Marshall v. EyeCare Specialties , 293 Neb. 91 ( 2016 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/25/2016 09:05 AM CDT
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293 Nebraska R eports
MARSHALL v. EYECARE SPECIALTIES
Cite as 293 Neb. 91
Cindy M arshall, appellant, v.
EyeCare Specialties, P.C.
of Lincoln, appellee.
___ N.W.2d ___
Filed March 25, 2016. No. S-14-696.
1. Summary Judgment: Appeal and Error. An appellate court affirms 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. ____: ____. 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.
3. Trial: Evidence: Waiver. If the party against whom evidence is offered
fails to object to its introduction, that party waives whatever objection
he or she might have had.
4. Fair Employment Practices: Employer and Employee: Proof. To
show that an employer regarded an employee as disabled under Neb.
Rev. Stat. § 48-1102(9)(c) (Reissue 2010), the employee must demon-
strate either that (1) despite having no impairment at all, the employer
mistakenly believed that the employee had an impairment that substan-
tially limited one or more major life activities, or (2) the employee had a
nonlimiting impairment that the employer mistakenly believed substan-
tially limited one or more major life activities.
5. Fair Employment Practices: Discrimination: Proof. An employee
asserting a claim of disability discrimination under the Nebraska Fair
Employment Practice Act has two ways to show a genuine issue of
material fact for summary judgment purposes: (1) producing direct
evidence of discrimination or (2) raising an inference of discrimination
under the tripartite burden-shifting framework of McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).
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6. Fair Employment Practices: Discrimination: Evidence: Words and
Phrases. In the context of a disability discrimination claim under the
Nebraska Fair Employment Practice Act, direct evidence consists of
statements by a person with control over the employment decision suf-
ficient to prove discrimination without inference or presumption.
7. Fair Employment Practices: Discrimination: Proof. To raise an infer-
ence of discrimination under the McDonnell Douglas Corp. v. Green,
411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), tripartite burden-
shifting 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 produce evidence of a 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 to persuade the fact finder that the stated
reason was pretextual.
8. Fair Employment Practices: Words and Phrases. Under Neb. Rev.
Stat. § 48-1102(9) (Reissue 2010), “major life activities” are those
activities that are of central importance to daily life.
9. Fair Employment Practices: Proof. Under Neb. Rev. Stat. § 48-1102(9)
(Reissue 2010), to be substantially limited in the major life activity
of working, the plaintiff must show that he or she was significantly
restricted in the ability to perform either a class of jobs or a broad range
of jobs in various classes as compared to the average person having
comparable training, skills, and abilities.
10. Fair Employment Practices: Words and Phrases. Drug addiction is
an impairment under Neb. Rev. Stat. § 48-1102(9) (Reissue 2010), but it
is not a disability unless it substantially limits a major life activity or is
perceived by the employer to substantially limit a major life activity.
11. Fair Employment Practices: Discrimination: Proof. To establish
a prima facie case of disability discrimination under the Nebraska
Fair Employment Practice Act, plaintiffs must show that (1) they
were disabled, (2) they could perform the essential functions of the
position with or without reasonable accommodation, and (3) their
employer subjected them to an adverse employment action because of
their disability.
12. Fair Employment Practices: Words and Phrases. Concentrating,
thinking, and communicating are major life activities under Neb. Rev.
Stat. § 48-1102(9) (Reissue 2010).
Appeal from the District Court for Lancaster County: John
A. Colborn, Judge. On motion for rehearing, reargument
granted. See 291 Neb. 264, 865 N.W.2d 343 (2015), for
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original opinion. Original opinion withdrawn. 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, Miller-Lerman, and Cassel, JJ.,
and Irwin, Inbody, and Pirtle, Judges.
Connolly, J.
I. SUMMARY
This case is before us on a motion for rehearing filed by
EyeCare Specialties, P.C. of Lincoln (EyeCare Specialties).
EyeCare Specialties employed Cindy Marshall as an optical
technician from 2007 until it terminated her employment in
2012. Marshall sued EyeCare Specialties, alleging that it dis-
criminated against her because it regarded her as disabled. The
district court sustained EyeCare Specialties’ motion for sum-
mary judgment, and Marshall appealed.
We filed an opinion deciding the appeal on July 2, 2015,1
but we later sustained EyeCare Specialties’ motion for rehear-
ing. We now withdraw our former opinion. Marshall cre-
ated a dispute of material fact concerning whether EyeCare
Specialties discriminated against her because of her skin con-
dition and tremors, which EyeCare Specialties perceived to
substantially limit her ability to work. She did not create a fact
question concerning whether EyeCare Specialties discriminated
against her because of a perceived disability related to her past
prescription drug abuse. We therefore reverse, and remand for
further proceedings.
1
Marshall v. EyeCare Specialties, 291 Neb. 264, 865 N.W.2d 343 (2015).
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II. BACKGROUND
In January 2007, EyeCare Specialties hired Marshall as an
optical technician. Marshall previously worked as a registered
nurse but “lost [her] nursing license” because of prescription
drug abuse. Marshall said that she successfully completed
treatment and did not abuse prescription drugs while she
worked for EyeCare Specialties. She told her coworkers about
her past drug abuse because they asked why she no longer
worked as a nurse.
