Arens v. NEBCO, Inc.
| Decision Date | 18 September 2015 |
| Docket Number | No. S–14–290.,S–14–290. |
| Citation | 32 A.D. Cases 204,870 N.W.2d 1 |
| Parties | Lenard Arens, appellant, v. NEBCO, Inc., appellee. |
| Court | Nebraska Supreme Court |
Joy Shiffermiller, of Shiffermiller Law Office, Lincoln, P.C., L.L.O., for appellant.
Shannon L. Doering, Lincoln, and Luke F. Vavricek for appellee.
1. Rules of Evidence.In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by these rules; judicial discretion is involved only when the rules make discretion a factor in determining admissibility.
2. Judges: Evidence: Appeal and Error.The exercise of judicial discretion is implicit in determining the relevance of evidence, and an appellate court will not reverse a trial court's decision regarding relevance absent an abuse of discretion.
3. Judgments: Words and Phrases.A judicial abuse of discretion exists when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for disposition.
4. Rules of Evidence: Hearsay: Appeal and Error.Apart from rulings under the residual hearsay exception, an appellate court reviews for clear error the factual findings underpinning a trial court's hearsay ruling and reviews de novo the court's ultimate determination to admit evidence over a hearsay objection or exclude evidence on hearsay grounds.
5. Directed Verdict: Appeal and Error.In reviewing rulings on motions for directed verdict, an appellate court gives the nonmoving party the benefit of all evidence and reasonable inferences in his or her favor, and the question is whether a party is entitled to judgment as a matter of law.
6. Evidence: Words and Phrases.Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
7. Evidence: Proof.For evidence to be relevant, all that must be established is a rational, probative connection, however slight, between the offered evidence and a fact of consequence.
8. Fair Employment Practices: Discrimination: Words and Phrases.Under the Nebraska Fair Employment Practice Act, the threshold fact of consequence in a disability discrimination action is whether the plaintiff is a qualified individual with a disability—i.e., one who can perform the essential functions of the job with or without reasonable accommodations.
9. Fair Employment Practices: Discrimination: Proof.Under the Nebraska Fair Employment Practice Act, a covered employer's failure to make reasonable accommodations for a qualified individual's known physical or mental limitations is discrimination, unless the employer demonstrates that the accommodations would impose an undue hardship on business operations.
10. Appeal and Error.Unless an appellate court elects to notice plain error, it does not consider arguments and theories not presented to the lower court.
11. Rules of Evidence: Hearsay: Records: Words and Phrases.Under Neb. Evid. R. 803(5), Neb. Rev. Stat. § 27–803(5) (Reissue 2008), the business record exception to hearsay is not limited to records created by the holder of the records. It applies to a memorandum, report, record, or data compilation. The term “data compilation” is broad enough to include records furnished by third parties with knowledge of the relevant acts, events, or conditions if the third party has a duty to make the records and the holder of the record routinely compiles and keeps them.
12. Rules of Evidence: Hearsay: Records.Unlike Fed. R. Evid. 803(6), Neb. Evid. R. 803(5), Neb. Rev. Stat. § 27–803(5) (Reissue 2008), excludes opinions and diagnoses from the business record exception to hearsay.
13. Trial: Evidence: Appeal and Error.When part of an exhibit is inadmissible, a trial court has discretion to reject the exhibit entirely or to admit the admissible portion. Furthermore, because it is the proponent's responsibility to separate the admissible and inadmissible parts when offering evidence, an appellate court will ordinarily uphold a court's exclusion of an exhibit if the proponent did not properly limit its offer to the part or parts that are admissible.
14. Trial: Evidence: Appeal and Error.In a civil case, the admission or exclusion of evidence is not reversible error unless it unfairly prejudiced a substantial right of the complaining party.
15. Evidence: Witnesses.A party is generally permitted to present corroborating evidence on key issues, unless such evidence becomes excessive. But evidence from a neutral witness that corroborates a party's evidence on a central, contested issue is not cumulative—particularly if it is the party's best or most persuasive evidence.
16. Fair Employment Practices: Discrimination: Proof.Apart from an exception for summary judgments, in a discrimination action brought under the Nebraska Fair Employment Practice Act, a court evaluates the evidence under the three-part burden-shifting framework from McDonnell Douglas Corp. v. Green,411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under that framework, (1) the plaintiff has the burden of proving a prima facie case of discrimination; (2) if the plaintiff proves a prima facie case, the burden shifts to the employer to articulate some legitimate, nondiscriminatory reason for the adverse employment action; and (3) if the employer articulates a nondiscriminatory reason for its action, the employee maintains the burden of proving that the stated reason was pretextual.
17. Directed Verdict: Evidence: Appeal and Error.A directed verdict is proper only when reasonable minds cannot differ and can draw but one conclusion from the evidence, that is, when an issue should be decided as a matter of law. In reviewing that determination, an appellate court gives the nonmoving party the benefit of every controverted fact and all reasonable inferences from the evidence.
18. Fair Employment Practices: Legislature: Intent: Discrimination: Courts.The Legislature intended that its 1993 amendments to the Nebraska Fair Employment Practice Act would provide the same protections from employment discrimination that are provided under title I of the Americans with Disabilities Act of 1990. So it is appropriate for a court to consider how federal courts have interpreted the act's counterparts to those amendments.
19. Fair Employment Practices: Discrimination: Proof.To show a business necessity for requiring an employee (as distinguished from an applicant) to submit to a medical examination under Neb. Rev. Stat. § 48–1107.02(10) (Reissue 2010), 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 ability 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 employee'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.
20. Fair Employment Practices: Discrimination: Proof.Under Neb. Rev. Stat. § 48–1107.02(10) (Reissue 2010), the business necessity standard for required medical examinations is an objective test.
21. Fair Employment Practices: Discrimination: Proof.Under Neb. Rev. Stat. § 48–1107.02(10) (Reissue 2010), whether an employer requires similarly situated employees to submit to a medical examination is relevant to whether the employer considers such examinations a business necessity. But any comparison between employees must be made with an eye to the ultimate inquiry, i.e., the necessity of the examination of the plaintiff. An employer's disparate treatment of employees regarding medical examinations cannot override substantial evidence that the employer had good reason to doubt the plaintiff's ability to perform the essential functions of the job.
22. Employer and Employee: Discrimination.An employer's doubts about an employee's ability to perform the essential functions of a job may be created by an employee's request for accommodations, frequent absences, or request for leave because of his or her medical condition. Such doubts can also be raised by the employer's knowledge of an employee's behavior that poses a direct threat to the employee or others.
23. Employer and Employee: Discrimination: Proof.Requiring an employee to submit to a medical examination is consistent with a business necessity only if the employer shows significant evidence that a reasonable person would doubt that the employee could perform the essential functions of the job, with or without reasonable accommodations, because of a medical condition.
The appellant, Lenard Arens, appeals from a jury verdict for NEBCO, Inc. (Nebco), in his disability discrimination action
under the Nebraska Fair Employment Practice Act (the Act).1 He argues that the court's adverse evidentiary rulings prejudiced him and that the court erred in failing to direct a verdict for him. He moved for a general directed verdict and a directed verdict on his claim that Nebco required him to take medical examinations that were unlawful under the Act.
In his complaint, Arens alleged that work-related accidents had limited his ability to climb and caused memory impairments that required him to have written instructions. He alleged that Nebco was aware of his disabilities and discriminated against him under the Act. And he alleged that Nebco terminated his employment for violating standards or conditions of employment that did not apply to employees without disabilities.
At trial, Arens primarily sought to prove that Nebco failed...
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