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Chevalier v. Metropolitan Utilities District of Omaha

Court of Appeals of Nebraska

July 18, 2017

Shala R. Chevalier, appellant,
v.
Metropolitan Utilities District of Omaha, appellee.

         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. 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 admissibility.

         4. 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.

         5. 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.

         6. 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.

         7. 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.

         [24 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 discretion.

         9. 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.

         10. 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.

         11. ___:___:___. 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.

         12. 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.

         13. 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.

         14. ___:___: ___. 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 opposite sex.

         15. ___: ___:___. 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 discrimination.

         16. 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.

         17. ___:___: ___. 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 the case.

         18. ___: ___: ___. 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.

         19. 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 proved.

         20. 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 recording.

         Appeal from the District Court for Douglas County: W. Mark Ashford, Judge. Affirmed.

          Joy Shiffermiller and Abby Osborn, of Shiffermiller Law Office, PC, L.L.O., for appellant.

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

          Pirtle, Bishop, and Arterburn, Judges.

          Pirtle, Judge.

         INTRODUCTION

         Shala 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.

         BACKGROUND

         Chevalier 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."

         In 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.

         In July 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 ...


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