Arens v. NEBCO, Inc. ( 2015 )

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Nebraska A dvance Sheets
291 Nebraska R eports
ARENS v. NEBCO, INC.
Cite as 291 Neb. 834Lenard A rens, appellant, v.
NEBCO, Inc., appellee.
___ N.W.2d ___
Filed September 18, 2015. No. S-14-290.
1. Rules of Evidence. In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by these rules; judicial
discretion is involved only when the rules make discretion a factor in
determining admissibility.
2. Judges: Evidence: Appeal and Error. The exercise of judicial discre-
tion is implicit in determining the relevance of evidence, and an appel-
late court will not reverse a trial court’s decision regarding relevance
absent an abuse of discretion.
3. Judgments: 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.
4. Rules of Evidence: Hearsay: Appeal and Error. Apart from rul-
ings under the residual hearsay exception, an appellate court reviews
for clear error the factual findings underpinning a trial court’s hear-
say ruling and reviews de novo the court’s ultimate determination to
admit evidence over a hearsay objection or exclude evidence on hear-
say grounds.
5. Directed Verdict: Appeal and Error. In reviewing rulings on motions
for directed verdict, an appellate court gives the nonmoving party the
benefit of all evidence and reasonable inferences in his or her favor,
and the question is whether a party is entitled to judgment as a matter
of law.
6. Evidence: Words and Phrases. Relevant evidence means evidence
having any tendency to make the existence of any fact that is of conse-
quence to the determination of the action more probable or less probable
than it would be without the evidence.
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ARENS v. NEBCO, INC.
Cite as 291 Neb. 8347. Evidence: Proof. For evidence to be relevant, all that must be estab-
lished is a rational, probative connection, however slight, between the
offered evidence and a fact of consequence.
8. Fair Employment Practices: Discrimination: Words and Phrases.
Under the Nebraska Fair Employment Practice Act, the threshold fact
of consequence in a disability discrimination action is whether the
plaintiff is a qualified individual with a disability—i.e., one who can
perform the essential functions of the job with or without reasonable
accommodations.
9. Fair Employment Practices: Discrimination: Proof. Under the
Nebraska Fair Employment Practice Act, a covered employer’s failure
to make reasonable accommodations for a qualified individual’s known
physical or mental limitations is discrimination, unless the employer
demonstrates that the accommodations would impose an undue hardship
on business operations.
10. Appeal and Error. Unless an appellate court elects to notice plain
error, it does not consider arguments and theories not presented to the
lower court.
11. Rules of Evidence: Hearsay: Records: Words and Phrases. Under
Neb. Evid. R. 803(5), Neb. Rev. Stat. § 27-803(5) (Reissue 2008),
the business record exception to hearsay is not limited to records cre-
ated by the holder of the records. It applies to a memorandum, report,
record, or data compilation. The term “data compilation” is broad
enough to include records furnished by third parties with knowledge of
the relevant acts, events, or conditions if the third party has a duty to
make the records and the holder of the record routinely compiles and
keeps them.
12. Rules of Evidence: Hearsay: Records. Unlike Fed. R. Evid. 803(6),
Neb. Evid. R. 803(5), Neb. Rev. Stat. § 27-803(5) (Reissue 2008),
excludes opinions and diagnoses from the business record exception
to hearsay.
13. Trial: Evidence: Appeal and Error. When part of an exhibit is inad-
missible, a trial court has discretion to reject the exhibit entirely or to
admit the admissible portion. Furthermore, because it is the proponent’s
responsibility to separate the admissible and inadmissible parts when
offering evidence, an appellate court will ordinarily uphold a court’s
exclusion of an exhibit if the proponent did not properly limit its offer
to the part or parts that are admissible.
14. ____: ____: ____. In a civil case, the admission or exclusion of evi-
dence is not reversible error unless it unfairly prejudiced a substantial
right of the complaining party.
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ARENS v. NEBCO, INC.
Cite as 291 Neb. 83415. Evidence: Witnesses. A party is generally permitted to present corrob-
orating evidence on key issues, unless such evidence becomes exces-
sive. But evidence from a neutral witness that corroborates a party’s
evidence on a central, contested issue is not cumulative—particularly if
it is the party’s best or most persuasive evidence.
16. Fair Employment Practices: Discrimination: Proof. Apart from an
exception for summary judgments, in a discrimination action brought
under the Nebraska Fair Employment Practice Act, a court evalu-
ates the evidence under the three-part burden-shifting framework from
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L.
Ed. 2d 668 (1973). Under that framework, (1) the plaintiff has the bur-
den of proving a prima facie case of discrimination; (2) if the plaintiff
proves a prima facie case, the burden shifts to the employer to articulate
some legitimate, nondiscriminatory reason for the adverse employment
action; and (3) if the employer articulates a nondiscriminatory reason for
its action, the employee maintains the burden of proving that the stated
reason was pretextual.
17. Directed Verdict: Evidence: Appeal and Error. 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. In reviewing that determination, an appellate court
gives the nonmoving party the benefit of every controverted fact and all
reasonable inferences from the evidence.
18. Fair Employment Practices: Legislature: Intent: Discrimination:
Courts. The Legislature intended that its 1993 amendments to the
Nebraska Fair Employment Practice Act would provide the same protec-
tions from employment discrimination that are provided under title I of
the Americans with Disabilities Act of 1990. So it is appropriate for a
court to consider how federal courts have interpreted the act’s counter-
parts to those amendments.
19. Fair Employment Practices: Discrimination: Proof. To show a busi-
ness necessity for requiring an employee (as distinguished from an
applicant) to submit to a medical examination under Neb. Rev. Stat.
§ 48-1107.02(10) (Reissue 2010), an employer has the burden to show
that (1) the business necessity is vital to the business; (2) it has a legiti-
mate, nondiscriminatory reason to doubt the employee’s ability to per-
form the essential functions of his or her duties; and (3) the examination
is no broader than necessary. There must be significant evidence that
could cause a reasonable person to inquire as to whether an employee is
still capable of performing his or her job. An employee’s behavior can-
not be merely annoying or inefficient to justify an examination; rather,
there must be genuine reason to doubt whether that employee can per-
form job-related functions.
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ARENS v. NEBCO, INC.
Cite as 291 Neb. 83420. ____: ____: ____. Under Neb. Rev. Stat. § 48-1107.02(10) (Reissue
2010), the business necessity standard for required medical examina-
tions is an objective test.
21. ____: ____: ____. Under Neb. Rev. Stat. § 48-1107.02(10) (Reissue
2010), whether an employer requires similarly situated employees to
submit to a medical examination is relevant to whether the employer
considers such examinations a business necessity. But any comparison
between employees must be made with an eye to the ultimate inquiry,
i.e., the necessity of the examination of the plaintiff. An employer’s
disparate treatment of employees regarding medical examinations can-
not override substantial evidence that the employer had good reason
to doubt the plaintiff’s ability to perform the essential functions of
the job.
22. Employer and Employee: Discrimination. An employer’s doubts that
an employee’s ability to perform the essential functions of a job may
be created by an employee’s request for accommodations, frequent
absences, or request for leave because of his or her medical condi-
tion. Such doubts can also be raised by the employer’s knowledge of
an employee’s behavior that poses a direct threat to the employee
or others.
23. Employer and Employee: Discrimination: Proof. Requiring an
employee to submit to a medical examination is consistent with a busi-
ness necessity only if the employer shows significant evidence that a
reasonable person would doubt that the employee could perform the
essential functions of the job, with or without reasonable accommoda-
tions, because of a medical condition.
Appeal from the District Court for Lancaster County: Jodi
Nelson, Judge. Reversed and remanded for a new trial.
Joy Shiffermiller, of Shiffermiller Law Office, P.C., L.L.O.,
for appellant.
