Court to order
entry of judgment notwithstanding the verdict returned by
the jury. 51
The appellate court in Gilbert concluded the trial judge
violated Me. R. Civ. P. 50(b) by entering “judgment for the
defendant in the face of a verdict in favor of [the] plaintiff
without having before him a separate post-verdict motion by
[the] defendant asking that the jury verdict be set aside.” 52
And it found the error was prejudicial to the plaintiff because
it “impaired procedural rights guaranteed” under Me. R. Civ.
P. 50(b). 53
The U.S. Supreme Court reached a similar conclusion in
Johnson v. New York, N. H. & H. R. Co. 54 The defendant in
Johnson moved for a directed verdict at the close of all the
evidence, and the trial court reserved ruling on the motion
and submitted the case to the jury. The jury returned a verdict
for the plaintiff and the court entered judgment accordingly.
The defendant thereafter filed a postverdict motion but did
not file a motion for judgment notwithstanding the verdict
under Fed. R, Civ. P. 50(b). The trial court entered an order
overruling the defendant’s postverdict motion, and in the
same order, purported to overrule the preverdict motion for
51 Id.
52 Id. at 721.
53 Id.
54 Johnson v. New York, N. H. & H. R. Co., 344 U.S. 48, 73 S. Ct. 125, 97 L.
Ed. 77 (1952).

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directed verdict on which it had previously reserved ruling.
The defendant appealed, and the U.S. Court of Appeals for
the Second Circuit reversed, reasoning that the motion for
directed verdict should have been granted by the trial court
in its postverdict ruling. The U.S. Supreme Court determined
that because no timely motion for judgment notwithstand-
ing the verdict had been filed, the trial court had no power
to grant the directed verdict. In doing so, the Court rejected
the suggestion that because the trial judge had reserved rul-
ing on the motion for directed verdict, there was no need to
file a timely motion for judgment notwithstanding the verdict,
reasoning:
Rule 50(b) . . . mak[es] it wholly unnecessary for a
judge to make an express reservation of his decision on
a motion for directed verdict. The rule itself made the
reservation automatic. A court is always “deemed to have
submitted the action to the jury subject to a later deter-
mination” of the right to a direct verdict if a motion for
judgment notwithstanding the verdict is made “within 10
days after the reception of a verdict . . . .” This require-
ment of a timely application for judgment after verdict is
not an idle motion. This verdict solves factual questions
against the post-verdict movant and thus emphasizes the
importance of the legal issues. The movant can also ask
for a new trial either for errors of law or on discretionary
grounds. The requirement for timely motion after verdict
is thus an essential part of the rule, firmly grounded in
principles of fairness. . . . Poor support for its abandon-
ment would be afforded by the mere fact that a judge
makes an express reservation of a decision which the rule
reserves regardless of what the judge does. 55
[27] Like the rules considered by the courts in Johnson
and Gilbert, the plain language of § 25-1315.02 makes it
wholly unnecessary for a trial court to expressly reserve the
55 Id., 344 U.S. at 53 (emphasis supplied).

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decision on a motion for directed verdict made at the close
of all the evidence, because the statute makes the reserva-
tion automatic, subject to the filing of a motion for judgment
notwithstanding the verdict no later than 10 days after the
entry of judgment. In other words, it is the timely filing of
a motion for judgment notwithstanding the verdict that per-
mits the trial court to determine the legal questions raised by
the earlier motion for directed verdict, not the fact that the
court reserved ruling on the motion. This also highlights the
importance of the duty to enter judgment in conformity with
the jury verdict as required by § 25-1313, because the 10-day
period under § 25-1315.02 runs from the entry of judgment
and not the announcement of a verdict. 56
In summary, although it was appropriate for the trial court
to withhold ruling on the motion for directed verdict and
submit the case to the jury, the procedure it followed once
the jury returned its verdict was erroneous. Instead of with-
holding the entry of judgment and treating the motion for
directed verdict as something that was still under advisement,
the court should have entered judgment in conformity with the
jury’s verdict as required by § 25-1313, taken up any timely
postverdict motions filed by the parties, and revisited the legal
issue raised by the motion for directed verdict only if a timely
motion for judgment notwithstanding the verdict was filed as
required by § 25-1315.02.
Our plain error review shows that the postverdict procedure
followed here was erroneous, but a finding that it amounted
to plain error would be warranted only if leaving that pro-
cedure uncorrected would result in damage to the integrity,
reputation, or fairness of the judicial process. 57 And because
56 See § 25-1315.02 (“[i]f the motion is filed after the announcement of a
verdict but before the entry of judgment, it shall be treated as filed after
the entry of judgment and on the day thereof”).
57 See, Jackson, supra note 38; Torres, supra note 38; Kantaras, supra note
38.

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we have already found reversible error in the directed verdict
ruling itself, the flawed procedure utilized to make that rul-
ing will not be left uncorrected. To the contrary, the appel-
late disposition already announced above, and the directions
on remand, will effectively correct the erroneous postverdict
procedure too. So although our plain error review serves to
clarify the proper procedure to follow when a court defers rul-
ing on a motion for directed verdict made at the close of all
the evidence and submits the case to the jury, disposition of
this appeal does not warrant a finding of plain error.
V. CONCLUSION
As a matter of statutory construction, we hold that the
exception in § 48-1114(2)(e) is an affirmative defense that
an employer must both plead and prove in an action alleging
a violation of § 48-1114(1)(d). Because the record on appeal
confirms that GOPC failed to plead § 48-1114(2)(e) as an
affirmative defense, the trial court erred in granting GOPC’s
motion for directed verdict based on § 48-1114(2)(e), and we
therefore reverse that ruling and remand the cause with direc-
tions to enter judgment in conformity with the jury’s verdict
and for further proceedings consistent with this opinion.
Reversed and remanded with directions.
Miller-Lerman, J., not participating.