Chevalier v. Metropolitan Util. Dist. , 24 Neb. Ct. App. 874 ( 2017 )

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CHEVALIER v. METROPOLITAN UTIL. DIST.
Cite as 24 Neb. App. 874Shala R. Chevalier, appellant, v.
Metropolitan Utilities District
of Omaha, appellee.
___ N.W.2d ___
Filed July 18, 2017. No. A-16-103.
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 con-
troverted 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 evi-
dence is presented to the jury upon which it could find for the success-
ful party.
7. Verdicts: Appeal and Error. In determining the sufficiency of the evi-
dence to sustain a verdict in a civil case, an appellate court considers
the evidence most favorably to the successful party and resolves eviden-
tiary conflicts in favor of such party, who is entitled to every reasonable
inference deducible from the evidence.
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CHEVALIER v. METROPOLITAN UTIL. DIST.
Cite as 24 Neb. App. 8748. 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 mat-
ters 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 employ-
ee’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 suf-
fered, 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 preponder-
ance 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 employ-
ment 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
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CHEVALIER v. METROPOLITAN UTIL. DIST.
Cite as 24 Neb. App. 874production shifts to the employer to rebut the prima facie case by pro-
ducing 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 deci-
sion, 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.
M ark Ashford, Judge. Affirmed.
Joy Shiffermiller and Abby Osborn, of Shiffermiller Law
Office, P.C., L.L.O., for appellant.
Mark Mendenhall, of Metropolitan Utilities District of
Omaha, for appellee.
Pirtle, Bishop, and A rterburn, Judges.
Pirtle, Judge.
INTRODUCTION
Shala R. Chevalier brought an action against her employer,
Metropolitan Utilities District of Omaha (MUD), in the dis-
trict court for Douglas County, alleging gender and disability
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CHEVALIER v. METROPOLITAN UTIL. DIST.
Cite as 24 Neb. App. 874discrimination 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 NEOC
issued a “right to sue” notice on Chevalier’s discrimina-
tion charge.
Chevalier filed a complaint in the district court for Douglas
County on September 22, 2011, and a motion to amend the
complaint on December 16, 2013. The amended complaint
asserted five causes of action. The first three causes of action
alleged violations of the Nebraska Fair Employment Practice
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Cite as 24 Neb. App. 874Act, Neb. Rev. Stat. § 48-1101 et seq. (Reissue 2010) in that
(1) MUD denied her a promotion based on her sex; (2) MUD
denied her a promotion and subjected her to other discrimina-
tion and harassment based on her disability, specifically the
effects she suffered from having contracted Lyme disease;
and (3) MUD retaliated against her for complaining of dis-
crimination and filing a complaint with the NEOC and EEOC.
Chevalier’s fourth cause of action alleged that MUD retaliated
against her for using leave afforded to her under the FMLA.
The fifth cause of action alleged that MUD’s continued retalia-
tion against her for her complaint of discrimination was action-
able under Neb. Rev. Stat. § 20-148 (Reissue 2012). Chevalier
later dismissed the fifth cause of action.
A jury trial was held on Chevalier’s first four causes of
action in her amended complaint. Chevalier presented evi-
dence to show that she suffers from Lyme disease and has
been treated by doctors for the disease since at least 2006.
She was initially diagnosed and treated by a physician’s
assistant. In the spring of 2007, she started treating with a
Lyme disease specialist, and she continued treating with him
until 2009 or 2010. Chevalier testified that she told Charles
Pattavina, her supervisor, about her Lyme disease because
it was affecting her work. She stated that it was taking her
longer to complete her work because she had problems with
thought processing. Her other symptoms included joint pain,
a decreased immune system, numbness and twitching in her
face, and “shooting pains.” She testified that she was still
able to do her job with the symptoms she was having, but she
had to take sick days off work “here and there” as a result of
the Lyme disease. After she informed MUD of her disease,
a safety meeting was held, at Chevalier’s urging, to inform
employees about Lyme disease. Chevalier testified that in
2009, Pattavina told her that she needed to stop taking so
much sick leave. Henn, Pattavina’s supervisor at the time,
also discussed Chevalier’s sick time with her and told her she
needed to “get well.”
