McPherson v. City of Scottsbluff , 303 Neb. 765 ( 2019 )


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    08/02/2019 09:06 AM CDT
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    McPHERSON v. CITY OF SCOTTSBLUFF
    Cite as 
    303 Neb. 765
    Ian B. McPherson, appellant, v. City of Scottsbluff,
    in the County of Scotts Bluff, in the
    State of Nebraska, appellee.
    ___ N.W.2d ___
    Filed July 26, 2019.    No. S-18-834.
    1. Summary Judgment: Appeal and Error. An appellate court will
    affirm a lower court’s grant of summary judgment if the pleadings and
    admitted evidence show that there is no genuine issue as to any material
    facts or as to the ultimate inferences that may be drawn from those facts
    and that the moving party is entitled to judgment as a matter of law.
    2. ____: ____. In reviewing a summary judgment, an appellate court views
    the evidence in the light most favorable to the party against whom the
    judgment was granted and gives that party the benefit of all reasonable
    inferences deducible from the evidence.
    3. Fair Employment Practices: Discrimination: Proof. To show a busi-
    ness necessity for requiring an employee (as distinguished from an
    applicant) to submit to a medical examination under Neb. Rev. Stat.
    § 48-1107.02(1)(j) (Cum. Supp. 2018), an employer has the burden to
    show that (1) the business necessity is vital to the business; (2) it has
    a legitimate, nondiscriminatory reason to doubt the employee’s abil-
    ity to perform the essential functions of his or her duties; and (3) the
    examination is no broader than necessary. There must be significant
    evidence that could cause a reasonable person to inquire as to whether
    an employee is still capable of performing his or her job. An employ-
    ee’s behavior cannot be merely annoying or inefficient to justify an
    examination; rather, there must be genuine reason to doubt whether that
    employee can perform job-related functions.
    4. Fair Employment Practices: Proof. A plaintiff must establish a prima
    facie case of retaliation under Neb. Rev. Stat. § 48-1114 (Reissue 2010)
    by showing (1) he or she engaged in protected conduct, (2) he or she was
    subjected to an adverse employment action, and (3) there was a causal
    connection between the protected conduct and the adverse action.
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    McPHERSON v. CITY OF SCOTTSBLUFF
    Cite as 
    303 Neb. 765
    Appeal from the District Court for Scotts Bluff County: Leo
    P. Dobrovolny, Judge. Affirmed.
    Joy Shiffermiller and Abby Osborn, of Shiffermiller Law
    Office, P.C., L.L.O., for appellant.
    Steven W. Olsen and Paul W. Snyder, of Simmons Olsen
    Law Firm, P.C., L.L.O., for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
    Papik, JJ.
    Papik, J.
    Ian B. McPherson was a police officer for the City of
    Scottsbluff, Nebraska (City). After the police chief became
    concerned that McPherson was exhibiting irrational, paranoid,
    and hostile behavior, he asked McPherson to undergo a fitness-
    for-duty examination (FFDE). McPherson refused, and the City
    terminated his employment. McPherson sued, alleging discrim-
    ination and retaliation under the Nebraska Fair Employment
    Practice Act (NFEPA). The district court granted the City’s
    motion for summary judgment. McPherson now appeals.
    As to McPherson’s discrimination claim, we find that based
    on the undisputed evidence in the summary judgment record,
    the City could lawfully require McPherson to undergo an
    FFDE under Neb. Rev. Stat. § 48-1107.02(1)(j) (Cum. Supp.
    2018). And because McPherson alleged that the City retaliated
    against him for expressing disapproval of the actions of his fel-
    low employees, as opposed to his employer, there is no genuine
    issue of material fact as to whether he engaged in protected
    activity pursuant to Neb. Rev. Stat. § 48-1114(3) (Reissue
    2010). Accordingly, we affirm.
    BACKGROUND
    McPherson worked for the City as a patrol officer from
    January 19, 2010, to February 3, 2016, when the City termi-
    nated his employment. The City had no records that McPherson,
    whose job performance met standards, had any disability.
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    McPHERSON v. CITY OF SCOTTSBLUFF
    Cite as 
    303 Neb. 765
    McPherson filed a complaint alleging disability discrimina-
    tion and retaliation under NFEPA. He claimed that the City
    fired him after he reported his belief that members of the police
    department were involved in a break-in on police property. He
    asserted that the City violated NFEPA by requiring him to take
    a FFDE that was not job related and consistent with business
    necessity and by retaliating against him because he opposed
    unlawful practices.
