Marshall v. EyeCare Specialities

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Nebraska A dvance Sheets
291 Nebraska R eports
MARSHALL v. EYECARE SPECIALTIES
Cite as 291 Neb. 264
Cindy M arshall, appellant, v.
EyeCare Specialties, P.C.
of Lincoln, appellee.
___ N.W.2d ___
Filed July 2, 2015. No. S-14-696.
1. Summary Judgment: Appeal and Error. An appellate court will
affirm a lower court’s grant of summary judgment if the pleadings
and admitted evidence show that there is no genuine issue as to any
material facts or as to the ultimate inferences that may be drawn from
the facts and that the moving party is entitled to judgment as a matter
of law.
2. Administrative Law: Evidence. Admission of an administrative agen-
cy’s findings is within the trial court’s discretion.
3. Summary Judgment. Summary judgment is proper if the pleadings
and admissible evidence offered at the hearing show that there is no
genuine issue as to any material facts or as to the ultimate inferences
that may be drawn from those facts and that the moving party is entitled
to judgment as a matter of law.
4. Summary Judgment: Appeal and Error. In reviewing a summary
judgment, an appellate court views the evidence in the light most
favorable to the party against whom the judgment was granted, and
gives that party the benefit of all reasonable inferences deducible from
the evidence.
5. Summary Judgment: Proof. A party makes a prima facie case that it
is entitled to summary judgment by offering sufficient evidence that,
assuming the evidence went uncontested at trial, would entitle the party
to a favorable verdict.
6. Summary Judgment: Evidence: Proof. After the movant for summary
judgment makes a prima facie case by producing enough evidence to
demonstrate that the movant is entitled to judgment if the evidence was
uncontroverted at trial, the burden to produce evidence showing the
existence of a material issue of fact that prevents judgment as a matter
of law shifts to the party opposing the motion.
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7. Termination of Employment. The general rule in Nebraska is that an
employer, without incurring liability, may terminate the employment of
an at-will employee at any time with or without reason, unless termina-
tion is constitutionally, statutorily, or contractually prohibited.
8. Fair Employment Practices: Termination of Employment:
Discrimination. Neb. Rev. Stat. § 48-1104(1) (Reissue 2010) makes
it unlawful for an employer to discharge or otherwise discriminate
against an individual because of, among other things, the individ­
ual’s disability.
9. Fair Employment Practices: Words and Phrases. For purposes
of Neb. Rev. Stat. § 48-1104(1) (Reissue 2010), disability means,
among other things, being regarded as having a physical or mental
impairment.
10. Discrimination: Proof. An individual can show that he or she was
regarded as having a physical or mental impairment if the individual
establishes that he or she has been subjected to a prohibited action
because of an actual or perceived physical or mental impairment
whether or not the impairment limits or is perceived to limit a major
life activity.
11. Evidence: Proof: Words and Phrases. Direct evidence is that evi-
dence which proves the fact in dispute directly without inference or
presumption.
12. Employer and Employee: Discrimination: Evidence: Proof. In the
context of an employment discrimination case, direct evidence is
statements by a person with control over the employment decision
sufficient to prove discrimination without inference or presumption
which reflect a discriminatory or retaliatory attitude correlating to the
discrimination or retaliation complained of by the employee and are
made by a person involved in the challenged decision.
13. Discrimination: Evidence. Evidence is not direct when the statement
only suggests discrimination or is subject to more than one interpreta-
tion. Thus, stray remarks, statements by nondecisionmakers, or state-
ments by decisionmakers unrelated to the decisional process itself are
not direct evidence.
14. Summary Judgment: Discrimination: Evidence. When considering
allegations of unlawful discrimination at the summary judgment stage,
direct evidence is not the converse of circumstantial evidence.
15. Discrimination: Evidence: Proof. Direct evidence is evidence show-
ing a specific link between the alleged discriminatory animus and the
challenged decision, sufficient to support a finding by a reasonable
fact finder that an illegitimate criterion actually motivated the adverse
employment action. Thus, direct refers to the causal strength of the
proof, not whether it is circumstantial evidence.
