Dossett v. First State Bank, Loomis

Citations: 627 N.W.2d 131; 261 Neb. 959; 2001 Neb. LEXIS 99Docket: S-00-245

Court: Nebraska Supreme Court; June 8, 2001; Nebraska; State Supreme Court

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Betty Lou Dossett appeals a district court's ruling that denied her motion for summary judgment, granted First State Bank's motion for summary judgment, and dismissed her petition with prejudice. The case arises from Dossett’s termination from the bank, which occurred two weeks after she publicly opposed a school district merger at a school board meeting on January 15, 1998. The bank's president cited her remarks as detrimental to the bank's reputation and its community relations in the termination letter dated February 10, 1998.

Dossett's petition, filed on July 28, 1998, claimed her termination violated her constitutional right to free speech under the Nebraska Constitution Article I, Section 5, and also contended a breach of state public policy, though she did not specify which public policy was allegedly violated. She sought damages under Nebraska Revised Statute § 20-148, which provides for civil actions against those who deprive citizens of constitutional rights. 

The bank responded with a demurrer, which the court partially sustained on January 27, 1999, dismissing her public policy claim but allowing the § 20-148 claim to proceed. After the bank filed its answer, asserting a failure to state a cause of action as an affirmative defense, both parties filed cross-motions for summary judgment, which were heard on January 12, 2000. Ultimately, the Supreme Court of Nebraska reversed the district court's decision and remanded for further proceedings.

Nelsen's and Dossett's depositions were accepted as evidence without objection, and no additional evidence was presented at the hearing. Dossett's deposition reiterated previously stated facts, while Nelsen testified that Loomis Public Schools was the bank's largest depositor. Following Dossett's comments on a merger, he met with the superintendent and a board member, concluding they would not continue business with the bank if Dossett remained employed there. 

On January 21, 2000, the district court denied Dossett's motion for summary judgment and granted the bank's motion, ruling that Neb. Rev. Stat. 20-148 was procedural and conferred no substantive rights to Dossett. The court emphasized that her wrongful termination claim, based on an alleged violation of the Nebraska Constitution Article I, Section 5, required proof of state action, which Dossett failed to provide. Consequently, her petition was dismissed.

Dossett appealed, arguing that the district court erred in granting the bank's summary judgment and demurrer regarding her public policy violation claim and in considering the legislative history of 20-148. The appeal raised issues of law concerning the protection of an employee's speech under the Nebraska Constitution, whereby appellate courts independently assess legal conclusions. Summary judgment is appropriate when no genuine material facts are in dispute, and the moving party is entitled to judgment as a matter of law. The court also noted that a summary judgment ruling that sustains one party's motion gives the appellate court jurisdiction to review all related motions.

In her appeal, Dossett contends the district court incorrectly sustained the bank's demurrer on the public policy violation allegations, asserting that her termination for exercising free speech constituted a violation of public policy. She introduced a new argument regarding the public policy embodied in Nebraska's public meetings law.

The public meetings law aims to ensure that public policy is developed during open meetings, as established in Marks v. Judicial Nominating Comm. Dossett's petition failed to identify this public policy or raise related issues in the district court, leading to the appellate court's decision not to consider the argument on appeal. Regarding the bank's motion for summary judgment, Dossett contended that the district court erred in granting it and dismissing her petition with prejudice. The appellate court agreed with her, finding the dismissal erroneous, and thus reversed and remanded for further proceedings.

The bank's motion for summary judgment was treated as a motion for judgment on the pleadings, as it challenged the sufficiency of Dossett's petition rather than asserting no genuine issues of material fact. The appellate court noted that a motion for summary judgment is not the proper vehicle for such a challenge and that the bank's argument essentially necessitated evaluating whether Dossett's petition stated a cause of action.

Dossett claimed her wrongful termination was due to exercising her constitutional right to free speech under Neb. Const. art. I. § 5, making the bank liable under 20-148. The court referenced Goolsby v. Anderson, confirming that 20-148 allows for pursuing certain employment-related claims without needing to exhaust administrative remedies. The district court's reliance on the purpose and legislative history of 20-148 in its summary judgment order was deemed appropriate, reflecting the court's previous interpretations.

Nebraska operates under the employment-at-will doctrine, allowing employers to terminate employees at any time without reason, unless restricted by constitutional, statutory, or contractual provisions. Section 20-148 holds individuals or companies liable for depriving citizens of rights secured by Nebraska law, serving as an alternative method for pursuing civil rights claims. However, it does not create new substantive rights. To succeed under this section in employment cases, a plaintiff must assert rights already established in constitutional or statutory law. 

In the case at hand, the bank argues that Dossett failed to adequately allege wrongful termination linked to her free speech rights under the Nebraska Constitution, which requires demonstrating that her rights were violated by state action. While Nebraska's free speech guarantee parallels the First Amendment, a claim for its violation necessitates state involvement. Consequently, a plaintiff must allege state action to establish a cause of action for infringement of free speech under both the Nebraska Constitution and the federal Constitution.

State courts have consistently held that state action is necessary for claims of free speech violations under their constitutions, similar to federal requirements. The case law cited includes Fiesta Mall Venture v. Mecham Recall Com., Cologne v. Westfarms Associates, Woodland v. Citizens Lobby, SHAD Alliance v. Smith Haven Mall, Eastwood Mall, Inc. v. Slanco, and Jacobs v. Major. Notably, these cases do not involve free speech issues related to wrongful employment discharge, which is the context of the current case.

Upon reviewing Dossett's petition, it is determined that it lacks sufficient allegations of state action necessary to support her claim of wrongful discharge under Neb. Const. art. I. 5. While Dossett claims damages from her termination, she does not specify how her state constitutional rights were violated due to state action. Under Neb. Rev. Stat. 25-804(2), a petition must clearly state the facts constituting the cause of action, which Dossett's petition does not do.

The court recognizes that a motion for judgment on the pleadings should only be sustained when a defect cannot be amended. In this instance, there is a reasonable possibility that Dossett could amend her petition to include sufficient allegations of state action. Therefore, the district court erred in dismissing her petition. 

In conclusion, the district court's summary judgment in favor of the bank is reversed, and the case is remanded for further proceedings, allowing Dossett the opportunity to amend her petition regarding the state action allegations under 20-148. The court's decision on other allegations related to public policy remains unaffected.