    The City’s answer contended that the FFDE was job
    related and consistent with business necessity and that it fired
    McPherson for insubordination in not submitting to the FFDE
    when ordered. The City moved for summary judgment, and
    McPherson moved for partial summary judgment on liability.
    The district court conducted a hearing on the motions. The evi-
    dence received at the hearing demonstrated that McPherson’s
    termination came about as described below.
    McPherson Raises Concerns
    Regarding Break-In.
    On or about November 3, 2015, the evidence lockers for the
    Scottsbluff Police Department were burglarized. After learning
    about the break-in, McPherson became suspicious that two of
    his colleagues, Officers William Howton and Matthew Herbel,
    were responsible.
    On December 2, 2015, McPherson contacted Brandi Brunz,
    one of the police department’s investigators, and reported that
    he believed Howton and Herbel were involved with the bur-
    glary. Brunz encouraged McPherson to discuss the matter with
    Capt. Brian Wasson.
    That evening, McPherson contacted Wasson, stating that
    he needed to talk to Wasson immediately and needed to “get
    something off of his chest.” At that time, McPherson was
    driving around in Scottsbluff, but he told Wasson he would
    be more comfortable meeting in Gering, Nebraska. Wasson
    agreed to meet in Gering, where McPherson told him that what
    he was about to say would make Wasson think McPherson
    was “crazy” and that it had been bothering him for days, so
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    much so that he had not been eating. McPherson informed
    Wasson that he suspected the burglary of the evidence lock-
    ers was a staged event to compromise a particular homicide
    investigation.
    McPherson explained to Wasson that on the night of the
    burglary, the Scottsbluff chief of police, Kevin Spencer (Chief
    Spencer), had given a speech to a group of nurses and that
    Chief Spencer might have discussed some confidential infor-
    mation about a homicide. McPherson believed that the speech
    referring to the homicide and the burglary of the evidence lock-
    ers the same night were not coincidental. He further said he
    believed that someone had made a “statement” at the burglary
    site by leaving rubbed patterns on a car that was related to the
    homicide investigation.
    McPherson also recalled that the day before the burglary,
    Herbel had asked him to go hunting the next morning, which
    McPherson thought was strange, because Herbel had never
    asked McPherson to go hunting before. McPherson told
    Wasson he believed this was to establish an alibi for the bur-
    glary. McPherson also stated that shortly before the burglary
    was discovered, Howton asked McPherson, “‘Has anything
    big happened yet?’” McPherson considered this suspicious,
    because he did not recall Howton ever asking him something
    like that before.
    McPherson reported to Wasson that soon after the burglary,
    he was driving off duty when he noticed Howton driving
    nearby. Howton pulled over to talk to McPherson. McPherson
    said that when Howton approached him to talk, McPherson
    immediately got the “‘Heebie Jeebies.’” McPherson stated that
    Howton discussed the burglary with him and that McPherson
    felt Howton kept looking over his shoulder “as if he was para-
    noid.” In an affidavit prepared for trial, McPherson asserted
    that Howton appeared tense, was scanning the area, and had his
    hand on his gun during his conversation with McPherson, but
    it is not clear from the affidavit whether McPherson reported
    these details to Wasson.
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    McPherson further described to Wasson an incident earlier
    in the day on December 2, 2015. McPherson stated during
    a conversation about the burglary, Howton asked what was
    going on with the burglary case. McPherson claimed this
    was of significant concern, because it was inconceivable that
    Howton had not already looked at the case file. Howton also
    asked McPherson what the report number was for the burglary
    and what was depicted in a particular crime scene photograph.
    According to McPherson, this was concerning, because he
    claimed that Howton had to have already known this informa-
    tion and was only asking in an attempt to conceal the fact that
    he was involved in the burglary.
    When Wasson asked what motive Howton or Herbel would
    have to burglarize the evidence lockers, McPherson theorized
    that Howton may want to compromise the homicide investiga-
    tion because his brother might have been involved in the homi-
    cide. McPherson’s explanation for suspecting Howton’s brother
    was based on his understanding that the homicide involved
    a homosexual relationship and his suspicion that Howton’s
    brother is gay. McPherson based his suspicion that Howton’s
    brother was gay on his observation that Howton had never
    formally introduced his brother to McPherson. In addition,
    McPherson said Howton’s wife made remarks to McPherson’s
    wife that made McPhersons’ wife suspect Howton’s brother is
    gay. McPherson also pointed out that like an individual in the
    homicide case, Howton and Howton’s brother had previously
    worked in construction.