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Cite as 24 Neb. App. 874Chevalier also testified that after she saw the specialist in
the spring of 2007, she gave MUD’s nurse a letter from him
stating why she had been off work. After Chevalier filed her
complaint with the NEOC and EEOC in July 2010 claiming
discrimination on the basis of disability, the physician’s assist­
ant filled out a medical questionnaire for the NEOC which
indicated that Chevalier was not disabled, i.e., did not have dif-
ficulty performing any major life activities, and he noted only
that she has periodic illness due to Lyme disease.
Pattavina testified that he was aware Chevalier claimed
to have Lyme disease and that he recalled attending a safety
meeting about the disease. He also testified that between 2003
and when he retired from MUD in 2010, Chevalier did not
have difficulty performing her duties and he did not notice a
decrease in the quality or quantity of her work. He did remem-
ber one time that Chevalier said she needed extra time to com-
plete some reports because of her Lyme disease.
In regard to the hiring decision for the supervisor of field
engineering position, Henn testified that in determining which
candidate was best qualified, she reviewed information pro-
vided by human resources which included each candidate’s
personnel file and a spreadsheet which had each candidate’s
date of hiring, positions held, and absence history. She also
reviewed the candidates’ past performance appraisals.
Henn testified that she reviewed Chevalier’s 2004 and 2007
performance appraisals and that there were some comments
that caused her concern. The comments included Chevalier’s
needing to show more professionalism, needing to stay at her
desk and concentrate on her job, and needing to not disturb
others. These concerns were reflected in both the 2004 and
2007 appraisals.
Pattavina completed another performance appraisal of
Chevalier in March 2010, the first since 2007. The perform­
ance appraisal took place after her interview for the job at
issue, but before the hiring decision was made. The appraisal
noted that she needs to show more professionalism, not disturb
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Cite as 24 Neb. App. 874others in the office, spend less time away from her work sta-
tion, and improve on balancing field and office time. It also
stated that she needs to “greatly improve prior to her being
ready for more responsibility.”
Henn testified that there was nothing in Chevalier’s per-
formance appraisals to indicate she was suffering from any
sort of physical or mental disability, nor was there any indica-
tion that she needed or had requested an accommodation for
a disability.
Henn also testified that she personally observed Chevalier
on an almost daily basis talking and socializing with indi-
viduals who worked in the engineering department, which
was on a different floor from Chevalier’s work station. Henn
said she rarely saw other field engineers in the engineering
department.
Henn interviewed all 11 applicants for the position and
asked all of them the same questions. After making her deci-
sion to hire Stroebele, she sent a selection letter to human
resources recommending Stroebele for the position and stating
the reasons why the other 10 candidates were not selected.
Henn testified that there were three candidates that did not
meet the minimum qualification requirements for the position.
Other reasons for eliminating candidates from consideration
included having recently been promoted to a different position,
as well as negative remarks on performance appraisals or nega-
tive job performance.
In regard to Chevalier, the selection letter stated that she was
“not a good candidate,” noting that her performance appraisals
reflect that she has a difficult time staying at her work station
and concentrating on her job, as well as making too many
personal telephone calls, disturbing others in the office, and
needing a better balance between field and office time. Henn
also noted that Chevalier tends to be away from her work
area and not in the field, instead socializing with others. Henn
concluded that these behaviors did “not exhibit good judg-
ment or professionalism, which is critical in the Supervisor of
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CHEVALIER v. METROPOLITAN UTIL. DIST.
Cite as 24 Neb. App. 874Field Engineering position.” Henn further noted in the letter
that Chevalier’s attendance record is lacking, that she lacks
the skills to be a “calm, even-keeled supervisor,” and that she
tended to overreact to negative feedback.
The jury found in favor of MUD on all causes of action, and
the district court entered judgment accordingly. Chevalier filed
a motion for new trial, which was overruled.
The record in this case is large. Accordingly, additional
evidence will be discussed as necessary in the analysis section
of the opinion.
ASSIGNMENTS OF ERROR
Chevalier assigns that the trial court erred in (1) overruling
her motion for directed verdict on her FMLA retaliation claim;
(2) allowing MUD to present expert testimony that Chevalier
never had Lyme disease; (3) upholding the jury verdicts; (4)
sustaining MUD’s objection to exhibit 133, her transcription
of a tape-recorded conversation; and (5) overruling her motion
for new trial.
