SUPREME COURT RULES ON SOVEREIGN IMMUNITY UNDER PSTCA

In Simpson v. Lincoln Public Schools, a former LPS employee sued the District for wrongful discharge alleging that she was terminated because she filed a Workers’ Compensation claim. On appeal, the Nebraska Supreme Court offered a detailed analysis that, among other things, found that sovereign immunity under The Political Subdivision Tort Claims Act (PSTCA) shields against claims for retaliatory discharge arising out of Workers' Compensation claims.

The PSTCA provides sovereign immunity to local governments and political sub-divisions in Nebraska. There are various carve outs to that immunity. One such carve out involves the Nebraska Fair Employment Practice Act (NFEPA). The NFEPA specifically carves out an exception to sovereign immunity for claims of wrongful discharge arising out of race, color, religion, sex, disability, marital status, or national origin.

The Nebraska Supreme Court found that there is no such exception to sovereign immunity in the NFEPA in relation to wrongful discharge arising out of Workers’ Compensation claims. Absent express Legislative authority to the contrary, the Court was unwilling to create such an exception on their own.

In short, the Court held political subdivisions retain their immunity under the discretionary-function exception to the PSTCA for a claim alleging retaliation for filing a workers’ compensation claim. There are still ADA considerations, of course. But the case seems to foreclose any pure workers’ compensation retaliation claim against a political subdivision.

Public-sector employers must remain cognizant of issues and obligations arising under the Americans with Disabilities Act, Family Medical Leave Act, Nebraska Fair Employment Practice Act, and other legal authorities

If you have questions about claims for a retaliatory discharge for filing a Workers’ Compensation claim or about Workers’ Compensation in general, please reach out to Micah Hawker-Boehnke or Paul Barta at (402) 475-1075.