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Hartley v. Metropolitan Utilities District of Omaha

Supreme Court of Nebraska

September 30, 2016

Krishna J. Hartley, appellee,
Metropolitan Utilities District of Omaha, appellant.

         1. Directed Verdict: Evidence. 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.

         2. Directed Verdict: Appeal and Error. In reviewing a directed verdict, an appellate court gives the nonmoving party the benefit of every controverted fact and all reasonable inferences from the evidence.

         3. New Trial: Appeal and Error. An appellate court reviews a trial court's ruling on a motion for a new trial for abuse of discretion.

         4. Judges: 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.

         5. Trial: Evidence: Appeal and Error. A trial court has the discretion to determine the relevancy and admissibility of evidence, and such determinations will not be disturbed on appeal unless they constitute an abuse of that discretion.

         6. Fair Employment Practices: Attorney Fees: Appeal and Error. The amount of attorney fees awarded in an action under the Nebraska Fair Employment Practice Act is addressed to the discretion of the trial court, whose ruling will not be disturbed on appeal in the absence of an abuse of discretion.

         7. 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.

         8. Discrimination: Proof. The McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), framework is designed to force an employer to reveal information that is available

         [294 Neb. 871] only to the employer, i.e., any unstated reasons for taking the alleged discriminatory action, as well as any discretionary factors underlying its decision.

         9.____:____. At all times in an unlawful discrimination case, the ultimate burden of persuasion by a greater weight of the evidence remains with the plaintiff. 10.

         10. Employer and Employee: Discrimination: Proof. A prima facie case of discrimination in a failure-to-promote claim consists of demonstrating (1) the employee is a member of a protected group, (2) the employee was qualified and applied for a promotion to an available position, (3) the employee was rejected, and (4) a similarly situated employee, not part of the protected group, was promoted instead.

         11. ___:___: ___ .In an employment discrimination action, the plaintiff's prima facie case eliminates the most likely legitimate explanations for the employer's adverse action, such as lack of qualifications and the absence of a job opening.

         12. ___: ___:___. Once the plaintiff has established a prima facie case of discrimination, the burden of production shifts to the employer to rebut the prima facie case by producing clear and reasonably specific admissible evidence that would support a finding that unlawful discrimination was not the cause of the employment action.

         13.___: ___: ___ . In an employment discrimination action, after the employer has presented a sufficient, neutral explanation for its decision, the question is whether there is sufficient evidence from which a jury could conclude that the employer made its decision based on the employee's protected characteristic, despite the employer's proffered explanation.

         14. Discrimination: Judgments. Whether judgment as a matter of law is appropriate in any particular case will depend on a number of factors, and courts should not treat discrimination differently from other ultimate questions of fact.

         15. Employer and Employee: Discrimination. In an employment discrimination action, where the employer contends that the selected candidate was more qualified for the position than the plaintiff, a comparative analysis of the qualifications is relevant to determine whether there is reason to disbelieve the employer's proffered reason for its employment decision.

         Appeal from the District Court for Douglas County: Marlon A. Polk, Judge. Affirmed.

          Mark Mendenhall, of Metropolitan Utilities District of Omaha, for appellant.

         [294 Neb. 872] Joy Shiffermiller and Abby Osborn, of Shiffermiller Law Office, PC, L.L.O., for appellee.

          Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

          Wright, J.

         I. NATURE OF CASE

         Metropolitan Utilities District of Omaha (MUD) appeals from a verdict in favor of Kristina J. Hartley in a gender discrimination action under the Nebraska Fair Employment Practice Act (NFEPA).[1] Hartley sought to prove that she was not promoted because of gender discrimination and that MUD's stated reasons for promoting a male colleague, David Stroebele, instead of her were pretextual. Hartley asserted that she and the two other female applicants, Sherri Meisinger and Shala Chevalier, were better qualified than Stroebele or any of the male applicants. The jury returned a verdict in Hartley's favor. On appeal, MUD asserts that the evidence was insufficient to support the jury's verdict. It claims the district court erred in excluding postpromotional performance evaluations of Hartley. It claims the attorney fees awarded to Hartley were excessive.


         Hartley was a senior engineering technician when the position of supervisor of field engineering was posted. Stephanie Henn was senior plant engineer and Hartley's direct supervisor from 2003 to 2009. Henn was promoted to director of plant engineering in February 2009, and John Velehradsky became Hartley's direct supervisor. Velehradsky reported directly to Henn.

         1. Job Description

         The supervisor of field engineering position was posted on January 20, 2010. The supervisor was responsible for [294 Neb. 873] planning, directing, and supervising the work of 17 field engineering and utility locator personnel of the plant engineering division.

         There were several minimum requirements for the position, including "two years of college in an area related to Engineering. Four-year Engineering, or Engineering Technology degree preferred" and "[m]ust have utility locating experience in the last five (5) years, preferable in an ongoing capacity. Utility Locator operator qualification preferred."