    McPherson also presented the theory that Howton and
    Herbel were motivated by money. McPherson said that Howton
    makes multiple drug arrests, but that Howton seems to seize
    less money than other officers. McPherson stated that based
    on his knowledge of Howton’s possessions and debts owed
    by Howton’s wife, it does not appear Howton “lives within
    his means.”
    Last, McPherson said perhaps Howton and Herbel wanted
    to make the department look bad, claiming that Howton and
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    Herbel do not like the current police administration. McPherson
    supported this theory by stating he heard the two officers dis-
    cussing the homicide case and that Herbel agreed when Howton
    said, “‘They won’t be able to keep this out of the media.’”
    The next morning, on December 3, 2015, McPherson sent
    an email to other patrol officers asking for extra patrol around
    his house. The email included photographs of shoeprints and
    of circles drawn in the snow. Brunz spoke to McPherson
    about the email, and McPherson told her that he believed the
    circles in the snow were “‘glasses or eyes’” that someone had
    drawn. McPherson also told Brunz that he noticed a patrol car
    driving slowly near his house the night he first reported his
    suspicions about the burglary and that he had trouble sleep-
    ing afterward.
    Wasson drafted a report of his conversations with Brunz and
    McPherson and provided it to Chief Spencer. The report did not
    include any statement by McPherson that Howton had his hand
    on his weapon during the conversation that gave McPherson the
    “Heebie Jeebies.” Wasson’s report caused Chief Spencer to be
    concerned because, according to Wasson’s account, McPherson
    said he had not been eating, the allegations McPherson made
    struck Chief Spencer as bizarre, and the allegations were made
    against McPherson’s self-described friends.
    By this time, investigators had identified a burglary suspect
    through several pieces of evidence. (This suspect eventually
    pleaded guilty to theft charges.) Nevertheless, Chief Spencer
    referred McPherson’s allegations to the Nebraska State Patrol
    via an assistant attorney general for investigation, as he did
    not believe it was appropriate for the department to conduct
    its own investigation. Chief Spencer explained to the assist­
    ant attorney general that he was “concerned about Officer
    McPherson’s wellbeing knowing that he is a war veteran and
    this behavior seemed very out of character.”
    Based on McPherson’s reports to Wasson, the assistant attor-
    ney general agreed that there was no basis to believe any offi-
    cers had been involved in the burglary. Even so, Chief Spencer
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    and the assistant attorney general arranged for McPherson to
    report the allegations to Sgt. Monte Lovelace of the Nebraska
    State Patrol.
    On December 4, 2015, Chief Spencer contacted Dr. Matthew
    Hutt, a psychologist. Dr. Hutt told him these statements raised
    concerns about McPherson’s fitness for duty and referred Chief
    Spencer to a colleague in Omaha, Nebraska, who specialized
    in law enforcement and had conducted FFDE’s.
    On December 7, 2015, when Chief Spencer told McPherson
    about the arrangements for him to speak to Lovelace, McPherson
    again talked about the shoeprints in the snow and the circles
    that he thought represented eyes or glasses. McPherson said
    he thought it was a “sign” from Howton that he was watch-
    ing McPherson.
    State Patrol Interviews McPherson.
    On December 7, 2015, Lovelace interviewed McPherson
    about his allegations. Prior to the interview, Lovelace had
    never met McPherson nor did he have any information regard-
    ing McPherson’s mental health or any information that it was
    a concern. At a deposition, Lovelace described McPherson’s
    demeanor during the interview as very nervous, troubled,
    standoffish, closed off, always frowning, and almost beside
    himself. Lovelace stated that the information McPherson gave
    was erratic and irrational and that it led him to be concerned
    about McPherson.
    In the interview, McPherson related to Lovelace many of the
    same incidents he had described to Wasson, including his road-
    side interaction with Howton. McPherson told Lovelace, as he
    had told Wasson, that as soon as Howton began to approach
    McPherson’s vehicle, McPherson got the “Heebie Jeebies.”
