Simpson v. Lincoln Public Schools

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
SIMPSON v. LINCOLN PUBLIC SCHOOLS
Cite as 316 Neb. 246
Lynne Simpson, appellee, v. Lincoln
Public Schools, appellant.
___ N.W.3d ___
Filed March 22, 2024. 	No. S-23-490.
1. Political Subdivisions Tort Claims Act: Appeal and Error. Whether
a plaintiff’s claims are precluded by an exemption to the Political
Subdivisions Tort Claims Act is a question of law for which an appellate
court has a duty to reach its conclusions independent of the conclusions
reached by the district court.
2. Summary Judgment: Appeal and Error. An appellate court reviews
the district court’s ruling on a motion for summary judgment de novo,
viewing the record in the light most favorable to the nonmoving party
and drawing all reasonable inferences in that party’s favor.
3. Jurisdiction: Appeal and Error. Before reaching the legal issues
presented for review, it is the duty of an appellate court to determine
whether it has jurisdiction over the matter before it, irrespective of
whether the issue is raised by the parties.
4. Summary Judgment: Final Orders: Legislature: Appeal and Error.
The general rule is that an order denying summary judgment is not a
final, appealable order. But the Legislature carved out a limited excep-
tion to this general rule when it enacted Neb. Rev. Stat. § 25-1902(1)(d)
(Cum. Supp. 2022) to create a new category of final orders for purposes
of appeal.
5. Immunity: Constitutional Law: Political Subdivisions: Legislature.
The sovereign immunity of the State and its political subdivisions is
preserved in Neb. Const. art. V, § 22. This constitutional provision is
not self-executing, and no suit may be maintained against a political
subdivision unless the Legislature, by law, has provided otherwise.
6. Political 	Subdivisions 	Tort 	Claims 	Act: 	Immunity: 	Waiver:
Legislature. Through the enactment of the Political Subdivisions Tort
Claims Act, the Legislature has allowed a limited waiver of sovereign
immunity with respect to some, but not all, types of tort claims.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 08:45 AM CDT

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
SIMPSON v. LINCOLN PUBLIC SCHOOLS
Cite as 316 Neb. 246
7. Political Subdivisions Tort Claims Act: Jurisdiction: Dismissal and
Nonsuit. When an exemption under the Political Subdivisions Tort
Claims Act applies, the proper remedy is to dismiss the claim for lack of
subject matter jurisdiction.
8. Political Subdivisions Tort Claims Act. The purpose of the discretion-
ary function exemption of the Political Subdivisions Tort Claims Act is
to prevent judicial “second-guessing” of legislative and administrative
decisions grounded in social, economic, and political policy through
the medium of an action in tort. The discretionary function exemption
extends only to basic policy decisions made in governmental activity,
and not to ministerial activities implementing such policy decisions.
9. ____. A two-part analysis determines whether the discretionary function
exemption of the Political Subdivisions Tort Claims Act applies. First,
the court must consider whether the action is a matter of choice for the
acting political subdivision or employee. Second, if the court concludes
that the challenged conduct involves an element of judgment, it must
then determine whether that judgment is of the kind that the discretion-
ary function exemption was designed to shield.
10. ____. The discretionary function exemption of the Political Subdivisions
Tort Claims Act will not apply when a statute, regulation, or policy
specifically prescribes a course of action for an employee to follow,
because in that event, the employee has no rightful option but to adhere
to the directive. For the same reason, the exemption will not apply when
a statute, regulation, or policy prohibits the challenged action. If the
employee’s conduct cannot appropriately be the product of judgment or
choice, then there is no discretion in the conduct for the discretionary
function exemption to protect.
11. Political Subdivisions Tort Claims Act: Courts: Immunity: Waiver:
Legislature. The judiciary does not have the power to waive sovereign
immunity; decisions on whether and how to limit the government’s
potential tort liability belong to the Legislature.
12. Political Subdivisions Tort Claims Act. Broadly speaking, actors at the
highest level of government are more likely as a general matter to be
engaged in policy decisions to which the discretionary function exemp-
tion applies than actors at the operational level, where the spectrum of
acts from discretionary to merely ministerial is on greater display.
13. ____. Generally, employment and termination decisions are discretion-
ary and involve a judgment of the kind that the discretionary function
exemption is designed to shield.
Appeal from the District Court for Lancaster County: Susan
I. Strong, Judge. Reversed and remanded with direction.