1. Employment Actions in 2007
In Marshall’s first performance evaluation in March 2007,
her scores were excellent or above average in every category
except one. But she quickly became the subject of com-
plaints from coworkers. In May 2007, a coworker said that
Marshall had “a hard time staying focused on the flow” and
got “very shakey [sic] more towards afternoon.” Marshall told
the coworker she was taking over-the-counter diet pills, which
the coworker speculated might be causing Marshall’s shaki-
ness. In June, another coworker saw Marshall furtively “taking
medications” at work. Yet another coworker said that “random
drug testing NEEDS to be implemented.” Marshall received
a corrective action in June, signed by her “Team Leader”
and the “Administration,” stating that she needed to improve
her “[i]nterpersonal issues with coworkers” and “[q]uality of
work . . . .”
Marshall told EyeCare Specialties’ administrators that she
took “diet pills,” in addition to medication to control her blood
pressure and headaches. She later admitted that the diet pills
might have worsened her “tremors.” The administrators sug-
gested that Marshall allay her coworkers’ suspicion by setting
her pill bottles on the table where others could see them.
2. Employment Actions From
2008 Through 2011
The record suggests that Marshall’s next 4 years at EyeCare
Specialties were relatively quiet. Her May 2008 performance
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evaluation scored her as excellent or above average in all nine
categories, including quality and productivity. The evaluation
noted, though, that Marshall “[s]ometimes gets nervous with
multitasking” and needed to “work on steady flow and not get-
ting flustered.”
In Marshall’s March 2009 performance evaluation, her scores
were excellent or above average in eight categories and satis-
factory in one. The evaluation urged Marshall to not “spend
too much time with challenging cases.” In Marshall’s June
2010 evaluation, which used a different rubric than the prior
evaluations, the mean of her performance ratings was “Meets
Requirements.” The evaluation stated that Marshall “has had a
few issues with tardy arrivals” but was improving.
Marshall received a slightly better rating in her March
2011 evaluation. The optometrists’ comments were generally
positive, although they noted that Marshall occasionally took
too much time with a “tough patient” or a “difficult refrac-
tion.” In April, the clinic coordinator expressed concerns about
Marshall’s inefficiency, tension with coworkers, and “attitude
problem.” An optometrist replied that Marshall was “very nerv­
ous and not good at multitasking.”
3. Employment Actions in 2012
In 2012, Marshall’s employment situation turned for
the worse. On January 9, a coworker approached Laura
Houdesheldt, EyeCare Specialties’ human resources director,
and said that Marshall was “very slow and getting slower.”
The coworker said that Marshall was “nervous,” “confused,”
“‘itching,’” and “shaking,” and was taking what looked like
diet pills.
Houdesheldt had a discussion with Marshall on January
9, 2012, culminating in a documented “verbal” warning. The
corrective action plan stated that Marshall was “not doing her
fair share.”
Later, on January 24, 2012, Marshall and Houdesheldt had
another talk about Marshall’s performance. During their con-
versation, Houdesheldt observed “red, raw-looking scratches
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on [Marshall’s] right arm” and “some open sores that appeared
to be wet.” Houdesheldt said that Marshall’s hands were “shak-
ing quite a bit.”
After her conversation with Marshall, Houdesheldt spoke to
several of Marshall’s coworkers. One coworker said she was
“worried that [Marshall] was taking diet pills at work” and
that Marshall’s paranoia and confusion were increasing. The
coworker reported that Marshall had told previous coworkers
she had a “history of substance abuse.” Houdesheldt later testi-
fied that she did not “perceive [Marshall] as having a drug or
alcohol problem.”
On January 26, 2012, Houdesheldt spoke with an optom-
etrist who was concerned about Marshall’s “inconsistent pace.”
The optometrist was also worried that Marshall jeopardized the
patients’ safety because she shook while administering tests
and had “open wounds.”
Houdesheldt met again with Marshall. Marshall said that
the apparent sores were “beneath her skin,” but Houdesheldt
“observed some of the sores to be wet.” Houdesheldt explained
that EyeCare Specialties viewed Marshall’s shaking and sores
as workplace hazards:
Marshall’s use of specialized tools in close proximity to
patients’ eyes while suffering from hand tremors could
pose [a risk of] injury to patients and cause discomfort
and alarm to patients during testing procedures. Similarly,
. . . Marshall’s open weeping wounds on her arms could
have exposed patients to . . . Marshall’s bodily fluids or
possible bacteria, or could have exposed . . . Marshall to
infectious material from patients’ eyes.
Houdesheldt offered to procure a “large bandage” but Marshall
declined. Houdesheldt also discussed Marshall’s “marked
decrease in the quantity of her work.” But, according to
Marshall, Houdesheldt said that Marshall’s failure to do her
“fair share” was “‘not our real concern.’”
Marshall began to cover her arms after the January 26, 2012,
meeting with Houdesheldt, although she denied having “open,
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weeping, wet wounds.” Marshall said she had “very thin skin
that bruises easy.” Bandages would tear her skin, so she used
“leggings” made from children’s clothing to cover her arms.
Marshall said that Houdesheldt referred to the leggings as a
“clever idea.”
In February 2012, Marshall and Houdesheldt had another
discussion that climaxed in a written warning. Houdesheldt
again pressed Marshall to “cover[] her open wounds” with
bandages. The corrective action plan stated that Marshall had
“progressively become slower paced in her work” and that
her “shaking and her uncovered sores are a concern as she
performs tests that bring her in close proximity to patient’s
[sic] eyes.” Marshall left work after her conversation with
Houdesheldt. She thought she had permission to leave early,
but Houdesheldt disagreed.