STANDARD OF REVIEW
[1,2] 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 mat-
ter of law. Balames v. Ginn, 290 Neb. 682, 861 N.W.2d 684(2015). In reviewing that determination, we give the nonmov-
ing party the benefit of every controverted fact and all reason-
able inferences from the evidence. Id.[3-5] 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. Pierce
v. Landmark Mgmt. Group, 293 Neb. 890, 880 N.W.2d 885(2016). When the Nebraska Evidence Rules commit the evi-
dentiary question at issue to the discretion of the trial court,
an appellate court reviews the admissibility of evidence for
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Cite as 24 Neb. App. 874an abuse of discretion. Id. 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. Id.[6,7] A jury verdict will not be set aside unless clearly
wrong, and it is sufficient if any competent evidence is pre-
sented to the jury upon which it could find for the successful
party. Id. In determining the sufficiency of the evidence to
sustain a verdict in a civil case, an appellate court consid-
ers 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 evi-
dence. Id.[8,9] We review a trial court’s ruling on a motion for a new
trial for abuse of discretion. Balames v. Ginn, supra. A judi-
cial 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 sub-
mitted for disposition. Id.
ANALYSIS
Motion for Directed Verdict.
Chevalier first assigns that the trial court erred in overrul-
ing her motion for directed verdict on her FMLA retaliation
claim. Chevalier’s fourth cause of action alleged that MUD
retaliated against her for using leave afforded to her under
the FMLA. She argues that a directed verdict on that cause of
action should have been granted in her favor because the evi-
dence was undisputed that Henn improperly considered leave
Chevalier took pursuant to the FMLA, as a result of her Lyme
disease, in denying her the promotion.
[10-12] “The [FMLA] provides eligible employees up to
twelve work-weeks of unpaid leave in any twelve-month
period and prohibits employers from discriminating against
employees for exercising their rights under the [FMLA]. 29
U.S.C. §§ 2612, 2615(a)(2) (2000).” Smith v. Allen Health
Systems, Inc., 302 F.3d 827, 832 (8th Cir. 2002). Basing an
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Cite as 24 Neb. App. 874adverse employment action on an employee’s use of leave, or
in other words, retaliation for the exercise of FMLA rights,
is therefore actionable. Id. To establish a prima facie case of
retaliation, an employee must show that he or she exercised
rights afforded by the FMLA, that an adverse employment
action was suffered, and that there was a causal connection
between the exercise of rights and the adverse employment
action. See id.Chevalier claims that there is no dispute that she satisfied
all the elements of a FMLA retaliation claim. She contends
there is no question that she qualified for leave intermittently
under the FMLA starting in 2007 and going forward based on
her Lyme disease and that she suffered an adverse employment
action in that she did not get the supervisor of field engineering
promotion. Chevalier focuses her argument on the third require-
ment of a prima facie case—a causal connection between her
exercise of rights and the adverse employment action. She
contends that there was a causal connection because Henn
improperly considered her leave under the FMLA in denying
her the promotion.
Before addressing Chevalier’s causal connection argument,
we first note that the evidence does not demonstrate that she
qualified for leave under the FMLA based on her Lyme disease,
as she contends. The evidence does not show that Chevalier’s
Lyme disease was a serious health condition eligible for leave
under the FMLA. MUD had no record that she ever applied
for leave under the FMLA based on a chronic medical condi-
tion, such as Lyme disease. Bonnie Savine, MUD’s director
of human resources, testified that an employee would have
to apply for such leave and have it approved, and then when
work days were missed, the employee would have to identify
the absence as leave under the FMLA for it to be considered as
such. Human resources records of Chevalier’s absences gave
no indication any absences were related to Lyme disease or a
FMLA-approved absence. Rather, each absence was coded as
only a sick day.
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Cite as 24 Neb. App. 874In regard to Chevalier’s argument that Henn considered her
FMLA absences in denying her the promotion, the evidence
shows that Henn did consider her past attendance history. Henn
testified that she considers each employee’s attendance record
when making a promotion decision. She testified that she
reviewed Chevalier’s absence history as provided by human
resources. She also relied on past appraisals, which stated
Chevalier’s number of absences and the total number of work
hours missed due to illness. Henn’s reasons for not promoting
Chevalier, as set forth in the selection letter, included the ongo-
ing concerns with her attendance.