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
SIMPSON v. LINCOLN PUBLIC SCHOOLS
Cite as 316 Neb. 246
Joshua J. Schauer and Haleigh B. Carlson, of Perry, Guthery,
Haase & Gessford, P.C., L.L.O., for appellant.
Joy Shiffermiller, of Shiffermiller Law Office, P.C., L.L.O.,
for appellee.
Michael T. Hilgers, Attorney General, Eric J. Hamilton, and
Zachary B. Pohlman for amicus curiae State of Nebraska.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Cassel, J.
I. INTRODUCTION
After 	Lincoln 	Public 	Schools 	(LPS) 	terminated 	Lynne
Simpson’s employment, Simpson sued for wrongful discharge
in violation of public policy. LPS claimed it had immunity and
moved for summary judgment, but the district court overruled
the motion. Because we conclude that LPS’ decision to termi-
nate Simpson’s employment fell within the discretionary func-
tion exemption 1 of the Political Subdivisions Tort Claims Act
(PSTCA), 2 we reverse, and remand with direction.
II. BACKGROUND
1. Simpson’s Employment With LPS
LPS is a political subdivision of the State of Nebraska.
Simpson began employment with LPS in 2010. She was an
at-will employee at all times.
In August 2017, Simpson sustained an injury in the course
and scope of her employment. She subsequently filed work-
ers’ compensation forms with LPS to be reimbursed for
examinations 	and 	treatment. 	While 	reviewing 	Simpson’s
medical records, a workers’ compensation case management
nurse for LPS noticed that some records contained different
middle initials for Simpson. In March 2018, the nurse notified
1 Neb. Rev. Stat. § 13-910(2) (Reissue 2022).
2 See Neb. Rev. Stat. §§ 13-901 to 13-928 (Reissue 2022).

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
SIMPSON v. LINCOLN PUBLIC SCHOOLS
Cite as 316 Neb. 246
Genelle Moore, a background investigation specialist for
LPS, of the different iterations of Simpson’s name and Moore
investigated the discrepancies.
On April 2, 2018, Marla Styles, a human resources special-
ist for LPS, held a meeting with Simpson, Simpson’s attorney,
Moore, and several individuals associated with LPS. The pur-
pose of the meeting was to address concerns about Simpson’s
employment applications with LPS and discrepancies regard-
ing her name and date of birth. Moore asserted that Simpson
used different name iterations and did not disclose a criminal
charge on her online employment applications. Simpson stated
that she was born in January 1959 and given the name Leona
Lynne Fairchild. A shoplifting incident at a department store
was brought up, and Simpson provided an explanation of what
occurred. The police report did not match Simpson’s version of
the event. Further, the police report included names of “‘Lynn,
Leana Fairchild’ and ‘Leana Lynn Simpson’” and listed a dif-
ferent date of birth.
After the meeting and a followup investigation, Styles
prepared a memorandum recommending that LPS terminate
Simpson’s employment. She made the recommendation based
upon her evaluation of Simpson’s credibility. According to the
memorandum, Simpson received positive performance apprais-
als and LPS staff members shared that Simpson’s absence
“would change the culture of their building (she is known as
‘Mama Lynne’).” But the staff members also had concerns
regarding honesty of the staff. Eric Weber, an associate super-
intendent of human resources for LPS, reviewed Styles’ recom-
mendation and determined that Simpson’s employment with
LPS should end. On April 13, 2018, LPS terminated Simpson’s
employment.
2. Pleadings and Motion
Simpson sued LPS. She had previously filed a tort claim
with LPS, but withdrew it after more than 6 months had
elapsed. Simpson claimed that LPS sought reasons to end
her employment due to her workers’ compensation injury.