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MARSHALL v. EYECARE SPECIALTIES
Cite as 291 Neb. 264
Appeal from the District Court for Lancaster County:
John A. Colborn, Judge. Reversed and remanded for further
proceedings.
Abby Osborn and Joy Shiffermiller, of Shiffermiller Law
Office, P.C., L.L.O., for appellant.
Shawn D. Renner, Susan K. Sapp, and Tara A. Stingley,
of Cline, Williams, Wright, Johnson & Oldfather, L.L.P.,
for appellee.
Heavican, C.J., Connolly, McCormack, Miller-Lerman,
and Cassel, JJ.
Cassel, J.
INTRODUCTION
After Cindy Marshall’s employer terminated her employ-
ment, Marshall sued—claiming unlawful discrimination based
upon a perceived disability. The district court entered sum-
mary judgment in favor of the employer, and Marshall appeals.
Because there is a genuine issue of material fact as to whether
the employer terminated Marshall’s employment on that basis,
we reverse the summary judgment and remand the cause for
further proceedings.
BACKGROUND
Parties
EyeCare Specialties, P.C. of Lincoln (EyeCare Specialties),
provides optometric care to patients. In January 2007, it hired
Marshall as a clinical technician. Prior to being employed by
EyeCare Specialties, Marshall lost her nursing license and
was diagnosed as being dependent on prescription medication.
She completed treatment for her condition.
Issues R egarding M arshall’s
Work Performance
In March 2007, Marshall received an above-average score
on her employee performance evaluation. The 90-day eval­
uation noted that she was doing very well, that she was a
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fast learner, and that she retained information well. In May,
EyeCare Specialties scheduled her to attend “Marco school”
to learn how to perform a specific eye examination. But sev-
eral e-mails sent in May noted apprehensions about Marshall.
One e-mail referenced “concerns that have been brought to us
by other technicians regarding [Marshall’s] staying on task,
and her struggles at times with day[-]to[-]day clinic respon-
sibilities.” Another stated that Marshall “has a hard time
staying focused on the flow” and that the coworker was con-
cerned about Marshall’s “hands getting very shakey [sic] more
towards afternoon.” An e-mail from the director of human
resources at the time stated that others had reported Marshall
seemed paranoid, had trouble staying focused, and “seems to
not be present when they think she should be and they are not
aware of where she is.” And an e-mail from one of the doc-
tors reported that a visual field test performed by Marshall was
useless due to errors.
In June 2007, more concerns about Marshall were raised.
One coworker’s e-mail stated in part: “I saw [Marshall] tak-
ing medications at least four times. When I would see her
and she would see me she acted very nervous and turned
the other way to finish taking them and then would chug a
cup of coffee.” A different coworker stated that random drug
testing needed to be implemented due to “an employee that
always seems zoned out and alot [sic] of times doesn’t seem
able to perform her everyday duties.” That e-mail went on to
discuss Marshall’s slowness in screening patients. Coworkers
expressed frustration and unhappiness about the prospect of
Marshall’s receiving Marco training. Ultimately, Marshall
was informed that she would not be going to “Marco school”
due to concerns that she might not be ready. Also in June,
Marshall reported to the director of human resources and
the chief operating officer that she had told a coworker she
lost her license as a nurse due to an addiction to prescrip-
tion medication. The chief operating officer suggested that
Marshall set her prescription bottle on the table when she
needs to take medication so that staff can see what she is
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taking. On June 28, Marshall received a corrective action
form to address interpersonal issues with coworkers and qual-
ity of work issues.
In January 2008, Marshall became “Marco” certified. In
January and February, she received verbal and written warn-
ings for “abuse of time clock.” In March, Marshall’s supervi-
sor reviewed with Marshall concerns about work performance,
including slow workpace, poor attendance, inappropriate dis-
cussions with patients regarding test results, and poor per­
formance in patient meetings. But in May, Marshall received a
raise based on an above-average score on an “Epic Technician”
performance evaluation. The following year, she received a
smaller raise based on an average score on the same type of
performance evaluation.
