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Arens v. Nebco, Inc.

Supreme Court of Nebraska

September 18, 2015

Lenard Arens, appellant,
NEBCO, Inc., 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.

[291 Neb. 835] 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. ____:____: ___ . 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.

[291 Neb. 836] 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.

[291 Neb. 837] 20. ___:___:____ . Under Neb. Rev. Stat. § 48-1107.02(10) (Reissue 2010), the business necessity standard for required medical examina­tions is an objective test.

21.____:____:____. 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 that 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.

Appeal from the District Court for Lancaster County: Jodi Nelson, Judge.

Joy Shiffermiller, of Shiffermiller Law Office, PC, L.L.O., for appellant.

Shannon L. Doering and Luke F. Vavricek for appellee.

Heavican, C.J., Wright, Connolly, Stephan, Miller-Lerman, and Cassel, JJ.



The appellant, Lenard Arens, appeals from a jury verdict for NEBCO, Inc. (Nebco), in his disability discrimination action [291 Neb. 838] 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 to accommodate his known mental and physical limitations, accommodations that it had previously considered reasonable. He argues the court deprived him of a fair trial by improperly excluding evidence that was crucial to this claim. Additionally, he sought to show that Nebco transferred him for driving inci­dents or conduct that it accepted from other drivers. He argues that this evidence showed Nebco's purported reasons for its adverse employment actions against him were pretextual as a matter of law. He moved for a directed verdict for that reason. He also moved for a directed verdict on his claim that Nebco discriminated against him by requiring him to complete medi­cal examinations to perform work he was already doing. He argues that the court erred in overruling his motion because the examinations were per se unlawful discrimination under the Act.

[291 Neb. 839] Nebco counters that it suspended Arens from driving a tractor-trailer and transferred him to driving a concrete truck because he was "irresponsible, insubordinate and reckless."[2]It further argues that driving a concrete truck required differ­ent physical abilities than those required for driving a tractor-trailer. So Nebco contends that it properly required Arens to take a '"fit for duty'" examination, as any other employee would have to do.[3] Finally, Nebco claims that it discharged Arens for failing to comply with employer-mandated counsel­ing as a condition for laid-off employment status.


1. Statutory Prohibitions

Under the Act, it is unlawful for a covered employer to take any of the following actions because of a person's dis­ability: "To fail or refuse to hire, to discharge, or to harass any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment . . . ."[4] Apart from exceptions that do not apply, disability means "(a) a physical or mental impairment that substantially limits one or more of the major life activi­ties of such individual, (b) a record of such an impairment, or (c) being regarded as having such an impairment."[5] The Act does not define major life activities. A person is a "[q]ualified individual with a disability" under the Act if he or she can per­form the essential functions of the job with or without reason­able accommodations.[6]

Reasonable accommodations include employer actions such as job restructuring, reassignment to a vacant position, and appropriate adjustment or modification of examinations [291 Neb. 840] or policies.[7] It does not include accommodations that would impose an undue financial hardship on the employer.[8]

In addition to the Act's general prohibition against dis­criminatory employment practices, § 48-1107.02 sets forth a nonexclusive list of conduct that constitutes discrimination against a qualified individual with a disability. Under subsec­tion (5), it is discrimination for a covered employer not to make reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability, unless the employer demonstrates that the accom­modations would impose an undue hardship on business opera­tions.[9] Under subsection (7), it is discrimination for a covered employer to use "qualification standards, employment tests, or other selection criteria that screen out or tend to screen out an individual with a disability . . . unless the standard, test, or other selection criteria ... is shown to be job-related for the position in question and is consistent with business necessity"[10] And under subsection (10), it is discrimination to require an employee who is a qualified individual with a disability to take a medical examination unless the examina­tion "is shown to be job-related and consistent with busi­ness necessity."[11]

2. Arens' Excluded Evidence

Before trial, the court heard Nebco's motion in limine to exclude exhibits 1 and 2, which comprised a letter and reports that were prepared in 1996 and 1998 by David Utley, a voca­tional rehabilitation counselor. Arens intended to offer this evidence to show Nebco's knowledge and previous accom­modation of his mental impairments after a work-related [291 Neb. 841] accident. The court excluded the exhibits as hearsay. At trial, the court allowed Arens to make an offer of proof of Utley's testimony out of the jury's presence, after which Arens reof-fered exhibits 1 and 2.

In the offer of proof, Utley testified that he had gathered facts and reviewed Arens' medical evaluations to determine his permanent work restrictions after a 1996 work-related accident. Arens sustained a traumatic brain injury in the acci­dent. Utley said the reports from Arens' neuropsychological evaluations showed that (1) he had difficulty with attention, concentration, information recall, and emotional distress; and (2) he would likely need accommodations for his job, including written instructions. In 1998, Utley spoke to Nebco's agents about the accommodations that Arens would need for his per­manent work restrictions. He said Nebco's agents knew Arens had memory problems and conflicts with coworkers but told him that they could accommodate his needs. Utley said that if Nebco had not been willing to accommodate Arens' mental impairments, his evaluation of Arens' loss of earning capacity could have been much higher.

Utley testified that his loss of earning report was a docu­ment that he regularly kept in the course of his consulting busi­ness. He admitted on cross-examination that (1) his consulting firm had destroyed his original reports before 2003 because the firm had closed Arens' case and (2) his testimony rested on his review of his reports. Nebco objected that (1) Utley could not provide a medical opinion; (2) his testimony was irrelevant, because it had nothing to do with Arens' discharge; (3) his testimony was cumulative because Arens had already testified that he received written instructions; and (4) Utley's testimony rested on documents that were hearsay.

In his offer of proof, Arens argued that the court should min­imally allow Utley to state what his permanent work restric­tions were in 1998 and that Nebco was willing to accommo­date them. Additionally, Arens argued that Utley's report was relevant to prove that before Nebco discharged him, he had [291 Neb. 842] shown the report to Lynn Blodgett, Nebco's human resources director. The court ruled that Utley's testimony was ...

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