Hartley v. Metro. Utilities Dist. of Omaha

• Decision Date: 30 September 2016
• Docket Number: No. S-15-976.,S-15-976.
• Citation: 885 N.W.2d 675,294 Neb. 870
• Parties: Kristina J. Hartley, appellee, v. Metropolitan Utilities District of Omaha, appellant.
• Court: Nebraska Supreme Court

294 Neb. 870

885 N.W.2d 675

Kristina J. Hartley, appellee,

v.Metropolitan Utilities District of Omaha, appellant.

No. S-15-976.

Supreme Court of Nebraska.

Filed September 30, 2016.

Mark Mendenhall, of Metropolitan Utilities District of Omaha, for appellant.

Joy Shiffermiller and Abby Osbom, of Shiffermiller Law Office, P.C., L.L.O., Lincoln, for appellee.

Heavican, C.J., Wright, Miller–Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

Wright, J.

I. NATURE OF CASE

Metropolitan Utilities District of Omaha (MUD) appeals from a verdict in favor of Kristina J. Hartley in a gender discrimination action under the Nebraska Fair Employment Practice Act (NFEPA).¹ Hartley sought to prove that she was not promoted because of gender discrimination and that MUD's stated reasons for promoting a male colleague, David Stroebele, instead of her were pretextual. Hartley asserted that she and the two other female applicants, Sherri Meisinger and Shala Chevalier, were better qualified than Stroebele or any of the male applicants. The jury returned a verdict in Hartley's favor. On appeal, MUD asserts that the evidence was insufficient to support the jury's verdict. It claims the district court erred in excluding postpromotional performance evaluations of Hartley. It claims the attorney fees awarded to Hartley were excessive.

II. BACKGROUND

Hartley was a senior engineering technician when the position of supervisor of field engineering was posted. Stephanie Henn was senior plant engineer and Hartley's direct supervisor from 2003 to 2009. Henn was promoted to director of plant engineering in February 2009, and John Velehradsky became Hartley's direct supervisor. Velehradsky reported directly to Henn.

1. JOB DESCRIPTION

The supervisor of field engineering position was posted on January 20, 2010. The supervisor was responsible for planning, directing, and supervising the work of 17 field engineering and utility locator personnel of the plant engineering division.

There were several minimum requirements for the position, including “two years of college in an area related to Engineering. Four-year Engineering, or Engineering Technology degree preferred” and “[m]ust have utility locating experience in the last five (5) years, preferable in an ongoing capacity. Utility Locator operator qualification preferred.”

With one notable change, the 2010 posting was similar to the posting for the same position previously in 2003, when another individual was hired as the supervisor. Before the position was posted, Henn added the requirement that the applicant must have recent locating experience, within the past 5 years. Before Henn's changes, locating experience was not required for the position.

Utility locating is the process of locating existing gas or water utilities in the field. Originally, locating was not part of a senior engineering technician's job and was only part of the job of designated utility locators. Locating was added as part of a senior engineering technician's job responsibilities when the designated utility locators became overwhelmed by the demands of new construction.

The meaning of “utility locating experience” as stated in the job description was unclear. Gas and water lines are located either using magnetic field detectors (electronic locating) or referring to “as-built” paper forms that essentially provide a map of where such lines should be (document locating). According to the testimony of MUD employees, one type of locating is not more important than the other. In fact, document locating was utilized more often. Electronic locating was sometimes ineffective due to interference by other power signals nearby.

There was conflicting testimony as to the importance of locating experience for the supervisor of field engineering position. Henn testified that she did not have any locating experience and did not know how to locate. The outgoing supervisor of field engineering likewise did not know how to locate. Still, Henn opined that it was important for the person filling the supervisor position to have the ability to locate. She explained that this position would supervise the utility locators and engineering technicians who were able to locate. Further, a supervisor who knew how to locate could personally help the claims department verify whether any accidental hits of utility lines were MUD's fault, thereby reducing costs.

As far as the requirement that the locating experience be recent, Henn testified that the software of the electronic locating machines changes over time. Anyone without recent experience would have to learn the new software. But other MUD employees testified that even if electronic locating experience were important, it did not make sense to require that experience to be recent. The basics of locating had not changed over the years. Though equipment was getting better, it was easy to understand how to use the new equipment.