Marshall’s subsequent annual evaluations had both posi-
tive and negative aspects. Her 2010 evaluation stated that she
interacted well with patients, but that she needed to “be aware
of schedule and how flow is moving,” that she had a few
issues with tardy arrivals, and that she could use improvement
“in OPTOS images.” Marshall’s 2011 evaluation stated that
she was “a good technician,” but that her slow workpace con-
tinued to be a concern. The evaluation showed that she needed
improvement in the following areas: “[p]erforms well, and
uses good judgment, as tension and requirements increase”;
“[c]onversations with . . . patients and staff are quiet so as not
to disturb others in department”; and “[h]as complete confi-
dence using . . . lensometers . . . .”
Marshall admitted that she had various conversations
with Laura Houdesheldt, the director of human resources
for EyeCare Specialties since April 2009, about performance
issues such as productivity, speed, focus, and timing. On
January 9, 2012, Houdesheldt gave Marshall a written warn-
ing and a corrective action plan for not doing Marshall’s share
of the work. One coworker told Houdesheldt that Marshall
scratched her arms excessively. A doctor expressed concerns
about Marshall’s shaking while administering tests to patients’
eyes. On January 26, Houdesheldt told Marshall that there
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MARSHALL v. EYECARE SPECIALTIES
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were concerns about sores on Marshall’s arms and about
Marshall’s appearing anxious and acting paranoid. Marshall
informed Houdesheldt that the “sores” were an inherited skin
condition called senile purpura and that her tremors were also
inherited. Houdesheldt observed red, raw-looking scratches
and open, “weeping” sores on Marshall’s arms. Marshall
denied that her arms had open sores or “seeping” wounds. She
testified in a deposition that she covered any open wounds
with a bandage, but that her purpura “are like little bruises
under the skin that are not open and weeping.”
Marshall began using daily patient schedules to keep track
of which technician handled each patient. These schedules
would normally be shredded at the end of the day, but Marshall
instead removed them from EyeCare Specialties’ premises.
The schedules show that over 13 particular days between
February 2 and March 14, 2012, Marshall generally handled
more patients than her coworkers.
Those working with Marshall reported no significant
changes in Marshall’s behavior or work performance in
February 2012. On February 21, Houdesheldt gave Marshall
a written warning and a corrective action plan. Houdesheldt
informed Marshall that she had progressively become slower
paced in her work and that she often left work for others to
finish. According to Houdesheldt, Marshall then “abandoned”
her shift without authorization, which is an offense that could
result in the termination of employment. But Marshall testified
in her deposition that she obtained permission to leave from
her team leader.
On March 13, 2012, Houdesheldt presented Marshall with a
second written warning. The corrective action plan stated that
Marshall should continue with counseling and that termina-
tion of employment was likely if significant and consistent
improvement was not seen within 3 weeks. Marshall provided
Houdesheldt with a note from her doctor stating that she had
“non-intention tremor” and a “rash” that was not contagious.
Marshall was scheduled to work until 8 p.m., but she left
at approximately 4:20 p.m. because she “felt sick to [her]
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stomach.” Marshall stated that she told Houdesheldt that she
felt sick and was going to go home and that Houdesheldt said,
“OK.” But Houdesheldt stated that Marshall abandoned her
shift without approval. The following day, EyeCare Specialties
terminated Marshall’s employment at the end of her shift.
According to Houdesheldt, from October 2011 through March
2012, at least 13 individuals were disciplined and 5 individuals
had their employment terminated for reasons similar to those
for Marshall’s termination of employment. Houdesheldt stated
that Marshall consistently failed to meet performance expecta-
tions over her 5 years of employment.
Discrimination A llegations
Marshall filed a charge of discrimination with the Nebraska
Equal Opportunity Commission (NEOC) and the federal
Equal Employment Opportunity Commission. She felt that
she was discriminated against based on a “[p]erceived dis-
ability.” She explained: “They perceived I was unable to take
eye pressures because of my tremors, and they perceived — I
don’t know what they perceived. I felt like they were dis-
criminating against me because they were aware of my his-
tory.” She further testified, “I believe that they did not want
me there, that they believed that — maybe they perceived
the tremors or my skin that bruises as using drugs, and so
they used performance issues.” But no one ever told Marshall
that he or she thought the sores or tremors were due to drug
use. Houdesheldt specifically testified in her deposition that
she did not perceive Marshall as having a drug or alcohol
problem. Houdesheldt stated that Marshall had no disability
known to EyeCare Specialties, nor did Marshall ever iden-
tify any specific disability or activities that she was unable
to perform.