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
SIMPSON v. LINCOLN PUBLIC SCHOOLS
Cite as 316 Neb. 246
She sought damages for wrongful discharge in violation of
Nebraska public policy. LPS asserted numerous affirmative
defenses in its answer. It alleged that Simpson’s claims were
barred by sovereign immunity and that LPS was immune from
the claims under § 13-910. LPS subsequently moved for sum-
mary judgment.
3. Summary Judgment Hearing
Evidence adduced during the hearing established discrepan-
cies concerning Simpson’s name and date of birth. Simpson
was born in Texas in January 1959. But her Texas driver’s
license showed a different date of birth, which Simpson attrib-
uted to a typographical error. The name on Simpson’s birth
certificate is Leona Lynne Fairchild. But when filling out
official documents, Simpson sometimes used “Leana” rather
than “Leona.” She did so because “Leana” was the name origi-
nally printed on her Social Security card. At some point after
Simpson married, she changed the name on her Social Security
card to “Lynne Fairchild Simpson.”
The 	evidence 	also 	showed 	discrepancies 	regarding
Simpson’s reporting of her criminal history. Simpson’s ini-
tial LPS employment application—a paper application—was
destroyed in a fire. Thus, neither party could establish whether
Simpson reported any criminal history on it. But Simpson
testified in her deposition that she disclosed on the applica-
tion a felony forgery conviction in Texas and “credit card
abuse.” She testified that at the time of her initial interview
with LPS, she reported that she had a conviction in Texas. The
background check specialist for LPS at the time stated that if
Simpson disclosed a felony conviction, he would have dis-
cussed it with Styles, and that he did not recall any discussion
with Styles or Weber regarding Simpson.
In 2010, Simpson applied for a full-time position with
LPS and completed a “non-paper” application. In response
to a question regarding criminal offenses, Simpson answered
“checks[,] dismissed.” She testified that she did not list any
other offenses because she was still employed by LPS and

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
SIMPSON v. LINCOLN PUBLIC SCHOOLS
Cite as 316 Neb. 246
“this was an update.” In applications submitted in 2011, 2012,
2013, 	and 	2014, 	Simpson 	reported 	“checks, 	[department
store], Paid.”
Weber determined that it was not in LPS’ best interests
to continue Simpson’s employment. He made that decision
based on concerns with Simpson’s inability to provide cred-
ible reasons for her use of different names and dates of birth,
along with related concerns about her honesty. LPS presented
evidence that for the 2017-18 school year, LPS rescinded 52
offers of employment for matters related to background checks
and rescinded 46 offers for failures to disclose. Weber stated
that LPS handles hundreds of workers’ compensation claims
each year. He would not have approved the recommendation
to terminate Simpson’s employment if he suspected that it was
motivated by the workers’ compensation claim.
Simpson adduced evidence that LPS hired a private investi-
gator to observe her daily activities. Approximately 6 months
after filing the instant lawsuit, Simpson filed a petition in the
Nebraska Workers’ Compensation Court seeking benefits. The
compensation court determined that Simpson was entitled to
vocational rehabilitation benefits and ordered LPS to pay per-
manent disability benefits.
4. District Court’s Order
The district court overruled LPS’ motion for summary
judgment. It first addressed LPS’ argument that the exclusiv-
ity provisions of the Nebraska Workers’ Compensation Act 3
deprived the court of subject matter jurisdiction. The court
reasoned that Simpson’s claim against LPS did not necessar-
ily arise from her work injury for purposes of § 48-148 and
that she stated a claim for wrongful discharge in retaliation
for filing a workers’ compensation claim. The court explained
that Ҥ 48-148 does not apply to wrongful discharge cases
where the discharge is not due to the injury itself but is in
retaliation for seeking workers’ compensation benefits.”
3 See Neb. Rev. Stat. §§ 48-101 to 48-1,117 (Reissue 2021 & Supp. 2023).

