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McBurnett v. Nebraskaland Tire, Inc.

Court of Appeals of Nebraska

October 6, 2015

Danny McBurnett, appellant and cross-appellee,
Nebraskaland Tire, Inc., a Nebraska corporation, appellee and cross-appellant.


Appeal from the District Court for Scotts Bluffs County: Leo Dobrovolny, Judge. Affirmed.

Sterling T. Huff, of Island & Huff, P.C., L.L.O., for appellant.

Dan H. Ketcham and Michael L. Moran, of Engles, Ketcham, Olson & Keith, P.C., for appellee.

Moore, Chief Judge, and Pirtle and Bishop, Judges.


Pirtle, Judge.


Danny "Jim" McBurnett appeals the order of the District Court for Scotts Bluff County that granted the motion for summary judgment of Nebraskaland Tire, Inc. (NLT), in McBurnett's suit against NLT for disability discrimination under the Nebraska Fair Employment Practices Act (the NFEPA). NLT cross appeals, asserting that McBurnett's suit was not timely filed as to the claimed disability discrimination arising out of the alleged demotion and the alleged failure to accommodate, and that the district court erred in finding that the accommodation issue was included in the Nebraska Equal Opportunity Commission (NEOC) charge. Based on the reasons that follow, we affirm.


McBurnett, who was in his mid-40's at the time of trial, has had monocular vision since the age of 17, resulting from a BB gun accident. He has 20/20 vision in one eye, but is blind in the other eye.

Since losing vision in one eye, McBurnett has been able to manage his own hygiene, read, write, hunt, operate all-terrain vehicles, and obtain a permit to own a handgun. However, McBurnett exercises extra caution when operating all-terrain vehicles, hunting, and walking. McBurnett also requires "somewhat longer" to perform certain tasks, such as reading and writing, caring for himself, performing certain manual tasks, and walking through hazardous areas. McBurnett operates his own motor vehicle and has obtained a driver's license, with the requirement that he have two outside mirrors. Monocular vision requires McBurnett to "relearn to do stuff, " but, with time, he can do whatever activity he seeks to do.

McBurnett has never applied for Social Security Disability. Before working for NLT, McBurnett had performed work harvesting beets, driving a truck with a box for a custom hay grinder, installing pivots and drilling wells, boxing meat, servicing and delivering tires using a pickup and trailer, and constructing buildings.

McBurnett began his employment with NLT on February 2, 2010, as a commercial tire sales associate with a territory that included parts of Wyoming and Colorado. NLT hired McBurnett for a 3-month probationary period, at the end of which he would receive an evaluation. McBurnett signed NLT's "Conditional Offer of Employment, " which provided, "For most positions our offer is also conditional upon you having a valid driver's license in this state and are determined to be insurable by our insurance carrier through a State MVR inquiry." To carry out his duties in the sales position, McBurnett sometimes drove outside the state of Nebraska in a pickup pulling a trailer, the combined weight of which exceeded 10, 000 pounds. For smaller deliveries, he only drove the pickup.

In May or June 2010, NLT informed McBurnett that he needed to obtain a United States Department of Transportation (DOT) "medical card" to continue in the sales position. In the event of an accident, NLT's insurer would not cover an employee without a medical card, even if that employee was not at fault. McBurnett attempted to obtain a medical card but was told by a physician that he was unqualified due to his monocular vision.

In February 2011, NLT informed McBurnett that he could no longer serve in the commercial tire sales position without a DOT medical card. NLT offered McBurnett a position as a commercial tire technician, which McBurnett accepted but considered a demotion. After the transfer, McBurnett was not allowed to drive any of NLT's vehicles, whether commercial or non-commercial. In May 2013, immediately after leaving his job at NLT, McBurnett obtained other employment on a construction crew. He does not seek reinstatement at NLT.

On March 14, 2011, McBurnett filed a charge of disability discrimination with both the NEOC and the U.S. Equal Employment Opportunity Commission (EEOC). On November 17, he filed an amended charge. The charge alleged that NLT had demoted McBurnett and treated him differently in the terms and conditions of his employment because of his disability. ...

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