    McPherson also told Lovelace that he was not sure why he felt
    that way and that in response to this feeling, McPherson put his
    gun under his arm and put his vehicle in reverse. McPherson
    said he was extremely scared while talking to Howton, that he
    did not know how he was going to get himself out of the situ-
    ation, and that he realized he had made a mistake in talking
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    to Howton about the burglary. McPherson’s description of
    this interaction made Lovelace concerned about the safety of
    McPherson and other officers.
    McPherson also told Lovelace about his concern that
    Howton, who McPherson considered his best friend, made
    many drug arrests but never had large amounts of cash, and he
    wondered how Howton could afford all that he had. McPherson
    told Lovelace that he asked his wife, who works at a bank, to
    look into Howton’s loan records.
    McPherson expressed a firm conviction that his colleagues
    were involved in the break-in at the department. McPherson
    said that because he suspected his good friends, he had initially
    questioned whether he was “losing [his] mind” or whether he
    was “going crazy” and stated that “this is absolutely insane.”
    He stated that prior to his discussion with Wasson, his suspi-
    cions had been “eating [him] up.” McPherson implied that after
    he spoke to Wasson, the tracks in the snow at his residence
    confirmed what he suspected.
    Following the interview, Lovelace and the assistant attorney
    general concluded that McPherson’s information lacked any
    factual basis upon which to open an investigation and that there
    was no basis to investigate further.
    On December 14, 2015, Lovelace informed Chief Spencer
    of his concerns and findings. He also told Chief Spencer that
    he wondered if McPherson was experiencing some sort of
    paranoia. Chief Spencer listened to the recorded version of
    Lovelace’s interview with McPherson, and several comments
    made by McPherson, summarized above, caused Chief Spencer
    concern that McPherson might be irrational and displaying
    signs of paranoia and hostility. Like Lovelace, Chief Spencer
    was particularly concerned that McPherson felt the need to arm
    himself during a conversation with Howton, because it impli-
    cated the safety of other officers.
    City Follows Up With McPherson.
    McPherson again met with Wasson on December 14, 2015.
    Wasson said that McPherson was “difficult to follow” during
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    the conversation, that he could not articulate his suspicions in
    any order, and that he appeared to be paranoid in most of his
    interactions with Howton and Herbel.
    McPherson began the conversation by confirming that
    Wasson had received the information about the shoeprints and
    “eyeballs” drawn in the snow around his house. McPherson
    told Wasson that he believed Howton had very slowly driven
    by his home, was involved with the markings in the snow,
    and was watching McPherson’s home. McPherson also said
    that Howton appeared to be watching him closely during a
    recent briefing when McPherson took a photograph of another
    officer’s boots. He further stated that he thought he was also
    “‘getting the eyeball from Officer Herbel.’”
    McPherson then brought up events that occurred on
    December 12, 2015, when he took a “short day” and came
    in late. McPherson thought it odd that Howton asked where
    he was at shift change. McPherson went on to tell about his
    observations of several other officers that day and described
    their behavior as strange. McPherson then told Wasson he had
    convinced himself that the officers assisted with the burglary
    to anger the administration and that all the details seemed to
    fit together.
    McPherson described to Wasson in detail how easy it would
    be for them to burglarize the evidence lockers while on duty.
    McPherson recounted that he told Herbel that if McPherson
    were a serial killer, it would be easy for him to “log body parts
    into evidence.” McPherson noted that this statement appeared
    to make Herbel uncomfortable. He also said that Howton’s
    wife had come over in the past to chat and that he believed
    she was attempting to get information from McPherson and
    his wife by asking open-ended questions. He informed Wasson
    that he felt Howton knew McPherson was “onto something”
    and was “trying to figure out what it is.”
    McPherson told Wasson that he was angry with Howton and
    Herbel. He was confident that they were involved in the bur-
    glary and that they were “throwing it in his face.” McPherson
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    indicated that he could not think of any other explanation for
    their behavior.
    Wasson reported the conversation to Chief Spencer. It
    caused Chief Spencer to be more concerned about McPherson
    and his statements. Chief Spencer felt it was his duty to take
    all action necessary to ensure the officers and the public were
    safe, especially because McPherson’s job duties as a patrol
    officer included carrying a firearm and being involved in high
    risk and high pressure situations. Chief Spencer questioned
    whether McPherson could perform his duties without posing a
    threat to himself and others.
    City Arranges FFDE, and McPherson
    Refuses to Participate.
    Chief Spencer contacted Dr. Shari Conner, a psychologist.
