Marshall v. Eyecare Specialties, P.C. of Lincoln

Decision Date25 March 2016
Docket NumberNo. S-14-696.,S-14-696.
Parties Cindy Marshall, Appellant, v. Eyecare Specialties, P.C. of Lincoln, Appellee.
CourtNebraska Supreme Court

Abby Osborn and Joy Shiffermiller, Lincoln, of Shiffermiller Law Office, P.C., L.L.O., for appellant.

Shawn D. Renner, Susan K. Sapp, Lincoln, and Tara A. Stingley, Omaha, of Cline, Williams, Wright, Johnson & Oldfather, L.L.P., for appellee.

Heavican, C.J., Connolly, Miller–Lerman, and Cassel, JJ., and Irwin, Inbody, and Pirtle, Judges.


, J.


This case is before us on a motion for rehearing filed by EyeCare Specialties, P.C. of Lincoln (EyeCare Specialties). EyeCare Specialties employed Cindy Marshall as an optical technician from 2007 until it terminated her employment in 2012. Marshall sued EyeCare Specialties, alleging that it discriminated against her because it regarded her as disabled. The district court sustained EyeCare Specialties' motion for summary judgment, and Marshall appealed.

We filed an opinion deciding the appeal on July 2, 2015,1 but we later sustained EyeCare Specialties' motion for rehearing. We now withdraw our former opinion. Marshall created a dispute of material fact concerning whether EyeCare Specialties discriminated against her because of her skin condition and tremors, which EyeCare Specialties perceived to substantially limit her ability to work. She did not create a fact question concerning whether EyeCare Specialties discriminated against her because of a perceived disability related to her past prescription drug abuse. We therefore reverse, and remand for further proceedings.


In January 2007, EyeCare Specialties hired Marshall as an optical technician. Marshall previously worked as a registered nurse but "lost [her] nursing license" because of prescription drug abuse. Marshall said that she successfully completed treatment and did not abuse prescription drugs while she worked for EyeCare Specialties. She told her coworkers about her past drug abuse because they asked why she no longer worked as a nurse.


In Marshall's first performance evaluation in March 2007, her scores were excellent or above average in every category except one. But she quickly became the subject of complaints from coworkers. In May 2007, a coworker said that Marshall had "a hard time staying focused on the flow" and got "very shakey [sic] more towards afternoon." Marshall told the coworker she was taking over-the-counter diet pills, which the coworker speculated might be causing Marshall's shakiness. In June, another coworker saw Marshall furtively "taking medications" at work. Yet another coworker said that "random drug testing NEEDS to be implemented." Marshall received a corrective action in June, signed by her "Team Leader" and the "Administration," stating that she needed to improve her "[i]nterpersonal issues with coworkers" and "[q]uality of work...."

Marshall told EyeCare Specialties' administrators that she took "diet pills," in addition to medication to control her blood pressure and headaches. She later admitted that the diet pills might have worsened her "tremors." The administrators suggested that Marshall allay her coworkers' suspicion by setting her pill bottles on the table where others could see them.


The record suggests that Marshall's next 4 years at EyeCare Specialties were relatively quiet. Her May 2008 performance evaluation scored her as excellent or above average in all nine categories, including quality and productivity. The evaluation noted, though, that Marshall "[s]ometimes gets nervous with multitasking" and needed to "work on steady flow and not getting flustered."

In Marshall's March 2009 performance evaluation, her scores were excellent or above average in eight categories and satisfactory in one. The evaluation urged Marshall to not "spend too much time with challenging cases." In Marshall's June 2010 evaluation, which used a different rubric than the prior evaluations, the mean of her performance ratings was "Meets Requirements." The evaluation stated that Marshall "has had a few issues with tardy arrivals" but was improving.

Marshall received a slightly better rating in her March 2011 evaluation. The optometrists' comments were generally positive, although they noted that Marshall occasionally took too much time with a "tough patient" or a "difficult refraction." In April, the clinic coordinator expressed concerns about Marshall's inefficiency, tension with coworkers, and "attitude problem." An optometrist replied that Marshall was "very nervous and not good at multitasking."


In 2012, Marshall's employment situation turned for the worse. On January 9, a coworker approached Laura Houdesheldt, EyeCare Specialties' human resources director, and said that Marshall was "very slow and getting slower." The coworker said that Marshall was "nervous," "confused," " ‘itching,’ " and "shaking," and was taking what looked like diet pills.