As to the meaning of “two years of college in an area related to Engineering,” communications at MUD relating to the supervisor position indicated that it was 60 to 72 hours of coursework, equivalent to 2 years of full-time college. There were no specifically prescribed courses.

2. APPLICANTS

Hartley testified that when she told Henn that she was interested in the supervisor position, Henn seemed to discourage her from applying. Hartley applied anyway. Ultimately, there were 11 applicants. Hartley, Chevalier, and Meisinger were the only female applicants.

There was no argument that any of the seven male applicants not chosen for the promotion were better qualified than any of the three female applicants. Hartley testified that she believed gender discrimination was involved in the decision to hire Stroebele over herself and the other two female applicants, because they were each better qualified than Stroebele. Hartley also asserted there was bias in the job description and in the manner of handling the female applicants' performance appraisals and interviews.

According to MUD's personnel policies, performance appraisals were to be conducted annually during the month in which the employee's anniversary date for the position occurs. But Henn had not evaluated Hartley's performance through an official performance appraisal in the 7 years she had been Hartley's supervisor. Stroebele had not had a performance appraisal in the past 4 years. Henn testified that she “should have been” conducting annual performance appraisals, but that she “was really busy.” In an internal memorandum dated April 20, 2009, human resources encouraged supervisors to get their employee files up to date, noting there had been several job selection grievances that were difficult to evaluate without written documentation of that employee's performance.

Velehradsky testified that he had five employees with overdue appraisals, including Hartley and Stroebele. Because he had never done a performance appraisal, Henn completed the first one, allowing Velehradsky to observe the process. They decided the first performance appraisal would be of Stroebele. Neither Henn nor Velehradsky could explain why they decided to do Stroebele's appraisal first.

(a) Stroebele

Stroebele was one of the newest MUD hires out of the 11 applicants. In fact, he was 10th in seniority out of the 11 applicants for the position of supervisor of field engineering.

Stroebele began working at MUD in 1997 as a pipelayer trainee, an entry-level position for a construction worker. Before working for MUD, Stroebele worked as a laborer with a construction company. Stroebele thought he may have met Hartley as she inspected work he had done while working as a construction worker. Though Stroebele could not be certain it was Hartley, he noted that the inspector was a woman and “there's [sic] not too many females that do that job at MUD.”

Stroebele served in the U.S. Naval Reserve from 1998 to 2004, training people on heavy equipment usage.

After 2 years as a trainee at MUD, Stroebele became a pipelayer. Later, he was promoted to machine operator. In 2000, Stroebele was promoted to field engineer II. He did not begin working as senior engineering technician until 2005. The primary difference between a field engineer and a senior engineering technician is supervisory responsibilities, including monitoring third-party contractors.

Stroebele had less formal education than any of the female applicants. He did not receive his 2–year associate degree in applied science, general studies, until May 2011. As of the end of the spring 1999–2000 school term, Stroebele had completed a total of 61.5 credit hours. Forty of those hours were transferred from another community college. At least half of those credit hours were in fields unrelated to engineering, such as psychology, history, astronomy, and English.

Stroebele's performance appraisal was conducted in November 2009, and it was overwhelmingly positive. November was not the month of Stroebele's hiring anniversary date.

It was noted in the appraisal that Stroebele “has not had a preventable injury or accident, not only since his last appraisal, but in his whole [MUD] career (since 1997)! This is highly commendable, as [Stroebele] has worked in 3 different areas since he started with [MUD].” He was described as organized and as completing his work in a timely manner. It was noted that Stroebele was a good example to his coworkers in the manner in which he kept up with paperwork, even helping others when they were behind. He was described as an excellent communicator, who “knows when to call me to get me involved and when he can make the decision on his own.” Further, he “portrays a very professional attitude.”

But Stroebele had two chargeable locating hits in the last 3½ years. Chargeable locating hits are when errors in locating cause a gas or water line to be hit and damaged. The appraisal cited, “[c]ontinue excellent performance,” as the only “performance goals” to be accomplished before the next appraisal. Stroebele was described as an employee...