    Chief Spencer informed Dr. Conner of McPherson’s state-
    ments and sent her written reports. Like Dr. Hutt, she advised
    Chief Spencer that McPherson’s behavior raised concerns
    about his fitness for duty. Chief Spencer arranged an FFDE
    for McPherson.
    When Chief Spencer informed McPherson that he had
    arranged an FFDE, McPherson stated he was expecting this,
    agreed to go to Omaha for the FFDE, and told Chief Spencer
    that if something was wrong, he needed to know too. According
    to Chief Spencer, at that time, McPherson pointed to his head,
    stating that he had been “wondering himself.”
    The City placed McPherson on administrative leave with
    pay. McPherson subsequently retained counsel and canceled
    the FFDE appointment. Counsel for McPherson then cor-
    responded with the City about scheduling another FFDE,
    but McPherson again opted not to attend. In response, Chief
    Spencer ordered McPherson to attend the FFDE. Chief Spencer
    informed McPherson that if he refused to attend, he would
    consider preparing an accusation for termination for insubordi-
    nation. McPherson refused to participate in the FFDE.
    Chief Spencer and McPherson then met, with McPherson’s
    counsel present. Chief Spencer asked McPherson why he
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    should not be recommended for termination. McPherson gave
    no response. Chief Spencer filed an accusation recommend-
    ing termination of McPherson’s employment and sent it to the
    Scottsbluff city manager for further action.
    The city manager met with McPherson and his counsel
    and advised McPherson that he was considering terminating
    McPherson’s employment and asked if McPherson had any
    reason why he should not take that action. McPherson gave
    no response.
    On February 1, 2016, the city manager asked McPherson
    and his counsel to discuss the matter further and to respond
    by 2 p.m. on February 2. McPherson did not respond by the
    deadline. On February 3, the city manager delivered a letter
    to McPherson informing him that his employment had been
    terminated for his refusal to follow Chief Spencer’s order to
    attend the FFDE.
    District Court’s Rulings.
    The district court overruled McPherson’s motion for sum-
    mary judgment and sustained the City’s motion for summary
    judgment. In its written order, the district court stated that it
    found no dispute as to the following facts: There was no fac-
    tual basis for McPherson’s allegations concerning the burglary,
    McPherson was concerned about his own mental health, behav-
    ior by other officers that McPherson considered suspicious
    had reasonable explanations, McPherson thought he was being
    watched by other officers, McPherson suddenly felt threatened
    during a conversation with Howton on the street and secretly
    held his gun, and McPherson had his wife secretly look into
    Howton’s bank records.
    Regarding McPherson’s discrimination cause of action, the
    district court found that McPherson was fired for refusing to
    submit to the FFDE and not because he was regarded as hav-
    ing a disability. It determined that the requested FFDE was
    job related and of business necessity, considering McPherson’s
    undisputed behavior. According to the court, the City was rea-
    sonable in requiring the FFDE.
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    As to McPherson’s claims of retaliation, the district court
    found no evidence to support a finding that the City was
    retaliating against McPherson for reporting his belief that other
    officers were involved in the burglary. It observed that the City
    had thoroughly followed up on his concerns.
    ASSIGNMENTS OF ERROR
    McPherson assigns, condensed and rephrased, that the dis-
    trict court erred in (1) finding that the City was entitled to
    summary judgment on his claim that it had violated NFEPA by
    unlawfully requiring him to submit to an FFDE and (2) finding
    that the City was entitled to summary judgment on his claim
    that the City had retaliated against him for opposing unlaw-
    ful activity.
    McPherson’s summary of his argument also asserts that
    the district court judge erred in not recusing himself, but
    this alleged error is neither assigned nor argued, and we will
    not consider it. See State v. Munoz, ante p. 69, 
    927 N.W.2d 25
    (2019).
    STANDARD OF REVIEW
    [1,2] An appellate court will affirm a lower court’s grant
    of summary judgment if the pleadings and admitted evidence
    show that there is no genuine issue as to any material facts or
    as to the ultimate inferences that may be drawn from those
    facts and that the moving party is entitled to judgment as a
    matter of law. Larsen v. 401 Main St., 
    302 Neb. 454
    , 
    923 N.W.2d 710
    (2019). In reviewing a summary judgment, an
    appellate court views the evidence in the light most favorable
    to the party against whom the judgment was granted and gives
    that party the benefit of all reasonable inferences deducible
    from the evidence. 