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
SIMPSON v. LINCOLN PUBLIC SCHOOLS
Cite as 316 Neb. 246
The court next turned to LPS’ argument that it was immune
under the discretionary function exemption. The court found:
“[T]he decision to terminate [Simpson’s employment] was
not an administrative decision grounded in social, economic,
and political policy considerations, but a discretionary act at
the operational level. [Citation omitted.] As such, it was not
a discretionary function which the PSTCA was designed to
shield.” The court determined that LPS was not entitled to sov-
ereign immunity.
Finally, the court considered LPS’ argument that the decision
to terminate Simpson’s employment was not unlawful. The
court stated that after viewing the evidence in the light most
favorable to Simpson, there was sufficient evidence to estab-
lish a prima facie case of retaliatory discharge and to create a
genuine issue of material fact concerning whether LPS’ stated
reason for terminating Simpson’s employment was a legiti-
mate, nondiscriminatory reason or was pretext for discharge in
retaliation for filing the workers’ compensation claim.
LPS appealed, and we granted its petition to bypass review
by the Nebraska Court of Appeals. 4
III. ASSIGNMENTS OF ERROR
LPS assigns that the district court erred in (1) finding that
LPS was not immune from Simpson’s claim and failing to
dismiss the case for lack of subject matter jurisdiction and
(2) failing to find that it lacked subject matter jurisdiction
over Simpson’s claim due to the exclusivity provisions of the
Nebraska Workers’ Compensation Act.
IV. STANDARD OF REVIEW
[1] Whether a plaintiff’s claims are precluded by an exemp-
tion to the PSTCA is a question of law for which an appellate
court has a duty to reach its conclusions independent of the
conclusions reached by the district court. 5
4 See Neb. Rev. Stat. § 24-1106(2) (Cum. Supp. 2022).
5 See Clark v. Sargent Irr. Dist., 311 Neb. 123, 971 N.W.2d 298 (2022).

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
SIMPSON v. LINCOLN PUBLIC SCHOOLS
Cite as 316 Neb. 246
[2] An appellate court reviews the district court’s ruling on a
motion for summary judgment de novo, viewing the record in
the light most favorable to the nonmoving party and drawing
all reasonable inferences in that party’s favor. 6
V. ANALYSIS
1. Appellate Jurisdiction
[3] Before reaching the legal issues presented for review, it
is the duty of an appellate court to determine whether it has
jurisdiction over the matter before it, irrespective of whether
the issue is raised by the parties. 7 Simpson asserts that we lack
jurisdiction because the appeal is from the denial of a motion
for summary judgment.
[4] The general rule is that an order denying summary
judgment is not a final, appealable order. 8 But the Legislature
carved out a limited exception to this general rule when it
enacted Neb. Rev. Stat. § 25-1902(1)(d) (Cum. Supp. 2022) to
create a new category of final orders for purposes of appeal. 9
Under § 25-1902(1)(d), a final order now includes “[a]n order
denying a motion for summary judgment when such motion is
based on the assertion of sovereign immunity or the immunity
of a government official.”
Recently, we addressed the circumstances under which a
summary judgment motion will satisfy the requirements of
§ 25-1902(1)(d). 10 We declared that “when a motion for sum-
mary judgment asserts that the plaintiff’s claim falls within
one or more of the statutory exemptions under . . . the PSTCA,
the motion is based on the assertion of sovereign immu-
nity within the meaning of § 25-1902(1)(d).” 11 We held that
6 Id.
7 Id.
8 Id.
9 Id.
10 See id.
11 Id. at 133, 971 N.W.2d at 308.