In February 2013, Marshall filed a complaint against
EyeCare Specialties, seeking damages for acts alleged to be
in violation of the Nebraska Fair Employment Practice Act.1
1
See Neb. Rev. Stat. § 48-1101 et seq. (Reissue 2010 & Cum. Supp. 2014).
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She alleged that EyeCare Specialties perceived her as dis-
abled when “it became known that she had entered into sub-
stance abuse treatment prior to her employment with [EyeCare
Specialties] and because [Marshall] had at-rest hand tremors
since she was a child.” Marshall claimed that she was also per-
ceived as disabled due to the purpura, which caused red marks
on her skin. Marshall contended that she was required to wear
adhesive bandages to cover her arms even though she covered
her arms by a cuff as directed by her doctor and that she was
required to lay out her medications where other employees
could observe them.
EyeCare Specialties alleged in its answer that its actions
were made in good faith compliance with applicable laws. It
alleged that it terminated Marshall’s employment due to poor
performance, leaving work without authorization and without
finishing her shift, insubordination, unprofessional conduct
when being counseled about performance issues, and refusing
to cover open wounds visible to patients.
Summary Judgment
EyeCare Specialties moved for summary judgment.
Following a hearing, the district court entered summary judg-
ment in favor of EyeCare Specialties. The court rejected
Marshall’s claim that there was direct evidence of discrimi-
nation and her claim that the burden-shifting analysis under
the framework of McDonnell Douglas Corp. v. Green2 was
unnecessary. The court next determined that a mixed-motive
analysis under Price Waterhouse v. Hopkins3 was inapplicable
to Marshall’s disability discrimination claim. The court rec-
ognized that Price Waterhouse involved a title VII case and
that it did not address the Americans with Disabilities Act.
The court stated that Marshall failed to meet her burden of
2
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L.
Ed. 2d 668 (1973).
3
Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775, 104 L. Ed.
2d 268 (1989) (superseded in part by federal Civil Rights Act of 1991).
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showing that EyeCare Specialties would not have terminated
her employment in the absence of her alleged perceived dis-
ability. The court concluded that Marshall failed to establish
a prima facie case of discrimination based on a perceived
disability. The court further reasoned that even if Marshall
could establish a prima facie case of disability discrimination,
EyeCare Specialties had established legitimate, nondiscrimi-
natory reasons for terminating her employment. Finally, the
court stated that Marshall had not presented any evidence cre-
ating a genuine issue of material fact that EyeCare Specialties’
decision was a mere pretext for discrimination.
Marshall timely appealed, and we moved the case to
our docket.4
ASSIGNMENTS OF ERROR
Marshall assigns, consolidated and restated, that the district
court erred in (1) relying on the NEOC’s findings and (2)
granting summary judgment in favor of EyeCare Specialties.
STANDARD OF REVIEW
[1] An appellate court will affirm a lower court’s grant of
summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from the facts
and that the moving party is entitled to judgment as a matter
of law.5
ANALYSIS
NEOC Findings
[2] Marshall argues that the district court impermissibly
relied on the NEOC’s findings in granting summary judg-
ment. We disagree. Admission of an administrative agency’s
findings is within the trial court’s discretion.6 But even if this
4
See Neb. Rev. Stat. § 24-1106(3) (Reissue 2008).
5
Johnson v. Nelson, 290 Neb. 703, 861 N.W.2d 705 (2015).
6
See White v. Honeywell, Inc., 141 F.3d 1270 (8th Cir. 1998).
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evidence was inadmissible, the court’s analysis did not refer
to or rely upon the findings in any manner. The order merely
mentioned the findings as part of its summarization of the
case’s background. This assignment of error lacks merit.
