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Pierce v. Landmark Management Group Inc.

Supreme Court of Nebraska

June 24, 2016

Sybille Pierce, appellee,
v.
Landmark Management Group, Inc., et al., appellants.

         1. Appeal and Error. An alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error to be considered by an appellate court.

         2. Trial: Appeal and Error. A general assignment that the court erroneously overruled objections, without supporting argument as to why the rulings were erroneous or how they resulted in prejudice, is insufficient to preserve the issue for appellate review.

         3. Records: Appeal and Error. It is incumbent upon the appellant to present a record supporting the errors assigned; absent such a record, an appellate court will affirm the lower court's decision regarding those errors.

         4. ___: ___. Rulings of the trial court which do not appear in the record are not considered on appeal. 5. Motions for New Trial: Damages: Appeal and Error. A motion for new trial is a prerequisite to obtaining appellate review of the issue of excessive damages.

         6. Employer and Employee: Federal Acts. Employers are covered by the Family and Medical Leave Act of 1993 when they employ 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year.

         7. ___: ___. Separate entities are deemed to be a single employer for purposes of the Family and Medical Leave Act of 1993 if they meet the integrated employer test.

         8. ___: ___. When the integrated employer test is met, the employees of all entities making up the integrated employer are counted to determine employer coverage under the Family and Medical Leave Act of 1993.

         9. Administrative Law: Employer and Employee: Federal Acts. The regulations promulgated by the U.S. Department of Labor interpreting [293 Neb. 891] the Family and Medical Leave Act of 1993 establish the test for determining whether legally distinct companies may be considered so interrelated that they constitute a single employer for purposes of the act.

         10. Employer and Employee. The integrated employer test involves consideration of four factors: (1) common management, (2) interrelation between operations, (3) centralized control of labor operations, and (4) degree of common ownership/financial control.

         11. ___ . Under the integrated employer test, whether separate entities are sufficiently integrated is not determined by any single factor, but, rather, the entire relationship between the entities is to be reviewed in its totality.

         12. Summary Judgment: Appeal and Error. An appellate court will affirm a lower court's grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.

         13. ___: ___. In reviewing a summary judgment, the court views the evidence in the light most favorable to the party against whom the judgment was granted and gives such party the benefit of all reasonable inferences deducible from the evidence.

         14. Trial: Juries: Evidence. Where the facts are undisputed or are such that reasonable minds can draw but one conclusion therefrom, it is the duty of the trial court to decide the question as a matter of law rather than submit it to the jury for determination.

         15. Summary Judgment: Evidence: Proof. A movant for summary judgment makes a prima facie case by producing enough evidence to demonstrate that the movant is entitled to a judgment if the evidence were uncontroverted at trial. The burden of producing evidence then shifts to the party opposing the motion, who must present evidence showing the existence of a material fact that prevents summary judgment as a matter of law.

         16. Summary Judgment. If the movant for summary judgment establishes a material fact, and that fact is not contradicted by the adverse party, the court will determine that there is no issue as to that fact.

         17. ___. Mere formal denials or general allegations which do not show the facts in detail and with precision are insufficient to prevent an award of summary judgment. 18. Summary Judgment: Affidavits. A party may not create an issue of fact at the summary judgment stage by submitting an affidavit that contradicts his or her earlier testimony.

         19. Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by such rules; judicial [293 Neb. 892] discretion is involved only when the rules make discretion a factor in determining admissibility.

         20. Rules of Evidence: Appeal and Error. When the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, an appellate court reviews the admissibility of evidence for an abuse of discretion.

         21. Trial: Evidence: Appeal and Error. 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.

         22. Employment Security. Under Nebraska law, unemployment compensation benefits are not a collateral source, because they are funded by employer contributions. Generally, such benefits should be deducted from a backpay award in employment cases.

         23. Appeal and Error. A lower court cannot commit error in resolving an issue never presented and submitted to it for disposition.

         24. Rules of Evidence: Witnesses: Other Acts. The trial court has discretion, pursuant to Neb. Evid. R. 608(2)(a), Neb. Rev. Stat. § 27-608(2)(a) (Reissue 2008), to admit evidence of prior conduct to impeach a witness' credibility, so long as the evidence is probative of the witness' character for truthfulness.