Although Henn considered Chevalier’s past attendance
record, she testified that she did not know what hours or days
of sick leave, if any, were related to Chevalier’s Lyme disease
or were FMLA-approved absences. She only knew how many
times and how many hours Chevalier missed work as a result
of being sick. For instance, her 2007 performance appraisal,
which Henn reviewed, stated that she had missed work due
to illness 139.5 hours over nine occasions in the past year. As
previously stated, the absence history from human resources
gave no indication any absences were related to Lyme disease
or were FMLA-approved absences; each absence was coded
as only a sick day. Therefore, the evidence does not show that
Henn retaliated against Chevalier by relying on her FMLA
absences in denying her the promotion.
A directed verdict is proper only when reasonable minds
cannot differ and can draw but one conclusion from the evi-
dence, that is, when an issue should be decided as a matter of
law. In reviewing that determination, we give the nonmoving
party the benefit of every controverted fact and all reasonable
inferences from the evidence. Balames v. Ginn, 290 Neb. 682,
861 N.W.2d 684 (2015).
The evidence did not indisputably show that any absences
taken by Chevalier were taken pursuant to the FMLA, nor did
it indisputably show that Henn considered the FMLA-approved
absences in denying her the promotion. The evidence showed
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Cite as 24 Neb. App. 874that Henn considered attendance when making the promo-
tion decision, but that Henn did not know or have any reason
to believe that any of Chevalier’s absences were FMLA-
approved absences based on a disability. Accordingly, the trial
court did not err in overruling Chevalier’s motion for directed
verdict on her FMLA retaliation claim.
MUD’s Expert Testimony as to
Chevalier’s Lyme Disease.
Chevalier next assigns that the trial court erred in allow-
ing MUD to present expert testimony that Chevalier did not
have Lyme disease. She argues that MUD conceded she was
on qualifying leave under the FMLA and that MUD can-
not now challenge whether she had a disability necessitating
FMLA leave.
Chevalier challenges the admission into evidence of a vid-
eotaped deposition of Dr. Cezarina Mindru, who specializes in
internal medicine and infectious disease, as well as a transcript
of his deposition. Chevalier did not object to either exhibit,
and the videotaped deposition was played for the jury. In the
deposition, Mindru stated that it was his opinion within a rea-
sonable degree of medical certainty that based on a February
2007 blood test, Chevalier did not have Lyme disease. He
also testified that a December 2006 blood test indicated that
Chevalier did not have Lyme disease. Mindru further stated
that it was his opinion within a reasonable degree of medi-
cal certainty that Chevalier was not disabled as a result of the
symptoms she complained of.
After the videotaped deposition was played, other exhibits
that were referenced during the deposition were offered into
evidence, including Mindru’s curriculum vitae, the February
2007 and December 2006 laboratory test results, and Mindru’s
medical report. Chevalier only objected to the medical report,
and the objection was sustained.
Chevalier argues that MUD was estopped from presenting
expert evidence that Chevalier did not have Lyme disease
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Cite as 24 Neb. App. 874because MUD conceded she was on qualifying leave under
the FMLA. Chevalier cites to testimony from Savine in sup-
port of her allegation. However, the testimony that Chevalier
refers to has nothing to do with Chevalier’s Lyme disease.
The testimony relied on by Chevalier refers to supplemental
sick leave Chevalier took in 2012 and 2013 as a result of
anxiety and depression. Savine stated that Chevalier took
leave from work for 6 months in 2012 and 2013 pursuant to
MUD’s supplemental sick leave program. She testified that
the supplemental sick leave ran concurrent with leave pur-
suant to the FMLA, at least for up to 12 workweeks. Thus,
the evidence Chevalier relies on only shows that Chevalier
took qualifying leave under the FMLA in 2012 and 2013 as a
result of anxiety and depression. It does not show that MUD
conceded she was on leave under the FMLA as a result of her
Lyme disease.
