OPD Officer’s Retaliation Claim Survives Motion for Summary Judgment

Summary of Merithew v. City of Omaha, 319 Neb. 551 (2025).

During George Merithew’s more than 25-year career with the Omaha Police Department (OPD), he served in a variety of roles, including police officer, sergeant, and lieutenant. He also contributed beyond patrol duties by serving on the safety review board, teaching courses at the training academy, participating in the legislative liaison committee, and helping draft the OPD’s policies and procedures manual. In March 2020, however, his long-standing tenure with the department was suddenly in jeopardy when he became the subject of two internal investigations based on inappropriate remarks he had allegedly made. Just three months later, his employment was terminated.

While internal investigations followed by termination are not inherently unusual, Merithew filed a retaliation lawsuit against the City of Omaha (the City), alleging that both internal investigations, along with multiple incident reports and his eventual termination, were part of a broader effort to retaliate against him for engaging in protected conduct that began over two years before his termination.

In May of 2018, Merithew contacted the City’s human resources director to report the OPD for potential sex discrimination. Following that report, OPD Police Chief Todd Schmaderer allegedly instructed officers to begin writing up Merithew for “anything and everything.” Between September 2019 and May 2020, Merithew became the subject of several incident reports, all of which he either disputed or denied. During this same period, he received a performance evaluation from his direct supervisor rating him above satisfactory in all categories—a review that appeared to directly contradict the pattern of misconduct alleged in the reports.

In March 2020, Schmaderer authorized the first of two internal investigations into Merithew, stemming from an allegedly inappropriate comment that Merithew denied making. Following that investigation, Merithew filed a retaliation complaint with the Nebraska Equal Opportunity Commission (NEOC) on April 20, 2020.

One month later, Schmaderer authorized a second internal investigation based on another alleged remark. Merithew disputed the accusation, stating that if he had made the comment, it had been mischaracterized. On June 18, 2020, just a month after that investigation, Schmaderer issued Merithew a suspension letter which, according to Schmaderer, functioned as a termination. In July 2021, Merithew filed suit against the City for retaliation.

In response to his claim, the City moved for summary judgment, which the district court granted. The court found that (1) any alleged discriminatory actions taken against Merithew occurred outside the statute of limitations and therefore could not be considered and (2) that Merithew failed to establish all of the prima facie elements of retaliation. On appeal, the Nebraska Supreme Court reviewed the district court’s findings and affirmed in part, but reversed and remanded in part for further proceedings.

The Supreme Court addressed two primary issues on appeal: one concerning the statute of limitations for bringing employment claims under Nebraska law, and the other involving the standards for summary judgment and the burden of proof in employment discrimination cases.

Under Neb. Rev. Stat. § 48-1118(2), an individual bringing a claim under the Nebraska Fair Employment Practice Act (NFEPA) must do so within 300 days of the alleged unlawful employment action. Any conduct occurring outside that window is not independently actionable. Because Merithew filed his discrimination charge with the Nebraska Equal Opportunity Commission on April 20, 2020, the district court concluded that any allegedly discriminatory acts occurring before June 25, 2019 were time-barred. This finding was significant, as it prevented Merithew from asserting Chief Schmaderer’s alleged campaign to subject him to heightened scrutiny and discipline following his 2018 sex discrimination report to the City as a standalone retaliatory act. While such conduct could still be considered as background or circumstantial evidence of retaliatory motive, it could not form the basis of Merithew’s retaliation claim.

On appeal, Merithew sought to avoid this statutory bar by invoking the “continuing violation theory,” which allows plaintiffs to include otherwise time-barred acts if at least one discriminatory act occurred within the limitation period and was connected to the time-barred act(s) as a single, continuing pattern of unlawful conduct. The Nebraska Supreme Court rejected this argument, reaffirming its decision in Brown v. Reg’l West Med. Ctr., 300 Neb. 937, 916 N.W.2d 590, where it held that the continuing violation theory does not apply to “discrete” discriminatory acts, such as wrongful termination. Therefore, Merithew’s attempt to apply such a theory failed, and the district court’s ruling on the matter was affirmed.

Moving to the second issue, the Supreme Court addressed the district court’s general finding that Merithew failed to provide prima facie evidence sufficient to survive summary judgment. When reviewing summary judgment motions in employment discrimination cases, Nebraska courts apply a three-step burden-shifting framework, with each party responsible for providing a specific amount of evidence at each stage to either support or defeat summary judgment.

At the first stage, the plaintiff must establish a prima facie case by offering evidence which, if taken as true, would satisfy all elements of the claim they are asserting. To establish a prima facie case of retaliation, Merithew was required to show that (1) he engaged in protected conduct, (2) he was subjected to an adverse employment action, and (3) there was a causal connection between the two.

For the first element, both parties agreed that Merithew’s 2018 sex discrimination report and his 2020 NEOC discrimination complaint constituted protected conduct.

As for the final two elements, this is where the district court found Merithew’s claim failed. Specifically, it held that there was neither an adverse employment action nor a causal connection, as a matter of law. The Nebraska Supreme Court disagreed on both points.

To qualify as an adverse employment action, the action must be materially adverse, meaning it must cause a “concrete injury or harm.”  Specifically, the adverse employment action must be severe enough that a reasonable worker might be dissuaded from reporting the allegedly unlawful practice. According to the Court, actions such as termination, reductions in pay or benefits, or other employment measures that significantly impact future career prospects fall within this category. In this case, the suspension letter issued to Merithew, which the OPD Police Chief himself described as a termination, was sufficient to meet that threshold.

For the final element, causation, circumstantial evidence linking the protected conduct to the adverse action is sufficient to establish this requirement. In Merithew’s case, the Court identified several facts supporting an inference of causation. Notably, Merithew was fired just two months after filing his first discrimination claim in more than 25 years with the OPD. While a two-month gap may not be significant in isolation, the Court emphasized that when combined with evidence of Schmaderer’s alleged directive to over-discipline Merithew, the subsequent surge in incident reports following that directive, and the contrast with his supervisor’s consistently positive evaluations during the same period, the circumstances supported a sufficient inference of retaliatory causation.

With a prima facie case sufficiently established, the Court moved on to the second step of the analysis, which requires the employer to articulate a legitimate, nondiscriminatory reason for the adverse employment action. In this case, the City met its burden at the district court level, and Merithew did not dispute the proffered justification.

The Court then proceeded to the third and final step of the framework, where the plaintiff must demonstrate that the employer’s stated reason was either factually inaccurate, unworthy of credence, or that retaliation was the more likely explanation. Because Merithew’s causation argument presented sufficient circumstantial evidence which, when viewed in the light most favorable to him, supported an inference of retaliatory intent, the Court found that this element was also satisfied.

Accordingly, the Nebraska Supreme Court concluded that Merithew had produced enough evidence on each element of his retaliation claim to survive summary judgment.