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
SIMPSON v. LINCOLN PUBLIC SCHOOLS
Cite as 316 Neb. 246
“to satisfy the final order requirement under § 25-1902(1)(d)
based on the assertion of sovereign immunity, the motion for
summary judgment must do more than merely reference sov-
ereign immunity; the nature and substance of the motion must
actually present a claim of sovereign immunity.” 12 Applying
that analysis, we found jurisdiction to review one of the
assigned errors—that the trial court erred in denying summary
judgment based on the applicability of the discretionary func-
tion exemption. 13
Here, Simpson challenges whether LPS’ motion for summary
judgment was “based on the assertion of sovereign immunity”
under § 25-1902(1)(d). LPS’ motion merely stated that there
were no genuine issues of material fact. And Simpson observes
that LPS made no mention of immunity in its statement of
undisputed facts.
But on the other hand, LPS alleged sovereign immunity and
immunity under § 13-910 as affirmative defenses in its answer.
And LPS asserted in its brief to the district court that if the
discretionary function exemption applied, LPS was immune
from suit.
The substance of LPS’ motion, as argued in both parties’
briefing and as addressed by the district court, presented
a claim of sovereign immunity. Thus, LPS’ assigned error
that the court erred in denying summary judgment based
on the applicability of the discretionary function exemption
is reviewable under § 25-1902(1)(d). We now turn to that
assigned error.
2. Immunity
The chief issue is whether LPS’ decision to terminate
Simpson’s 	employment 	was 	a 	discretionary 	function 	for
which LPS retained immunity. We start by broadly discuss-
ing a political subdivision’s immunity, the limited waiver of
12 Id. at 136, 971 N.W.2d at 309.
13 See Clark v. Sargent Irr. Dist., supra note 5.

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Nebraska Supreme Court Advance Sheets
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SIMPSON v. LINCOLN PUBLIC SCHOOLS
Cite as 316 Neb. 246
immunity under the PSTCA, and exemptions from the waiver.
Then, we focus on the discretionary function exemption.
(a) Sovereign Immunity and Waiver
[5] The sovereign immunity of the State and its politi-
cal subdivisions is preserved in Neb. Const. art. V, § 22. 14
This constitutional provision is not self-executing, and no suit
may be maintained against a political subdivision unless the
Legislature, by law, has provided otherwise. 15
[6] Through enactment of the PSTCA, the Legislature has
allowed a limited waiver of sovereign immunity with respect
to some, but not all, types of tort claims. 16 The PSTCA’s
waiver of immunity is subject to exemptions as set forth in
§ 13-910. 17 We are mindful that statutes purporting to waive
the protection of sovereign immunity are to be strictly con-
strued in favor of the sovereign and against waiver. 18 In order
to strictly construe the PSTCA against a waiver of sover-
eign immunity, courts apply a broad reading to any statutory
exemptions from a waiver of sovereign immunity. 19
[7] When an exemption under the PSTCA applies, the proper
remedy is to dismiss the claim for lack of subject matter juris-
diction. 20 As mentioned, the exemption at issue here is the
discretionary function exemption.
(b) Discretionary Function Exemption
The discretionary function exemption provides that the
PSTCA does not apply to “[a]ny claim based upon the exer-
cise or performance of or the failure to exercise or perform a
14 Id.
15 See id.
16 See id.
17 See Mercer v. North Central Serv., 308 Neb. 224, 953 N.W.2d 551 (2021).
18 See Edwards v. Douglas County, 308 Neb. 259, 953 N.W.2d 744 (2021).
19 Id.
20 See Clark v. Sargent Irr. Dist., supra note 5.