Chevalier claims she was diagnosed with Lyme disease in
2006, and there is some evidence of this. However, as previ-
ously discussed, there is no evidence that she took any leave
under the FMLA based on a diagnosis of Lyme disease or that
she made any requests for leave under the FMLA between
2006 and 2009. Her sick days during those years are coded
as only sick days, and there was no indication that those
days were related to Lyme disease or were FMLA-approved
absences. Savine testified that she was not aware that any of
Chevalier’s absences prior to January 2012 were approved
pursuant to the FMLA. MUD did not concede that Chevalier
took approved leave under the FMLA prior to 2012 and did not
concede that she took any leave under the FMLA as a result of
Lyme disease.
We also note that Chevalier did not file a motion in limine
in regard to Mindru’s testimony, nor was there a Daubert/
Schafersman challenge to exclude Mindru’s testimony. See
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,
113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and Schafersman
v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001). In
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Cite as 24 Neb. App. 874addition, Chevalier did not object to the admission of Mindru’s
videotaped deposition at trial.
Further, Chevalier alleged she was discriminated against in
the promotion decision because of her disability, Lyme dis-
ease. Thus, Chevalier made her disability from Lyme disease
an issue at trial. MUD was entitled to present evidence in
regard to whether Chevalier had Lyme disease, and if she did,
whether she was disabled as a result. Chevalier opened the
door on the issue, making Mindru’s testimony relevant. This
assignment of error is without merit.
Jury Verdicts.
Chevalier assigns that the trial court erred in upholding
the jury verdict on her gender discrimination claim because
no reasonable jury could find that MUD’s stated reasons
for hiring Stroebele over her were not pretexts for unlawful
discrimination.
Chevalier sought to prove that she was not promoted
because of gender discrimination and that MUD’s stated rea-
sons for promoting a male colleague, Stroebele, instead of her
were pretextual. Chevalier asserted that she and the two other
female applicants, Sherri Meisinger and Kristina Hartley,
were better qualified than Stroebele. MUD maintained that it
hired Stroebele because he was the best qualified person for
the job.
[13] The Nebraska Supreme Court has adopted a three-part
test, commonly referred to as the “McDonnell Douglas test,” for
purposes of construing the Nebraska Fair Employment Practice
Act in disparate treatment cases. See Father Flanagan’s Boys’
Home v. Agnew, 256 Neb. 394, 590 N.W.2d 688 (1999).
See, also, McDonnell Douglas Corp. v. Green, 411 U.S. 792,
93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). The three-part
McDonnell Douglas test has been set forth by our Supreme
Court previously:
“First, the plaintiff has the burden of proving by a
preponderance of the evidence a prima facie case of
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Cite as 24 Neb. App. 874discrimination. Second, if the plaintiff succeeds in prov-
ing the prima facie case, the burden shifts to the defend­
ant ‘to articulate some legitimate, nondiscriminatory
reason for the employee’s rejection.’ . . . Third, 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.”
Harris v. Misty Lounge, Inc., 220 Neb. 678, 682, 371 N.W.2d
688, 691 (1985) (citations omitted) (quoting Zalkins Peerless
Co. v. Nebraska Equal. Opp. Comm., 217 Neb. 289, 348
N.W.2d 846 (1984).
[14,15] A prima facie case of gender discrimination requires
the plaintiff to prove that he or she (1) is a member of a pro-
tected 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. Helvering
v. Union Pacific RR. Co., 13 Neb. App. 818, 703 N.W.2d 134(2005). The plaintiff bears the burden to first prove to the fact
finder by a preponderance of the evidence a prima facie case
of discrimination. Id.[16,17] 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 sup-
port a finding that unlawful discrimination was not the cause
of the employment action. Hartley v. Metropolitan Util. Dist.,
294 Neb. 870, 893, 885 N.W.2d 675, 694 (2016). 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 satis-
fied and drops from the case. Id.[18] After the employer has presented a sufficient, neutral
explanation for its decision, the question is whether there is
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Cite as 24 Neb. App. 874sufficient 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.