    Id. ANALYSIS FFDE
    Claim.
    We begin with McPherson’s assertion that there are genuine
    issues of material fact that precluded the district court from
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    granting the City summary judgment on his claim that the
    City discriminated against him by unlawfully requiring him to
    submit to an FFDE. McPherson is correct that under NFEPA,
    requiring a disabled employee to undergo an examination can,
    under certain circumstances, constitute employment discrimi-
    nation. See § 48-1107.02(1)(j). The parties dispute whether
    McPherson was a “qualified individual with a disability” eli-
    gible for the protections of NFEPA in the first place. See,
    § 48-1107.02(1); Neb. Rev. Stat. § 48-1102(9) (Cum. Supp.
    2018) (defining “[d]isability” as “(a) a physical or mental
    impairment that substantially limits one or more of the major
    life activities of such individual, (b) a record of such an impair-
    ment, or (c) being regarded as having such an impairment”).
    But even assuming without deciding that he was, we disagree
    with McPherson’s contention that there was a genuine issue of
    fact as to whether the City committed discrimination in requir-
    ing an FFDE. We conclude that the record contains undisputed
    evidence that the City’s actions fell under NFEPA’s business
    necessity exception.
    [3] NFEPA provides that it is an act of discrimination for
    an employer to require a “qualified individual with a dis-
    ability,” § 48-1107.02(1), to submit to a medical examination
    “unless the examination or inquiry is shown to be job-related
    and consistent with business necessity,” § 48-1107.02(1)(j).
    We have held that to show a business necessity for requir-
    ing an employee to submit to a medical examination under
    § 48-1107.02, an employer has the burden to show that (1) the
    business necessity is vital to the business; (2) it has a legiti-
    mate, nondiscriminatory reason to doubt the employee’s ability
    to perform the essential functions of his or her duties; and (3)
    the examination is no broader than necessary. Arens v. NEBCO,
    Inc., 
    291 Neb. 834
    , 
    870 N.W.2d 1
    (2015). In this case, we
    understand McPherson to be contending that there were genu-
    ine issues of material fact regarding the second element of the
    business necessity exception: whether the City had a legitimate
    reason to doubt his ability to do his job. With respect to this
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    second element, we have held that there must be significant
    evidence that could cause a reasonable person to inquire as to
    whether an employee is still capable of performing his or her
    job. See 
    id. An employee’s
    behavior cannot be merely annoy-
    ing or inefficient to justify an examination; rather, there must
    be genuine reason to doubt whether that employee can perform
    job-related functions. 
    Id. In order
    to determine whether there is reason to doubt that
    an employee is capable of performing his or her job, a court
    must also take account of what the job entails. See Conroy v.
    New York Dept. of Correctional, 
    333 F.3d 88
    , 99 (2d Cir. 2003)
    (“what constitutes a business necessity will undoubtedly vary
    in different workplaces”). In applying a provision of the federal
    Americans with Disabilities Act that is nearly identical to the
    provision of NFEPA at issue, see 42 U.S.C. § 12112(d)(4)(A)
    (2012), a number of federal courts have held that the unique
    nature of public safety work must be considered in determin-
    ing whether a business necessity exists to support a request
    for an FFDE. We have previously held that it is appropriate to
    look to federal court decisions construing legislation similar to
    NFEPA. See Hartley v. Metropolitan Util. Dist., 
    294 Neb. 870
    ,
    
    885 N.W.2d 675
    (2016).
    In Watson v. City of Miami Beach, 
    177 F.3d 932
    (11th Cir.
    1999), the court held that a municipality was entitled to sum-
    mary judgment on a police officer’s claim that the municipal-
    ity discriminated against him by requiring him to undergo an
    unnecessary FFDE. The court explained that where a police
    officer’s fitness for duty is at issue, an employer may require
    an FFDE when it “reasonably perceives an officer to be even
    mildly paranoid, hostile, or oppositional.” 
    Id. at 935.
    As the
    court explained:
    Police departments place armed officers in positions
    where they can do tremendous harm if they act irratio-
    nally. . . . [T]he [Americans with Disabilities Act] does
    not, indeed cannot, require a police department to forgo
    a fitness for duty examination to wait until a perceived
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    threat becomes real or questionable behavior results
    in injuries.
    
    Watson, 177 F.3d at 935
    .
