Chevalier v. Metropolitan Util. Dist. ( 2017 )


Menu:
  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    07/18/2017 08:11 AM CDT
    - 874 -
    Nebraska Court of A ppeals A dvance Sheets
    24 Nebraska A ppellate R eports
    CHEVALIER v. METROPOLITAN UTIL. DIST.
    Cite as 
    24 Neb. Ct. App. 874
    Shala 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.
    - 875 -
    Nebraska Court of A ppeals A dvance Sheets
    24 Nebraska A ppellate R eports
    CHEVALIER v. METROPOLITAN UTIL. DIST.
    Cite as 
    24 Neb. Ct. App. 874
    8.	 New Trial: Appeal and Error. An appellate court reviews a trial court’s
    ruling on a motion for a new trial for abuse of discretion.
    9.	 Judges: Words and Phrases. A judicial abuse of discretion exists when
    the reasons or rulings of a trial judge are clearly untenable, unfairly
    depriving a litigant of a substantial right and denying just results in 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
    - 876 -
    Nebraska Court of A ppeals A dvance Sheets
    24 Nebraska A ppellate R eports
    CHEVALIER v. METROPOLITAN UTIL. DIST.
    Cite as 
    24 Neb. Ct. App. 874
    production 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
    - 877 -
    Nebraska Court of A ppeals A dvance Sheets
    24 Nebraska A ppellate R eports
    CHEVALIER v. METROPOLITAN UTIL. DIST.
    Cite as 
    24 Neb. Ct. App. 874
    discrimination in a promotion decision, retaliation for her
    complaint of discrimination, and retaliation for taking leave
    from work pursuant to the Family and Medical Leave Act of
    1993 (FMLA), 29 U.S.C. § 2601 et seq. (2012). A jury found
    in favor of MUD on all causes of action, and the trial court
    accepted the verdicts and entered judgment in favor of MUD.
    Chevalier appeals. Finding no merit to her assignments of
    error, we affirm.
    BACKGROUND
    Chevalier began working for MUD in July 1993. She alleges
    that she contracted Lyme disease in 2006, which resulted in her
    being disabled, and that MUD was aware of her disability. She
    alleges that throughout her employment she has been “harassed
    based on her disability.”
    In February 2010, Chevalier applied for a promotion to a
    supervisory position—supervisor of field engineering. Eight
    men and three women applied for the position, including
    Chevalier. Stephanie Henn, director of plant engineering, was
    the decisionmaker for the position. The position was given to
    David Stroebele, who Chevalier alleges was “less senior and
    less qualified” than she was and did not have all the required
    qualifications for the position. She claims she was denied the
    position based on her gender.
    In July 2010, Chevalier filed a complaint of discrimination
    with the Nebraska Equal Opportunity Commission (NEOC)
    and the federal Equal Employment Opportunity Commission
    (EEOC). She claims that MUD began retaliating against her
    after she filed her complaint. On July 28, 2011, the 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
    - 878 -
    Nebraska Court of A ppeals A dvance Sheets
    24 Nebraska A ppellate R eports
    CHEVALIER v. METROPOLITAN UTIL. DIST.
    Cite as 
    24 Neb. Ct. App. 874
    Act, 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.”
    - 879 -
    Nebraska Court of A ppeals A dvance Sheets
    24 Nebraska A ppellate R eports
    CHEVALIER v. METROPOLITAN UTIL. DIST.
    Cite as 
    24 Neb. Ct. App. 874
    Chevalier 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
    - 880 -
    Nebraska Court of A ppeals A dvance Sheets
    24 Nebraska A ppellate R eports
    CHEVALIER v. METROPOLITAN UTIL. DIST.
    Cite as 
    24 Neb. Ct. App. 874
    others 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
    - 881 -
    Nebraska Court of A ppeals A dvance Sheets
    24 Nebraska A ppellate R eports
    CHEVALIER v. METROPOLITAN UTIL. DIST.
