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Marshall v. EyeCare Specialties, P.C.

Supreme Court of Nebraska

July 2, 2015


Page 344

[Copyrighted Material Omitted]

Page 345

Appeal from the District Court for Lancaster County: JOHN A. COLBORN, Judge.

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

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



Page 346

[291 Neb. 266] Cassel, J.


After Cindy Marshall's employer terminated her employment, Marshall sued--claiming unlawful discrimination based upon a perceived disability. The district court entered summary judgment in favor of the employer, and Marshall appeals. Because there is a genuine issue of material fact as to whether the employer terminated Marshall's employment on that basis, we reverse the summary judgment and remand the cause for further proceedings.

Page 347



EyeCare Specialties, P.C. of Lincoln (EyeCare Specialties), provides optometric care to patients. In January 2007, it hired Marshall as a clinical technician. Prior to being employed by EyeCare Specialties, Marshall lost her nursing license and was diagnosed as being dependent on prescription medication. She completed treatment for her condition.

Issues Regarding Marshall's Work Performance

In March 2007, Marshall received an above-average score on her employee performance evaluation. The 90-day evaluation noted that she was doing very well, that she was a [291 Neb. 267] fast learner, and that she retained information well. In May, EyeCare Specialties scheduled her to attend " Marco school" to learn how to perform a specific eye examination. But several e-mails sent in May noted apprehensions about Marshall. One e-mail referenced " concerns that have been brought to us by other technicians regarding [Marshall's] staying on task, and her struggles at times with day[-]to[-]day clinic responsibilities." Another stated that Marshall " has a hard time staying focused on the flow" and that the coworker was concerned about Marshall's " hands getting very shakey [sic] more towards afternoon." An e-mail from the director of human resources at the time stated that others had reported Marshall seemed paranoid, had trouble staying focused, and " seems to not be present when they think she should be and they are not aware of where she is." And an e-mail from one of the doctors reported that a visual field test performed by Marshall was useless due to errors.

In June 2007, more concerns about Marshall were raised. One coworker's e-mail stated in part: " I saw [Marshall] taking medications at least four times. When I would see her and she would see me she acted very nervous and turned the other way to finish taking them and then would chug a cup of coffee." A different coworker stated that random drug testing needed to be implemented due to " an employee that always seems zoned out and alot [sic] of times doesn't seem able to perform her everyday duties." That e-mail went on to discuss Marshall's slowness in screening patients. Coworkers expressed frustration and unhappiness about the prospect of Marshall's receiving Marco training. Ultimately, Marshall was informed that she would not be going to " Marco school" due to concerns that she might not be ready. Also in June, Marshall reported to the director of human resources and the chief operating officer that she had told a coworker she lost her license as a nurse due to an addiction to prescription medication. The chief operating officer suggested that Marshall set her prescription bottle on the table when she needs to take medication so that staff can see what she is [291 Neb. 268] taking. On June 28, Marshall received a corrective action form to address interpersonal issues with coworkers and quality of work issues.

In January 2008, Marshall became " Marco" certified. In January and February, she received verbal and written warnings for " abuse of time clock." In March, Marshall's supervisor reviewed with Marshall concerns about work performance, including slow workpace, poor attendance, inappropriate discussions with patients regarding test results, and poor performance in patient meetings. But in May, Marshall received a raise based on an above-average score on an " Epic Technician" performance evaluation. The following ...

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