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SIMPSON v. LINCOLN PUBLIC SCHOOLS
Cite as 316 Neb. 246
discretionary function or duty on the part of the political sub-
division or an employee of the political subdivision, whether
or not the discretion is abused.” 21 Under this exemption, a
political subdivision retains immunity for discretionary action
by an employee taken on the political subdivision’s behalf.
[8] The purpose of the discretionary function exemption
is to prevent judicial “second-guessing” of legislative and
administrative decisions grounded in social, economic, and
political policy through the medium of an action in tort. 22 The
discretionary function exemption extends only to basic policy
decisions made in governmental activity, and not to ministe-
rial activities implementing such policy decisions. 23 It is the
nature of the conduct, rather than the status of the actor, that
governs whether the discretionary function exemption applies
in a given case. 24
[9] A two-part analysis determines whether the discretion-
ary function exemption applies. 25 First, the court must consider
whether the action is a matter of choice for the acting political
subdivision or employee. 26 Second, if the court concludes that
the challenged conduct involves an element of judgment, it
must then determine whether that judgment is of the kind that
the discretionary function exemption was designed to shield. 27
Both parts of the analysis must be met for the exemption to
apply. 28 The district court found that LPS did not satisfy the
second part, but Simpson’s argument appears to also challenge
the first part. We start there.
21 § 13-910(2).
22 See Mercer v. North Central Serv., supra note 17.
23 See id.
24 See Lambert v. Lincoln Public Schools, 306 Neb. 192, 945 N.W.2d 84
(2020).
25 See id.
26 Id.
27 See id.
28 See id.

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Nebraska Supreme Court Advance Sheets
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SIMPSON v. LINCOLN PUBLIC SCHOOLS
Cite as 316 Neb. 246
(i) Matter of Choice
Determining whether the act involves a matter of choice is
mandated by the language of the statutory exemption, because
conduct cannot be discretionary unless it involves an element
of judgment or choice. 29 Hiring and firing decisions are typi-
cally discretionary in nature. 30 But Simpson contends that pub-
lic policy prohibits the action here. She argues that “LPS lacks
the choice to retaliate against Simpson for her necessary resort
to workers[’] compensation benefits.” 31
[10] The discretionary function exemption of the PSTCA
will not apply when a statute, regulation, or policy specifi-
cally prescribes a course of action for an employee to follow,
because in that event, the employee has no rightful option but
to adhere to the directive. 32 For the same reason, the exemption
will not apply when a statute, regulation, or policy prohib-
its the challenged action. 33 If the employee’s conduct cannot
appropriately be the product of judgment or choice, then there
is no discretion in the conduct for the discretionary function
exemption to protect. 34
Simpson’s 	contention 	that 	public 	policy 	prohibits 	the
action stems from a judicial decision, Jackson v. Morris
Communications 	Corp. 35 There, 	we 	“recognize[d] 	a 	pub-
lic 	policy 	exception 	to 	the 	at-will 	employment 	doctrine
and allow[ed] an action for retaliatory discharge when an
29 See Clark v. Sargent Irr. Dist., supra note 5.
30 See, e.g., Burkhart v. Washington Metro. Area Transit Auth., 112 F.3d 1207
(D.C. Cir. 1997); Larson by Larson v. Miller, 76 F.3d 1446 (8th Cir. 1996);
Richman v. Straley, 48 F.3d 1139 (10th Cir. 1995).
31 Brief for appellee at 16.
32 See Clark v. Sargent Irr. Dist., supra note 5.
33 See Banneker Ventures, LLC v. Graham, 798 F.3d 1119 (D.C. Cir. 2015).
34 Clark v. Sargent Irr. Dist., supra note 5.
35 Jackson v. Morris Communications Corp., 265 Neb. 423, 657 N.W.2d 634
(2003).

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SIMPSON v. LINCOLN PUBLIC SCHOOLS
Cite as 316 Neb. 246
employee has been discharged for filing a workers’ compen-
sation claim.” 36 Simpson draws on that public policy excep-
tion to essentially argue that Nebraska common law restricted
LPS’ discretion to discharge an at-will employee in retaliation
for filing a workers’ compensation claim.
[11] But a court-made policy cannot be the source of a
waiver of sovereign immunity under the PSTCA. The judi-
ciary does not have the power to waive sovereign immunity;
decisions on whether and how to limit the government’s
potential tort liability belong to the Legislature. 37 Courts must
not, through judicial construction, usurp the Legislature’s
role in drawing the line between governmental liability and
immunity. 38
The Legislature has waived immunity for some employment-
based claims. A statute specifically authorizes suit against
“[t]he state and governmental agencies created by the state” for
claims arising under the Nebraska Fair Employment Practice
Act. 39 That act makes it unlawful to, among other things,
discharge an employee due to the employee’s race, color, reli-
gion, sex, disability, marital status, or national origin. 40 It also
makes retaliation against an employee under certain circum-
stances an unlawful employment practice. 41
Whether a political subdivision’s tort liability should be
expanded to include a claim for wrongful discharge in retali-
ation for filing a workers’ compensation claim is a matter we
leave to the Legislature. In the absence of such a statutory
policy, we cannot find a waiver of immunity.
36 Id. at 432, 657 N.W.2d at 641.
37 See Edwards v. Douglas County, supra note 18.
38 Id.
39 See Neb. Rev. Stat. § 48-1126 (Reissue 2021).
40 See Neb. Rev. Stat. § 48-1104(1) (Reissue 2021).
41 See Neb. Rev. Stat. § 48-1114(1) (Reissue 2021).

