by | Sep 23, 2022

The Supreme Court of Nebraska recently decided a case, Dutcher v. Nebraska Department of Corrections, in which it was held that an employee who was fired after receiving workers’ compensation benefits could not bring a wrongful termination action under the Nebraska Fair Employment and Practice Act (hereinafter NFEPA).

In Dutcher, the employee worked for the Nebraska Department of Corrections and had been promoted several times to the point where her role was primarily administrative.  However as part of this role, she also was trained on how to properly take down an inmate during an altercation. The employee testified that very little of her job duties actually had to do with taking down inmates or interacting with inmates in any type of physical fashion.

Both the employer and the employee in Dutcher agreed that the employee sustained a compensable workplace injury. Temporary and permanent benefits were freely paid. All of the employee’s medical bills were covered.  However, for over a year, the employee had to work with work restrictions. Those restrictions prevented her from being able to properly take down an inmate during an altercation. The employee herself testified that she could not, with her current abilities, properly take down an inmate.

A year or so after the accident, the employer sent the employee a letter stating that the employee had 90 days to find a new job or she would be terminated because her work restrictions prevented her from performing an essential function of her job. The employee protested, believing this was a ruse by the employer.

According to the employee, very little of her job had to do with physically interacting with inmates, much less having to take them down. Furthermore, the employee argued that she had been able to work in her current role for over one year without her restrictions posing any issues for her to be able to complete her job effectively. The employee believed that the employer was using her restrictions as an excuse to terminate her because she had a disability.

The employee brought a claim under NFEPA and the Americans with Disabilities Act (hereinafter ADA) for wrongful termination. The claim brought under the ADA was dismissed in Federal Court on unrelated grounds. The claim brought under NFEPA was summarily dismissed by the District Court. The District’s Court reasoning for dismissing the NFEPA claim was that the Nebraska Workers’ Compensation Act provided an exclusive remedy which prevented the employee from bringing a claim under NFEPA. The employee appealed.

The Supreme Court of Nebraska affirmed the District Court’s ruling. The Supreme Court of Nebraska reasoned that nothing in the NFEPA stated that it meant to interact, supersede, or otherwise alter the Nebraska Workers’ Compensation Act. The Nebraska Workers’ Compensation Act in turn provides that any employee entitled to receive compensation under the Act foregoes all other remedies other than what is provided under the Act.

The Nebraska Supreme Court found that under the Nebraska Workers’ Compensation Act, all injuries that arise from and in the course of employment are covered under the Act. The Nebraska Supreme Court reasoned that if an employee is terminated for having a disability caused by a workplace accident, the cause of the termination still arises out of the employee’s workplace injury. The Court recognized the exclusivity provision is “broadly worded” and provided an overview of prior cases applying the provision in a variety of contexts. As such, the employee’s termination for having a disability, caused by a workplace injury would still be subject to the Nebraska Workers’ Compensation Act’s exclusive remedy provision.

Nothing in Dutcher is meant to affect an employee’s rights under the ADA, the Equal Opportunity Commission, or any other act other than the NFEPA. Dutcher only deals with the NFEPA. Whether the exclusivity provision of the Nebraska Workers’ Compensation act applies to other areas of law or causes of action, remains to be seen.

If you have questions regarding how the exclusive remedy under the Nebraska Workers’ Compensation Act might affect your case, please contact Paul Barta or Micah Hawker-Boehnke at 402-475-1075.