Summary Judgment
[3-6] The principles regarding summary judgment are well
established. Summary judgment is proper if the pleadings and
admissible evidence offered at the hearing show that there is
no genuine issue as to any material facts or as to the ultimate
inferences that may be drawn from those facts and that the
moving party is entitled to judgment as a matter of law.7 In
reviewing a summary judgment, an appellate court views the
evidence in the light most favorable to the party against whom
the judgment was granted, and gives that party the benefit
of all reasonable inferences deducible from the evidence.8 A
party makes a prima facie case that it is entitled to summary
judgment by offering sufficient evidence that, assuming the
evidence went uncontested at trial, would entitle the party to
a favorable verdict.9 After the movant for summary judgment
makes such a prima facie case, the burden to produce evidence
showing the existence of a material issue of fact that pre-
vents judgment as a matter of law shifts to the party opposing
the motion.10
The crux of Marshall’s appeal is that the district court erred
in entering summary judgment, particularly because it failed
to view the evidence in the light most favorable to her and
failed to find that a genuine issue of material fact existed as to
whether she was fired due to a perceived disability. After giv-
ing Marshall the benefit of all reasonable inferences deducible
from the evidence, we agree that summary judgment was not
proper in this case.
7
Johnson v. Nelson, supra note 5.
8
Hughes v. School Dist. of Aurora, 290 Neb. 47, 858 N.W.2d 590 (2015).
9
Doe v. Board of Regents, 287 Neb. 990, 846 N.W.2d 126 (2014).
10
Id.
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[7-10] Although EyeCare Specialties hired Marshall on an
at-will basis, Nebraska law prohibits discrimination on the
basis of perceived disability. The general rule in Nebraska is
that an employer, without incurring liability, may terminate
the employment of an at-will employee at any time with or
without reason, unless termination is constitutionally, statu-
torily, or contractually prohibited.11 But a Nebraska statute
makes it unlawful for an employer to discharge or otherwise
discriminate against an individual because of, among other
things, the individual’s disability.12 For purposes of that stat-
ute, disability means, among other things, “being regarded as
having [a physical or mental] impairment.”13 An individual
can show that he or she was regarded as having such an
impairment “‘if the individual establishes that he or she has
been subjected to [a prohibited action] because of an actual
or perceived physical or mental impairment whether or not
the impairment limits or is perceived to limit a major life
activity.’”14 The focus is on the impairment’s effect upon the
attitudes of others.15
In Marshall’s complaint, she identified her perceived dis-
abilities as her substance abuse treatment prior to employment
with EyeCare Specialties, her hand tremors, and her purpura.
A qualified individual with a disability includes an individual
who has been rehabilitated successfully or who is erroneously
regarded as engaging in the illegal use of drugs.16
Marshall claims that the burden-shifting analysis originat-
ing in McDonnell Douglas Corp. v. Green17 does not apply in
the circumstances before us. We agree. We have previously
11
See Riesen v. Irwin Indus. Tool Co., 272 Neb. 41, 717 N.W.2d 907 (2006).
12
See § 48-1104(1).
13
§ 48-1102(9)(c).
14
Tramp v. Associated Underwriters, Inc., 768 F.3d 793, 805 (8th Cir. 2014).
15
Wooten v. Farmland Foods, 58 F.3d 382 (8th Cir. 1995).
16
§ 48-1102(10)(c)(i) and (iii).
17
McDonnell Douglas Corp. v. Green, supra note 2.
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employed that analytical framework when considering claims
of employment discrimination.18 That framework is used when
an employee does not put forward direct evidence of dis-
crimination.19 But Marshall argues that she presented direct
evidence of discrimination. This argument rests upon the
meaning of direct evidence in the employment discrimina-
tion context.
[11-13] Our jurisprudence has defined direct evidence both
in a general sense and in this specific area of law. We have
stated that direct evidence is that evidence which proves the
fact in dispute directly without inference or presumption.20
We have also quoted from a federal district court case stat-
ing that in the context of an employment discrimination case,
direct evidence is statements “‘by a person with control over
the employment decision “sufficient to prove discrimination
without inference or presumption”’” which “‘reflect a “dis-
criminatory or retaliatory attitude correlating to the discrimina-
tion or retaliation complained of by the employee”’” and are
“‘“made by a person involved in the challenged decision.”’”21
According to the federal case: “‘Evidence is not direct when
the statement only “suggests discrimination” or “is subject
to more than one interpretation.” . . . Thus, “stray remarks
. . . statements by nondecisionmakers, or statements by deci-
sionmakers unrelated to the decisional process itself” are not
direct evidence.’”22
[14,15] Marshall directs us to an explanation of direct evi-
dence from the U.S. Court of Appeals for the Eighth Circuit.