         25. Rules of Evidence: Taxes. Where evidence of omissions or inaccuracies on tax returns does not necessarily suggest dishonesty, such evidence is generally too tenuous to be probative of truthfulness or untruthfulness.

         26. ___: ___. Evidence that a witness did not report certain income on his or her tax returns, without more, is not sufficiently probative of character for truthfulness or untruthfulness to be admissible under Neb. Evid. R. 608(2), Neb. Rev. Stat. § 27-608(2) (Reissue 2008).

         27. Verdicts: Appeal and Error. In determining the sufficiency of the evidence to sustain a verdict in a civil case, an appellate court considers the evidence most favorably to the successful party and resolves evidential conflicts in favor of such party, who is entitled to every reasonable inference deducible from the evidence.

         28. Trial: Evidence: Witnesses: Juries: Appeal and Error. All conflicts in the evidence, expert or lay, and the credibility of the witnesses are for the jury and not for the appellate court.

         29. Federal Acts: Attorney Fees. Under the Family and Medical Leave Act of 1993 and the ADA Amendments Act of 2008, the prevailing party is entitled to an award of reasonable attorney fees.

         Appeal from the District Court for Douglas County: J. Michael Coffey, Judge.

         [293 Neb. 893] Molly Adair-Pearson, of Adair Pearson Law, for appellants.

          Craig F. Martin, Sarah F. Macdissi, and Sarah M. Smith, of Lamson, Dugan & Murray, L.L.P, for appellee.

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

          Stacy, J.

         I. NATURE OF CASE

         Sybille Pierce sued her former employers claiming she was terminated in violation of the Family and Medical Leave Act of 1993 (FMLA)[1] and the ADA Amendments Act of 2008 (ADAAA).[2] The trial court granted partial summary judgment in favor of Pierce on the issue of whether the employers were "integrated" and met the threshold number of employees to be covered by the FMLA. The case was then tried to a jury, which returned a verdict for Pierce on both the FMLA and the ADAAA claims. The employers timely appealed. Finding no reversible error, we affirm.

         II. FACTS

         1. Pierce Work History

         From 2004 through 2011, Pierce worked for two companies, both of which were owned by David Paladino. From 2004 through 2008, Pierce was the operations manager for Landmark Management Group, Inc. (Landmark), a property management business. From 2008 to 2009, Pierce managed a storage facility for Cornhusker Road LLC, doing business as Dino's Storage (Dino's Storage). While managing the storage facility, Pierce also rented moving trucks to customers, but it is unclear from the record whether the truck rental business was operated at the time through Dino's Storage or through another of Paladino's companies, Dodge Street, LLC. From 2009 until February 22, [293 Neb. 894] 2011, Pierce worked as a legal assistant for Landmark and also continued renting moving trucks. During this period, she was paid by Landmark for her work as a legal assistant and was paid by Dino's Storage for her work renting trucks.

         In 2010, Pierce was diagnosed with "Idiopathic Thrombocytopenic Purpura, " which is a blood disorder that causes abnormally low platelet counts and predisposes patients to a high risk of spontaneous bleeding. Pierce's treatment included steroid injections, intravenous immunoglobin infusions, and eventually a splenectomy surgery in November 2010, for which she took paid vacation time. After recovering from surgery, Pierce returned to work at Landmark and Dino's Storage.

         In January 2011, Pierce's condition worsened and her doctor recommended 4 weeks of infusion treatment using a chemotherapy drug. After her first chemotherapy treatment, Pierce sent her supervisor, Mary Anderson, an e-mail describing her reaction to the treatment. In the e-mail, Pierce advised Anderson she was going to talk with her doctor about whether she should take "medical leave" while undergoing the treatment. In reply to Pierce's e-mail, Anderson wrote: "We would like you to come back when you are able to be here every day and give 100% and not miss any days in the foreseeable future." To this, Pierce replied: "[0]k. I just want to make sure I understand correctly. You want me to take off from now until this treatment is over, which would be sometime in February. And you would hold my position for me until then." Anderson responded: "Yes, we want you to take the time off and when you are able to come back at 100% you will have a job." The following morning, Anderson sent an e-mail to a group of Landmark and Dino's Storage recipients advising, "FYI, [Pierce] is taking a medical leave until sometime in February."