    Similarly, in Coffman v. Indianapolis Fire Dept., 
    578 F.3d 559
    (7th Cir. 2009), the court held that behavior that might
    not justify a fitness for duty inquiry for some jobs will be suf-
    ficient to demonstrate a business necessity in a public safety
    position. In Coffman, a municipality had requested a firefighter
    to undergo an FFDE. In the course of its opinion affirming the
    entry of summary judgment in favor of the municipality, the
    court stated:
    Although a psychological evaluation in response to “with-
    drawn” and “defensive” behavior might not be job-related
    in many vocations, we do not second-guess the propri-
    ety of such an evaluation for a firefighter. The [fire]
    Department has an obligation to the public to ensure that
    its workforce is both mentally and physically capable
    of performing what is doubtless mentally and physi-
    cally demanding work. This special work environment
    convinces us that the Department’s decision to refer [the
    plaintiff] for the [FFDE’s] was job-related and consistent
    with business necessity.
    
    Id. at 566.
       Brownfield v. City of Yakima, 
    612 F.3d 1140
    (9th Cir. 2010),
    is yet another case in which a federal court of appeals held
    that a claim that a police officer was unlawfully forced to
    undergo an FFDE must be reviewed with the nature of the job
    in mind. In that case, the court explained that because police
    officers are likely to encounter stressful and dangerous situa-
    tions, a police department can require its officers to undergo
    an FFDE if they have “good reason to doubt an officer’s abil-
    ity to respond to these situations in an appropriate manner.”
    
    Id. at 1147.
       Many other cases are to the same effect. See, e.g., Wisbey
    v. City of Lincoln, Neb., 
    612 F.3d 667
    (8th Cir. 2010) (nature
    of employee’s position as emergency dispatcher involved lives
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    at risk, supporting business necessity exception), abrogated on
    other grounds, Torgerson v. City of Rochester, 
    643 F.3d 1031
    (8th Cir. 2011); Dengel v. Waukesha County, 
    16 F. Supp. 3d 983
    (E.D. Wis. 2014) (business necessity exception applied
    where employee who maintained radios used in emergency
    services and therefore vital to public safety displayed behav-
    ior that was obsessive, intense, and detached from reality);
    Davis-Durnil v. Village of Carpentersville, Ill., 
    128 F. Supp. 2d 575
    (N.D. Ill. 2001) (observing that police officers encounter
    stressful situations and that employers are entitled to inquire
    into their employees’ mental health where it has legitimate
    concerns about employee and public safety).
    In this case, as in many of the cases discussed above, there
    is much undisputed evidence demonstrating that the City had
    reason to doubt whether McPherson could perform the job-
    related duties of a police officer. This included the evidence
    that McPherson was aware of and had expressed to the City
    that his break-in theories were unlikely to be true to the point
    that they could cause uncertainty about his mental health.
    When he first reported his concerns about the break-in to
    Wasson, he prefaced his statements by saying Wasson was
    going to think he was “crazy,” but that the issue had been
    bothering him for days, to the extent that he had not been eat-
    ing. In his interview with Lovelace, McPherson acknowledged
    that his theories made him question whether he was “losing
    [his] mind” or “going crazy” and called the situation “abso-
    lutely insane,” but he held to the firm conviction that his theo-
    ries were true. And later, when McPherson initially agreed to
    Chief Spencer’s request that he undergo an FFDE, McPherson
    pointed to his head and said that he had been “wondering
    himself.” He told Chief Spencer that he had been expecting
    an FFDE and wanted to be the first to know if something
    was wrong.
    Indeed, when Chief Spencer shared McPherson’s state-
    ments and behavior with two psychologists, they suggested
    that something could, in fact, be wrong; they both told
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    Chief Spencer that the information raised red flags about
    McPherson’s fitness for duty. Lovelace, who was not informed
    of concerns regarding McPherson’s mental health prior to
    interviewing him, also expressed concerns about McPherson’s
    well-being after the interview.
    Also casting doubt on McPherson’s fitness for duty as a
    police officer was McPherson’s statement to Lovelace that
    based only on an unexplainable feeling of unease, McPherson
    prepared himself to use his firearm against Howton, his friend
    and fellow officer. Although the incident occurred while
    McPherson was off duty, it was reasonable for the City to
    consider it in evaluating McPherson’s fitness for duty as a
    police officer, a job that placed him “in positions where [he
    could] do tremendous harm if [he were to] act irrationally.”