On March 13, 2012, an optometrist told Houdesheldt that
“Marshall’s work pace was very inconsistent and slow, that
. . . Marshall was confused from time to time and had trouble
verbalizing her thoughts, and that . . . Marshall’s failure to
address and improve her performance issues was problematic.”
Houdesheldt had another talk with Marshall.
At her March 13, 2012, meeting with Houdesheldt, Marshall
produced a note from her physician dated January 27, 2012,
which said that Marshall had a “non-intention tremor & it
does not affect work performance.” The doctor’s note further
said that Marshall’s “rash is not contagious.” The note did not
alleviate Houdesheldt’s concerns because she did not think
Marshall’s skin condition was a “rash.”
The March 13, 2012, corrective action plan stated that
Marshall was “very inconsistent, with periods of average
performance followed by periods where her performance
decreases significantly.” Furthermore, Marshall “continue[d]
to refuse to cover her sores with bandages, using the bottom
cuffs of some children’s legging as sleeve extenders instead.”
She also “continue[d] to be jittery and easily flustered.” The
plan stated that “termination is likely” unless Marshall’s pace
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of work improved and she used an “acceptable barrier” for
her “open sores.” According to Houdesheldt, Marshall refused
to sign the corrective action plan and left before the end of
her shift.
After Marshall left, Houdesheldt and the clinic coordinator
decided to terminate her employment. On March 14, 2012,
Houdesheldt informed Marshall that EyeCare Specialties would
no longer employ her.
To rebut the charge that she worked slowly, Marshall col-
lected records for 13 days between February 2 and March
14, 2012, showing the number of patient examinations she
and other technicians had performed. According to Marshall’s
records, she performed as many or more examinations than
the other technicians on every day but one. The records do not
show if these 13 days between February 2 and March 14 were
the only days that she worked during that period.
4. Procedural Background
Marshall filed a complaint against EyeCare Specialties
requesting damages under the Nebraska Fair Employment
Practice Act (FEPA).2 She claimed that EyeCare Specialties
discriminated against her because of a “perceived disability.”
Specifically, she alleged that EyeCare Specialties regarded her
as disabled because (1) “it became known that she had entered
into substance abuse treatment prior to her employment,” (2)
she had “at-rest hand tremors,” and (3) she had “a skin condi-
tion . . . that caused red marks on her skin.”
The court sustained EyeCare Specialties’ motion for sum-
mary judgment. In the fact section of the judgment, the court
noted that the Nebraska Equal Opportunity Commission and
the Lincoln Commission on Human Rights both denied the
claims of discrimination that Marshall filed against EyeCare
Specialties. In its analysis, the court concluded that Marshall
had not presented any direct evidence that EyeCare Specialties
2
See Neb. Rev. Stat. §§ 48-1101 to 48-1125 (Reissue 2010 & Cum. Supp.
2014).
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discriminated against her because of a perceived disability.
After deciding that Marshall had not presented direct evi-
dence of discrimination, the court declined her invitation to
analyze her claim under a mixed motive framework. It con-
cluded that she had not created a material issue of fact under
the McDonnell Douglas Corp. v. Green3 three-part burden-­
shifting test.
III. ASSIGNMENTS OF ERROR
Marshall assigns, consolidated, that the court erred by
(1) citing the determination made by the Nebraska Equal
Opportunity Commission and (2) determining that there was
no genuine issue of material fact concerning whether EyeCare
Specialties discriminated against her because it regarded her
as disabled.
IV. STANDARD OF REVIEW
[1,2] We 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 mov-
ing party is entitled to judgment as a matter of law.4 In review-
ing a summary judgment, we view the evidence in the light
most favorable to the party against whom the judgment was
granted, and give that party the benefit of all reasonable infer-
ences deducible from the evidence.5
V. ANALYSIS
1. Nebraska Equal Opportunity
Commission’s Determination
Marshall assigns that the court “impermissibly relied on
the findings of the [Nebraska Equal Opportunity Commission]
3
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L.
Ed. 2d 668 (1973).
4
Hughes v. School Dist. of Aurora, 290 Neb. 47, 858 N.W.2d 590 (2015).
5
Id.
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in granting summary judgment.” EyeCare Specialties argues
that Marshall did not object to the admission of the commis-
sion’s determination.
One sentence in the summary judgment order mentions the
commission’s determination: “On or about November 15, 2012,
the Nebraska Equal Opportunity Commission closed its file on
[Marshall’s] Charge of Discrimination and found no reason-
able cause to believe discrimination as alleged by [Marshall]
had occurred.” We note that in EyeCare Specialties’ answer,
it affirmatively alleged that Marshall had failed to exhaust
administrative remedies. This purported defense might explain
the court’s brief mention of the administrative proceedings.
[3] Furthermore, Marshall did not object to the admission
of the commission’s determination. At the summary judgment
hearing, the court asked Marshall if she had an objection and
she said: “Judge, we don’t object for purposes of this hearing.
I did include in my brief my objection to the reference to the
findings of the [Nebraska Equal Opportunity Commission], but
we don’t object to the Court considering it for the purposes of
this hearing.” If the party against whom evidence is offered
fails to object to its introduction, that party waives whatever
objection he or she might have had.6 Marshall did not object
to the court’s considering the commission’s determination for
purposes of EyeCare Specialties’ motion for summary judg-
ment, so she cannot complain if the court actually considered
the determination in its summary judgment order.
