HR Management & Compliance

Back to Basics: No Retaliation Claim if No Protected Activity

Retaliation claims are among the most numerous types of employee claims processed through the Equal Employment Opportunity Commission (EEOC) and state EEO agencies. Central to the claims is whether an employee engaged in protected activity and how the employer responded to it. A recent case from the U.S. 8th Circuit Court of Appeals (whose rulings apply to all Nebraska employers) involving Nebraska law on retaliation is exemplary.


Two caregivers employed by a retirement community witnessed a resident sexually assaulting other residents several times. Per company policy, employees had to report resident abuse immediately by reporting any incident to a supervisor, completing an incident report, and making a note in the resident’s chart. The two employees claimed they reported observing the abuse, but on at least one occasion, they waited to make their report until the day after the incident.

The Nebraska Department of Health and Human Services (DHHS) responded to an anonymous complaint about the resident’s abuse and made an unannounced site visit of the facility. Shortly after, a retirement community manager claimed she was unaware of the abuse that led DHHS to the facility. Several employees stated the manager must have been aware of the abuse because the employees reported it. Upon completion of the visit and a staff meeting, the two caregiver employees were terminated.

The employees filed suit alleging, among other claims, unlawful retaliation after engaging in a protected activity. The retirement community asked the district court for summary judgment (dismissal without a trial), which was granted, resulting in a judgment against the employees and dismissing their claims. The employees appealed.

Court’s Decision

On appeal, the 8th Circuit considered whether the lower court erred in granting the retirement community’s request for summary judgment. Under Nebraska law, an employer may not discriminate against an employee who opposed or refused to carry out any unlawful action of the employer. In other words, employees claiming retaliation must demonstrate they opposed an unlawful practice of their employer.

The two employees alleged engaging in the following activities:

  • Filing a report with DHHS;
  • Making internal complaints to supervisors about the abuse; and
  • Confronting a manager about her alleged ignorance of their report.

None of these acts, however, was found to have opposed unlawful activity of the retirement community. Nor did they amount to acts of refusing to carry out an unlawful action. Thus, there was no protected activity on which to base a retaliation claim. Accordingly, the 8th Circuit upheld the summary judgment because the employees’ conduct in response to the facility resident’s abuse didn’t constitute protected conduct under Nebraska law. Walker v. First Care Mgmt. Grp., LLC 27 F.4th 600 (8th Cir. 2022).

Bottom Line

Obviously, the facts of the case suggest egregious acts of abuse. A retaliation claim is closely focused, however, on the activities of employees and the response of the employer. Any time an issue arises, you are cautioned to involve your attorneys at an early stage to avoid or minimize potential retaliation claims and to appropriately respond to abuse, to complaints, or to protected activity of employees.

Bonnie M. Boryca is an attorney with Erickson | Sederstrom, P.C., in Omaha, Nebraska. You can reach her at

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