    See Watson v. City of Miami Beach, 
    177 F.3d 932
    , 935 (11th
    Cir. 1999). As Chief Spencer described, McPherson’s duties as
    a patrol officer included carrying a firearm and being involved
    in high risk and high pressure situations with the public and
    other officers.
    We recognize that in his summary judgment affidavit,
    McPherson stated that Howton had his hand on his gun during
    the same conversation. McPherson did not tell Lovelace that
    he was concerned about Howton’s having his hand on his gun,
    and it is not clear that McPherson ever told anyone at the City
    that Howton also had his hand on his gun. Even assuming he
    did, however, we find that McPherson’s reaction, in view of all
    of the other evidence of concerning behavior by McPherson,
    could contribute to doubts about McPherson’s ability to safely
    do his job.
    In sum, the undisputed evidence establishes that the City had
    genuine reason to doubt whether McPherson could perform his
    duties as a police officer. His acknowledgment that his theo-
    ries could call his mental health into question, the opinions of
    psychologists and other law enforcement professionals that his
    behavior raised concerns about his fitness for duty, and the
    incident in which he armed himself against Howton all support
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    the business necessity exception. Therefore, the district court
    did not err in granting summary judgment in favor of the City
    on McPherson’s discrimination claim.
    Retaliation.
    [4] We turn now to McPherson’s retaliation claim. A claim
    of retaliation under NFEPA is based on § 48-1114, which
    provides: “It shall be an unlawful employment practice for an
    employer to discriminate against any of his or her employees
    . . . because he or she . . . (3) has opposed any practice or
    refused to carry out any action unlawful under federal law or
    the laws of this state.” A plaintiff must establish a prima facie
    case of retaliation under § 48-1114 by showing (1) he or she
    engaged in protected conduct, (2) he or she was subjected to
    an adverse employment action, and (3) there was a causal con-
    nection between the protected conduct and the adverse action.
    Knapp v. Ruser, 
    297 Neb. 639
    , 
    901 N.W.2d 31
    (2017).
    McPherson contends that reporting his suspicions about his
    fellow employees was protected conduct for which he was
    ultimately terminated, in violation of § 48-1114(3). But he
    overlooks this court’s application of § 48-1114(3). In Wolfe
    v. Becton Dickinson & Co., 
    266 Neb. 53
    , 
    662 N.W.2d 599
    (2003), we rejected the “whistleblower” and retaliation claims
    of an employee who experienced adverse employment actions
    after reporting his belief that fellow employees were using
    illegal drugs. We expressly addressed whether § 48-1114(3)
    protects an employee’s opposition to the illegal actions of fel-
    low employees, and concluded that it does not. Considering the
    context of NFEPA and the purposes it was meant to serve, we
    held that “the ‘practice’ in § 48-1114(3) refers to an unlawful
    practice of the employer” and not “any manner of unlawful
    activity.” 
    Wolfe, 266 Neb. at 57
    , 662 N.W.2d at 603 (emphasis
    supplied). See, also, Bonn v. City of Omaha, 
    19 Neb. Ct. App. 874
    ,
    
    814 N.W.2d 114
    (2012) (applying 
    Wolfe, supra
    ).
    At oral argument, McPherson acknowledged that Wolfe
    requires an unlawful act of the employer and argued for the
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    first time that the City retaliated against him because he was
    critical of the department’s investigation of the burglary. While
    McPherson is undoubtedly now critical of the department’s
    investigation of the burglary, there is no evidence that those
    who made the decisions to ask McPherson to undergo an
    FFDE and, subsequently, to terminate his employment were
    made aware that McPherson felt the investigation was unlaw-
    fully inadequate.
    In the absence of any knowledge that McPherson opposed
    the department’s investigation, City officials could not have
    taken adverse action against McPherson based on that oppo-
    sition. See Ambrose v. Township of Robinson, Pa., 
    303 F.3d 488
    , 493 (3d Cir. 2002) (“[i]t is only intuitive that for pro-
    tected conduct to be a substantial or motiv[at]ing factor in a
    decision, the decisionmakers must be aware of the protected
    conduct”). The City was entitled to summary judgment on
    McPherson’s retaliation claim.
    CONCLUSION
    For the foregoing reasons, we affirm the entry of summary
    judgment in favor of the City.
    A ffirmed.
    Freudenberg, J., not participating.