2. Disability Discrimination
The FEPA7 prohibits employers from discriminating against
individuals because of certain protected characteristics,
6
See, Sturzenegger v. Father Flanagan’s Boy’s Home, 276 Neb. 327, 754
N.W.2d 406 (2008); R.W. v. Schrein, 264 Neb. 818, 652 N.W.2d 574
(2002); Jameson v. Liquid Controls Corp., 260 Neb. 489, 618 N.W.2d 637
(2000). See, also, In re Estate of Clinger, 292 Neb. 237, 872 N.W.2d 37
(2015).
7
§§ 48-1101 to 48-1125.
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­including disability.8 Section 48-1107.01 provides: “It shall
be an unlawful employment practice for a covered entity to
discriminate against a qualified individual with a disability
because of the disability of such individual . . . .” Under
§ 48-1102(10)(a), a “[q]ualified individual with a disability”
is “an individual with a disability who, with or without rea-
sonable accommodation, can perform the essential functions
of the employment position that such individual holds or
desires.” “Disability,” under § 48-1102(9), is “(a) a physical
or mental impairment that substantially limits one or more
of the major life activities of such individual, (b) a record
of such an impairment, or (c) being regarded as having such
an impairment.”
The Legislature enacted the FEPA in 1965,9 but it added
the above-quoted language in §§ 48-1102 and 48-1107.01
in 1993.10 The Legislature specifically intended that its
1993 amendments would provide the same protections from
employment discrimination that title I of the Americans with
Disabilities Act of 1990 (ADA of 1990) provided.11 So it
is appropriate to consider how federal courts have inter-
preted the counterparts to the 1993 amendments in the ADA
of 1990.12
But in considering federal precedent, we must be mind-
ful of subsequent amendments made by the Legislature and
Congress. The Legislature has amended the disability provi-
sions in the FEPA since 1993,13 although the changes are not
8
See § 48-1104.
9
See 1965 Neb. Laws, ch. 276, pp. 782-98.
10
1993 Neb. Laws, L.B. 360.
11
Americans with Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat.
329; Arens v. NEBCO, Inc., 291 Neb. 834, 870 N.W.2d 1 (2015).
12
Arens v. NEBCO, Inc., supra note 11. See Father Flanagan’s Boys’
Home v. Agnew, 256 Neb. 394, 590 N.W.2d 688 (1999). See, also, Orr v.
Wal-Mart Stores, Inc., 297 F.3d 720 (8th Cir. 2002).
13
See, 2015 Neb. Laws, L.B. 627; 2004 Neb. Laws, L.B. 1083.
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relevant here. And Congress substantially amended the ADA
of 1990 in the ADA Amendments Act of 2008 (ADAAA of
2008).14 For example, the ADAAA of 2008—unlike the ADA
of 1990—provides that an employer can regard an individual
as disabled even if the employer does not perceive the indi-
vidual to be substantially limited in any major life activity.15
But the Legislature has not adopted these federal amendments.
So changes made by the ADAAA of 2008 are not indicative
of the Legislature’s intent in the FEPA, and we continue to
look to federal decisions interpreting the language of the ADA
of 1990.
[4] Below, Marshall alleged that EyeCare Specialties per-
ceived her as disabled because she had sought treatment for
drug abuse, because she had tremors, and because she had a
skin condition. She claims that these impairments are disabili-
ties under § 48-1102(9)(c), which states that an individual is
disabled if she is “regarded as having such an impairment.”
The phrase “such an impairment” in § 48-1102(9)(c) refers to
“a physical or mental impairment that substantially limits one
or more of the major life activities of such individual” under
§ 48-1102(9)(a). So to show that EyeCare Specialties regarded
her as disabled, Marshall had to demonstrate either (1) that
despite having no impairment at all, EyeCare Specialties mis-
takenly believed that she had an impairment that substan-
tially limited one or more major life activities, or (2) that
she had a nonlimiting impairment that EyeCare Specialties
mistakenly believed substantially limited one or more major
life activities.16
14
ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553.
15
See 42 U.S.C. § 12102(3)(A) (2012).
16
Eshelman v. Agere Systems, Inc., 554 F.3d 426 (3d Cir. 2009). See Sutton
v. United Air Lines, Inc., 527 U.S. 471, 119 S. Ct. 2139, 144 L. Ed. 2d 450
(1999) (superseded by ADAAA of 2008); Ollie v. Titan Tire Corp., 336
F.3d 680 (8th Cir. 2003).
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The focus of the “regarded as” prong in § 48-1102(9)(c)
is on the employer’s beliefs and acts.17 But it is not enough
for Marshall to show that EyeCare Specialties treated her
adversely because it believed she had physical or mental
impairments.18 Rather, she must show that EyeCare Specialties
treated her adversely because it perceived her as having
impairments that substantially limited one or more major
life activities.19
[5-7] Turning to the mechanics of creating a fact ques-
tion concerning disability, Marshall had two ways to survive
EyeCare Specialties’ motion for summary judgment. First,
she could produce “direct evidence” of discrimination.20 In
this context, we have said that direct evidence “‘consists of
statements by a person with control over the employment deci-
sion “sufficient to prove discrimination without inference or
presumption.”’”21 The statements must reflect a discriminatory
or retaliatory attitude correlating to the discrimination com-
plained of by the employee.22 Direct evidence is not the con-
verse of circumstantial evidence.23 Instead it is evidence which
shows “‘a specific link between the alleged discriminatory ani-
mus and the challenged decision, sufficient to support a finding
by a reasonable fact finder that an illegitimate criterion actually
17
See 1 Jonathan R. Mook, Americans with Disabilities Act: Employee
Rights & Employer Obligations § 3.04[1][a] (2015).