Houdesheldt had a discussion with Marshall on January 9, 2012, culminating in a documented "verbal" warning. The corrective action plan stated that Marshall was "not doing her fair share."

Later, on January 24, 2012, Marshall and Houdesheldt had another talk about Marshall's performance. During their conversation, Houdesheldt observed "red, raw-looking scratches on [Marshall's] right arm" and "some open sores that appeared to be wet." Houdesheldt said that Marshall's hands were "shaking quite a bit."

After her conversation with Marshall, Houdesheldt spoke to several of Marshall's coworkers. One coworker said she was "worried that [Marshall] was taking diet pills at work" and that Marshall's paranoia and confusion were increasing. The coworker reported that Marshall had told previous coworkers she had a "history of substance abuse." Houdesheldt later testified that she did not "perceive [Marshall] as having a drug or alcohol problem."

On January 26, 2012, Houdesheldt spoke with an optometrist who was concerned about Marshall's "inconsistent pace." The optometrist was also worried that Marshall jeopardized the patients' safety because she shook while administering tests and had "open wounds


Houdesheldt met again with Marshall. Marshall said that the apparent sores were "beneath her skin," but Houdesheldt "observed some of the sores to be wet." Houdesheldt explained that EyeCare Specialties viewed Marshall's shaking and sores as workplace hazards:

Marshall's use of specialized tools in close proximity to patients' eyes while suffering from hand tremors could pose [a risk of] injury to patients and cause discomfort and alarm to patients during testing procedures. Similarly, ... Marshall's open weeping wounds

on her arms could have exposed patients to ... Marshall's bodily fluids or possible bacteria, or could have exposed ... Marshall to infectious material from patients' eyes.

Houdesheldt offered to procure a "large bandage" but Marshall declined. Houdesheldt also discussed Marshall's "marked decrease in the quantity of her work." But, according to Marshall, Houdesheldt said that Marshall's failure to do her "fair share" was " ‘not our real concern.’ "

Marshall began to cover her arms after the January 26, 2012, meeting with Houdesheldt, although she denied having "open, weeping, wet wounds

." Marshall said she had "very thin skin that bruises easy." Bandages would tear her skin, so she used "leggings" made from children's clothing to cover her arms. Marshall said that Houdesheldt referred to the leggings as a "clever idea."

In February 2012, Marshall and Houdesheldt had another discussion that climaxed in a written warning. Houdesheldt again pressed Marshall to "cover [ ] her open wounds

" with bandages. The corrective action plan stated that Marshall had "progressively become slower paced in her work" and that her "shaking and her uncovered sores are a concern as she performs tests that bring her in close proximity to patient's [sic] eyes." Marshall left work after her conversation with Houdesheldt. She thought she had permission to leave early, but Houdesheldt disagreed.

On March 13, 2012, an optometrist told Houdesheldt that "Marshall's work pace was very inconsistent and slow, that ... Marshall was confused from time to time and had trouble verbalizing her thoughts, and that ... Marshall's failure to address and improve her performance issues was problematic." Houdesheldt had another talk with Marshall.

At her March 13, 2012, meeting with Houdesheldt, Marshall produced a note from her physician dated January 27, 2012, which said that Marshall had a "non-intention tremor & it does not affect work performance." The doctor's note further said that Marshall's "rash is not contagious." The note did not alleviate Houdesheldt's concerns because she did not think Marshall's skin condition was a "rash."

The March 13, 2012, corrective action plan stated that Marshall was "very inconsistent, with periods of average performance followed by periods where her performance decreases significantly." Furthermore, Marshall "continue[d] to refuse to cover her sores with bandages, using the bottom cuffs of some children's legging as sleeve extenders instead." She also "continue[d] to be jittery and easily flustered." The plan stated that "termination is likely" unless Marshall's pace of work improved and she used an "acceptable barrier" for her "open sores." According to Houdesheldt, Marshall refused to sign the corrective action plan and left before the end of her shift.

After Marshall left, Houdesheldt and the clinic coordinator decided to terminate her employment. On March 14, 2012, Houdesheldt informed Marshall that EyeCare Specialties would no longer employ her.

To rebut the charge that she worked slowly, Marshall collected records for 13 days between February 2 and March 14, 2012, showing the number of patient examinations she and other technicians had performed. According to Marshall's...

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