Shannon L. Doering and Luke F. Vavricek for appellee.
Heavican, C.J., Wright, Connolly, Stephan, Miller-Lerman,
and Cassel, JJ.
Connolly, J.
I. SUMMARY
The appellant, Lenard Arens, appeals from a jury verdict for
NEBCO, Inc. (Nebco), in his disability discrimination action
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ARENS v. NEBCO, INC.
Cite as 291 Neb. 834under the Nebraska Fair Employment Practice Act (the Act).1
He argues that the court’s adverse evidentiary rulings preju-
diced him and that the court erred in failing to direct a verdict
for him. He moved for a general directed verdict and a directed
verdict on his claim that Nebco required him to take medical
examinations that were unlawful under the Act.
II. PARTIES’ GENERAL
CONTENTIONS
In his complaint, Arens alleged that work-related acci-
dents had limited his ability to climb and caused memory
impairments that required him to have written instructions.
He alleged that Nebco was aware of his disabilities and dis-
criminated against him under the Act. And he alleged that
Nebco terminated his employment for violating standards or
conditions of employment that did not apply to employees
without disabilities.
At trial, Arens primarily sought to prove that Nebco failed
to accommodate his known mental and physical limitations,
accommodations that it had previously considered reasonable.
He argues the court deprived him of a fair trial by improperly
excluding evidence that was crucial to this claim. Additionally,
he sought to show that Nebco transferred him for driving inci-
dents or conduct that it accepted from other drivers. He argues
that this evidence showed Nebco’s purported reasons for its
adverse employment actions against him were pretextual as a
matter of law. He moved for a directed verdict for that reason.
He also moved for a directed verdict on his claim that Nebco
discriminated against him by requiring him to complete medi-
cal examinations to perform work he was already doing. He
argues that the court erred in overruling his motion because
the examinations were per se unlawful discrimination under
the Act.
1
See Neb. Rev. Stat. §§ 48-1101 to 48-1126 (Reissue 2010 & Cum. Supp.
2014).
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Cite as 291 Neb. 834Nebco counters that it suspended Arens from driving a
tractor-trailer and transferred him to driving a concrete truck
because he was “irresponsible, insubordinate and reckless.”2
It further argues that driving a concrete truck required differ-
ent physical abilities than those required for driving a tractor-
trailer. So Nebco contends that it properly required Arens to
take a “‘fit for duty’” examination, as any other employee
would have to do.3 Finally, Nebco claims that it discharged
Arens for failing to comply with employer-mandated counsel-
ing as a condition for laid-off employment status.
III. BACKGROUND
1. Statutory Prohibitions
Under the Act, it is unlawful for a covered employer to
take any of the following actions because of a person’s dis-
ability: “To fail or refuse to hire, to discharge, or to harass any
individual, or otherwise to discriminate against any individual
with respect to compensation, terms, conditions, or privileges
of employment . . . .”4 Apart from exceptions that do not
apply, disability means “(a) a physical or mental impairment
that substantially limits one or more of the major life activi-
ties of such individual, (b) a record of such an impairment, or
(c) being regarded as having such an impairment.”5 The Act
does not define major life activities. A person is a “[q]ualified
individual with a disability” under the Act if he or she can per-
form the essential functions of the job with or without reason-
able accommodations.6
Reasonable accommodations include employer actions
such as job restructuring, reassignment to a vacant position,
and appropriate adjustment or modification of examinations
2
Brief for appellee at 12.
3
Id.4
See § 48-1104(1).
5
See § 48-1102(9).
6
See § 48-1102(10)(a).
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ARENS v. NEBCO, INC.
Cite as 291 Neb. 834or policies.7 It does not include accommodations that would
impose an undue financial hardship on the employer.8
In addition to the Act’s general prohibition against dis-
criminatory employment practices, § 48-1107.02 sets forth a
non­exclusive list of conduct that constitutes discrimination
against a qualified individual with a disability. Under subsec-
tion (5), it is discrimination for a covered employer not to
make reasonable accommodations to the known physical or
mental limitations of an otherwise qualified individual with a
disability, unless the employer demonstrates that the accom-
modations would impose an undue hardship on business opera-
tions.9 Under subsection (7), it is discrimination for a covered
employer to use “qualification standards, employment tests,
or other selection criteria that screen out or tend to screen
out an individual with a disability . . . unless the standard,
test, or other selection criteria . . . is shown to be job-related
for the position in question and is consistent with business
necessity.”10 And under subsection (10), it is discrimination
to require an employee who is a qualified individual with a
disability to take a medical examination unless the examina-
tion “is shown to be job-related and consistent with busi-
ness necessity.”11
2. A rens’ Excluded Evidence
Before trial, the court heard Nebco’s motion in limine to
exclude exhibits 1 and 2, which comprised a letter and reports
that were prepared in 1996 and 1998 by David Utley, a voca-
tional rehabilitation counselor. Arens intended to offer this
evidence to show Nebco’s knowledge and previous accom-
modation of his mental impairments after a work-related
7
See § 48-1102(11).
8
See id.
9
See § 48-1107.02(5).
10
§ 48-1107.02(7).
11
§ 48-1107.02(10).
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ARENS v. NEBCO, INC.
Cite as 291 Neb. 834accident. The court excluded the exhibits as hearsay. At trial,
the court allowed Arens to make an offer of proof of Utley’s
testimony out of the jury’s presence, after which Arens reof-
fered exhibits 1 and 2.
In the offer of proof, Utley testified that he had gathered
facts and reviewed Arens’ medical evaluations to determine
his permanent work restrictions after a 1996 work-related
accident. Arens sustained a traumatic brain injury in the acci-
dent. Utley said the reports from Arens’ neuropsychological
evaluations showed that (1) he had difficulty with attention,
concentration, information recall, and emotional distress; and
(2) he would likely need accommodations for his job, including
written instructions. In 1998, Utley spoke to Nebco’s agents
about the accommodations that Arens would need for his per-
manent work restrictions. He said Nebco’s agents knew Arens
had memory problems and conflicts with coworkers but told
him that they could accommodate his needs. Utley said that
if Nebco had not been willing to accommodate Arens’ mental
impairments, his evaluation of Arens’ loss of earning capacity
could have been much higher.
Utley testified that his loss of earning report was a docu-
ment that he regularly kept in the course of his consulting busi-
ness. He admitted on cross-examination that (1) his consulting
firm had destroyed his original reports before 2003 because the
firm had closed Arens’ case and (2) his testimony rested on his
review of his reports. Nebco objected that (1) Utley could not
provide a medical opinion; (2) his testimony was irrelevant,
because it had nothing to do with Arens’ discharge; (3) his
testimony was cumulative because Arens had already testified
that he received written instructions; and (4) Utley’s testimony
rested on documents that were hearsay.
In his offer of proof, Arens argued that the court should min-
imally allow Utley to state what his permanent work restric-
tions were in 1998 and that Nebco was willing to accommo-
date them. Additionally, Arens argued that Utley’s report was
relevant to prove that before Nebco discharged him, he had
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ARENS v. NEBCO, INC.
Cite as 291 Neb. 834shown the report to Lynn Blodgett, Nebco’s human resources
director. The court ruled that Utley’s testimony was irrelevant
to the proceedings. The court also excluded his reports in
exhibits 1 and 2 as containing layers of hearsay.
3. Historical Facts
Nebco terminated Arens’ employment in 2010. He had
worked for Nebco since 1976. Beginning in 1978, he drove a
concrete truck. But about 1986, he sustained a shattered knee-
cap in a work accident. Afterward, driving a concrete truck in
the city was difficult because it required him to use his “clutch
leg” often. He also said that concrete truckdrivers must climb a
high ladder to wash out the mixing drum, often several times a
day, which was difficult for him because there is little to hold
onto. In 1990, his supervisor, Ron Hansen, assigned him to
drive a tractor-trailer to deliver unmixed concrete materials to
jobsites because it was easier on Arens’ leg.