18
See Weber v. Strippit, Inc., 186 F.3d 907 (8th Cir. 1999).
19
Id. See Bailey v. Georgia-Pacific Corp., 306 F.3d 1162 (1st Cir. 2002).
20
See, Griffith v. City of Des Moines, 387 F.3d 733 (8th Cir. 2004); 2
Jonathan R. Mook, Americans with Disabilities Act: Employee Rights &
Employer Obligations § 8.03[2][c][i] (2015).
21
Father Flanagan’s Boys’ Home v. Agnew, supra note 12, 256 Neb. at 404,
590 N.W.2d at 695, quoting Moore v. Alabama State University, 980 F.
Supp. 426 (M.D. Ala. 1997).
22
Id.
23
Griffith v. City of Des Moines, supra note 20.
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motivated’ the adverse employment action.”24 Alternatively,
if Marshall lacks direct evidence, she must create a genuine
issue of material fact by raising an inference of discrimination
under the McDonnell Douglas Corp. tripartite burden-shifting
framework.25 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 produce evidence of a legitimate, nondiscrimina-
tory reason for the adverse employment action; and (3) if the
employer articulates a nondiscriminatory reason for its action,
the employee maintains the burden to persuade the fact finder
that the stated reason was pretextual.26
(a) Skin Condition and Tremors
Marshall argues that her skin condition was “a nonlimiting
impairment” which EyeCare Specialties mistakenly believed
substantially limited her major life activity of working.27
She argues that she produced direct evidence that EyeCare
Specialties was concerned about “contagion” between herself
and patients because of her skin condition.28 At oral argu-
ment, Marshall asserted that EyeCare Specialties also regarded
her tremors as substantially limiting her major life activity
of working.
[8] The FEPA does not define “physical or mental impair-
ment,” “substantially limits,” or “major life activities.”29 Nor
24
Id. at 736, quoting Thomas v. First Nat. Bank of Wynne, 111 F.3d 64 (8th
Cir. 1997). See 2 Mook, supra note 20, § 8.03[2][c][ii].
25
Griffith v. City of Des Moines, supra note 20. See, Arens v. NEBCO, Inc.,
supra note 11; Fleming v. Civil Serv. Comm. of Douglas Cty., 280 Neb.
1014, 792 N.W.2d 871 (2011); 1 Barbara T. Lindemann & Paul Grossman,
Employment Discrimination Law, ch. 13, § VII.A.3.b (4th ed. 2007 &
Supp. 2008).
26
See Arens v. NEBCO, Inc., supra note 11.
27
Supplemental brief for appellant at 1.
28
Id. at 2.
29
See Arens v. NEBCO, Inc., supra note 11.
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did the ADA of 1990.30 But Marshall’s skin condition and
tremors are within the broad understanding of “‘physical
impairment’” or “‘mental impairment.’”31 Federal courts inter-
preted “‘substantially limited’” to mean “‘unable to perform’”
or “‘significantly restricted as to the condition, manner or
duration.’”32 The word “major” in “major life activities” means
“important.”33 So “major life activities” are “those activities
that are of central importance to daily life.”34 The ADA of 1990
did not delegate authority to any agency to define “disability,”35
but the Equal Employment Opportunity Commission neverthe-
less promulgated regulations relied upon by courts.36 The com-
mission’s regulations defined “major life activities” to include
“‘functions such as caring for oneself, performing manual
tasks, walking, seeing, hearing, speaking, breathing, learning,
and working.’”37
[9] But if the major life activity under consideration was
“working,” courts required the plaintiff to show more than a
perception that she was unfit for a particular job. In Sutton v.
United Air Lines, Inc.,38 the U.S. Supreme Court explained:
To be substantially limited in the major life activity of
working, then, one must be precluded from more than
one type of job, a specialized job, or a particular job of
choice. If jobs utilizing an individual’s skills (but perhaps
30
See Sutton v. United Airlines, Inc., supra note 16.
31
See 1 Lindemann & Grossman, supra note 25, ch. 13, § IV.A at 822-23.
32
Wenzel v. Missouri-American Water Co., 404 F.3d 1038, 1041 (8th Cir.
2005). See Sutton v. United Airlines, Inc., supra note 16.
33
Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 197, 122 S. Ct.
681, 151 L. Ed. 2d 615 (2002) (superseded by ADAAA of 2008).
34
Id. See, also, 1 Lindemann & Grossman, supra note 25, ch. 13, § IV.B.
35
Sutton v. United Air Lines, Inc., supra note 16.
36
See, e.g., Wenzel v. Missouri-American Water Co., supra note 32.
37
Sutton v. United Air Lines, Inc., supra note 16, 527 U.S. at 480, quoting 29
C.F.R. § 1630.2(i) (1998).
38
Sutton v. United Air Lines, Inc., supra note 16.
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not his or her unique talents) are available, one is not
precluded from a substantial class of jobs. Similarly, if
a host of different types of jobs are available, one is not
precluded from a broad range of jobs.39
The plaintiff must show that she was “‘significantly restricted
in the ability to perform either a class of jobs or a broad range
of jobs in various classes as compared to the average person
having comparable training, skills and abilities.’”40
Here, Marshall presented direct evidence that EyeCare
Specialties fired her because of her skin condition. She stated
that Houdesheldt—an agent of EyeCare Specialties with deci-
sionmaking power—told her in January 2012 that EyeCare
Specialties’ “‘real concern is that you have sores on your
arm.’” In February and March, Houdesheldt chastised Marshall
for failing to cover her arms. The February 21 corrective
action plan stated that Marshall’s “sores are a concern as she
performs tests that bring her in close proximity to patient’s
[sic] eyes.” The March 13 corrective action plan, issued the
same day that Houdesheldt and the clinic coordinator decided
to terminate Marshall’s employment, stated that Marshall had
failed to create an “acceptable barrier” between patients and
her “open sores.”
