Court: Nebraska Court of Appeals; December 15, 1992; Nebraska; State Appellate Court
John A. Shaw initiated a wrongful termination lawsuit against The Western Sugar Company, claiming violations of OSHA prohibitions against retaliatory firing, breaches of the company's internal disciplinary procedures, and an oral employment contract. Following Shaw's death, the Nebraska Supreme Court permitted his personal representative to continue the case. Shaw's motion for default judgment was denied by the trial court, which cited Western Sugar's intent to contest the claim, despite their delayed response. The trial proceeded to a jury trial, where the court granted Western Sugar a directed verdict at the close of Shaw's case. On appeal, Shaw contended that the trial court erred in denying the default judgment, granting the directed verdict, and excluding evidence related to his emotional distress. The appellate court affirmed the trial court's decisions, noting that the denial of the default judgment was within the court's discretion and that a directed verdict is appropriate only when no reasonable jury could find in favor of the opposing party. The court emphasized that all evidence should be viewed in favor of the party against whom the verdict is directed. The record indicated Shaw had a long tenure at the company, transitioning to a supervisory role after Western Sugar's acquisition.
Hardened sugar in bins can impede flow to 'glory holes,' necessitating reclamation. At Western Sugar's Scottsbluff facility, this often required workers to enter the bins directly. In June 1986, warehouse packaging coordinator Shaw was responsible for notifying his supervisor about operational issues, supervising packaging lines, and overseeing various tasks. The day before a fatal incident, Shaw informed factory manager Lew Zemanek that a bin had stopped functioning. After being instructed to address the issue, Shaw and a colleague inspected the bin and then proceeded with other duties while workers entered the bin to reclaim sugar. On June 13, 1986, worker Randy Rice suffocated after sliding into a glory hole filled with sugar.
The safety measures historically enforced by Western Sugar varied, and on the day of the accident, no safety belts or lifelines were employed, as there were no dangerous overhangs present. Although safety gear had been utilized in previous years when overhangs were identified, on this occasion, the company had only two operational safety ropes, which were unusable due to missing clips. Following the incident, a Safety Investigation Committee was established to analyze the accident, assuring Shaw that it was not seeking to assign blame. However, after discussing the incident with the committee, Shaw was terminated, which Zemanek attributed to the accident based on his investigation.
Shaw filed a wrongful termination claim based on several theories. He argued that his firing was retaliatory for his intent to cooperate with an impending OSHA investigation, citing 29 U.S.C. 660(c)(1) which prohibits employer retaliation against employees for such cooperation. However, the court noted that there is no private right of action under this statute; instead, employees must file complaints with the Secretary of Labor, who may act on their behalf. Thus, the court correctly dismissed this claim. Shaw also contended that his termination violated Western Sugar's internal disciplinary policy, which mandates non-discriminatory and uniform disciplinary actions.
Progressive disciplinary action is mandated for all offenses, with a hierarchy of steps: 1) Counseling by Supervision (no documentation required), 2) Written Reprimand (documented in employee file), 3) Final Warning (documented), and 4) Discharge (documented). Documentation is permanent and cannot be discarded; however, the Second Step will not be considered after one year and the Third Step after two years since the last infraction. Disciplinary suspension is omitted due to its questionable value, though 'suspension pending review' may be applicable in extreme cases, not exceeding three days, followed by a review that can lead to discharge or lesser reprimand with wage compensation for lost time.
In Shaw's case, the court found that the progressive discipline procedure was not violated because his alleged failure to supervise leading to a fatality constituted a severe offense justifying a higher level of discipline. The court ruled that the disciplinary process was not intended for such severe offenses, aligning with the trial court's conclusion to grant a directed verdict in favor of Western Sugar.
Shaw also claimed he was wrongfully terminated, arguing that his at-will employment was modified by an alleged promise from the Safety Investigation Committee not to fire anyone due to the investigation. Western Sugar maintained that Shaw was at-will without contractual protection and that no binding promises were made. The court supported the view that Shaw was an at-will employee, with discharges permissible except where protected by constitutional interests or specific statutes or contracts. Oral promises can modify at-will employment, but the committee's authority to make such commitments was questioned.
In Renner v. Wurdeman, it was established that an employee can pursue a cause of action for damages if a company’s investigating committee makes an express agreement that is later breached upon termination. However, in this case, Shaw claimed that the committee assured him he would not be fired following its investigation. Testimonies from committee members and other employees indicated that the committee's purpose was to gather facts and that they did not intend to establish blame or trigger firings based on their findings. Shaw’s own account did not substantiate a promise regarding his job security. His termination occurred independently of the committee's investigation, which was ongoing at the time. Consequently, the court found no evidence to support Shaw's claim that his at-will employment status was altered by any promise from the committee, affirming the trial court's decision to grant a directed verdict.
Additionally, Shaw's appeal regarding the exclusion of evidence for emotional distress was addressed. Under Nebraska law, damages for emotional distress are not recoverable in breach of contract claims, as established in Braesch v. Union Ins. Co. and Brunson v. Ranks Army Store. Although other jurisdictions allow emotional distress damages in wrongful termination cases violating public policy, the court found that Shaw's case did not invoke such public policy considerations. Thus, the trial court's exclusion of Shaw's emotional distress evidence was deemed appropriate. The ruling was affirmed.