Later, Arens sustained a brain injury while making a deliv-
ery with a flatbed truck. Although he did not remember the
accident, he knew he had fallen off the truck and been found
unconscious. He was absent from work for 6 months and
required rehabilitative care for speech and memory problems.
He said he could not drive a concrete truck after this injury
because he could not climb higher than his own height. He
said that he was unstable above that height because after
his injury, he experienced fear and dizzy spells when climb-
ing ladders.
Arens’ coworkers told him that he was not the same, but he
thought he had not changed because “that’s the way head inju-
ries are.” He continued to see a mental health professional after
returning to work. He said Nebco employees would give him
written instructions on order sheets because of his short-term
memory problems.
Hansen was Arens’ supervisor from 1978 until Hansen
retired in the summer of 2006. Afterward, Gordon Wisbey was
Arens’ supervisor. Arens believed that Wisbey singled him out
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Cite as 291 Neb. 834for complaints about his work and ignored his disabilities. In
October 2006, Wisbey documented an oral reprimand that he
gave to Arens over a truck accident that damaged an electri-
cal switchbox at a jobsite. Arens had hit the switchbox with
his trailer while making a sharp turn into the driveway at the
jobsite. Arens documented the accident in a damage report
the day after it occurred. He reported that he had to watch a
guard directing his tractor-trailer during the turn, which dis-
tracted him for a few seconds. Wisbey reprimanded him the
next day. The reprimand stated that Nebco would not tolerate
this behavior and that further instances of such behavior would
result in more severe discipline, “up to and including termina-
tion.” (Emphasis omitted.)
Arens testified that Hansen had never assigned him to
drive Nebco’s sole flatbed trailer with a forklift on the
back because of Arens’ climbing difficulties. (The driver
must climb up onto the back of the trailer and then climb
up into the forklift.) Instead, Hansen had assigned him to
drive a flatbed trailer without a forklift. This testimony was
uncontroverted.
But in 2008, Wisbey required Arens to drive the forklift
truck. Arens said that he told Wisbey driving that truck was
difficult for him because of his disabilities but that he feared
losing his job if he did not comply. Wisbey denied that Arens
had expressed an unwillingness to drive the forklift truck or
told him that Hansen would not require him to drive it because
of his disabilities. Wisbey conceded that driving the forklift
truck was a more strenuous job and that two previous drivers
with less seniority than Arens had also driven it. Wisbey had
reassigned one of the junior drivers because he did not like
driving the forklift truck and Wisbey wanted to accommodate
his preference.
(a) Truckyard Incident
On December 6, 2010, Arens avoided a vehicle acci-
dent when he turned his truck into the driveway of Nebco’s
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ARENS v. NEBCO, INC.
Cite as 291 Neb. 834truckyard from a highway in Lincoln. He stated that as he was
turning the corner into the driveway, cars rapidly approached
the driveway from the opposite direction, which required him
to turn the corner sharply to avoid an accident. This maneuver
caused the back tires of the trailer to go over the grass close
to a culvert. Arens said he was going only about 10 m.p.h. but
was afraid to come to a complete stop on the highway because
of heavy traffic. He said he maneuvered the turn the best he
could, but a “tarp box” on the underside of the trailer hit the
ground, scraping up some sod beside the driveway. Arens said
he had someone from the garage check the tarp box and was
told that it was not damaged.
When Arens clocked out on that Monday, a damage report
was attached to his timecard. The damage report form required
drivers to check whether they were reporting an auto accident
or property damage. A separate acknowledgment signed by
Arens in November 2010 stated that the employee understood
the following required procedures:
• An incident report had to be completed within 24 hours
after an incident even if no medical aid was provided to the
employee, which form was to be provided by the driver’s
supervisor;
• an injury report had to be completed within 2 hours of an
injury; and
• a “Truck Accident/Property Damage Report” had to be com-
pleted within 2 hours after an accident.
The acknowledgment did not define an “incident,” and the
record does not contain an “incident report” that is distinguish-
able from a “damage report.”
Arens told a dispatcher that completing a damage report
was unnecessary because there was no damage. He said that
because tractor-trailer drivers frequently drive over grass, he
did not think ripping up some sod required an incident report.
Arens pointed to tracks in a photograph of the truckyard
driveway that he believed showed other trucks had run over
the grass in the same place that his truck did. Arens did fill
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ARENS v. NEBCO, INC.
Cite as 291 Neb. 834out a maintenance report to explain why the tarp box needed
to be checked for damage.
(b) Roundabout Incident
On Tuesday, December 7, 2010, Wisbey asked Arens why he
did not file an incident report on December 6. Arens responded
that there was no damage and walked away. Arens said that
on the same day, Nebco employees overloaded his truck for
a delivery in Lincoln on Wednesday. Arens complained about
the weight of the materials and the way they were stacked
around the forklift, but he complied with Nebco’s directive
to make the delivery on Wednesday. When he maneuvered a
roundabout, however, the truck was damaged when the front
frame of the trailer hooked the tractor. He said that it was dif-
ficult to make the maneuver because of the excessive weight
on the truck. Arens said that the same problem had occurred
numerous times, including one other time to himself, and that
it would have happened to any driver making this delivery. He
stated that Nebco did not direct him to take a route that would
have avoided the roundabout.
When Arens arrived at the delivery site on Wednesday,
December 8, 2010, the customer said he had not ordered that
much material, did not want it all unloaded, and had asked for
delivery on a different type of truck. Arens said that making
the delivery in the forklift truck was unnecessary. He did not
file a damage report but did complete a maintenance report. He
considered the incident an unavoidable problem that he had not
caused. Wisbey said that other drivers had safely maneuvered
roundabouts in trucks of similar lengths.
That Wednesday, Wisbey did not discuss the roundabout
incident with Arens or place a damage report on his timecard.
He said he had already talked to the general manager and
had developed a plan for dealing with Arens. On Thursday,
December 9, 2010, Wisbey completed a damage report for
the roundabout incident that stated Arens “somehow got truck
and trailer in a bind” and damaged the truck. He estimated
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Cite as 291 Neb. 834the damage to be $2,500. He also called Arens on Thursday
while Arens was driving and said that if he had been at work
on Monday, the day of the truckyard incident, he would have
fired Arens. Arens said that he was dumbfounded and terrified
by Wisbey’s statement.
(c) Nebco’s Adverse
Employment Actions
Early on Friday morning, December 10, 2010, Wisbey
called Arens into his office. Arens said Wisbey told him that
he could not work at Nebco. Arens said Wisbey’s tone was
angry and berating and left him in tears. Arens believed that
Nebco had discharged him. Wisbey admitted that he told Arens
he could not drive a tractor-trailer again. He said he told Arens
that he was reassigning him to drive a concrete truck. Wisbey
filled out a damage report that Friday about the truckyard inci-
dent on the previous Monday. The report stated that Arens had
cut his turn short rather than stopping his truck, causing his
inside trailer wheels to drop off the drive and into the ditch.
It further stated that the maneuver had caused property dam-
age to the yard and a toolbox under the trailer and that Arens
was seen replacing the sod. Wisbey estimated the damage to
be $250.