Similarly, Marshall presented direct evidence that her trem-
ors were a factor in EyeCare Specialties’ decision to fire her.
On January 26, 2012, Houdesheldt told Marshall that her “use
of specialized tools in close proximity to patients’ eyes while
suffering from hand tremors could pose [a risk of] injury to
patients and cause discomfort and alarm to patients during
testing procedures.” The February 21 corrective action plan,
issued about 3 weeks before EyeCare Specialties terminated
Marshall’s employment, stated that Marshall’s shaking was “a
concern as she performs tests that bring her in close proximity
to patient’s [sic] eyes.”
39
Id., 527 U.S. at 492.
40
Dovenmuehler v. St. Cloud Hosp., 509 F.3d 435, 440 (8th Cir. 2007).
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And Marshall created a material issue of fact as to whether
EyeCare Specialties perceived her skin condition and tremors
as substantially limiting her major life activity of working. We
note that despite concerns about circularity,41 courts interpret-
ing the ADA of 1990 have generally accepted that working
is a major life activity, and the parties do not dispute this
conclusion.42 Marshall presented direct evidence that EyeCare
Specialties perceived her as unable to perform jobs which
required her to have her arms near a patient’s eyes or which
required her to operate equipment near a patients’ eyes. Given
Marshall’s employment background and training in medical
services, there is at least a factual dispute whether such severe
perceived restrictions on her ability to interact with patients
would substantially limit her access to a class of jobs or broad
range of jobs in various classes.43
(b) Past Drug Abuse
In her complaint, Marshall alleged that EyeCare Specialties
“perceived [her] as disabled as it became known that she
had entered into substance abuse treatment prior to her
employment.” She argues on appeal that she was disabled
because EyeCare Specialties “perceived [her] as chemically
dependent.”44 She contends that EyeCare Specialties per-
ceived this impairment as substantially limiting her major
life activities of concentrating, thinking, communicating,
and working.
Under the FEPA, the term “disability” does not include
“psychoactive substance use disorders resulting from current
illegal use of drugs.”45 Similarly, § 48-1102(10)(b) provides:
41
See Sutton v. United Air Lines, Inc., supra note 16.
42
See 1 Lindemann & Grossman, supra note 25, ch. 13, § IV.B.
43
See Moorer v. Baptist Memorial Health Care, 398 F.3d 469 (6th Cir.
2005).
44
Brief for appellant at 21.
45
§ 48-1102(9).
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“Qualified individual with a disability shall not include any
employee or applicant who is currently engaged in the illegal
use of drugs when the covered entity acts on the basis of such
use[.]” But an individual who is otherwise a qualified indi-
vidual with a disability does not lose that status because of
past drug abuse or a misperception of current illegal drug use.
Section 48-1102(10)(c) states:
Nothing in this subdivision shall be construed to exclude
as a qualified individual with a disability an individ-
ual who:
(i) Has successfully completed a supervised drug reha-
bilitation program or otherwise been rehabilitated suc-
cessfully and is no longer engaging in the illegal use
of drugs;
(ii) Is participating in a supervised rehabilitation pro-
gram and is no longer engaging in such use; or
(iii) Is erroneously regarded as engaging in such use
but is not engaging in such use.
Section 48-1102(10)(b) and (c) closely track language in the
ADA of 1990.46
Federal courts have at times been less than consistent in
their treatment of drug addiction and perceived drug addiction.
A few cases seem to hold that addiction is a disability without
determining whether, on the facts of the case, the plaintiff’s
addiction substantially limited one or more major life activities
or was perceived to have such an effect by the employer.47 But
46
Compare § 48-1102(10)(b) and (c), with 42 U.S.C. § 12114(a) and (b)
(2006).
47
See, Pugh v. City of Attica, Indiana, 259 F.3d 619 (7th Cir. 2001); Brown
v. Lucky Stores, Inc., 246 F.3d 1182 (9th Cir. 2001); Duda v. Franklin
Park Pub. School Dist. 84, 133 F.3d 1054 (7th Cir. 1998); Buckley v.
Consolidated Edison Co. of New York, 127 F.3d 270 (2d Cir. 1997),
vacated 155 F.3d 150 (2d Cir. 1998); Miners v. Cargill Communications,
Inc., 113 F.3d 820 (8th Cir. 1997), citing Crewe v. U.S. Office of Personnel
Management, 834 F.2d 140 (8th Cir. 1987); Bryant v. Madigan, 84 F.3d
246 (7th Cir. 1996).