Hartley v. Metropolitan Util. Dist., supra. At this stage, the
employee “‘must be afforded the “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.”’” Id. at 894, 885 N.W.2d at 694,
quoting Reeves v. Sanderson Plumbing Products, Inc., 530
U.S. 133, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000). “‘That
is, the plaintiff may attempt to establish that he was the victim
of intentional discrimination “by showing that the employer’s
proffered explanation is unworthy of credence.”’” Id. at 894,
885 N.W.2d at 694.
The supervisor of field engineering position was posted
on January 20, 2010. The supervisor was responsible for
planning, directing, and supervising the work of 17 field
engineering and utility locator personnel of the plant engi-
neering division. There were several minimum requirements
for the position, including “two years of college in an area
related to Engineering. Four-year Engineering, or Engineering
Technology degree preferred”; a “[m]inimum five (5) years’
experience in Engineering or gas/water operations with pro-
gressive responsibilities”; and “[m]ust have utility locating
experience in the last five (5) years, preferable in an ongo-
ing capacity. Utility Locator operator qualification preferred.”
Utility locating is the process of locating existing gas or water
utilities in the field.
Chevalier contends that MUD’s claim that Stroebele was
the better qualified candidate is pretexual because he did not
meet all of the qualifications for the position, specifically the
education requirement. As previously noted, the supervisor of
field engineering posting required that eligible candidates have
a minimum of 2 years of college in an area related to engineer-
ing. Chevalier contends that most of Stroebele’s classes were
not engineering related and that Stroebele did not complete his
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Cite as 24 Neb. App. 8742-year degree in general studies until May 2011, after he had
been in the position for a year.
Chevalier contends that she and the other two female can-
didates, Meisinger and Hartley, had the requisite education
and that their education was engineering focused. Chevalier
attended a vocational technical school for 2 years, where she
studied drafting. She got a certificate upon completion of the
program, but not an associate’s degree. Hartley had a bach-
elor’s degree in interior design, and Meisinger had a bachelor’s
degree in design engineering technology and an associate’s
degree in construction engineering technology.
Although Chevalier contends that Stroebele did not meet
the education requirement, Savine testified that he did. She
explained that human resources looks primarily at how many
years of schooling a candidate has. She testified that in her
opinion, 2 years of college is the equivalent of 48 hours of
course credit. In January 2010, when the job was posted,
Stroebele had a total of 70.5 credit hours from college courses.
She further testified that MUD interprets the language “in an
area related to Engineering” very broadly and that there is no
standard for determining what courses qualify as being engi-
neering related or any specifically prescribed courses. Savine
also testified that the job Stroebele held before he was pro-
moted to supervisor of field engineering had the same educa-
tion requirement—2 years of college in an area related to engi-
neering—and that he met the requirement at the time he took
that position in 2005.
Chevalier also argues that Stroebele lacked supervisory and
other experience compared to herself and the other female
candidates. The job required that the successful candidate have
a “minimum five (5) years’ experience in Engineering or gas/
water operations with progressive responsibilities.” Chevalier
contends that she and the two other female candidates had
more relevant experience and more seniority than Stroebele.
Stroebele began working for MUD in 1998 as a pipelayer
and later as a machine operator, both in the construction
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Cite as 24 Neb. App. 874area of MUD. He moved to the engineering department in
September 2000, where he worked as a field engineer II. In
2005, he was hired by Henn as a senior engineering techni-
cian. He remained in this position, with Henn as his supervi-
sor, until his promotion to supervisor of field engineering in
2010. Chevalier notes that Stroebele did not have any super-
visory responsibilities in any of his prior positions. However,
there was no requirement of any supervisory experience. She
also points out that Stroebele had less seniority than the three
female candidates, but seniority was not listed as a factor con-
sidered in the promotion decision.
Chevalier had been employed by MUD since 1993. She
started working as a drafter, and in 1995, she became a field
locator. She advanced to the position of field engineer II in
2005 and field engineer I in 2009. Chevalier contends that all
of her experience has been in engineering-related areas—draft-
ing, locating, and field engineering. She had been a locator
for 10 years before being promoted to a field engineer. She
testified that locators and field engineers are both areas that
the supervisor of field engineering would supervise. Her past
experience also included helping train field services employees
to use a computer program to look up services when out in the
field. She also wrote the test taken by locators to demonstrate
their ability to locate.
Chevalier contends that the other two women passed over
for the promotion also had superior work experiences com-
pared to Stroebele. Hartley had been working for MUD for
almost 31 years. She started out working in customer service
and then transferred to the drafting department where she
worked her way up from a drafting technician IV to a senior
drafting technician. She then became a senior engineering tech-
nician, a position she held for 16 years.