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SIMPSON v. LINCOLN PUBLIC SCHOOLS
Cite as 316 Neb. 246
The termination decision here involved an element of judg-
ment. Weber stated that his decision to terminate Simpson’s
employment was not dictated or required by any policy of
LPS. Further, the Legislature explicitly instructed that the
discretionary function exemption applies “whether or not the
discretion is abused.” 42 Simpson’s mere allegation of wrongful
termination does not eliminate immunity under the discretion-
ary function exemption. We conclude that the first part of the
test is satisfied.
(ii) Judgment of Kind That Exemption
Is Designed to Shield
[12] Moving to the second part of the test, the inquiry is
whether the action or decision is grounded in social, eco-
nomic, and political policy. 43 Broadly speaking, actors at the
highest level of government are more likely as a general mat-
ter to be engaged in policy decisions to which the discretion-
ary function exemption applies than actors at the operational
level, where the spectrum of acts from discretionary to merely
ministerial is on greater display. 44
The Nebraska appellate courts have not addressed whether
the discretionary function exemption of the PSTCA applies to
employment decisions. But federal courts have considered the
question in connection with the discretionary function excep-
tion of the Federal Tort Claims Act. 45 Because the federal act
is substantially similar to the PSTCA, we consider guidance
from federal courts. 46
42 § 13-910(2).
43 See Lambert v. Lincoln Public Schools, supra note 24.
44 See Wizinsky v. State, 308 Neb. 778, 957 N.W.2d 466 (2021).
45 28 U.S.C. § 2680(a) (2018).
46 See Lemke v. Metropolitan Utilities Dist., 243 Neb. 633, 502 N.W.2d 80
(1993).

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SIMPSON v. LINCOLN PUBLIC SCHOOLS
Cite as 316 Neb. 246
Federal courts have determined that issues of employee
retention involve the exercise of policy judgment and fall
within the discretionary function exception of the federal
act. 47 With respect to a negligence claim, the Eighth Circuit
reasoned: “[D]ecisions to ‘investigate, hire, fire, and retain’
employees are generally discretionary. Thus, these decisions
fall within the discretionary function exception and cannot
be the basis for liability on the part of the school district.” 48
The 10th Circuit held that “[d]ecisions regarding employ-
ment and termination are inherently discretionary” 49 and “are
precisely the types of administrative action the discretion-
ary function exception seeks to shield from judicial second-
guessing.” 50 The court explained that “employment and termi-
nation decisions are, as a class, the kind of matters requiring
consideration of a wide range of policy factors, including
‘budgetary constraints, public perception, economic condi-
tions, individual backgrounds, office diversity, experience and
employer intuition.’” 51 Similarly, the D.C. Circuit held that
“decisions concerning the hiring, training, and supervising of
. . . employees are discretionary in nature, and thus immune
from judicial review.” 52
Many state courts have similarly concluded that employ-
ment decisions are of the kind that the discretionary function
47 See 35A Am. Jur. 2d Federal Tort Claims Act § 41 (2021). See, also,
Miller v. U.S., 992 F.3d 878 (9th Cir. 2021); Burkhart v. Washington
Metro. Area Transit Auth., supra note 30; Larson by Larson v. Miller,
supra note 30; Richman v. Straley, supra note 30; Radford v United States,
264 F.2d 709 (5th Cir. 1959).
48 Larson by Larson v. Miller, supra note 30, 76 F.3d at 1457.
49 Richman v. Straley, supra note 30, 48 F.3d at 1146.
50 Id. at 1147.
51 Sydnes v. U.S., 523 F.3d 1179, 1186 (10th Cir. 2008).
52 Burkhart v. Washington Metro. Area Transit Auth., supra note 30, 112 F.3d
at 1217.