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the greater weight of authority is that the plaintiff must show
that his or her particular addiction, or perceived addiction, in
fact substantially limited, or was perceived to substantially
limit, a major life activity.48
[10] We agree with the majority view and hold that while
drug addiction is an impairment,49 it is not a disability under
the FEPA unless it substantially limits a major life activity or
is perceived by the employer to substantially limit a major
life activity. The majority rule is consistent with the principle
that whether a person has a disability is an individualized
inquiry.50 Courts have been reluctant to recognize particular
impairments as “per se” disabilities without testing whether
the impairment actually limits one of the plaintiff’s major
life activities.51
(i) No Direct Evidence of
Disability Discrimination
for Past Drug Abuse
Turning to the summary judgment record, we conclude
that Marshall did not present direct evidence that EyeCare
48
See, Dovenmuehler v. St. Cloud Hosp., supra note 40; Moorer v. Baptist
Memorial Health Care, supra note 43; Sullivan v. Neiman Marcus Group,
Inc., 358 F.3d 110 (1st Cir. 2004); Bailey v. Georgia-Pacific Corp., supra
note 19; Zenor v. El Paso Healthcare System, Ltd., 176 F.3d 847 (5th Cir.
1999); Nielsen v. Moroni Feed Co., 162 F.3d 604 (10th Cir. 1998); Wallin
v. Minnesota Dept. of Corrections, 153 F.3d 681 (8th Cir. 1998); Burch v.
Coca-Cola Co., 119 F.3d 305 (5th Cir. 1997). See, also, Renee Parsons
& Thomas J. Speiss III, Does the Americans with Disabilities Act Really
Protect Alcoholism? 20 Lab. Law. 17 (2004).
49
See Bailey v. Georgia-Pacific Corp., supra note 19.
50
See, Sutton v. United Air Lines, Inc., supra note 16; 1 Lindemann &
Grossman, supra note 25, ch. 13, § V.
51
See, Griffin v. United Parcel Service, Inc., 661 F.3d 216 (5th Cir. 2011);
E.E.O.C. v. Lee’s Log Cabin, Inc., 546 F.3d 438 (7th Cir. 2008); Weber v.
Strippit, Inc., supra note 18; Deas v. River West, L.P., 152 F.3d 471 (5th
Cir. 1998). See, also, Waddell v. Valley Forge Dental Associates, Inc., 276
F.3d 1275 (11th Cir. 2001).
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Specialties discriminated against her because it perceived her
to be a drug addict. Marshall cites statements from cowork-
ers reporting that Marshall was “taking some type of pill”
and urging EyeCare Specialties to start random drug testing.
Marshall concedes, however, that these are not “statements
by the decision makers directly.”52 Nor does she argue that
the decisionmakers adopted the statements as their own sim-
ply by recording them. References to Marshall’s being “jit-
tery” or “flustered” do not establish a specific link between
any “‘[d]iscrimination in the air’” and the termination of
Marshall’s employment.53 Statements by decisionmakers unre-
lated to the decisional process itself are not direct evidence.54
The only arguable item of direct evidence is an administrator’s
suggestion in June 2007 that Marshall set her pill bottles where
others could see them. But that evidence is stale because more
than 4 years passed between the statement and the termination
of Marshall’s employment.55
(ii) No Question of Fact Under
McDonnell Douglas Corp.
for Past Drug Abuse
[11] Because she lacks direct evidence, Marshall’s drug
addiction claim must withstand EyeCare Specialties’ summary
judgment motion under the McDonnell Douglas Corp. frame-
work. The first step is for Marshall to establish a prima facie
case. Section 48-1107.01 prohibits an employer from taking
an adverse employment action against a qualified individual
with a disability because of the individual’s disability. Section
48-1102(10)(a) states that a qualified individual with a disabil-
ity is a person with a disability who, with or without reasonable
52
Brief for appellant at 24.
53
See 2 Mook, supra note 20, § 8.03[2][c][ii] at 8-64.
54
Father Flanagan’s Boys’ Home v. Agnew, supra note 12.
55
See Brown v. City of Jacksonville, 711 F.3d 883 (8th Cir. 2013).
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accommodation, can perform the essential functions of the job.
So to establish a prima facie case of disability discrimination
under the FEPA, Marshall must show that (1) she was disabled,
(2) she could perform the essential functions of the position
with or without reasonable accommodation, and (3) EyeCare
Specialties subjected her to an adverse employment action
because of her disability.56
The first element in Marshall’s prima facie case is that she
had a disability as that term is understood in the FEPA. Drug
addiction is an impairment,57 and there is some evidence that
viewed in the light most favorable to Marshall, would show
that EyeCare Specialties perceived Marshall as a drug addict.
Marshall told her coworkers that she lost her nursing license
because she abused prescription drugs, and her coworkers
informed administrators and supervisors of Marshall’s history
of chemical dependence. In January 2012, one of Marshall’s
coworkers told Houdesheldt that Marshall had said she “had a
history of substance abuse.”
But, again, Marshall must still present evidence that EyeCare
Specialties perceived her drug addiction as substantially limit-
ing a major life activity for the impairment to be a disability
under the FEPA. As to the major life activity of working,
the record lacks evidence that EyeCare Specialties regarded
Marshall’s addiction as precluding her from a substantial class
or broad range of jobs. There is no evidence of how such a
perceived limitation would affect Marshall’s employment pros-
pects given her particular skills and background.
In addition to working, Marshall argues that EyeCare
Specialties perceived her as substantially limited in the
56
See, Kozisek v. County of Seward, Nebraska, 539 F.3d 930 (8th Cir. 2008);
RGR Co. v. Lincoln Commission on Human Rights, 292 Neb. 745, 873
N.W.2d 881 (2016); Doe v. Board of Regents, 287 Neb. 990, 846 N.W.2d
126 (2014); IBP, inc. v. Sands, 252 Neb. 573, 563 N.W.2d 353 (1997).
57
See Bailey v. Georgia-Pacific Corp., supra note 19.