         By mid-February 2011, Pierce had finished her treatment and her blood disorder was in remission. On February 21, Pierce called Anderson and advised she was ready to return to [293 Neb. 895] work. The next day, Pierce had a meeting with Paladino and Anderson. The parties do not dispute that during this meeting. Pierce was told her former position had been filled. However, the parties disagree about whether Pierce was offered another position during the meeting. They also disagree about whether Pierce quit her employment or was terminated.

         According to Pierce, during the meeting, they discussed other possible jobs within the companies Paladino owned, but Paladino wanted assurances that Pierce's condition would not result in significant absences. Pierce testified the meeting ended without any job offer; Paladino and Anderson told Pierce they wanted to talk things over and would call her later. According to Pierce, Anderson called her later the same evening to advise, "[Paladino] and I talked it over and we're going to let you go." The next day, Pierce's immediate supervisor at Dino's Storage sent an e-mail to other Dino's employees which read: "I'm going to keep this short so I don't say something I will regret. [Paladino] fired [Pierce] yesterday because she and her doctors couldn't guarantee that her treatment will keep her permanently healthy."

         Paladino and Anderson denied terminating Pierce's employment. According to both Paladino and Anderson, Pierce was offered two different positions during the meeting. Pierce told them she wanted to go home and speak with her husband about the job offers. Anderson testified that when she telephoned later that evening to follow up, Pierce turned down both job offers.

         Pierce sued Landmark, Dino's Storage, and Dodge Street, claiming she had been unlawfully terminated. We refer to these entities collectively as "the employers."

         2. The Employers

         Landmark is a third-party management company. It is owned by Paladino, and it manages various storage facilities, many of which are also owned by Paladino. Landmark has separate management agreements with each of the storage facilities. Maintenance employees of Landmark generally report [293 Neb. 896] to Landmark's main office at 2702 Douglas Street in Omaha. Nebraska, and from there, they are dispatched to the various storage facilities. The parties stipulated that at all relevant times, Landmark had 38 employees.

         Dino's Storage operates a storage facility in Omaha. Dino's Storage is a trade name used by the storage facility; the actual entity is Cornhusker Road, and Paladino is the controlling shareholder. Dino's Storage operates out of the same space as does Landmark-2702 Douglas Street in Omaha. The parties stipulated that Dino's Storage had 17 employees at all relevant times.

         Dodge Street owns the property at 2702 Douglas Street out of which Landmark and Dino's Storage operate. Paladino is also a shareholder of Dodge Street. According to Paladino, "[t]he primary role of Dodge Street, LLC, is [to] own and operate [the] storage facility." The parties stipulated that Dodge Street had no employees during the relevant time period. The role of Dodge Street in Pierce's claims is not entirely clear from the record, but no party suggests any error associated with its inclusion in this lawsuit.

         3. Procedural History

         (a) Lawsuit

         Pierce filed an employment discrimination suit in the district court for Douglas County, alleging violations of the FMLA, the ADAAA, and the Nebraska Fair Employment Practice Act.[3]Only the FMLA and the ADAAA claims proceeded to trial.

         In connection with the FMLA claim, Pierce claimed the employers were "integrated" for purposes of meeting the FMLA employee numerosity requirement, [4] alleging:

[T]he [employers] share a common owner, . . . Paladino; [the employers] operate out of shared office space located at 2702 Douglas Street, Omaha, NE 68131; all billing [293 Neb. 897] and accounting for the [employers] is run out of the same office space located at 2702 Douglas Street; and [the employers] share common employees, including common maintenance, information technology, and bookkeeping employees. In addition . . . Pierce was employed by both Landmark and Dino's.

         In their answer, the employers generally denied the allegations in Pierce's complaint and raised the affirmative defense that Pierce failed to mitigate her damages.

         (b) Summary Judgment

         Pierce moved for partial summary judgment, asking the court to find as a matter of law that the employers were integrated for purposes of the FMLA. The district court granted summary judgment in favor of Pierce, finding "there is no genuine issue of material fact as to ...


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