Because it was a slow time for delivering premixed con-
crete, Arens’ transfer meant that he was laid off and would
not receive any income unless the company called him back
to duty the following year. Wisbey did not consider reassign-
ing Arens to a mechanic position. He said Arens cried and
repeatedly asked to just go back to driving his former truck,
without a forklift. Wisbey said that he was frustrated during
the 3-hour meeting because Arens had his head in his hands,
would not look at Wisbey, and did not appear to understand
Wisbey’s statements. Wisbey denied knowing that Arens had
sustained a head injury, that he had emotional problems, or
that he could not drive a concrete truck. Wisbey admitted that
he would have permitted Arens to continue driving the forklift
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Cite as 291 Neb. 834truck and would not have laid him off except for the driving
incidents on December 6 and 8, 2010.
Wisbey also admitted that in 2009 and 2010, other drivers
under his supervision possibly had as many as 20 total acci-
dents. He admitted that when he drove a concrete truck, he
also had accidents. He admitted that other truckdrivers besides
Arens had not filed incident reports and that he had filled out
reports for other drivers. He could not recall reassigning any of
these drivers to different positions because they had an acci-
dent or failed to file an incident report.
Before Arens left Wisbey’s office on Friday, December 10,
2010, Wisbey scheduled an appointment for him on the follow-
ing Monday at an occupational health facility for a screening
examination to determine if he could drive a concrete truck.
Wisbey knew Arens had just completed a physical to maintain
his commercial driver’s license. He admitted that Arens did
not have problems when he drove the flatbed truck without
a forklift and that a screening physical would not have been
required if Wisbey had allowed Arens to return to driving his
former truck.
On Monday morning, December 13, 2010, Arens spoke
to Blodgett, the human resources director. Blodgett said that
Arens told her he was going to a screening physical and
was not sure why. He wanted an appointment with her and
Wisbey. Blodgett scheduled the appointment for that afternoon.
Blodgett said Arens showed her a letter or accommodation
report that stated Nebco should give Arens written instruc-
tions. When Arens’ attorney asked her if Arens had shown her
exhibit 1—Utley’s 1998 report—Nebco objected that the court
had excluded this evidence. The court allowed Arens to ask
Blodgett whether Arens had shown her exhibit 1 but warned
that he could not ask her about the document itself. Blodgett
said she had not seen the document well enough to know
whether Arens had shown it to her. After Arens impeached
Blodgett with her meeting notes, she admitted that Nebco’s
nurse knew about Arens’ need to have instructions written
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Cite as 291 Neb. 834down so that he could understand them because the nurse had
worked with his doctor many years earlier.
Wisbey said that on Monday afternoon, Arens was dis-
traught that Nebco was transferring him. During the meeting,
Wisbey called Nebco’s nurse and learned that Arens had failed
the screening physical to drive a concrete truck. Nebco’s exam-
iner failed Arens because he could not climb an 18-inch step or
perform repetitive squats. Arens said that he informed Wisbey
and Blodgett that driving a concrete truck was a problem for
him because he could not climb ladders anymore to wash out
the drum. Arens asked several times if he could drive a dump
truck or his former truck.
Blodgett admitted that Arens said he had injured his knee
but had learned to compensate for the injury and drive his for-
mer truck. She originally documented that the physical showed
Arens could drive his former truck. But on cross-examination
by Nebco, Blodgett said that after further investigation, she
later documented that the physical showed Arens should not
perform either job—driving a concrete truck or his former
truck. She said Wisbey told Arens that he could not put Arens
back in his former truck because he could not meet the physi-
cal requirements.
Only after informing Arens that he failed the physical did
Wisbey discuss Arens’ driving accidents and failure to file
a report. Wisbey admitted that the concrete truckdriver who
replaced Arens did not have to take another physical before
driving the tractor-trailer with a forklift because Nebco’s driv-
ers are cross-trained and moved around.
At the December 13, 2010, meeting, Arens became very
upset that Wisbey would not let him drive his former truck
without the forklift. Wisbey and Blodgett were concerned
that he would hurt himself. Wisbey said he gave Arens a
card and a pamphlet for counseling through the employee
assistance program and told Arens that he needed to attend a
meeting with those providers. Blodgett said that Wisbey told
Arens that he must attend employer-mandated counseling as a
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Cite as 291 Neb. 834condition for laid-off employment status. Wisbey denied that
Arens told him that he already had a psychologist whom he
was seeing.
Arens said Wisbey “threw a card” at him but did not write
out instructions to go to counseling, state the purpose of the
counseling, or inform him that Nebco would discharge him
if he failed to attend. Blodgett said she called the employee
assist­
ance program provider and reported that Nebco was
referring Arens for employer-mandated services, that he was
very upset, and that Nebco’s agents did not know how to
handle the situation. She said the counseling was for Arens’
benefit to help him work through his problems. She did not
state any problems that Nebco wanted Arens to correct, such
as not following instructions. She spoke to Arens again on
December 16, 2010, and reminded him that the counseling
was mandated.
Arens said he believed that Nebco had discharged him on
December 10 and 13, 2010. But he called back after December
13 and asked to be transferred to a mechanic position. Wisbey
said he did not have authority to hire someone for employment
in the garage. But Wisbey admitted that he had frequently
transferred another concrete truckdriver to a mechanic position
so that he would not be laid off during slow times. Blodgett
said those positions are filled by employees who have been
transferring in for several years.
Wisbey said he intended to offer Arens laid-off status at this
meeting, not to terminate him. He said that he suspended Arens
on December 10, 2010, but allowed him to take vacation days
starting December 13. Nebco pointed to this evidence to show
that it did not discharge Arens on December 10 or 13. But
Wisbey admitted that he did not have a plan for Arens to show
up for work and earn wages after December 13.
Arens said he called the provider’s office on the card that
Wisbey had given him and reported that he was already see-
ing a psychologist. He said the provider told him it was not
mandatory that he also receive counseling from that office. On
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Cite as 291 Neb. 834December 21, 2010, Wisbey informed Arens by letter that his
employment had been terminated because he failed to report to
employer-mandated counseling “as you represented you would
do at our meeting.” The provider could not verify whether
Nebco had referred Arens for counseling or whether Arens had
called to ask whether he could continue to see his own psy-
chologist. Wisbey admitted that when he wrote the termination
letter on December 21, he knew that Arens had told Blodgett
he was entitled to disability accommodations.
On cross-examination, Nebco showed Arens two medical
releases from 2007 that were issued after he had a hip replace-
ment surgery in December 2006. The March 2007 release
recommended that he return to work but restricted him from
climbing ladders or stairs. The June 2007 release imposed no
restrictions. But on redirect examination, Arens stated that the
physician who treated his hip had never treated him for his
head injury.
(d) Procedural History
At the close of the evidence, Arens moved for a general
directed verdict. He also moved for a directed verdict because
under the Act, Nebco’s demand that Arens submit to medi-
cal examinations was illegal as a matter of law. He asked the
court to instruct the jury to that effect and allow it to determine
damages. The court overruled the motions. The jury returned a
verdict for Nebco.
IV. ASSIGNMENTS OF ERROR
Arens assigns, restated, that the court erred as follows:
(1) sustaining Nebco’s motion in limine to exclude the testi-
mony of Utley and exhibits 1 and 2;
(2) upholding the jury’s verdict for Nebco because it was
unsupported by the evidence and no reasonable jury could
have concluded that Nebco’s articulated reason for its disparate
treatment of Arens was not a pretext for discrimination;
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Cite as 291 Neb. 834(3) overruling Arens’ motion for a directed verdict because
Nebco’s physical examination of Arens was per se unlawful
and its treatment of him was based on his disability; and
(4) overruling Arens’ motion for a new trial because the ver-
dict was not supported by the evidence, the court erroneously
ruled on the admissibility of evidence and trial motions, and
the court’s evidentiary rulings prevented Arens from receiving
a fair trial.