         With one notable change, the 2010 posting was similar to the posting for the same position previously in 2003, when another individual was hired as the supervisor. Before the position was posted, Henn added the requirement that the applicant must have recent locating experience, within the past 5 years. Before Henn's changes, locating experience was not required for the position.

         Utility locating is the process of locating existing gas or water utilities in the field. Originally, locating was not part of a senior engineering technician's job and was only part of the job of designated utility locators. Locating was added as part of a senior engineering technician's job responsibilities when the designated utility locators became overwhelmed by the demands of new construction.

         The meaning of "utility locating experience" as stated in the job description was unclear. Gas and water lines are located either using magnetic field detectors (electronic locating) or referring to "as-built" paper forms that essentially provide a map of where such lines should be (document locating). According to the testimony of MUD employees, one type of locating is not more important than the other. In fact, document locating was utilized more often. Electronic locating was sometimes ineffective due to interference by other power signals nearby.

         There was conflicting testimony as to the importance of locating experience for the supervisor of field engineering position. Henn testified that she did not have any locating experience and did not know how to locate. The outgoing [294 Neb. 874] supervisor of field engineering likewise did not know how to locate. Still, Henn opined that it was important for the person filling the supervisor position to have the ability to locate. She explained that this position would supervise the utility locators and engineering technicians who were able to locate. Further, a supervisor who knew how to locate could personally help the claims department verify whether any accidental hits of utility lines were MUD's fault, thereby reducing costs.

         As far as the requirement that the locating experience be recent, Henn testified that the software of the electronic locating machines changes over time. Anyone without recent experience would have to learn the new software. But other MUD employees testified that even if electronic locating experience were important, it did not make sense to require that experience to be recent. The basics of locating had not changed over the years. Though equipment was getting better, it was easy to understand how to use the new equipment.

         As to the meaning of "two years of college in an area related to Engineering, " communications at MUD relating to the supervisor position indicated that it was 60 to 72 hours of coursework, equivalent to 2 years of full-time college. There were no specifically prescribed courses.

         2. Applicants

         Hartley testified that when she told Henn that she was interested in the supervisor position, Henn seemed to discourage her from applying. Hartley applied anyway. Ultimately, there were 11 applicants. Hartley, Chevalier, and Meisinger were the only female applicants.

         There was no argument that any of the seven male applicants not chosen for the promotion were better qualified than any of the three female applicants. Hartley testified that she believed gender discrimination was involved in the decision to hire Stroebele over herself and the other two female applicants, because they were each better qualified than Stroebele. Hartley also asserted there was bias in the job description and [294 Neb. 875] in the manner of handling the female applicants' performance appraisals and interviews.

         According to MUD's personnel policies, performance appraisals were to be conducted annually during the month in which the employee's anniversary date for the position occurs. But Henn had not evaluated Hartley's performance through an official performance appraisal in the 7 years she had been Hartley's supervisor. Stroebele had not had a performance appraisal in the past 4 years. Henn testified that she "should have been" conducting annual performance appraisals, but that she "was really busy." In an internal memorandum dated April 20, 2009, human resources encouraged supervisors to get their employee files up to date, noting there had been several job selection grievances that were difficult to evaluate without written documentation of that employee's performance.

         Velehradsky testified that he had five employees with overdue appraisals, including Hartley and Stroebele. Because he had never done a performance appraisal, Henn completed the first one, allowing Velehradsky to observe the process. They decided the first performance appraisal would be of Stroebele. Neither Henn nor Velehradsky could explain why they decided to do Stroebele's appraisal first.

         (a) Stroebele

         Stroebele was one of the newest MUD hires out of the 11 applicants. In fact, he was 10th in seniority out of the 11 applicants for the position of supervisor of field engineering.

         Stroebele began working at MUD in 1997 as a pipelayer trainee, an entry-level position for a construction worker. Before working for MUD, Stroebele worked as a laborer with a construction company. Stroebele thought he may have met Hartley as she inspected work he had done while working as a construction worker. Though Stroebele could not be certain it was Hartley, he noted that the inspector was a woman and "there's [sic] not too many females that do that job at MUD." [294 Neb. 876] Stroebele served in the U.S. Naval Reserve from 1998 to 2004. training people on heavy equipment usage.

         After 2 years as a trainee at MUD, Stroebele became a pipelayer. Later, he was promoted to machine operator. In 2000, Stroebele was promoted to field engineer II. He did not begin working as senior engineering technician until 2005. The primary difference between a field engineer and a senior engineering technician is supervisory responsibilities, including monitoring third-party contractors.

         Stroebele had less formal education than any of the female applicants. He did not receive his 2-year associate degree in applied science, general studies, until May 2011. As of the end of the spring 1999-2000 school term, Stroebele had completed a total of 61.5 credit hours. Forty of those hours were transferred from another community college. At least half of those credit hours were in fields unrelated to engineering, such as psychology, history, astronomy, and English.

         Stroebele's performance appraisal was conducted in November 2009, and it was overwhelmingly positive. November was not the month of Stroebele's hiring anniversary date.