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major life activities of concentrating, thinking, and com-
municating. These activities—now included in the federal
definition of “major life activities” because of the ADAAA of
200858—did not appear in the Equal Employment Opportunity
Commission’s regulations interpreting the ADA of 1990,
although the commission’s compliance manual stated that
thinking, concentrating, and interacting with others were
major life activities.59 Most courts interpreting the ADA of
1990 held that thinking60 and communicating61 were major
life activities. Courts were divided over whether concentrat-
ing was a major life activity.62
58
See 42 U.S.C. § 42-12102(2)(A) (2012).
59
See E.E.O.C. v. Chevron Phillips Chemical Co., LP, 570 F.3d 606 (5th Cir.
2009).
60
Id.; Shaver v. Independent Stave Co., 350 F.3d 716 (8th Cir. 2003);
Taylor v. Phoenixville School Dist., 184 F.3d 296 (3d Cir. 1999); Miller
v. Hersman, 759 F. Supp. 2d 1 (D.D.C. 2010); E.E.O.C. v. Voss Elec. Co.
d/b/a Voss Lighting, 257 F. Supp. 2d 1354 (W.D. Okla. 2003); E.E.O.C.
v. Dollar General Corp., 252 F. Supp. 2d 277 (M.D.N.C. 2003). But see
Starks-Umoja v. Federal Express Corp., 341 F. Supp. 2d 979 (W.D. Tenn.
2003).
61
See, Ray v. Kroger Co., 264 F. Supp. 2d 1221 (S.D. Ga. 2003); E.E.O.C.
v. Voss Elec. Co. d/b/a Voss Lighting, supra note 60; E.E.O.C. v. Dollar
General Corp., supra note 60; Downing v. United Parcel Service, Inc., 215
F. Supp. 2d 1303 (M.D. Fla. 2002). See, also, Soileau v. Guilford of Maine,
Inc., 105 F.3d 12 (1st Cir. 1997).
62
See, Miller v. Hersman, supra note 60. Compare Battle v. United Parcel
Service, Inc., 438 F.3d 856 (8th Cir. 2006), Gagliardo v. Connaught
Laboratories, Inc., 311 F.3d 565 (3d Cir. 2002), Sussle v. Sirina Protection
Systems Corp., 269 F. Supp. 2d 285 (S.D.N.Y. 2003), Walsted v. Woodbury
County, IA, 113 F. Supp. 2d 1318 (N.D. Iowa 2000), DeMar v. Car-Freshner
Corp., 49 F. Supp. 2d 84 (N.D.N.Y. 1999), and Bitney v. Honolulu Police
Dept., 96 Haw. 243, 30 P.3d 257 (2001), with Pack v. Kmart Corp., 166
F.3d 1300 (10th Cir. 1999), Starks-Umoja v. Federal Express Corp., supra
note 60, Lemire v. Silva, 104 F. Supp. 2d 80 (D. Mass. 2000), Phillips v.
Wal-Mart Stores, Inc., 78 F. Supp. 2d 1274 (S.D. Ala. 1999), and Hook v.
Georgia-Gulf Corp., 788 So. 2d 47 (La. App. 2001).
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[12] We conclude that concentrating, thinking, and com-
municating are major life activities under the FEPA. As noted,
major life activities are activities of central importance to daily
life.63 A substantial limitation on one’s ability to concentrate,
think, or communicate is a great debility, preventing one from
understanding the symbols, reasoning, and customs necessary
to interact with the world and the people in it. Some courts
have reasoned that concentrating itself is not a major life activ-
ity because it is as an aspect of other activities, like working
or learning.64 But there is no reason to demote concentration
because it is necessary for other life activities. If anything, the
fact that an individual must concentrate to perform a multitude
of functions shows its importance.
But the evidence, even viewed in the light most favorable to
Marshall, does not support a reasonable inference that EyeCare
Specialties perceived Marshall as having a drug addiction that
substantially limited her ability to concentrate, think, or com-
municate. That is, Marshall did not meet the first element of
her prima facie case under McDonnell Douglas Corp. requiring
her to show she has a “disability” as that term is defined by
the FEPA. Marshall urges us to assume that references to her
being confused, flustered, or unable to multitask were veiled
references to her history of substance abuse. We decline her
invitation because there is more than one reason why a person
may be confused, flustered, or bad at multitasking and the
record does not suggest an inference that the perceptions were
based on Marshall’s past abuse of prescription drugs. We will
not simply assume that because Marshall told her coworkers
about her prior abuse of prescription drugs, any abnormalities
in her behavior were perceived by her employer as the effects
of addiction.
63
See Toyota Motor Mfg., Ky., Inc. v. Williams, supra note 33.
64
See, E.E.O.C. v. Chevron Phillips Chemical Co., LP, supra note 59; Pack
v. Kmart Corp., supra note 62.
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VI. CONCLUSION
We withdraw our opinion filed on July 2, 2015. Marshall
presented direct evidence that EyeCare Specialties terminated
her employment because of her skin condition and tremors,
both of which EyeCare Specialties perceived to substantially
limit Marshall’s major life activity of working. But she failed
to present evidence, direct or indirect, that EyeCare Specialties
perceived her as having a drug addiction that substantially
limited one or more major life activities. We therefore affirm
the summary judgment as to Marshall’s drug addiction claim.
We reverse, and remand for further proceedings for Marshall’s
claims related to her skin condition and tremors.
R eversed and remanded for
further proceedings.
Wright and Stacy, JJ., not participating.