We note that Arens also argues that the court improp-
erly instructed the jury on the McDonnell Douglas Corp.12
framework for shifting burdens of production. But we do not
address this argument because it is not assigned as error in
his brief.13
V. STANDARD OF REVIEW
[1-3] In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by these
rules; judicial discretion is involved only when the rules make
discretion a factor in determining admissibility.14 The exercise
of judicial discretion is implicit in determining the relevance
of evidence, and we will not reverse a trial court’s decision
regarding relevance absent an abuse of discretion.15 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.16
[4] Apart from rulings under the residual hearsay exception,
we review for clear error the factual findings underpinning
a trial court’s hearsay ruling and review de novo the court’s
12
See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36
L. Ed. 2d 668 (1973).
13
See, e.g., Melanie M. v. Winterer, 290 Neb. 764, 862 N.W.2d 76 (2015).
14
Griffith v. Drew’s LLC, 290 Neb. 508, 860 N.W.2d 749 (2015).
15
Id.16
Credit Mgmt. Servs. v. Jefferson, 290 Neb. 664, 861 N.W.2d 432 (2015).
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Cite as 291 Neb. 834ultimate determination to admit evidence over a hearsay objec-
tion or exclude evidence on hearsay grounds.17
[5] In reviewing rulings on motions for directed verdict,
we give the nonmoving party the benefit of all evidence and
reasonable inferences in his or her favor, and the question is
whether a party is entitled to judgment as a matter of law.18
VI. ANALYSIS
1. Court Erred in Excluding
Utley’s Testimony
As noted, the court excluded Utley’s testimony as irrelevant
and exhibits 1 and 2 as hearsay. From this evidence, Arens
intended to show that he had permanent mental impairments
following his 1996 brain injury, that Nebco had accommodated
them in the past, and that Nebco could have accommodated
him in 2010. Arens contends that the court erred in excluding
this evidence, depriving him of a fair trial.
Regarding Utley’s testimony, Nebco contends that because
Utley had not seen Arens since 1998, his testimony was not
relevant to any issue at trial. We disagree.
[6,7] Relevant evidence means evidence having any tend­
ency to make the existence of any fact that is of consequence
to the determination of the action more probable or less prob-
able than it would be without the evidence.19 For evidence to
be relevant, all that must be established is a rational, probative
connection, however slight, between the offered evidence and
a fact of consequence.20
[8] Under the Act, the threshold fact of consequence in
a disability discrimination action is whether the plaintiff is
a qualified individual with a disability—i.e., one who can
17
See State v. McCave, 282 Neb. 500, 805 N.W.2d 290 (2011).
18
First Express Servs. Group v. Easter, 286 Neb. 912, 840 N.W.2d 465(2013).
19
Griffith, supra note 14.
20
Id.
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Cite as 291 Neb. 834perform the essential functions of the job with or without
reasonable accommodations. Utley’s testimony was obviously
relevant to establishing whether Arens had a disability and
whether he had previously performed his job with reasonable
accommodations.
[9] Furthermore, under the Act, a covered employer’s fail-
ure to make reasonable accommodations for a qualified indi-
vidual’s known physical or mental limitations is discrimination,
unless the employer demonstrates that accommodating the
individual’s limitations would impose an undue hardship on
business operations.21 So Utley’s testimony was also relevant to
establishing Nebco’s knowledge of Arens’ mental impairments,
including his conflicts with coworkers after his 1996 accident.
It was also relevant to whether Nebco had previously consid-
ered its accommodations of his mental impairments reasonable.
Nebco does not argue that Arens’ mental impairments did not
affect a major life activity. And even if Utley had not seen
Arens since 1998, his testimony would have established that
Arens’ impairments and work restrictions in 1998 were perma-
nent. Although Utley relied upon medical opinions to describe
Arens’ impairments, as a vocational rehabilitation counselor, he
could relate his own opinions based on other experts’ conclu-
sions.22 Thus, the court should have admitted Utley’s opinions
bearing on these issues. We conclude that the court erred in
excluding Utley’s testimony as irrelevant.
2. Court Did Not A buse Its Discretion
in Excluding Exhibits 1 and 2
Regarding exhibits 1 and 2, Arens argues that Utley’s
documents were in Nebco’s personnel file for Arens and con-
stituted its business records. Nebco does not respond to this
21
See § 48-1107.02(5).
22
See, e.g., Brennan v. Reinhart Institutional Foods, 211 F.3d 449 (8th Cir.
2000); 2 McCormick on Evidence § 324.3 (Kenneth S. Broun et al. eds.,
7th ed. 2013).
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Cite as 291 Neb. 834argument. Instead, it argues that the court properly excluded
the exhibits because they contained multiple levels of hearsay.
It argues that Arens could have presented only the testimony
of the individuals whose opinions and reports Utley had
reviewed to reach the conclusions in his reports. In Arens’
reply brief, he responds that Nebco’s argument is contrary to
its own reliance on Arens’ medical records in its personnel
file. Specifically, he notes that Nebco presented evidence from
its personnel file that a physician released Arens to return to
work without restrictions following his hip replacement sur-
gery in December 2006.
[10] We recognize that Nebco also relied on medical records
of Arens’ physical limitations in its files. But we do not con-
sider here whether the documents in exhibits 1 and 2 were
admissible under a different theory because Arens argued only
that they were admissible as business records. Unless we elect
to notice plain error, we do not consider arguments and theo-
ries not presented to the lower court.23
Under Neb. Evid. R. 803(5), Neb. Rev. Stat. § 27-803(5)
(Reissue 2008), business records are an exception to the gen-
eral exclusion of hearsay evidence:
A memorandum, report, record, or data compilation, in
any form, of acts, events, or conditions, other than opin-
ions or diagnoses, made at or near the time of such acts,
events, or conditions, in the course of a regularly con-
ducted activity, if it was the regular course of such activ-
ity to make such memorandum, report, record, or data
compilation at the time of such act, event, or condition, or
within a reasonable time thereafter, as shown by the tes-
timony of the custodian or other qualified witness unless
the source of information or method or circumstances of
preparation indicate lack of trustworthiness.
23
See, Wayne G. v. Jacqueline W., 288 Neb. 262, 847 N.W.2d 85 (2014);
Bedore v. Ranch Oil Co., 282 Neb. 553, 805 N.W.2d 68 (2011).
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Cite as 291 Neb. 834(Emphasis supplied.) Parenthetically, we note that in 2014,
after this trial, the Legislature amended § 27-803(5) to add an
exception for acquired business records.24 But that amendment
is not relevant to our analysis.
[11] The important point here is that under § 27-803(5), the
business record exception to hearsay is not limited to records
created by the holder of the records. It applies to a memo-
randum, report, record, or data compilation. The term “data
compilation” is broad enough to include records furnished by
third parties with knowledge of the relevant acts, events, or
conditions if the third party has a duty to make the records and
the holder of the record routinely compiles and keeps them.25
Utley’s documents in exhibits 1 and 2 were prepared by
him as a regular part of his duties at the relevant times.
Because Utley prepared them, he was a person qualified to
authenticate them. Nebco did not deny that the records were
from its own files or object that Arens’ foundation evidence
for the exception was insufficient. And there was evidence
that Nebco had relied on the records.26 We note that federal
courts have held that medical records routinely made by a
medical provider are admissible as business records when
they are kept in an employee’s file and the plaintiff shows
that the physician who made the record did so in the relevant
timeframe and as part of his or her regular practice.27 We
24
See, 2014 Neb. Laws, L.B. 788, § 7, codified at Neb. Rev. Stat.
§ 27-803(5)(b) (Cum. Supp. 2014); Floor Debate, 103d Leg., 2d Sess.
94-95 (Apr. 9, 2014) (explaining that amendment 2929 to L.B. 788 was
originally presented as L.B. 151 and carried over); Judiciary Committee
Hearing, L.B. 151, 103d Leg., 1st Sess. 1 (Jan. 25, 2013).