Meisinger had worked full time for MUD since 1990. She
started out in the drafting department as a draftsperson and
later moved to field engineering. After field engineering, she
took a position as a design engineering technician and later
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Cite as 24 Neb. App. 874became a supervisor of drafting. She was in the engineering
department for 20 years before she took the purchasing depart-
ment position she had at the time of trial.
Chevalier further argues that performance appraisals com-
pleted in 2010 were used as a tool to justify Henn’s decision
to promote a less-qualified man to the position. Chevalier had
not been given an appraisal for 3 years prior to the appraisal
she received in March 2010, during the time the promotion
decision was being made. Similarly, Hartley had not been
given an appraisal for 7 years before being evaluated in
February 2010. Chevalier suggests that the appraisals were
done for the purpose of portraying the female candidates in a
negative light and could be used to justify its decision to pro-
mote Stroebele. Chevalier specifically directs our attention to
the language in her 2010 appraisal, which states: “[Chevalier
n]eeds to show more professionalism, not disturb others in
. . . Engineering. [Chevalier] needs to show improvement
on balancing field and office time. While [Chevalier] has
many skills, she needs to greatly improve prior to her being
ready for more responsibility.” The evidence shows, how-
ever, that these concerns or similar concerns were not new
and were reflected in previous appraisals. The comments in
her 2010 appraisal did not reflect anything new in regard to
Chevalier’s work habits.
Hartley’s appraisal indicated that she did not show the
potential for additional responsibilities, specifically noting
that she needed to work on “her listening and communica-
tion skills.”
Although the timing of the 2010 appraisals may seem suspi-
cious, there was evidence that they were done as a result of
MUD’s requiring that all employees have a current appraisal.
In an internal memorandum dated April 20, 2009, human
resources encouraged all supervisors to get their employee
files up to date, noting there had been several job selec-
tion grievances that were difficult to evaluate without writ-
ten documentation of that employee’s performance. Savine
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Cite as 24 Neb. App. 874testified that in 2009, annual appraisals were not being done
by all supervisors. An audit of appraisals was conducted in
2009 which showed that in the plant engineering division,
where Chevalier and Hartley both worked, about half of the
28 employees had not had an appraisal since 2007. Several
male and female employees had not had appraisals since 2003,
like Hartley. MUD’s board of directors discussed the matter in
June 2009, and in November 2009, MUD’s president vowed to
the board that the appraisals would be caught up and done in
a timely manner going forward. In April 2010, the president
indicated to the board that all supervisors were up to date on
their perform­ance appraisals.
Also, the 2010 appraisals of Chevalier and Hartley were not
the only information Henn relied on in determining that neither
of them was the strongest candidate for the supervisor of field
engineering position. Henn also relied on each candidate’s per-
sonnel file; a spreadsheet which had each candidate’s date of
hiring, positions held, and absence history; past performance
appraisals; and interviews she conducted with each candidate.
Further, in regard to Hartley, Henn was her supervisor so she
had knowledge of her day-to-day work habits.
Chevalier also argues that Henn changed the qualification
requirements for the supervisor of field engineering position
for the purpose of disqualifying Meisinger from consideration.
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. Meisinger had previous
locating experience, but it was more than 5 years earlier. The
change in the job requirements also disqualified one of the
male candidates.
Savine testified that a supervisor is usually the one who
recommends that the requirements for a job be changed, but
others have to agree to it and give their approval. Specifically,
she testified that Henn’s changes to the requirement for the
supervisor of field engineering position would have been
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Cite as 24 Neb. App. 874approved by the vice president of engineering and construc-
tion, as well as by human resources.
Henn testified that she initiated the change in the job require-
ments to require recent locating experience, but the changes
were approved by her supervisor and by human resources. She
testified that she made the change because Pattavina, who was
retiring from the supervisor of field engineering position, did
not know how to utility locate. She testified that this caused
issues in the past and that she believed it would be more effi-
cient if the supervisor could locate. She also testified that when
she redrafted the job requirements, she did not know who was
going to apply for the position.