         It was noted in the appraisal that Stroebele "has not had a preventable injury or accident, not only since his last appraisal, but in his whole [MUD] career (since 1997)! This is highly commendable, as [Stroebele] has worked in 3 different areas since he started with [MUD]." He was described as organized and as completing his work in a timely manner. It was noted that Stroebele was a good example to his coworkers in the manner in which he kept up with paperwork, even helping others when they were behind. He was described as an excellent communicator, who "knows when to call me to get me involved and when he can make the decision on his own." Further, he "portrays a very professional attitude."

         But Stroebele had two chargeable locating hits in the last V-A years. Chargeable locating hits are when errors in locating cause a gas or water line to be hit and damaged. The appraisal cited, "[c]ontinue excellent performance, " as the only "performance goals" to be accomplished before the [294 Neb. 877] next appraisal. Stroebele was described as an employee who showed "potential for additional responsibilities through self-motivation, initiative and satisfactory performance of current job duties." No other performance appraisals of Stroebele are in the record.

         (b) Hartley

         Hartley has a bachelor's degree in interior design. She began working for MUD in customer service in 1984 and at the time of the promotional decision in question, had been working at MUD for 25 years. Hartley had the most seniority of the female applicants for the supervisor of field engineering position.

         She was promoted to drafting technician IV in 1986, drafting technician III in 1988, drafting technician I in 1989, senior drafting technician in 1991, and senior engineering technician in plant engineering in 1994. She had continuously worked as a senior engineering technician for the 16 years prior to the posting of the supervisor position at issue.

         Hartley testified that when she was hired into the position of senior engineering technician, she was initially hired only part time, because her supervisor was concerned whether a female could do the job. Hartley stated that she had many years of experience locating at MUD, both document and electronic locating. She also had training responsibilities as a senior engineering technician, training any new technicians as they were hired. Hartley testified that she trained three of the senior engineering technicians then working in her department, including Stroebele.

         Hartley stated that as senior engineering technician, she, among her peers, was usually given the most difficult assignments. These included rapid-expansion areas that often had electrical interference and that, as a result, required that she call in a locator to use special equipment to which only the dedicated locators had access.

         Just 3 days before she interviewed for the position, Hartley received her first performance appraisal in 7 years. It was not [294 Neb. 878] the month of her hiring anniversary date. Velehradsky had been Hartley's supervisor for less than a year when he wrote her performance appraisal, but it referenced events and evaluated performance before Velehradsky was her supervisor.

         As a performance goal, Velehradsky identified that Hartley should "[l]isten more effectively and evaluate a situation before coming to any conclusion." Under the communication section of Hartley's appraisal, Velehradsky stated, "Sometimes [Hartley] is more apt to talk than listen. Hartley "needs to concentrate on listening more closely before she jumps in to respond." Velehradsky also stated that Hartley "needs to work on improving her listening and communication skills before she would be ready to supervise others at the level of her current position."

         Other aspects of the appraisal were positive. It was noted that Hartley had not had any chargeable locating hits since 2005. She was organized, and she accomplished her work in a timely manner, "adjusting her schedule as necessary to accomplish her work on multiple projects on a daily basis." As for safety, it was noted, "Since 2006, [Hartley] has remained accident and injury free. [Hartley] has worked on identifying and avoiding hazardous situations in the field."

         Hartley was described as a good problem-solver, willing to take on additional work when needed, having common sense, dealing well with contractors when solving problems in the field, and dealing with problems as they arise so that they are not allowed to "fester." Hartley received a "Meets Standards" for "Communication" and was described as communicating well most of the time. Particularly, Velehradsky noted that Hartley took good notes and kept contractors, coworkers, and customers informed.

         Henn testified at trial that "not only did [Hartley] not get behind, she helped others who were behind." But there was no notation in Hartley's appraisal that she was thereby an excellent example for her coworkers.

         Hartley testified she was disappointed not only by the content and unusual timing of the appraisal, but its method [294 Neb. 879] of delivery. She described that Velehradsky walked past her cubicle and "threw" the envelope containing the appraisal onto her desk, saying, '"Go ahead and read that, and come get me later when you have time to go over it.'"

         Velehradsky viewed the encounter differently. He testified that he gave the appraisal to Hartley in a normal manner. He said that Hartley immediately opened the appraisal and "unprofessional[ly]" started questioning him within earshot of other employees about why the evaluation purported to go back to 2003.

         Hartley perceived the sudden appraisal after 7 years as "their way to try to eliminate me from contention." Hartley testified that she had never before heard from anyone at work that she talked more than she listened. And such a criticism, she thought, ran contrary to past evaluations that marked her as meeting job specifications for communication. Velehradsky thought he had mentioned this issue to Hartley once before, but he had no specific recollection or documentation of such a conversation.

         In the employee comments section of her appraisal, Hartley expressed concern about the timing, the lack of prior appraisals, and the fact that she had not previously been informed that there were areas of her performance that needed improvement. Hartley testified that when Velehradsky read her ...

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