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SIMPSON v. LINCOLN PUBLIC SCHOOLS
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exemption seeks to shield. 53 However, the Iowa Supreme
Court reached a contrary conclusion. 54
[13] We agree with the majority of courts that have con-
sidered the question. We hold that generally, employment and
termination decisions are discretionary and involve a judg-
ment of the kind that the discretionary function exemption is
designed to shield. A court does not inquire into the intent of
the political subdivision employee when making a specific
personnel decision, nor does it ask whether policy analysis
was the real reason for the decision. 55 Instead, a court asks
categorically, rather than case specifically, whether the kind of
conduct at issue can be based on policy concerns. 56 A decision
to terminate an individual’s employment is susceptible to a
policy analysis. In making such a decision, a political subdivi-
sion may be called upon to balance competing interests and
take public perception into consideration.
Here, the undisputed facts show that the decision to termi-
nate Simpson’s employment was not made by her immediate
supervisor. Rather, a human resources specialist recommended
that LPS terminate Simpson’s employment after a meeting
and a followup investigation. The recommendation went up
the chain of command to Weber, the associate superinten-
dent of human resources, who was the final decisionmaker
with regard to continuing or terminating the employment of
certain positions. In making that decision, Weber presum-
ably weighed information about Simpson’s being a well-
liked employee with good performance appraisals against
53 See, e.g., Ex Parte Hugine, 256 So. 3d 30 (Ala. 2017); Storm v. Town of
Ponce Inlet, 866 So. 2d 713 (Fla. App. 2004); Doss v. City of Savannah,
290 Ga. App. 670, 660 S.E.2d 457 (2008); Wayment v. Holmes, 112 Nev.
232, 912 P.2d 816 (1996); City of Hidalgo v. Prado, 996 S.W.2d 364 (Tex.
App. 1999).
54 Doe v. Cedar Rapids Community School Dist., 652 N.W.2d 439 (Iowa
2002).
55 See Sydnes v. U.S., supra note 51.
56 See id.

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
SIMPSON v. LINCOLN PUBLIC SCHOOLS
Cite as 316 Neb. 246
information about her criminal history and honesty issues and
made a policy judgment.
Under the facts of this case, the discretionary function
exemption applies and LPS is entitled to immunity. We cannot
categorically rule out the possibility that different facts might,
in a proper case, lead to a different conclusion on the second
step of the discretionary function analysis.
3. Exclusivity
LPS also assigned that the district court erred in fail-
ing to find that the court lacked subject matter jurisdiction
over Simpson’s claim due to the exclusivity provisions of
the Nebraska Workers’ Compensation Act. Because we have
determined that the district court lacked subject matter juris-
diction over Simpson’s claim due to LPS’ immunity from suit,
we need not determine whether the exclusivity issue bears on
the correctness of the final order such that we would have
appellate jurisdiction. 57
VI. CONCLUSION
We conclude that the decision to terminate Simpson’s
employment involved an element of judgment of the type
that the Legislature intended to shield; accordingly, LPS has
immunity under the discretionary function exemption. We
reverse the district court’s contrary conclusion and remand the
cause with direction to dismiss.
Reversed and remanded with direction.
57 See, Clark v. Sargent Irr. Dist., supra note 5; State v. Abernathy, 310 Neb.
880, 969 N.W.2d 871 (2022); State v. Loyd, 269 Neb. 762, 696 N.W.2d
860 (2005).