25
See, e.g., Gallegos v. Swift & Co., 237 F.R.D. 633 (D. Colo. 2006).
26
Compare State v. Robinson, 272 Neb. 582, 724 N.W.2d 35 (2006),
abrogated in part on other grounds, State v. Thorpe, 280 Neb. 11, 783
N.W.2d 749 (2010).
27
See, Hansen v. Fincantieri Marine Group, LLC, 763 F.3d 832 (7th Cir.
2014); Pace v. National R.R. Passenger Corp., 291 F. Supp. 2d 93 (D.
Conn. 2003).
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Cite as 291 Neb. 834conclude that under these circumstances, the foundational
requirements for admission were satisfied.
[12] But Nebraska’s business record exception to hearsay
is not a carbon copy of its federal counterpart.28 Unlike Fed.
R. Evid. 803(6), Nebraska’s rule 803(5) excludes opinions and
diagnoses from the business record exception. So Utley’s opin-
ions and Arens’ medical diagnoses in these records were not
admissible under this exception.
[13] It is true there were factual statements in Utley’s
reports which were admissible. Moreover, factual statements
by Nebco’s agents did not present a layered hearsay prob-
lem.29 But when part of an exhibit is inadmissible, a trial
court has discretion to reject the exhibit entirely or to admit
the admissible portion. Furthermore, because it is the pro-
ponent’s responsibility to separate the admissible and inad-
missible parts when offering evidence, we will ordinarily
uphold a court’s exclusion of an exhibit if the proponent
did not properly limit its offer to the part or parts that
are admissible.30
Because Arens did not limit his offer of proof to admissible
factual statements in Utley’s reports, we conclude that the
court did not abuse its discretion in excluding the exhibits.
3. Court’s Exclusion of Utley’s Testimony
Was R eversible Error
[14] In a civil case, the admission or exclusion of evi-
dence is not reversible error unless it unfairly prejudiced a
28
See R. Collin Mangrum, Mangrum on Nebraska Evidence 865, 870
(2015).
29
See Neb. Evid. R. 801(4)(b)(iv), Neb. Rev. Stat. § 27-801(4)(b)(iv)
(Reissue 2008).
30
See, State v. Huston, 285 Neb. 11, 824 N.W.2d 724 (2013); Holman v.
Papio-Missouri River Nat. Resources Dist., 246 Neb. 787, 523 N.W.2d
510 (1994); 1 McCormick on Evidence § 51 (Kenneth S. Broun et al. eds.,
7th ed. 2013); 88 C.J.S. Trial § 182 (2012).
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Cite as 291 Neb. 834substantial right of the complaining party.31 Nebco argues that
even if the court incorrectly excluded Utley’s testimony, the
errors did not prejudice Arens because he testified that his
brain injury affected his daily interactions with his cowork-
ers and that Nebco had agreed to accommodate this issue.
Nebco contends that a court’s improper exclusion of evidence
is not ordinarily prejudicial when the court admitted substan-
tially similar evidence without objection. Arens responds that
Utley’s testimony was different from his own testimony about
his injuries. We agree.
First, we note that Nebco incorrectly argues that “Arens
testified that he had ‘a permanent traumatic brain injury which
affected his daily interactions with his coworkers’ and that
‘Nebco agreed to accommodate [that] issue.’”32 Nebco pulls
this quote from Arens’ brief on appeal. But in this quote, Arens
was arguing what his excluded evidence would have proved.
And Nebco’s citations to the record do not support its argument
that Arens testified to the same facts that Utley’s testimony
would have shown.
It is true that Arens testified that after his brain injury, his
coworkers told him that his personality had changed and that
there was something wrong with him. But Arens could not
express what had changed because he believed that he was
the same as he had always been. He did not testify about
his emotional distress, and he lacked objective awareness
regarding his conflicts with coworkers. Although he acknowl-
edged his relationship with Wisbey had deteriorated over
the years, he said Wisbey had never discussed his conduct
with him. Arens attributed their deteriorating relationship
solely to Wisbey’s discrimination. In contrast, Utley would
have testified that one of Arens’ permanent impairments was
emotional distress. He would have stated that Nebco’s agents
31
Steinhausen v. HomeServices of Neb., 289 Neb. 927, 857 N.W.2d 816(2015).
32
Brief for appellee at 14.
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Cite as 291 Neb. 834knew, after Arens’ brain injury, he had expressed discontent
with coworkers and had conflicts with them but that Nebco’s
agents had stated that they could make accommodations,
through instruction and providing some latitude in his interac-
tions with coworkers.
Arens also testified that after his brain injury, Nebco
employees would write down instructions for him on order
sheets because of his short-term memory problems. He said
that without the instructions, he might go to the wrong deliv-
ery site or load the wrong materials. But his testimony failed
to convey the extent of his known cognitive problems, which
Nebco’s agents had said they could accommodate. And the
record shows that Arens was not the most persuasive witness
on the issue of his impairments because he lacked command
of the historical facts. For instance, he could not provide the
date of his brain injury. So his testimony failed to establish
the length of time that Nebco had accommodated his mem-
ory impairments.
[15] Whether Nebco knew the extent of Arens’ mental
impairments and whether it had previously considered accom-
modations of his impairments reasonable were central, con-
tested issues in this trial. A party is generally permitted to
pre­sent corroborating evidence on key issues, unless such evi-
dence becomes excessive.33 But evidence from a neutral wit-
ness that corroborates a party’s evidence on a central, contested
issue is not cumulative—particularly if it is the party’s best or
most persuasive evidence.34
Utley was a neutral witness, and his testimony was Arens’
best evidence of Nebco’s knowledge and previous accom-
modations. In contrast to Arens’ testimony, Utley would
33
See, also, 2 Clifford S. Fishman, Jones on Evidence Civil and Criminal
§ 11:17 (7th ed. 1994 & Cum. Supp. 2001).
34
See Ipock v. Union Ins. Co., 242 Neb. 448, 495 N.W.2d 905 (1993).
Accord, Zaken v. Boerer, 964 F.2d 1319 (2d Cir. 1992); Wasserman v.
Bartholomew, 923 P.2d 806 (Alaska 1996).
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Cite as 291 Neb. 834have testified that Nebco was willing to accommodate Arens’
impairments after his brain injury. And those impairments
included Arens’ difficulty with attention, concentration, infor-
mation recall, and emotional distress. These impairments were
obviously relevant to whether Arens (1) accurately recalled the
reporting requirement at issue, which Nebco did not explicitly
explain on the damage report, and (2) understood oral instruc-
tions to attend employer-mandated counseling as a condition
for his continued employment, despite a mental health care
provider telling him that its counseling was not mandatory
if he was seeing his own psychologist. Additionally, Utley
would have testified that Nebco was willing to make reason-
able accommodations for Arens’ conflicts with coworkers. So
a jury could have determined that Arens’ inappropriate interac-
tions with Wisbey were part of his known mental impairments
instead of deliberate insubordination.
In sum, Utley’s excluded testimony was probative of whether
Nebco took adverse employment actions against Arens because
of his known mental impairments without making accom-
modations that it had previously considered reasonable. Only
Utley’s testimony in the offer of proof showed Nebco had
knowledge of Arens’ impairments and its agents had said they
could accommodate them. We conclude that the court’s exclu-
sion of his testimony was reversible error.
