Krishna J. Hartley, appellee,
Metropolitan Utilities District of Omaha, appellant.
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.
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.
Trial: Appeal and Error. An appellate court reviews a trial
court's ruling on a motion for a new trial for abuse of
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.
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.
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.
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
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
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.
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.
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.
___:___: ___ .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.
___: ___:___. 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.
___: ___ . 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
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.
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
from the District Court for Douglas County: Marlon A. Polk,
Mendenhall, of Metropolitan Utilities District of Omaha, for
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.
NATURE OF CASE
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). 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.
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.
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
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
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.
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.
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.
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 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.
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.
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
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.
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.
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.
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.
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
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.
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.
performance appraisal was conducted in November 2009, and it
was overwhelmingly positive. November was not the month of
Stroebele's hiring anniversary date.
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
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.
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
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.
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.
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.
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.
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
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."
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.
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.
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
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.
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
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 ...