The evidence is clear that Chevalier made a prima facie case
of discrimination (she was a member of a protected group;
was qualified and applied for a promotion; was rejected;
and a similarly situated employee, not part of the protected
group, was promoted instead). MUD produced evidence that
could support a finding that unlawful discrimination was
not the cause of the promotion decision and that it promoted
Stroebele over Chevalier because he was the better qualified
candidate. The jury apparently found that Chevalier did not
prove that MUD’s proffered reason was a pretext for unlawful
discrimination. There was sufficient evidence to support the
jury verdicts, and we find no merit to Chevalier’s assignment
of error.
Sustaining of Objection
to Exhibit 133.
Chevalier next argues that the trial court erred in sustain-
ing MUD’s objection to exhibit 133, her own transcription
of a tape-recorded conversation between herself and Patrick
Tripp, a MUD attorney. In April 2011, about 10 months after
Chevalier had filed her discrimination claim, she was called
into Tripp’s office and questioned about an obscene drawing
that included a picture of a construction foreman. The drawing
had been copied and sent to various MUD employees through
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Cite as 24 Neb. App. 874interoffice mail. After MUD conducted an investigation, it
concluded that Chevalier had distributed the drawing, and she
was suspended from work without pay for 3 days.
Without informing Tripp, Chevalier recorded their conversa-
tion in April 2011 when she was called into his office. She then
transcribed the meeting because the recording was “kind of
muffled.” She offered the transcription into evidence, exhibit
133, contending that it was evidence of retaliation against her
for filing a discrimination claim. MUD objected based on foun-
dation and not the best evidence, and the court sustained the
best evidence objection.
When Tripp testified, he stated that he had listened to
Chevalier’s recording of their meeting and that it was “pretty
much incomprehensible.” During a break at trial, he listened to
the tape-recorded conversation again and read Chevalier’s tran-
scription. He testified that he could not tell if the transcript was
accurate or not because the recording was “indecipherable.”
Chevalier offered exhibit 133 into evidence a second time,
and MUD objected based on foundation. The court sustained
MUD’s objection.
[19,20] Chevalier contends that exhibit 133 should have
been admitted into evidence because the original recorded con-
versation was unavailable due to the fact that it was “kind of
muffled” and would have been hard for the jury to understand.
However, as the trial court initially ruled, exhibit 133 was
not the best evidence of the conversation between Chevalier
and Tripp. The best evidence rule, Neb. Evid. R. 1002, Neb.
Rev. Stat. § 27-1002 (Reissue 2016), 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. See State v. Kula, 260 Neb. 183, 616 N.W.2d 313(2000), overruled on other grounds, State v. Dubray, 289 Neb.
208, 854 N.W.2d 584 (2014). The purpose of rule 1002 is the
prevention of fraud, inaccuracy, mistake, or mistransmission
of critical facts contained in a writing, recording, or photo-
graph when its contents are an issue in a proceeding. By its
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Cite as 24 Neb. App. 874terms, rule 1002 applies to proof of the contents of a record-
ing. See id.Although exhibit 133 was excluded from evidence, Chevalier
testified at length about the conversation with Tripp, as well as
the outcome of the investigation. Tripp also testified about
the conversation he had with Chevalier in April 2011 and
the investigation into the obscene drawing. Accordingly, there
was other evidence of the April 2011 conversation between
Chevalier and Tripp.
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. Pierce v. Landmark Mgmt.
Group, 293 Neb. 890, 880 N.W.2d 885 (2016). The exclusion
of exhibit 133 did not unfairly prejudice a substantial right of
Chevalier’s. Accordingly, the trial court did not abuse its dis-
cretion in sustaining MUD’s objection to exhibit 133.
Motion for New Trial.
Chevalier’s last assignment of error is that the trial court
erred in overruling her motion for new trial. Chevalier raised
the same issues in her motion for new trial that she raises in
her other assignments of error before us and which are dis-
cussed above. Having found no merit to Chevalier’s first four
assignments of error, we conclude that the trial court did not
err in overruling her motion for new trial.
CONCLUSION
We conclude that the trial court did not err in overruling
Chevalier’s motion for directed verdict on her FMLA retalia­
tion claim; allowing MUD to present expert testimony that
Chevalier never had Lyme disease; entering judgment on the
jury verdicts; sustaining MUD’s objection to exhibit 133, her
transcription of a tape-recorded conversation; and overruling
her motion for new trial. Accordingly, the trial court’s judg-
ment in favor of MUD is affirmed.
A ffirmed.