4. The Court Did Not Err in Overruling
A rens’ Motion for a General
Directed Verdict
Arens contends that no reasonable jury could have con-
cluded that Nebco’s articulated reason for its disparate treat-
ment of him was not a pretext for discrimination. He argues
that Nebco took adverse employment actions against him for
driving incidents that were not out of the ordinary. He points
to Wisbey’s admissions that other drivers besides Arens had
accidents and that he had filed incident reports for other driv-
ers, without reassigning or discharging these drivers, and
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Cite as 291 Neb. 834without requiring them to comply with employer-mandated
counseling. He further claims that the pretext was shown by
Nebco’s allegedly per se unlawful requirement that he pass
a physical examination for the new position. Finally, Arens
contends that the emotional lability he displayed in meetings
with Wisbey was precisely the permanent impairment that was
caused by his brain injury, not insubordination.
[16] Apart from an exception for summary judgments,35 in a
discrimination action brought under the Act, a court evaluates
the evidence under the three-part burden-shifting framework
from McDonnell Douglas Corp.36 Under that framework, (1)
the plaintiff has the burden of proving a prima facie case of
discrimination; (2) if the plaintiff proves a prima facie case,
the burden shifts to the employer to articulate some legitimate,
nondiscriminatory reason for the adverse employment action;
and (3) if the employer articulates a nondiscriminatory reason
for its action, the employee maintains the burden of proving
that the stated reason was pretextual.37 Only the final require-
ment is at issue here.
[17] 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.38 In reviewing that determination, we give the nonmov-
ing party the benefit of every controverted fact and all reason-
able inferences from the evidence.39
There were primarily two separate adverse employment
actions at issue in this trial: (1) Nebco’s December 13, 2010,
35
See Marshall v. EyeCare Specialties, 291 Neb. 264, 865 N.W.2d 343(2015).
36
See, McDonnell Douglas Corp., supra note 12; IBP, inc. v. Sands, 252
Neb. 573, 563 N.W.2d 353 (1997).
37
See, Trosper v. Bag ’N Save, 273 Neb. 855, 734 N.W.2d 704 (2007);
Sands, supra note 36.
38
Balames v. Ginn, 290 Neb. 682, 861 N.W.2d 684 (2015).
39
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Cite as 291 Neb. 834transfer of Arens to a position that placed him in indefi-
nite laid-off status after he failed a fit-for-duty examination
and (2) Nebco’s December 21 discharge of Arens for failing
to comply with psychological counseling. Arens argues that
Nebco’s stated reasons for both actions were pretextual.
It is true that there was evidence to support Arens’ claim
that the transfer was pretextual. Nebco argues that it trans-
ferred Arens because he was “irresponsible, insubordinate
and reckless.”40 Yet, Nebco had previously reassigned Arens
from driving a concrete truck because it was too difficult for
him after his knee injury. Nebco is charged with knowledge
of that action,41 and Blodgett admitted Arens reported at the
December 13, 2010, meeting that he had injured his knee
but learned to compensate for it enough to drive his former
truck. Wisbey admitted that Arens could drive the flatbed
truck without a forklift and that a screening physical would
not have been required if Wisbey had allowed Arens to return
to driving that truck. So Nebco’s transfer of Arens to a more
strenuous position is inconsistent with its reason for transfer-
ring him.
But Blodgett also said that at the December 13, 2010,
meeting, Wisbey discussed Arens’ driving accidents, which is
relevant to Nebco’s claim that it transferred Arens for reck-
less driving. It is true that Wisbey admitted that other drivers
had been in accidents or caused property damage and failed to
complete damage reports without incurring adverse employ-
ment actions. But the court excluded evidence that would have
shown the nature of those accidents and the number of times
that Wisbey filled out reports for other drivers. And Arens has
not assigned these rulings as error on appeal.
40
Brief for appellee at 12.
41
See 3 William Meade Fletcher, Fletcher Cyclopedia of the Law of
Corporations § 789 (rev. vol. 2010).
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Cite as 291 Neb. 834We agree with Arens that Nebco could not transfer him
for his known physical and mental impairments without first
making reasonable accommodations or showing that it could
not make accommodations. Obviously, the excluded evidence
would be relevant to that determination on remand. But there
was also evidence from which the jury could have concluded
that Arens presented a safety risk that Nebco could not ignore.
And the record fails to show as a matter of law that Nebco
transferred Arens from driving a tractor-trailer for conduct
which was no different from that of other drivers or that he did
not present a greater safety risk.
Regarding the discharge, there was also evidence from
which a jury could have found that Nebco’s stated reason for
the action—Arens’ failure to comply with employer-mandated
counseling—was pretextual. Wisbey informed Arens at the
December 13, 2010, meeting that the fit-for-duty examina-
tion had disqualified him from driving a concrete truck and a
tractor-trailer. Before Nebco discharged Arens on December
­
21, Wisbey had refused Arens’ request to transfer to a mechanic
position. Although Arens said he also asked to drive a dump
truck on December 13, Wisbey testified that Nebco did not
have plans for Arens to return to work and earn wages after
that date.
But we cannot say as a matter of law that Nebco would
not have rehired Arens for any driving position if he had
complied with counseling. And there was some evidence
from which a jury could have concluded that Arens refused to
attend counseling despite Nebco’s efforts to inform him that
he must do so as a condition to continue in laid-off employ-
ment status.
In short, there was sufficient evidence to support reasonable,
contrary inferences on the issue of pretext. We conclude that
on this record, the court did not err in overruling Arens’ motion
for a general directed verdict.
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Cite as 291 Neb. 8345. The Court A pplied the Wrong Legal Standard
in Overruling A rens’ Motion for a
Directed Verdict for Unlawful
Medical Examinations
The Act defines disability discrimination to include an
employer’s requirement of medical examinations in two differ-
ent circumstances. Section 48-1107.02(9)(c) applies to required
medical examinations of job applicants to whom the employer
has extended an offer of employment—i.e., employment
entrance examinations. In that circumstance, the employer can
require a medical examination to determine the applicant’s
ability to perform job-related functions if it (1) subjects all
entering employees to the same examination; (2) keeps the
examination information in a separate medical file and confi-
dential, unless disclosure is authorized by the statute; and (3)
does not use the examination results in a manner that is incon-
sistent with the Act.
But § 48-1107.02(10) is the subsection that applies to
employees. As stated, under § 48-1107.02(10), disability dis-
crimination includes “[r]equiring a medical examination or
making inquiries of an employee as to whether the employee is
an individual with a disability or as to the nature or severity of
the disability, unless the examination or inquiry is shown to be
job-related and consistent with business necessity.”
Arens contends that Nebco’s requirement that he com-
plete a medical examination to drive a concrete truck vio-
lated § 48-1107.02(10). He argues that because he had dif-
ficulty climbing, the medical examination was required only
to preclude him from returning to work. And he contends
the examination was unlawful because there was no medical
incident that warranted the screening. He similarly argues that
Nebco’s requirement that he attend counseling was unlawful.
He contends that under federal case law, employers may not
use a medical examination to disqualify an employee with a
disability from work the employee can perform with or with-
out accommodations, because of fear or speculation that the
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ARENS v. NEBCO, INC.
Cite as 291 Neb. 834disability indicates a risk of future injury, absenteeism, or
insurance costs.
Nebco argues that once it decided to transfer Arens to
driving a concrete truck, it had a right to ensure that he
could safely operate the truck. It argues that the fitness-for-
duty examination was therefore job related and a business
necessity.
[18] The Legislature enacted § 48-1107.02 as part of the
1993 amendments to the Act.42 Nebraska’s two provisions
governing discriminatory medical examinations mirror two
provisions of the federal Americans with Disabilities Act of
1990 (ADA).43 The close similarity of § 48-1107.02’s medi-
cal examination provisions and the ADA provisions is not
a coincidence. The Legislature specifically intended that its
1993 amendments to the Act would provide the same protec-
tions from employment discrimination that are provided under
title I of the ADA.44 So it is appropriate to consider how
federal courts have interpreted the ADA counterparts to the
1993 amendments.
