Arens v. NEBCO, Inc.
291 Neb. 834
| Neb. | 2015Background
- Plaintiff Lenard Arens, a long‑time truck driver with prior knee and traumatic brain injuries, alleged Nebco discriminated by failing to accommodate known physical and cognitive limitations and by taking adverse actions (transfer, suspension, termination).
- After prior workplace injuries, Arens had documented memory, concentration, and emotional issues and claimed Nebco previously provided accommodations (e.g., written instructions).
- In December 2010 Arens had two driving incidents; supervisor Wisbey reassigned him to drive a concrete truck (resulting in layoff status after a fit‑for‑duty screen) and later terminated him for failing to attend employer‑mandated counseling.
- Arens offered testimony and two reports by vocational counselor David Utley (from the 1990s) to show Nebco’s knowledge of his cognitive impairments and prior accommodations; the trial court excluded Utley’s testimony as irrelevant and excluded the reports as hearsay.
- Arens moved for directed verdicts arguing (1) Nebco’s stated reasons were pretextual and (2) Nebco’s requirement of medical/psychological exams for an employee was unlawful per the Nebraska Fair Employment Practice Act; the court denied the motions and the jury found for Nebco.
- The Nebraska Supreme Court reversed and remanded for a new trial, holding Utley’s testimony was wrongly excluded as relevant and prejudicially so; it upheld exclusion of the reports only because Arens failed to offer only the admissible portions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Exclusion of Utley’s testimony and reports | Utley’s testimony and reports showed Arens’ permanent cognitive impairments, Nebco’s knowledge, and prior accommodations — relevant to discrimination and pretext | Nebco argued reports contained multiple hearsay layers and Utley’s testimony was stale and irrelevant to the 2010 actions | Court erred in excluding Utley’s testimony as irrelevant and that exclusion was reversible error; reports contained admissible factual portions but were properly excluded because Arens failed to limit his offer to admissible parts |
| Sufficiency of evidence / directed verdict on pretext | No reasonable jury could accept Nebco’s stated reasons (incidents, refusal to file reports, counseling) because other drivers had similar incidents and Nebco previously accommodated Arens | Nebco said Arens was reckless/insubordinate and posed safety concerns justifying reassignment, testing, and discipline | Court found sufficient conflicting evidence that reasonable jurors could differ; denial of general directed verdict affirmed |
| Legality of requiring medical/psychological exams for an employee | Fit‑for‑duty physical and mandated counseling were unlawful under the Act when used to disqualify an employee who could perform job with accommodations | Nebco argued the exams were job‑related and necessary because driving a concrete truck had different physical demands and safety implications | Court rejected the trial court’s application of the applicant (entrance exam) standard; adopted ADA‑aligned three‑part business‑necessity test for employee exams and directed trial court to apply it on remand (but did not resolve factual application) |
| Admissibility of third‑party records as business records | Arens argued Utley’s reports in Nebco personnel file were business records admissible under Neb. Evid. R. 803(5) (including data compilations) | Nebco contended layered hearsay made the reports inadmissible and plaintiff should have called underlying authors | Court held Nebraska’s business‑record exception may cover third‑party records kept by employer where foundational proof exists, but Nebraska excludes opinions/diagnoses from that exception; because Arens failed to limit the offer to admissible factual portions, exclusion was not an abuse of discretion |
Key Cases Cited
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (establishes prima facie burden‑shifting framework for discrimination claims)
- Kroll v. White Lake Ambulance Authority, 691 F.3d 809 (6th Cir. 2012) (treating psychological counseling as a medical examination and applying business‑necessity standard)
- Wisbey v. City of Lincoln, Neb., 612 F.3d 667 (8th Cir. 2010) (discussing fit‑for‑duty/examination standards and employer’s burden to show business necessity)
- Tice v. Centre Area Transp. Authority, 247 F.3d 506 (3d Cir. 2001) (articulating objective business‑necessity standard for required employee medical exams)