18
See Riesen v. Irwin Indus. Tool Co., supra note 11.
19
See Fleming v. Civil Serv. Comm. of Douglas Cty., 280 Neb. 1014, 792
N.W.2d 871 (2011).
20
See Nebraska Legislature on behalf of State v. Hergert, 271 Neb. 976, 720
N.W.2d 372 (2006).
21
Father Flanagan’s Boys’ Home v. Agnew, 256 Neb. 394, 404, 590 N.W.2d
688, 695 (1999), quoting Moore v. Alabama State University, 980 F. Supp.
426 (M.D. Ala. 1997).
22
Id. at 404-05, 590 N.W.2d at 695.
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In that case, the court stated that when considering allega-
tions of unlawful discrimination at the summary judgment
stage, direct evidence is “not the converse of circumstantial
evidence.”23 The Eighth Circuit elaborated:
[D]irect evidence is evidence “showing a specific link
between the alleged discriminatory animus and the chal-
lenged decision, sufficient to support a finding by a
reasonable fact finder that an illegitimate criterion actu-
ally motivated” the adverse employment action. . . .
Thus, “direct” refers to the causal strength of the proof,
not whether it is “circumstantial” evidence. A plaintiff
with strong (direct) evidence that illegal discrimina-
tion motivated the employer’s adverse action does not
need the three-part McDonnell Douglas analysis to get
to the jury, regardless of whether his strong evidence is
circumstantial. But if the plaintiff lacks evidence that
clearly points to the presence of an illegal motive, he
must avoid summary judgment by creating the requi-
site inference of unlawful discrimination through the
McDonnell Douglas analysis, including sufficient evi-
dence of pretext.24
The Eighth Circuit’s analysis is consistent with our law, and we
adopt its reasoning.
Viewing the evidence in the light most favorable to Marshall,
we conclude that she has presented direct evidence that ille-
gal discrimination led to the termination of her employment.
Marshall asserted that Houdesheldt told her on January 26,
2012, that EyeCare Specialties’ “‘real concern is that you have
sores on your arm, you appear to be anxious and you are acting
paranoid.’” The second written warning stated in part:
[Marshall’s] performance continues to be an issue. Her
performance is very inconsistent, with periods of aver-
age performance followed by periods where her per­
formance decreases significantly. [Marshall] continues
23
See Griffith v. City of Des Moines, 387 F.3d 733, 736 (8th Cir. 2004).
24
Id.
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to spend 20 - 30+ minutes working with a patient, caus-
ing everyone on her team to be off schedule and causing
patients to get upset about the amount of time being
spent. [Marshall] continues to refuse to cover her sores
with bandages, using the bottom cuffs of some chil-
dren’s legging as sleeve extenders instead. I have talked
to [Marshall] about the appropriate way to create a bar-
rier with bandages[,] but she has not done so. [Marshall]
continues to be jittery and easily flustered.
Thus, Marshall’s refusal to cover her “sores” was given as a
reason for the warning. But Marshall presented evidence that
the so-called sores were actually an inherited skin condition
that was “like little bruises under the skin that are not open
and weeping.” Although Marshall covered any cuts or open
wounds with bandages, she did not want to risk tearing her
skin in order to cover her skin condition with bandages. Such
evidence can be construed as direct evidence that EyeCare
Specialties perceived Marshall to have a disability. The ulti-
mate strength or persuasiveness of this evidence is not before
us, and we express no opinion on that issue. At this stage, the
only question is whether this evidence was sufficient to cre-
ate a genuine issue of material fact as to whether EyeCare
Specialties terminated her employment for that reason. We
conclude that it was. Accordingly, summary judgment was
not proper.
CONCLUSION
The judgment of the district court granting EyeCare
Specialties’ motion for summary judgment and dismissing
Marshall’s complaint is reversed, and the cause is remanded to
the district court for further proceedings.
R eversed and remanded for
further proceedings.
Wright and Stephan, JJ., not participating.