The ADA counterpart to § 48-1107.02(10) is 42 U.S.C.
§ 12112(d)(4)(A). It reflects the policy judgment that once
an employee is doing a job, actual performance is the best
measure of his or her ability and that medical examinations
should be rarely required of employees.45 Thus, under both
federal regulations and federal case law, the requirement that
an employer show that a medical examination requirement
for employees was “consistent with business necessity” is a
42
See 1993 Neb. Laws, L.B. 360, § 6.
43
See 42 U.S.C. § 12112(d)(3) and (4) (2012).
44
See Introducer’s Statement of Intent, L.B. 360, Business and Labor
Committee, 93d Leg., 1st Sess. (Jan. 29, 1993).
45
1 Jonathan R. Mook, Americans with Disabilities Act: Employee Rights &
Employer Obligations § 5.04[3][a] (2014). See, also, Annot., 159 A.L.R.
Fed. 89 (2000).
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Cite as 291 Neb. 834high standard.46 Under 42 U.S.C. § 12112(d)(4)(A), courts
generally consider psychological counseling to be a medi-
cal examination.47
We agree with the standards set out by federal courts to
show a business necessity for requiring an employee to submit
to a medical examination. Because the Legislature intended
for the 1993 amendments to provide the same protections as
title I of the ADA, we adopt them to evaluate the legality of a
required medical examination under § 48-1107.02(10).
[19,20] Accordingly, to show a business necessity for requir-
ing an employee (as distinguished from an applicant) to submit
to a medical examination under § 48-1107.02(10), an employer
has the burden to show that (1) the business necessity is vital
to the business; (2) it has a legitimate, nondiscriminatory rea-
son to doubt the employee’s ability to perform the essential
functions of his or her duties; and (3) the examination is no
broader than necessary.48
[F]or an employer’s request for an exam to be upheld,
there must be significant evidence that could cause a
reasonable person to inquire as to whether an employee
is still capable of performing his job. An employee’s
behavior cannot be merely annoying or inefficient to
justify an examination; rather, there must be genuine
reason to doubt whether that employee can “perform job-
related functions.”49
46
See, 1 Mook, supra note 45, § 5.04[3][b]; Annot., 159 A.L.R. Fed., supra
note 45.
47
See, Kroll v. White Lake Ambulance Authority, 691 F.3d 809 (6th Cir.
2012); Karraker v. Rent-A-Center, Inc., 411 F.3d 831 (7th Cir. 2005).
48
See, Kroll v. White Lake Ambulance Authority, 763 F.3d 619 (6th Cir.
2014); Wisbey v. City of Lincoln, Neb., 612 F.3d 667 (8th Cir. 2010),
abrogated on other grounds, Torgerson v. City of Rochester, 643 F.3d 1031(8th Cir. 2011); Conroy v. New York Dept. of Correctional, 333 F.3d 88 (2d
Cir. 2003).
49
Sullivan v. River Valley School Dist., 197 F.3d 804, 811 (6th Cir. 1999).
Accord Brownfield v. City of Yakima, 612 F.3d 1140 (9th Cir. 2010).
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Cite as 291 Neb. 834The business necessity standard for required medical examina-
tions is an objective test.50
[21] For disputed discrimination claims under
§ 48-1107.02(10), we further adopt the federal holding that
whether an employer requires similarly situated employees
to submit to a medical examination is relevant to whether the
employer considers such examinations a business necessity.51
But “any comparison between employees must be made with
an eye to the ultimate inquiry, i.e., the necessity of the exami-
nation of the plaintiff.”52 An employer’s disparate treatment
of employees regarding medical examinations cannot override
substantial evidence that the employer had good reason to
doubt the plaintiff’s ability to perform the essential functions
of the job.53
[22] An employer’s doubts about an employee’s ability to
perform the essential functions of a job may be created by an
employee’s request for accommodations, frequent absences,
or request for leave because of his or her medical condition.54
Such doubts can also be raised by the employer’s knowledge
of an employee’s behavior that poses a direct threat to the
employee or others.55
[23] Here, there is no question that Arens’ physical abil-
ity to drive a truck was vital to Nebco’s business. But even
so, requiring an employee to submit to a medical exami-
nation is consistent with a business necessity only if the
employer shows significant evidence that a reasonable person
would doubt that the employee could perform the essential
50
See, e.g., Brownfield, supra note 49; Tice v. Centre Area Transp. Authority,
247 F.3d 506 (3d Cir. 2001).
51
See Tice, supra note 50.
52
Id. at 519 (emphasis in original).
53
See id.54
See, Kroll, supra note 48; Wisbey, supra note 48; Gajda v. Manhatt., Bronx
Surf. Trans. Oper. Auth., 396 F.3d 187 (2d Cir. 2005).
55
See, Kroll, supra note 48; Brownfield, supra note 49.
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Cite as 291 Neb. 834functions of the job, with or without reasonable accommoda-
tions, because of a medical condition.
But this is not the business necessity standard that the court
applied when Arens sought a directed verdict on the issue of
unlawful medical examinations. In response to this motion,
Nebco argued only that the fit-for-duty examination and psy-
chological counseling were tailored to the job’s duties. In
overruling the motion for a directed verdict, the court relied
on Nebco’s argument. On appeal, Nebco argues that Arens
was required to undergo a fit-for-duty examination to operate
a concrete truck like every other employee who does that job.
It contends that the examination was necessary because the
job had different physical requirements. But it inconsistently
argues that Wisbey did not anticipate any problems with trans-
ferring Arens because climbing the ladder on a concrete truck
was very similar to the climbing that Arens had to do to get
into the forklift on the back of his tractor-trailer.
We agree with Arens that Nebco’s argument to the court
confused the standard of medical examinations for applicants
with the standard for employees. It is irrelevant that all newly
entering employees must take a medical examination to drive
and operate a concrete truck. Wisbey admitted that because
Nebco’s drivers are cross-trained, the employee who replaced
Arens in driving a tractor-trailer was not required to take a
medical examination. So the primary question regarding the
fit-for-duty examination is whether Nebco presented substan-
tial evidence that it had a nondiscriminatory reason to doubt
Arens’ physical ability to perform the essential functions of
driving a concrete truck or tractor-trailer, with or without rea-
sonable accommodations. Regarding the psychological coun-
seling, the question is whether Nebco presented substantial
evidence that it had a nondiscriminatory reason to doubt Arens’
mental ability to perform the essential functions of these jobs,
with or without reasonable accommodations.
Arens argues that under the ADA standard for requiring a
medical examination, he was entitled to a directed verdict.
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Cite as 291 Neb. 834We decline to decide that factual question for the first time on
appeal.56 Instead, because the court’s exclusion of Utley’s tes-
timony was prejudicial error, we reverse the court’s judgment
and remand the cause for a new trial. If the issue arises again,
we direct the court to decide the issue under the legal standard
that we have adopted here.
VII. CONCLUSION
We conclude that the court erred in excluding Utley’s tes-
timony as irrelevant. Utley’s testimony was relevant to show
Nebco’s knowledge of Utley’s permanent mental impairments
and whether it had previously accommodated them. The exclu-
sion of this evidence was reversible error.
We conclude that the factual statements in Utley’s reports
were admissible as Nebco’s business records. But because
Arens did not offer only the admissible parts of these exhibits,
the court did not abuse its discretion in excluding them.
We conclude that the court did not err in overruling Arens’
motions for directed verdicts. But on remand, if the issue arises
again, the court must apply the business necessity standard for
medical examinations that we have set out above.
R eversed and remanded for a new trial.
McCormack, J., participating on briefs.
Stephan, J., not participating in the decision.
56
See Jacobitz v. Aurora Co-op, 291 Neb. 349, 865 N.W.2d 353 (2015).