    Cite as 
    24 Neb. Ct. App. 874
    Field 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
    - 882 -
    Nebraska Court of A ppeals A dvance Sheets
    24 Nebraska A ppellate R eports
    CHEVALIER v. METROPOLITAN UTIL. DIST.
    Cite as 
    24 Neb. Ct. App. 874
    an 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
    - 883 -
    Nebraska Court of A ppeals A dvance Sheets
    24 Nebraska A ppellate R eports
    CHEVALIER v. METROPOLITAN UTIL. DIST.
    Cite as 
    24 Neb. Ct. App. 874
    adverse 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.
    - 884 -
    Nebraska Court of A ppeals A dvance Sheets
    24 Nebraska A ppellate R eports
    CHEVALIER v. METROPOLITAN UTIL. DIST.
    Cite as 
    24 Neb. Ct. App. 874
    In 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
    - 885 -
    Nebraska Court of A ppeals A dvance Sheets
    24 Nebraska A ppellate R eports
    CHEVALIER v. METROPOLITAN UTIL. DIST.
    Cite as 
    24 Neb. Ct. App. 874
    that 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
    - 886 -
    Nebraska Court of A ppeals A dvance Sheets
    24 Nebraska A ppellate R eports
    CHEVALIER v. METROPOLITAN UTIL. DIST.
    Cite as 
    24 Neb. Ct. App. 874
    because 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
    - 887 -
    Nebraska Court of A ppeals A dvance Sheets
    24 Nebraska A ppellate R eports
    CHEVALIER v. METROPOLITAN UTIL. DIST.
    Cite as 
    24 Neb. Ct. App. 874
    addition, 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
    - 888 -
    Nebraska Court of A ppeals A dvance Sheets
    24 Nebraska A ppellate R eports
    CHEVALIER v. METROPOLITAN UTIL. DIST.
    Cite as 
    24 Neb. Ct. App. 874
    discrimination. 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. Ct. 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
    - 889 -
    Nebraska Court of A ppeals A dvance Sheets
    24 Nebraska A ppellate R eports
    CHEVALIER v. METROPOLITAN UTIL. DIST.
    Cite as 
    24 Neb. Ct. App. 874
    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.
    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
    - 890 -
    Nebraska Court of A ppeals A dvance Sheets
    24 Nebraska A ppellate R eports
    CHEVALIER v. METROPOLITAN UTIL. DIST.
    Cite as 
    24 Neb. Ct. App. 874
    2-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
    - 891 -
    Nebraska Court of A ppeals A dvance Sheets
    24 Nebraska A ppellate R eports
    CHEVALIER v. METROPOLITAN UTIL. DIST.
    Cite as 
    24 Neb. Ct. App. 874
    area 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
    - 892 -
    Nebraska Court of A ppeals A dvance Sheets
    24 Nebraska A ppellate R eports
    CHEVALIER v. METROPOLITAN UTIL. DIST.
    Cite as 
    24 Neb. Ct. App. 874
    became 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
    - 893 -
    Nebraska Court of A ppeals A dvance Sheets
    24 Nebraska A ppellate R eports
    CHEVALIER v. METROPOLITAN UTIL. DIST.
    Cite as 
    24 Neb. Ct. App. 874
    testified 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
    - 894 -
    Nebraska Court of A ppeals A dvance Sheets
    24 Nebraska A ppellate R eports
    CHEVALIER v. METROPOLITAN UTIL. DIST.
    Cite as 
    24 Neb. Ct. App. 874
    approved 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
    - 895 -
    Nebraska Court of A ppeals A dvance Sheets
    24 Nebraska A ppellate R eports
    CHEVALIER v. METROPOLITAN UTIL. DIST.
    Cite as 
    24 Neb. Ct. App. 874
    interoffice 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
    - 896 -
    Nebraska Court of A ppeals A dvance Sheets
    24 Nebraska A ppellate R eports
    CHEVALIER v. METROPOLITAN UTIL. DIST.
    Cite as 
    24 Neb. Ct. App. 874
    terms, 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.