Shala R. Chevalier, appellant,
Metropolitan Utilities District of Omaha, appellee.
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.
Rules of Evidence. In proceedings where the
Nebraska Evidence Rules apply, the admissibility of evidence
is controlled by such rules; judicial discretion is involved
only when the rules make discretion a factor in determining
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
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.
Verdicts: Juries: Appeal and Error. A jury
verdict will not be set aside unless clearly wrong, and it is
sufficient if any competent evidence is presented to the jury
upon which it could find for the successful party.
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 evidentiary
conflicts in favor of such party, who is entitled to every
reasonable inference deducible from the evidence.
Neb.App. 875] 8. New 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.
Employer and Employee: Federal Acts:
Discrimination. The Family and Medical Leave Act of
1993 provides eligible employees up to 12 workweeks of unpaid
leave in any 12-month period and prohibits employers from
discriminating against employees for exercising their rights
under the act.
___:___:___. Basing an adverse employment action on an
employee's use of leave, or in other words, retaliation
for the exercise of rights under the Family and Medical Leave
Act of 1993, is actionable.
Employer and Employee: Federal Acts: Discrimination:
Proof. To establish a prima facie case of
retaliation under the Family and Medical Leave Act of 1993,
an employee must show that he or she exercised rights
afforded by the act, that an adverse employment action was
suffered, and that there was a causal connection between the
exercise of rights and the adverse employment action.
Fair Employment Practices: Discrimination:
Proof. For purposes of construing the Nebraska Fair
Employment Practice Act in disparate treatment cases, the
three-part McDonnell Douglas Corp. v. Green, 411
U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), test is used
and is as follows: (1) the plaintiff has the burden of
proving by a preponderance of the evidence a prima facie case
of discrimination; (2) if the plaintiff succeeds in proving
the prima facie case, the burden shifts to the defendant to
articulate some legitimate, nondiscriminatory reason for the
employee's rejection; and (3) should the defendant carry
the burden, the plaintiff must then have an opportunity to
prove by a preponderance of the evidence that the legitimate
reasons offered by the defendant were not its true reasons,
but were a pretext for discrimination.
___:___: ___. A prima facie case of gender discrimination
requires the plaintiff to prove that he or she (1) is a
member of a protected class, (2) was qualified to perform the
job, (3) suffered an adverse employment action, and (4) was
treated differently from similarly situated persons of the
___: ___:___. The plaintiff in an employment discrimination
action bears the burden to first prove to the fact finder by
a preponderance of the evidence a prima facie case of
Employer and Employee: Discrimination:
Proof. Once the plaintiff has established a prima
facie case of discrimination, the burden of [24 Neb.App. 876]
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, when
the employer articulates a legitimate, nondiscriminatory
reason for the decision, raising a genuine issue of fact as
to whether it discriminated against the employee, the
employer's burden of production created by the
employee's prima facie case is satisfied and drops from
___: ___: ___. 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
Rules of Evidence: Proof: Words and Phrases.
The best evidence rule is a rule of preference for the
production of the original of a writing, recording, or
photograph when the contents of the item are sought to be
Rules of Evidence: Proof: Fraud. The purpose
of the best evidence rule is the prevention of fraud,
inaccuracy, mistake, or mistransmission of critical facts
contained in a writing, recording, or photograph when its
contents are an issue in a proceeding. By its terms, the best
evidence rule applies to proof of the contents of a
from the District Court for Douglas County: W. Mark Ashford,
Shiffermiller and Abby Osborn, of Shiffermiller Law Office,
PC, L.L.O., for appellant.
Mendenhall, of Metropolitan Utilities District of Omaha, for
Pirtle, Bishop, and Arterburn, Judges.
R. Chevalier brought an action against her employer,
Metropolitan Utilities District of Omaha (MUD), in the
district court for Douglas County, alleging gender and
disability [24 Neb.App. 877] discrimination in a promotion
decision, retaliation for her complaint of discrimination,
and retaliation for taking leave from work pursuant to the
Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C. §
2601 et seq. (2012). A jury found in favor of MUD on all
causes of action, and the trial court accepted the verdicts
and entered judgment in favor of MUD. Chevalier appeals.
Finding no merit to her assignments of error, we affirm.
began working for MUD in July 1993. She alleges that she
contracted Lyme disease in 2006, which resulted in her being
disabled, and that MUD was aware of her disability. She
alleges that throughout her employment she has been
"harassed based on her disability."
February 2010, Chevalier applied for a promotion to a
supervisory position-supervisor of field engineering. Eight
men and three women applied for the position, including
Chevalier. Stephanie Henn, director of plant engineering, was
the decisionmaker for the position. The position was given to
David Stroebele, who Chevalier alleges was "less senior
and less qualified" than she was and did not have all
the required qualifications for the position. She claims she
was denied the position based on her gender.
2010, Chevalier filed a complaint of discrimination with the
Nebraska Equal Opportunity Commission (NEOC) and the federal
Equal Employment Opportunity Commission (EEOC). She claims
that MUD began retaliating against her after she filed her
complaint. On July 28, 2011, the ...