As Amended October 15, 2015.
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Appeal from the District Court for Lancaster County: JODI NELSON, Judge.
Joy Shiffermiller, of Shiffermiller Law Office, P.C., 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. MCCORMACK, J., participating on briefs. STEPHAN, J., not participating in the decision.
[291 Neb. 837] CONNOLLY,
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). 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.
II. PARTIES' GENERAL CONTENTIONS
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."  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. 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 . . . ."  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."  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.
Reasonable accommodations include employer actions such as job restructuring, reassignment to a vacant position, and appropriate adjustment or modification of examinations or [291 Neb. 840] policies. It does not include accommodations that would impose an undue financial hardship on the employer.
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. 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."  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." 
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 reoffered 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 irrelevant to the proceedings. The court also excluded his reports in exhibits 1 and 2 as containing layers of hearsay.
3. Historical Facts
Nebco terminated Arens' employment in 2010. He had worked for Nebco since 1976. Beginning in 1978, he drove a concrete truck. But about 1986, he sustained a shattered kneecap in a work accident. Afterward, driving a concrete truck in the city was difficult because it required him to use his " clutch leg" often. He also said that concrete truckdrivers must climb a high ladder to wash out the mixing drum, often several times a day, which was difficult for him because there is little to hold onto. In 1990, his supervisor, Ron Hansen, assigned him to drive a tractor-trailer to deliver unmixed concrete materials to jobsites because it was easier on Arens' leg.
Later, Arens sustained a brain injury while making a delivery with a flatbed truck. Although he did not remember the accident, he knew he had fallen off the truck and been found unconscious. He was absent from work for 6 months and required rehabilitative care for speech and memory problems. He said he could not drive a concrete truck after this injury because he could not climb higher than his own height. He said that he was unstable above that height because after his injury, he experienced fear and dizzy spells when climbing ladders.
Arens' coworkers told him that he was not the same, but he thought he had not changed because " that's the way head injuries are." He continued to see a mental health professional after returning to work. He said Nebco employees would give him written instructions on order sheets because of his short-term memory problems.
Hansen was Arens' supervisor from 1978 until Hansen retired in the summer of 2006. Afterward, Gordon Wisbey was Arens' supervisor. Arens believed that Wisbey singled him out [291 Neb. 843] for complaints about his work and ignored his disabilities. In October 2006, Wisbey documented an oral reprimand that he gave to Arens over a truck accident that damaged an electrical switchbox at a jobsite. Arens had hit the switchbox with his trailer while making a sharp turn into the driveway at the jobsite. Arens documented the accident in a damage report the day after it occurred. He reported that he had to watch a guard directing his tractor-trailer during the turn, which distracted him for a few seconds. Wisbey reprimanded him the next day. The reprimand stated that Nebco would not tolerate this behavior and that further instances of such behavior would result in more severe discipline, " up to and including termination." (Emphasis omitted.)
Arens testified that Hansen had never assigned him to drive Nebco's sole flatbed trailer with a forklift on the back because of Arens' climbing difficulties. (The driver must climb up onto the back of the trailer and then climb up into the forklift.) Instead, Hansen had assigned him to drive a flatbed trailer without a forklift. This testimony was uncontroverted.
But in 2008, Wisbey required Arens to drive the forklift truck. Arens said that he told Wisbey driving that truck was difficult for him because of his disabilities but that he feared losing his job if he did not comply. Wisbey denied that Arens had expressed an unwillingness to drive the forklift truck or told him that Hansen would not require him to drive it because of his disabilities. Wisbey conceded that driving the forklift truck was a more strenuous job and that two previous drivers with less seniority than Arens had also driven it. Wisbey had reassigned one of the junior drivers because he did not like driving the forklift truck and Wisbey wanted to accommodate his preference.
(a) Truckyard Incident
On December 6, 2010, Arens avoided a vehicle accident when he turned his truck into the driveway of Nebco's [291 Neb. 844] truckyard from a highway in Lincoln. He stated that as he was turning the corner into the driveway, cars rapidly approached the driveway from the opposite direction, which required him to turn the corner sharply to avoid an accident. This maneuver caused the back tires of the trailer to go over the grass close to a culvert. Arens said he was going only about 10 m.p.h. but was afraid to come to a complete stop on the highway because of heavy traffic. He said he maneuvered the turn the best he could, but a " tarp box" on the underside of the trailer hit the ground, scraping up
some sod beside the driveway. Arens said he had someone from the garage check the tarp box and was ...